Malik Dua v Coles Group Limited
[2024] VMC 15
•15 October 2024
IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
WORKCOVER DIVISION
Case No. MAG-CI-230205218
| Rupali MALIK DUA | Plaintiff |
| v | |
| COLES GROUP LIMITED | Defendant |
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MAGISTRATE: | Magistrate M A Hoare |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27-28 August 2024 |
DATE OF DECISION: | 15 October 2024 |
CASE MAY BE CITED AS: | Malik Dua v Coles Group Limited |
MEDIUM NEUTRAL CITATION: | [2024] VMC 15 |
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WORKERS’ COMPENSATION – Bilateral plantar fasciitis - Accepted claim – Termination of weekly payments and medical & like expenses – Capacity for pre-injury duties - Credit of the plaintiff – Workplace Injury Rehabilitation and Compensation Act 2013.
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APPEARANCES: | COUNSEL | SOLICITORS |
| For the Plaintiff | Mr A Theodore | Zaparas Lawyers |
| For the Defendant | Mr B McKenzie | Lander & Rogers |
HER HONOUR:
Introduction
From around November 2018, Ms Malik Dua was employed by Coles Group Limited (Coles) in various in-store bakeries. She worked initially as a casual retail team member (the casual role) and then from around February 2022 on a full-time basis in the role of store bakery manager (the manager role). She resigned on around 6 October 2022 and ceased working soon afterwards.
Pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (the Act), Ms Malik Dua lodged a claim on around 26 October 2022 for injuries including bilateral plantar fasciitis arising out of and in the course of her employment with Coles.
Coles accepted her claim (by notice dated 22 November 2022), before then terminating (by notice dated 31 March 2023) entitlements to both weekly payments (effective 16 April 2023) and medical and like expenses (effective 30 April 2024).
In essence, Coles contended the claimed injuries had resolved fully by 16 April 2023 (when weekly payments ceased); that she was not incapacitated for employment beyond 16 April 2023 (if at all); and/or, if she did have any incapacity, it was not materially contributed to nor resulting from employment.
Ms Malik Dua was the only witness to give evidence at hearing. All medical reports and other materials were tendered into evidence by agreement. I have considered carefully all of the extensive materials tendered into evidence and shall refer only to the evidence relevant to my factual findings and my conclusions on disputed matters.
Ms Malik Dua’s evidence
By way of background, Ms Malik Dua, now aged 39 years, migrated to Australia in 2009. Before that, she lived in India where she gained tertiary degrees in English and worked in administrative roles. Once in Australia, she readily obtained work in administrative roles which she did over several years including in her husband’s business (an accountancy and mortgage broker practice). Their two children were born in 2012 and 2016. Her health before commencing at Coles was described as perfect.
Employment with Coles
In the casual role with Coles, she worked 11 hours a week initially before increasing to 22 hours a week. In the manager role, she worked full-time Monday to Friday from 4:00am to around 2:00pm. She commonly worked around 50 to 55 hours per week as required by Coles. Shifts varied in length from 3 to 5 hours (either with no breaks or 15 minute breaks) and up to 7 to 8 hours (with up to 45 minute breaks although often shorter).
As for duties performed in the bakery, in both roles the work was ‘hands on’ and included: baking cakes, breads and doughnuts; slicing bread using a bread-slicer; packaging baked goods and bread; pushing/pulling trolleys of baked goods from the freezer to the retail bakery section; and stocking shelves with bakery items. The work was fast-paced and done mostly standing. As a manager, one of the sedentary duties was preparing rosters, however that occupied little time overall.
Onset of pain
The reason she resigned was because of left heel pain. She first noticed pain in September 2022. She reported her injury before she resigned although not formally. She resigned because the pain was not going away and she could no longer bear the pain in her foot and leg. She quit to rest and look after herself. She also quit because she had no time to see a doctor whilst still working. At the time of stopping work, she was limping. As for her pain levels, the left foot pain was ‘8 out of 10’ constantly whereas the right foot pain was ‘5 out of 10’ on and off.
10. In cross-examination, she denied she could have seen her GP any afternoon after finishing work at 2.00 or 2.30 pm. That was due to her feeling too tired having started at 4.00am.
