Michelle Keogh v Qantas Airways Limited (WorkCover)
[2015] VMC 27
•17 JULY 2015
IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
WORKCOVER DIVISION No E 11699171
BETWEEN:
MICHELLE KEOGH Plaintiff
-and-
QANTAS AIRWAYS LIMITED Defendant
MAGISTRATE: GINNANE
WHERE HEARD: MELBOURNE
DATE OF DECISION: 17 JULY 2015
CASE MAY BE CITED AS: MICHELLE KEOGH v QANTAS AIRWAYS LIMITED
REASONS FOR DECISION
Catchwords: Accident Compensation Act 1985 –plantar fasciitis whether plaintiff suffered compensable work injury – initial unilateral onset at work in one foot- later onset in left foot following cessation of employment – causation
APPEARANCES:Counsel Solicitor
For the Plaintiff Mr Ajzensztat Maurice Blackburn
For the Defendant Mr McKenzie Thomson Geer
HIS HONOUR:
Introduction and background
1.The plaintiff Michelle Keogh claims that on or about 8 January 2013, in the course of her employment with Qantas, the general nature and physical and mental stress and strain of which, and in particular, the requirement that she perform her work on a production line in a standing position for the majority of her shifts, caused the production, aggravation, acceleration and/or recurrence of the injury of right plantar fasciitis, left plantar fasciitis and also psychological/psychiatric injury.
2.The plaintiff said she completed an incident report with the assistance of her Supervisor dated 25 January 2013 and then lodged on her employer a claim form dated 30 January 2013 seeking compensation for right sided plantar fasciitis. She identified the date of injury as 8 January 2013 at 1.00pm. The claim was accepted by the defendant. The defendant paid the plaintiff’s weekly payments of compensation in accordance with the requirements of the Accident Compensation Act 1985 (the Act).
3.On 2 December 2013 the defendant gave notice of its intention to terminate the plaintiff’s payments of weekly and medical and like expenses with effect from 30 December 2013.
4.The plaintiff’s last day of work was 30 December 2013. She has not worked since her employment with Qantas ceased.
5.On or about 15 July 2014 the plaintiff submitted a further claim for compensation and medical and like expenses upon Qantas for left foot plantar fasciitis. By notice dated 19 August 2014 the defendant rejected the plaintiff’s further claim for compensation pursuant to s 109 of the Act.
6.The plaintiff claims that her incapacity for work resulted from or was materially contributed to by her employment with Qantas.
7.The defendant says that the plaintiff’s condition is unrelated to her employment. It says that the plaintiff suffers from a medical condition that was neither caused by her employment nor aggravated by it. It says that because of the plaintiff’s age and her weight she was liable to develop the onset of the condition of plantar fasciitis irrespective of her employment.
Causation
8.The question that that I am required to determine is essentially one of causation. I have heard evidence of disparate medical opinions from the respective parties together with the evidence of the plaintiff. In regard to causation the common law applies. In March v Stramare Pty Ltd (1991) 171 CLR 506 the High Court said that although causation is a question of fact "the question of whether conduct is a cause of injury remains to be determined by a value judgment including ordinary notions of language and common sense." (see, Deane J at p.524) and also Zlateska v Consolidated Cleaning [2006] VSCA 141 at para. 82.
9.The defendant accepts that the plaintiff suffers from bilateral plantar fasciitis. The plaintiff’s receipt of weekly payments was terminated within the period of 130 weeks. The defendant also accepts that the plaintiff meets the statutory threshold of a worker who does not have a capacity for pre injury duties.
The plaintiff’s evidence
10.Michelle Keogh is 52 years of age having been born on 27 November 1963. She completed year 11 schooling. She was employed for eight years at the Royal Women’s Hospital working in the kitchen and she also undertook agency work in picking and packing.
11.The plaintiff commenced employment with Qantas Catering on 17 August 2000 initially as a casual employee and after approximately 2 ½ years she moved to a full-time position in the kitchen. She was an Airline Services Operator Level 2. She worked from the Melbourne Airport complex.
12.The plaintiff said that prior to her injury she was working full time on a fixed shift Monday to Friday. Shifts are usually from 7 am to 3:30 pm with a 10 minute break between 9 am and 9:30 am, a 20 minute lunch break between 11 am and 11:30 am and a further 10 minute break at 1:30 pm. She believed that she averaged two hours overtime per week. She spent approximately 40 to 43 hours per week standing. Her employment with Qantas spanned in excess of 13 years.