11. On 11 October 2022, she saw her usual GP Dr Khan at Myhealth Point Cook who recorded a complaint of ‘left heel pain for 2 weeks’ (the 11 October attendance). The GP prescribed celebrex (an anti-inflammatory) and arranged an ultrasound. He gave her a medical certificate and phoned her subsequently to let her know the ultrasound showed plantar fasciitis. As for why she hadn’t initially attributed her condition to work, she didn’t know she had a work injury at first. The GP had requested ultrasound of the left foot only initially because he hadn’t taken the right foot as seriously at first.
12. After letting Coles know she had been diagnosed with plantar fasciitis, she was told not to serve out her notice period.
Treatment post-employment with Coles
13. As for treatment, beyond the 11 October attendance, under cross-examination, she agreed with the following matters as reflected in the GP clinical records:
a. She saw Dr Khan regarding plantar fasciitis on the following dates: 20 and 24 October 2022; 30 November 2022; 6 December 2022; 6 and 30 January 2023; 3 March 2023; 4 April 2023; 1 and 29 May 2023; 27 June 2023; 10 and 12 July 2023.
b. 3 March 2023 was the last date on which medication was prescribed (Mobic 7.5 mgs).
c. 27 June 2023 was the last date on which the GP recorded issuing a certificate of capacity.
d. Beyond 12 July 2023, she continued to see the GP but for reasons not related to the plantar fasciitis condition.
e. As for why she did not proceed with injections suggested by Dr Khan in October of 2022, she had hoped the pain would resolve and felt worried about side-effects.
14. She had physiotherapy regularly between December 2022 to May 2023, which was helpful, but she could not afford to continue once Coles stopped paying. Under cross-examination, she denied the real reason she did not continue with physiotherapy was because the plantar fasciitis condition had resolved.
15. She took medication for the plantar fasciitis condition on a daily basis which was ‘over the counter’ analgesics (Panadol and Nurofen). Also, in cross-examination, she could not explain why Dr Ramaswamy had a history of pain-killers having been taken in the past but not up to the time of assessment, saying she just answered questions she was asked by the doctor.
Condition post-employment with Coles
16. The injury continued to affect her mentally, financially and physically as there were activities she could not do with friends or with her children. To this day, her bilateral heel pain had not resolved, although she had slightly less left heel pain. She did home duties (although she had a cleaner) and rested frequently. As for her social life and activities outside work from the time of finishing work, in examination-in-chief, Ms Malik Dua’s evidence was as follows:
a. She could stand or walk for two hours; she had been on a hike twice, it was very easy, more a walk than a hike, but she did not repeat it as afterwards the pain was aggravated and she had to take pain-killers.
b. She had tried playing badminton once and lasted only half an hour whereas she used to play weekly.
c. She did not go out much, maybe once or twice a month. She used to do Bollywood-style dancing when at parties and now was restricted in what she did. She could still dance but only 5 to 10 minutes at a time.
d. She had been on family holiday cruises at Christmas-time in 2023 and 2024. Also she visited India to visit parents and family in November 2022 and January 2023.
Social media posts
17. I now turn to cross-examination of Ms Malik Dua on the extensive social media material tendered by Coles. This showed her in various social and recreational settings across a 22-month period which coincided roughly from her finishing work (October 2022) up to a month or so before the hearing (August 2024). Under cross-examination, Ms Malik Dua agreed that all of the tendered Instagram posts and ‘stories’ depicted her and were mostly self-published on her own account or sometimes by friends on their accounts.
18. It is convenient to set out this material in chronological date order (the evidence was that the activity was on or around the date of posting unless stated otherwise) as follows:
a. Posts on 25 October 2022 (captioned ‘Diwali vibes’) showed Ms Malik Dua standing in formal attire with her husband and friends celebrating the Indian cultural festival of Diwali [SDCB pp. 41-43].
b. Posts on 1 November 2022 showed her standing with her husband in a Halloween costume [SDCB pp. 39-40].
c. Posts on 7 November 2022 (captioned ‘One great weekend’ and including a 13-sec. video) showed her at a T20 cricket match against India in Melbourne with her husband standing and actively barracking waving a flag [SDCB pp. 36–38 & 44].
d. Posts on 7 November 2022 (captioned ‘One great weekend’) showed Ms Malik Dua standing in formal attire celebrating with female friends at a birthday party [SDCB pp. 32–35].
e. Posts on 11 November 2022 showed her standing in formal attire with her husband at an Indian bar and restaurant celebrating a friend’s birthday [SDCB pp. 30–31].