13.She described the mechanism of her work with Qantas. She spoke of how she went about her work in the kitchen whilst standing at her work bench on a “thin rubber mat”. She said that she was always standing. She said that the extent of any walking in the course of her duties would be perhaps only once or twice in the course of a work day and then only to go to the refrigerator that was close by so as to retrieve a specific item.
14.Apparently the system of work involved two operators standing at a workstation. The first operator placed food items and a cup of drink on a meal tray and then pushed the tray along rollers to the second operator. The second operator in turn added other items, such as cutlery to the tray and then placed the tray on a cart lifter. When the cart lifter was full the second operator pushed it a few feet away to another worker who then distributed it for loading onto the relevant aeroplane. Sometimes the first operator would also collect a box of orange juice from the refrigerator and transport it to the workstation on a trolley. Duties were rotated approximately every two hours between the two operators.
15.The plaintiff said that she currently weighed 100 kg but her weight fluctuated from 100 to 115 kg whilst employed at Qantas.
December 2012 – new shoes and new anti fatigue mat introduced
16.The plaintiff testified that in December 2012 new safety footwear was introduced by Qantas which was required to be worn by staff. She said that she did not like the shoes. She described them as lightweight. She said she only managed to wear the new footwear for approximately a month because they were uncomfortable. She said that the end of a shift her feet were swollen. She returned to wearing her previous Qantas issued shoes. She said the new shoe was tighter and narrower than her previous footwear.
17.On or about 5 December 2012a new anti fatigue mat was introduced.
8 January 2013 and the onset of pain in the right foot and heel and subsequently the left foot
18.The plaintiff said that on 8 January 2013 she experienced the onset of pain in her right heel. She had been standing at the roller belt/work bench and had gone for a break. She was seated. She stood up and felt the pain in the heel of her right foot. The pain was of a sudden onset. She described the sensation as akin to that of stepping on a pin. This was the first time she experienced pain of such a nature. She went back to her work and she completed her shift. She complained to the first aid/security officer that her right foot was hurting and she could not put it down. She said that at the end of her shift her foot was very swollen. She tried to obtain a doctor’s appointment but was unable to do so until the next day.
19.On 9 January 2013 she saw Dr Lim at the Coolaroo Clinic. He was her treating local practitioner. She complained to him of right heel pain. He said he suspected plantar fasciitis. He arranged for x-ray and ultrasound. The plaintiff did not attend work the following day and she received a general medical certificate dated 9 January 2013 to account for her absence.
20.The plaintiff was certified fit for modified duties by Dr Lim from 9 to 11 January 2013. She did not however return to work the following week because she had arranged annual leave for the period 14 January 2013 to 29 January 2013 with the intention of attending the Tamworth Music Festival but she was unable to do so. Instead and during her period of annual leave she continued to be troubled by her foot pain. On 10 January 2013 she had an x-ray that identified a prominent calcaneal spur. On 14 January 2013 an ultrasound was performed. The ultrasound report identified abnormal thickening of the calcaneal attachment. Dr Lim suggested a cortisone injection into the right foot. The plaintiff received the injection on 31 January 2013 but although giving momentary relief it failed to settle her symptoms.
21.On 30 January 2013 Dr Lim issued the plaintiff with a WorkCover certificate of capacity. The certificate was backdated from 9 January 2013 to 23 January 2013 and a further certificate from then until 6 February 2013 was issued and thereafter the plaintiff was certified as fit for modified duties by Dr Lim.
22.When the plaintiff returned to work with the defendant on or about 7 February 2013 she was on modified duties with work restrictions including restrictions relating to being on her right foot for more than 30 minutes, not carrying weights greater than 5 kg and no climbing of stairs together with the periods of rest as required. She undertook plating duties, standing for between 15 to 20 minutes then sitting down and performing her work in a seated position. The plaintiff gave evidence about the manner in which she carried out her duties once her employment was modified. She said that she was told she could sit as required. This she did. She said her chair was far from ergonomic and was not the right height. She said her foot remained painful during the period of her modified duties. The plaintiff’s duties did not alter but rather conformed to the identified restrictions.
23.Dr Lim subsequently amended the plaintiff’s certificate of capacity from 23 March 2013 to include standing up to 2 hours and stairs as is tolerated[1].