f. Posts on 26 November 2022 (captioned ‘While Street Walking #melbourne’) showed her apparently standing or seated at a bar across various CBD locations including Queen Victoria Market and Flinders Lane [SDCB pp. 26-29].
g. Of her January 2023 trip to India about which she posted subsequently:
i. posts on 17 May 2023 showed her standing in formal attire with her brother and husband at a bar celebrating a birthday in Jalandhar (‘Club TropicanaIN’) [SDCB pp. 22–25];
ii. posts on 25 May 2023 showed her in Punjab with her daughter including crouching on the ground [SDCB pp. 19-21]; and
iii. posts on 1 June 2023 showed her in Delhi with family at an amusement park [SDCB pp. 49, 50, 52].
h. Post on 5 March 2023 (in the form of a 31.1 sec. video) showed Ms Malik Dua dancing in formal attire amongst friends celebrating the Holi festival [SDCB p. 45].
i. Post on 11 March 2023 (in the form of videos of up to slightly over a minute) showed Ms Malik Dua dancing in formal attire amongst friends celebrating a family friend’s birthday event [SDCB p. 46].
j. Post on 11 April 2023 (in the form of videos of up to slightly over a minute) showed Ms Malik Dua dancing in formal attire and heeled dress shoes amongst friends celebrating a family friend’s birthday event [SDCB p. 47].
k. Posts on 1 June 2023 showed her standing in sneakers with family members on a pier in Adelaide and in front of the Twelve Apostles on the Great Ocean Road [SDCB pp. 48 & 51].
l. Posts on 3 June 2023 showed her dancing (in the form of videos of up to slightly over a minute) with friends [SDCB pp. 53 – 55].
m. Posts on 15 June 2023 showed her dancing (in the form of a 25 sec. video) in flat shoes in her home with friends [SDCB pp. 56 – 57].
n. Post on 2 July 2023 (captioned ‘#MORNINGHIKE’ and including a 13-sec. video) showed her standing with a friend wearing active wear and runners on a track at the You Yang Ranges. As for this activity, under cross-examination, she said she walked for between an hour and half an hour, that her pain was aggravated and she did not continue.
o. Posts on 24 July 2023 depicting Ms Malik Dua standing posing in the snow at Mt Baw Baw, Victoria and seated on a toboggan. Under cross-examination, Ms Malik Dua replied initially ‘yeah’ when it was put to her that being at the snow would have required her to walk on an incline or uneven ground. At a later point she denied that was so, saying ‘snow is smooth’, it was ‘not very uneven’ and was ‘all right’. She also denied she had been tobogganing, saying she was posing for Instagram and didn’t actually do it [SDCB pp. 15–18].
p. Post on 6 August 2023 depicting her standing and posing in a new dress apparently before attending a prayer meet [SDCB p. 14].
q. Post on 13 August 2023 (captioned ‘#HIKING’ and ‘Good morning Sunday’) showed her posing standing with friends wearing active wear and runners on a trail at the You Yang Ranges. In cross-examination, she denied it was hiking and more like a walk.
r. Posts on 21 August 2023 (captioned ‘This barbie is gold’) showed Ms Malik Dua standing in a formal gold-coloured dress and heeled court shoes with her husband and friends celebrating a birthday event [SDCB pp. 11-13]. Under cross-examination, she agreed she was wearing shoes with a heel although not a big heel and that she danced at this event but ‘not much’ as she could not dance ‘like before’.
s. Post on 7 September 2023 (captioned ‘Sunshine & Smiles #weekend getaway #fathersdayin australia’) showed her standing with her husband outside a restaurant on the Mornington Peninsula [SDCB p. 10].
t. Post on 4 October 2023 (captioned ‘Obsessed with the song and I mean it too’) showed her standing in a formal silver-coloured dress and high-heeled sandals with her husband and friends celebrating a birthday event. Under cross-examination, she conceded they were high heels [SDCB p. 9].
u. Posts on 30 October 2023 showed Ms Malik Dua in a collation of brief videos dancing and celebrating various social functions in different dresses (some of which appear to be the same as the posts of still photos referred to previously, for example on 11 March and 11 April 2023) [SDCB p. 64].
v. Posts on 8 and 25 January 2024 showed her standing and posing on the cruise ship and at a tourist site in New Zealand [SDCB pp.6-8].
w. Post on 24 March 2024 (in the form of a 30.2 sec. video) showed Ms Malik Dua dancing in casual attire amongst friends celebrating the Holi festival [SDCB p. 65].
x. Post in August 2024 (in the form of a 31.3 sec. video) showed Ms Malik Dua dancing in formal attire with friends at her son’s birthday [SDCB p. 66].
y. Post on 5 August 2024 showed Ms Malik Dua out with friends wearing black boots and celebrating a social event at a bar [SDCB pp. 67-69].
Surveillance film – 30 January 2024
19. In the course of cross-examination, Ms Malik Dua was also shown a surveillance film taken on 30 January 2024 of about 13 minutes’ total duration beginning at 3:07 pm and ending around 4:10 pm. She agreed she was depicted in the film. She accepted the film showed her: wearing flat thong-like sandals: escorting her child into a building; shopping for groceries and carrying a basket of items; then, for about eight or so minutes, standing and walking along a concourse in front of the store talking on her mobile phone.
20. Under cross-examination, it was put to her that the film appeared to show her walking completely normally and comfortably with no sign of a limp and wearing footwear. She responded that she was not someone who cried in public, she was close to home and she was filling in a short time during her child’s swimming lesson.
Capacity for work
21. Although she would love to return to work, Ms Malik Dua had not applied for other employment nor attempted to return to work. This was because pain-killers made her drowsy. Also, she wanted to fix the problem and get better. She then conceded in cross-examination that she had told Dr Slesenger on 15 March 2024 she had been looking for administrative roles; although only through personal contacts, but had been unsuccessful so far.
22. She had completed two short training courses, one in conveyancing and one as a teacher’s aide. However, in cross-examination, she denied the real reason she resigned from Coles was to pursue other types of work related to the two courses. She also denied she completed the conveyancing course to work in her husband’s business.
Medical evidence
23. I turn now to consider the medical evidence in chronological order commencing with the radiology. The initial left heel ultrasound of 14 October 2022 reported plantar fasciitis based on ‘borderline thickening of the plantar fasciitis suggestive of plantar fasciitis’. As for the bilateral plantar fasciitis ultrasound on 4 July 2023, the radiologist reported ‘mild thickening of the central insertional band of both plantar fascia’ which ‘can be related to mild bilateral plantar fasciitis’.
24. Dr Shamon Khan, treating GP, prepared a brief medical report dated 12 July 2023 in which he stated the diagnosis to be bilateral plantar fasciitis ‘more on the left than the right’ with no evidence of any pre-existing condition. On causation, he opined her long working hours, combined with the need to stand and walk frequently, were contributing factors to the condition. He considered she was unfit for any duties that put pressure on her feet due to her condition. Treatment including physiotherapy was essential for a return to work and carrying out activities of daily living without significant deterioration.
25. Dr Joseph Slesenger, occupational physician, provided three reports for Coles. At the time of the initial examination (10 November 2022) the history was of having severe symptoms when she stopped work with the left heel pain deteriorating further since stopping work. She described onset of right heel pain over the preceding fortnight. She reported difficulty walking including on uneven ground. On examination, a pronounced left-sided limp was observed which improved with distraction. There were apparent marked restrictions of range of ankle movements. Diagnosis was ‘difficult’ in light of the reported ultrasound of ‘borderline’ pathology, unexplained shin bruising and various aspects of the history including the complaint of deterioration in spite of rest. It was opined there was evidence supportive of left heel plantar fasciitis which had, by the time of assessment, resolved with no ongoing incapacity for pre-injury duties and no ongoing need for treatment. Her work duties were a ‘plausible cause’. He opined that she could return to work, working pre-injury duties and hours.
26. Dr Slesenger’s supplementary opinion of 21 February 2023 was unaltered, after being provided with Dr Sheehan’s opinion regarding a chronic pain condition and the GP’s certificate of incapacity dated 30 January 2023.
27. Dr Slesenger assessed Ms Malik Dua a second time on 15 March 2024 and prepared a report dated 19 March 2024 in which he considered Dr Khan’s report and the clinical records. The reported history was of left foot symptoms over the lateral heel having persisted although right foot symptoms had settled. Left heel pain was moderate during the day and severe at night. There was a reported difficulty walking over uneven ground with a tendency to limp towards the end of the day and occasionally in the early part of the day. She remained under the care of her GP, taking medication including celebrex as required. He opined there had been evidence of left plantar fasciitis which had resolved. He stated he was unable to correlate her current left foot impairment with the claimed injury and noted ongoing non-organic features.