[1] All references to stairs is irrelevant to the plaintiff’s employment
24.In June 2013 the plaintiff was referred to a psychiatrist whom she saw but once. He apparently suggested an increase in her dosage of Zoloft something that the plaintiff though it better to decline.
25.The plaintiff had been cleared to return to her normal duties in April 2013 but her capacity for duties was subsequently reduced. By letter dated 19 July 2013 Qantas wrote to the plaintiff’s General Practitioner. The correspondence made mention that the plaintiff had been supplied with a moon boot and it also referred to discussions that had occurred in connection with the plaintiff performing modified hours and duties of work from 22 July 2013. It was suggested the plaintiff work 4 hours per day by 3 days per week for a period of 2 weeks after which she would be reviewed. The restrictions contemplated included a limit on walking, the performance of work duties while seated, no lifting over 3 kg, breaks as required and limiting steps and stairs. The suggested duties that it was envisaged the plaintiff would undertake included compliance training, condiment cleaning and filling, napkin folding and filling small drawers with tea, coffee or first aid items.
26.The plaintiff remained on modified duties from about August 2013 until 30 December 2013 when they were withdrawn by her employer and she was terminated. She has not worked since. During the period from August 2013 the plaintiff worked 4 hours a day x 3 days a week. She worked seated and she was dealing with the business class meal preparation. The plaintiff said that despite the modifications she had been woken at night with pain. She said she was on occasions required to make use of a pillow to elevate her.
27.The plaintiff underwent a further ultrasound guided injection into the right foot in October 2013 but this failed to alleviate her symptoms. By now she had come under the care of Mr Doig, Orthopaedic Surgeon. He recommended that the plaintiff undergo a right plantar fascial release. This has not occurred.
28.The plaintiff said that she attends on her General Practitioner once per month, a psychologist Ms Deboo once a month and on Mr Doig at his rooms at the Alfred Hospital. The plaintiff takes Panadol Forte and Zoloft. She also takes blood pressure medication.
Onset of Left Foot Plantar Fasciitis
29.There was an evidentiary dispute about when the plaintiff experienced left foot plantar fasciitis. The plaintiff said in her evidence in chief that it was in mid 2013 or about August 2013 that she began to experience pain in the left foot of the same type as the right foot. She said the pain was in heel and the side of the left foot. This date of onset is the subject of a factual contest. It was not until July 2014 that the plaintiff lodged a further claim for compensation for left sided plantar fasciitis. She nominated 8 January 2013 as the date of injury and also claimed that the injury arose as a result of working on the production line.
30.Mr McKenzie of counsel for the defendant directed the plaintiff to certain documentary evidence in an effort to suggest that in January 2013 she was experiencing pain but that it was limited to her right foot and heel. Mr McKenzie relied upon the plaintiff’s WorkCover claim dated 30 January 2013[2], her handwritten statement dated 1 February 2013[3] and a typed “Witness Statement” dated 19 February 2013[4] as well as the clinical notes of treatment of the plaintiff by Dr Lim.[5] None of this material refers to left foot pain. The plaintiff said that prior to 8 January 2013 she had experienced swelling in both feet at the end of her shifts with the defendant and the onset of the swelling occurred in the first two weeks or so after the introduction of the new shoes on 5 December 2012. She agreed however that the stabbing pain that she experienced on 8 January 2013 was limited to the right heel.
[2] Ex P4 the document bears two dates: 30 January 2013 and 1 February 2013. The different dates was not explained in evidence but the plaintiff’s evidence was that she wrote the date of 30 January 2013 and this is the date I shall adopt in these reasons
[3] Ex P5
[4] Ex D3
[5] Part Ex D14
31.I am satisfied that the pain the plaintiff experienced on 8 January 2013 was of a very different order to the swelling of the plaintiff’s feet that she attributed to new shoes. The discomfort she experienced was described by her as similar to the sensation felt when a shoe rubbed against a heels and “the arch on the inside of the shoe was hurting the inside of my foot”. I am satisfied that the pain in the right heel was consistent with the condition of unilateral plantar fasciitis but not however that the swelling in both feet was plantar fasciitis. The plaintiff said that she had experienced swollen feet prior to 5 December 2012 and whenever she changed into new shoes or on hot days.