28. Dr Shankar Ramaswamy, pain specialist, prepared a report dated 8 April 2024 for Ms Malik Dua’s lawyers. Ms Malik Dua reported pain of ‘6 or 7 out of 10’ at rest and ‘8.5 out of 10’ after standing or walking for one to two hours. Walking and standing tolerance was two hours. There was an inability to put any pressure on her foot. She could run for 15-20 minutes. She used to enjoy dancing which she can no longer do. She had stopped going on long walks. Her social life had become more restricted. On clinical examination, there was tenderness around the plantar fasciitis in the left heel and lateral aspect of the foot with not much pain on the right side. The impression was of chronic bilateral plantar fasciitis as a consequence of employment and which required an extensive treatment regime and would preclude her from pre-injury duties.
29. Dr Ramaswamy, in a supplementary opinion of 27 June 2024, was sent six selected images from the social media posts by Ms Malik Dua’s lawyers and asked to address whether the bilateral plantar fasciitis condition had an organic basis. He re-stated his opinions and conclusions including that the images provided did not indicate anything beyond the patient’s stated functional limitations.
30. For completeness, I note Dr Anthony Sheehan, psychiatrist, provided medico-legal reports for Coles dated 21 November 2022 and 15 December 2022. On initial assessment, she reported lacking energy and feeling sad every day with reduced enjoyment. He opined there was a diagnosis of mild adjustment disorder with depressed and anxious mood. This was secondary to the left heel condition as well as feeling aggrieved with the employer. He also considered a chronic pain condition syndrome had developed. However, given the plaintiff made no claim for psychological injury and the reports of Dr Sheehan were referred to only in passing, it is not necessary to say more about them.
Consideration
- The burden of proof rested upon Ms Malik Dua to satisfy the Court, on the balance of probabilities, that she had an entitlement to weekly payments of compensation and medical and like expenses beyond the termination dates contained in the 31 March 2023 notice.
32. Before making findings on disputed issues, I turn to the issue of the plaintiff’s credit which, as I stated at the outset, came squarely under attack and was of central importance in a case of this kind[1]. Ms Malik Dua needed to persuade me that her evidence was credible and reliable on the disputed issues. I needed to be persuaded that the histories given to the medical witnesses were reliable.
[1]Johns v Oaktech Pty Ltd [2020] VSCA 10 at [76]
33. Coles attacked Ms Malik Dua’s credit on various grounds including apparent inconsistencies and contradictions between her own evidence in chief and under cross-examination. Moreover, it was said her credit was damaged not only by the contents of the social media material but, even more particularly, by the stark inconsistencies (it was submitted) between that material and her own evidence and in histories to the doctors.
34. As for the medical opinions, it was urged by Counsel for Coles that the social media material, considered in its entirety, accorded with Dr Slesenger’s view that any plantar fasciitis condition had resolved on or before the termination dates contained in the 31 March 2023 notice. Further, Dr Slesenger’s opinion ought to be preferred as he was the only examiner to assess Ms Malik Dua twice, once a month after ceasing work and the second time earlier this year.
35. On the other hand, Counsel for Ms Malik Dua urged the Court to arrive at a favourable finding of credit. That was based on an evaluation of the evidence as a whole including: she made various concessions such as about dancing and hiking; the diagnosis of plantar fasciitis was confirmed on ultrasound twice; her GP’s support and certification of incapacity until July 2023; and the supportive opinion of Dr Ramaswamy as the only pain specialist in the case. Moreover, and importantly, it was submitted, nothing seen in any of the social media material nor the surveillance film was inconsistent with the evidence regarding stated tolerances for standing and walking.
36. On the issue of credit, the Court’s task is to arrive at findings based on a careful evaluation of the whole of the evidence including the plaintiff’s own evidence and the medical evidence. In assessing the medical evidence, I am guided by the well-known principles set out in Pulling v Yarra Ranges Shire Council.[2] In particular, I note the obligation to examine the whole of the medical evidence even where it may have been undermined by other evidence, including evidence that the worker may not have been fully frank with a doctor.[3]
[2] [2018] VSC 248 at [50] to [55]
[3] Ibid at [50]
37. Certainly, the medical opinions were premised upon Ms Malik Dua’s account of and unresolved plantar fasciitis symptoms and persisting restrictions. The reliability of the plaintiff’s account to the medical witnesses is of particular significance in a case such as this in which none of the medical practitioners’ opinions were tested by cross-examination.
38. Weighing the whole of the evidence, Ms Malik Dua did not impress me as a truthful or reliable witness. It seemed to me her answers appeared embellished or exaggerated and seemed at times, intended to mislead the Court in order to advance her interests. An example of her apparent willingness to mislead was her contradictory evidence about her capacity for dancing. Her responses ranged from: no longer dancing at all (as told to Dr Ramaswamy in April 2024); dancing only for 5 to 10 minutes (in examination in chief); then, after the social media material was shown, for 15-20 minutes; and ultimately to, ‘definitely not more than 20 minutes’.
39. She was a voluble witness whose answers were often digressive or evasive. An example was when it was put to her that the surveillance film appeared to show her walking completely normally and without any observable limp, she responded that she was ‘not someone who cried in public’. Another example was when it was put that her evidence under cross-examination regarding dancing and high heels had contradicted her evidence in chief, she responded ‘no one asked me’ the questions. Yet another example was she disagreed that being at the snow would necessitate walking on an incline or uneven ground, saying snow is ‘smooth’ and then later contending the ground was ‘not very uneven’.
40. An example of her tendency to exaggerate was her evidence (which I consider weighing the whole of the evidence to be implausible) of spending ’22 to 23 hours a day’ sitting and resting at home. Another instance of improbable and unlikely evidence related to her account of excessive drowsiness caused by over the counter paracetamol or ibuprofen. When pressed further about this in cross-examination, she then said she meant this caused her to sleep a lot more (nine hours rather than seven) although conceded drowsiness did not impact on her ability to drive, for example, taking her children to school.
41. Ms Malik Dua denied vehemently that the social media material showed her to be a person with a busy and active life who had no apparent problem with either foot. She also provided a justification of having to engage in such activities for the benefit of her marriage and her family, saying that it would be inappropriate culturally to be a guest at a celebration and participate half-heartedly or seem withdrawn.
42. It is true that Ms Malik Dua conceded that: she could stand and walk for two hours; she went on a hike although it was ‘very easy’; she still went out but ‘not much maybe once or twice a month’; and she still did Bollywood-style dancing at parties but not as much as she used to do.
43. In assessing her credit as a witness, however, it is as I stated earlier a matter of evaluating the whole of the evidence in particular Ms Malik Dua’s evidence.
44. It is a truism that Instagram posts are ‘snap-shots’ of people living their ‘best lives’ rather than how their ordinary day to day lives are led in between times.
45. I accept the submission for Ms Malik Dua that the still photographs and brief videos of dancing, socialising and standing were not, of themselves, inconsistent with the stated tolerances.
46. I turn now to a more detailed evaluation of the evidence considered sequentially.
47. In this case, there was (as stated previously) a considerable volume of snap-shots of Ms Malik-Dua’s life in different contexts and settings over an extensive date range (some 22 months) from the time she stopped work (October 2022) to a month before the hearing (August 2024).
48. On my assessment of the social media posts, considered collectively and noting the long span of time (some 22 months) covered, although ‘snap-shots’ and thus not representative of the whole of life, I conclude that evidence is at odds with her evidence and the histories to the doctors.
49. Over the period of October and November of 2022, Ms Malik Dua was depicted on successive occasions socialising and dancing with considerable gusto and in an apparently wholly unrestrained fashion. That is particularly apparent from the brief but nevertheless striking videos. This was over six separate social or recreational contexts between late October and late November of 2022. She was, variously, celebrating Diwali (25 October 2022); barracking vigorously and while standing at the cricket (7 November 2022); attending two other birthday celebrations (7 and 11 November 2022) and walking around various CBD locations (26 November 2022).
50. To my mind, Ms Malik Dua’s credit was impugned by the stark contrast between her repeated presentation on social media and her own evidence about her situation at that stage and her contemporaneous accounts as recorded by the GP, Dr Slesenger and Dr Ramaswamy.
51. It was regarding in this same period (October and November of 2022) that her evidence was of having ceased work because of:
a. Of being ‘unable to bear’ the heel pain and needing to rest and seek medical attention;
b. Of walking with a limp and heel pain at levels of 8 out of 10 constantly (left foot) and intermittently 5 out of 10 (right foot).
c. Of symptoms that were ‘severe’ when she stopped work and ‘deteriorated’ further after ceasing work (as told to Dr Slesenger on 10 November 2022).
d. As for mood, she was ‘sad every day with reduced enjoyment’ (as told to Dr Sheehan on 21 November 2022).
52. Then, over the period between January 2023 and July 2023, Ms Malik Dua was depicted: on a family visit to India (January) where she celebrated a birthday at ‘Club Tropicana’ and attended an amusement park; attended various birthday celebrations (5 and 11 March 2023; 11 April 2023; 3 and 15 June 2023), dancing and celebrating on at least some of these occasions in heels (such as 11 April 2023); hiking or walking in the You Yang ranges (2 July 2023); having a day at the snow (24 July 2023) whether actually tobogganing or not.
53. Yet, her evidence about this time was of persisting heel pain for which she took daily medication and rested for extended periods every day and, further, was being certified from month to month as unfit for work with pain. The few notes of actual complaints recorded by Dr Khan were ‘chronic’ (on 3 March 2023); ‘slowly improving few days without pain but few days lots of pain’ (on 4 April 2023); and of being ‘still not ready to go back to work’ (on 10 July 2023).
54. From mid-2023 to mid-2024, Ms Malik Dua was depicted hiking again (21 August 2023), at parties including at times in heeled shoes or sandals (21 August 2023, 4 October 2023, 24 March 2023 and August 2024), at a tourist site in New Zealand and other activities.
55. Again, and still keeping in mind what I have already stated regarding the posts being moments in time, it is nevertheless my view that these depictions, when considered collectively, paint a wholly inconsistent impression to her presentation to the medical examiners by the first quarter of 2024. In particular:
a. First, Dr Slesenger on 14 March 2024 recorded that Ms Malik Dua presented on that date with a limp (which he observed disappeared on distraction). She gave a history of persisting moderate pain by day and severe pain and a tendency to limp by night.
b. Second, the history taken by Dr Ramaswamy on 8 April 2024 was of being unable to put pressure on her left foot; of persisting pain at a level of 6-7 out of 10 at rest and 8.5 out of 10 after exertion; of no longer dancing; and reporting having a more restricted social life.
56. I now turn to the surveillance film of January 2024 which I am required to view, in addition to the intrinsic content, in the overall contextual setting as Ashley JA said in Church vEchuca Regional Health[4].
[4] [2008] VSCA 153 at [66]
57. I accept the film was of short duration and needed to be viewed in context. There is no question that the walking and standing shown in the film was consistent with Ms Malik Dua’s reported standing and walking tolerance. However, it is markedly contrasting to the histories taken by Dr Slesenger on 14 March 2024 and Dr Ramaswamy on 8 April 2024 as referred to previously. Moreover, in my opinion, in viewing the film myself and in light of Ms Malik Dua’s evidence as a whole, there was a significant feature to me about that section of the film when she was walking and talking on her mobile phone. It was striking that she chose to stand and walk for about eight minutes rather than sitting on the vacant bench seat positioned immediately behind her.
58. As for contemporaneous evidence of complaints of bilateral plantar fasciitis to her GP, it seems to me to be of some significance that the clinical records of the GP visits after 4 April 2023 and until 12 July 2023 (the last attendance for a certificate) record only the provision of the monthly certificate of capacity.
59. Of course, as the Court of Appeal has observed before, in cases such as Philippiadis v Transport Accident Commission, courts must exercise care in relying on the record of medical practitioners which are very often highly probative, but cannot be treated as a verbatim transcript of the entire medical attendance[5].
[5] [2018] VSCA 243 at [105] – [106]
60. Even allowing for the usual constraints of a busy general practitioner, it is nevertheless somewhat surprising that beyond 4 April 2023 there is a complete dearth of recorded complaints of symptoms. There is not one note of her seeking advice or support as to the impact of the injury nor a recorded clinical examination by the GP nor requests for medication.
61. Ms Malik Dua’s explanation for not making complaints or seeking treatment when attending for certificates or thereafter was that there was no reason to do so because she already had been told to rest and medication and physiotherapy were the recommended treatment and, further, that she was worried about side-effects if she had the injections suggested in October 2022.
62. However, I must reject that explanation for three reasons:
a. My findings about her credit as a witness generally;
b. A consideration of the medical records over an eleven month period between August 2023 and July 2024 including nine or so consultations reveals regular attendances for a range of minor or moderate complaints including taking celebrex, paracetamol and ibuprofen for various.
c. The nature and level of symptoms (persisting pain at a level of 6-7 out of 10 at rest and 8.5 out of 10 after exertion) reported to Dr Slesenger in March 2024 and Dr Ramaswamy on 8 April 2024 seem to me to be at odds with an absence of any recorded reference by the GP of complaints and discussion of symptoms.
63. Accordingly, for these reasons and again in evaluating the evidence as a whole, including my finding that Ms Malik Dua was not a credible witness, I am unable to accept as truthful her account of unresolved and persisting plantar fasciitis pain.
64. In particular, I reject her evidence that the bilateral plantar fasciitis has impacted, and continues to impact on her, mentally, financially and physically requiring extended hours of rest and daily medication. Also for the reasons stated, Ms Malik Dua has failed to establish the reliability of the histories given to the medical witnesses, whose opinions as I have stated, were premised on the accuracy of her accounts to them. As stated previously, that is what she needed to do in accordance with the principles in Johns v Oaktech Pty Ltd.[6]
[6][2020] VSCA 10 at [76]
65. I therefore prefer and accept, as being persuasive and compelling, Dr Slesenger’s opinion on diagnosis as to the condition having resolved. I also agree with Dr Slesenger’s finding, which I consider accorded with the whole of the evidence, that the ongoing and unresolved left foot impairment of which she complained did not correlate with the claimed injury. I also give weight to his opinion as the only legal specialist to examine Ms Malik Dua on two occasions. I also prefer and adopt his opinion that she was fit to return to work, working pre-injury duties and working by April 2023 (indeed he considered she had such capacity at the time of his assessment in November 2022).
66. Counsel for Ms Malik Dua submitted that Dr Ramaswamy’s opinion as a pain specialist was significant given Dr Slesenger’s comment that a pain specialist would be better able to assess whether there was some form of chronic pain or pain syndrome.
67. However, I am unable to accept that submission given my findings that Dr Ramaswamy’s opinion was based on a history the plaintiff has failed to establish as being accurate or credible (no longer dancing) nor reliable or credible (having inability to put any pressure on her foot and persisting pain in April 2024 of 6-7 out of 10 at rest and 8.5 out of 10).
68. It is also true that Dr Ramaswamy maintained his opinion after being forwarded by the plaintiff’s lawyers a selection of six ‘stills’ from the social media material (two hiking posts, her seated on the toboggan and two others in social setting including one in heeled court shoes). However, I place little weight on that. In my view, Dr Ramaswamy was sent a proportionately very small and somewhat unrepresentative sample of the social media material and also included still images only and none of the videos.
69. Finally, whilst Dr Khan’s opinion contained in his report of 12 July 2023 maintained the diagnosis and opinion of incapacity, I find that Dr Khan was at all times relying on the plaintiff’s account, for example of being ‘not ready’ to return to work, which I have concluded was not credible or reliable. It is of note that his opinion (obtained some thirteen months before hearing) was the most recent treating opinion relied upon by Ms Malik Dua’s lawyers. Further, I refer to my previous observations about the lack of any recorded complaints or clinical examination beyond April 2023 other than the provision of certificates.
70. I now turn to my conclusions.
Conclusion
Nature of Injuries
71. Based on the ultrasounds, the initial opinion of Dr Khan and the opinion of Dr Slesenger, I conclude that the nature of the medical condition relevant to Ms Malik Dua’s injury was bilateral plantar fasciitis (since resolved).
72. For completeness, there was no evidence, nor reliance by the plaintiff at hearing, on the other claimed injuries such as the whole lower limbs nor the left hip.
Capacity for employment
73. Weighing the whole of the evidence, and for the reasons stated, I find that the plaintiff has failed to discharge the burden of proof, to the requisite standard of probability, that she had an inability to return to her pre-injury employment as a bakery manager beyond the date of termination of weekly payments contained in the 31 March 2023 notice.
Medical and like treatment
74. Also for the reasons stated, I find that the plaintiff has failed to discharge the burden of proof, to the requisite standard of probability, that she had an entitlement to medical and like expenses beyond the date of termination contained in the 31 March 2023 notice.
Final orders
75.For these reasons, I find that the plaintiff is not entitled to the relief sought and I would dismiss the proceeding subject to hearing from the parties regarding proposed orders.
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