32.In any event, the plaintiff persevered with the new shoes for only a month. There is no evidence to sensibly connect such a limited period of use to the onset of the condition of plantar fasciitis.
33.In response to the plaintiff’s effort to attribute the onset of her condition to the work environment of prolonged standing the plaintiff agreed with Mr McKenzie that she had told Ms Deboo that she had not experienced any problem with her feet until the introduction of the new shoes in December 2012.
34.In further support of the defendant’s contention that the plaintiff did not experience the onset of left foot plantar fasciitis until 2014 the defendant referred to the plaintiff’s attendance on Mr Raffle, podiatrist who operated from the same clinic as Dr Lim. The report of Mr Raffle dated 14 January 2013[6] fails to disclose any reference by the plaintiff to her left foot and the absence of any reference prevailed throughout the period of his treatment of her which lasted up to June 2013. Within that period of treatment Mr Raffle undertook examination and movement of the plaintiff’s left foot but there is no record of any problem associated with it. The plaintiff maintained under cross-examination that it was otherwise and said that, “I would have told him it was troubling me but nothing like the right”. Mr Raffle did not testify.
[6]
35.The plaintiff’s claim in addition to an alleged association with shoes also made complaint about floor mats. The defendant provided anti fatigue floor matting. The evidence did not identify when matting was first introduced into the workplace but it was accepted that they had been in place in one guise or another for a number of the years. The plaintiff said that the mat she stood on prior to 5 December 2012 was a good deal flatter than its replacement. She said that when the floor mat and her shoes changed her problems commenced. The plaintiff made a connection in her own thinking between cause and effect.
36.In regard to the mat it became apparent in the course of the plaintiff’s cross-examination that she had no complaint about the new mat and indeed was complimentary about it and instead her complaint centred on the old style mat. The plaintiff said it was so thin as to offer her no protection and she likened it to standing directly on the concrete floor. The old mat was not in evidence and the plaintiff led no evidence about it or the supposed connection of it to the onset of the condition of plantar fasciitis. Such evidence as was presented was directed to the new mat, and about it, there was a uniformity of opinion that it was more than appropriate to the work environment. I note also that the plaintiff’s handwritten statement and her typed statement and her WorkCover claim are all silent in relation to the mat.
37.The plaintiff said that in about June or August 2013 she experienced pain in the left foot. She said the pain was of the same type as she had experienced in her right foot, that is to say, she experienced the pain in the heel and the right side of the left foot. On this occasion as well, there was no discrete precipitating event.
38.Following the conclusion of her employment with the defendant the plaintiff said that she experienced various symptoms however she said that lying down is not as bad as it had been. In regard to her right foot she said she experiences pain in the heel and that it feels cold from the ankle down. She gets pins and needles and is in constant pain. She surmised that her left foot had become worse because she was favouring it over her right foot.
39.On 24 September 2013 the plaintiff saw Mr Doig. She was again seen by Mr Doig on 22 October 2013 and she also attended on him on 8 April 2014. The plaintiff said that she told Mr Doig about the discomfort in her left foot although she explained to him that the pain felt nothing like the right foot and that he responded with words to the effect, “let’s deal with one foot at a time”. The plaintiff remained adamant that she “would have told him about the left foot somewhere along the way”. The plaintiff said that Mr Doig was only concerned with the purpose for which she had been sent to him, which was her right foot.
40.Mr Doig’s recollection when he was cross-examined did not accord with the plaintiff’s evidence on this aspect. There is no reference in Mr Doig’s report of the sate of the plaintiff’s left foot. To the suggestion that she had made no complaint to Mr Doig of left foot pain, the plaintiff would have none of it, and maintained that she had made such a complaint to him.
41.The plaintiff saw Dr Slesenger on 23 June 2014. He had taken over the care of the plaintiff from Dr Lim. His note of clinical record of 23 June 2014 is of left heel pain, “recenly onset”. The plaintiff thought that the pain had come on a day or two earlier than and just as suddenly as it had with the right.
42.Although Dr Slesenger had been treating the plaintiff since about January 2014 his notes up until the entry on 23 June 2014 make no reference to the left foot. The plaintiff agreed that she had not mentioned left heel pain to Dr Slesenger before then but she had told Dr Lim about the left heel pain although she acknowledged the absence of any reference in Dr Lim’s records.
43.The most that I am prepared to conclude from the evidence is that the plaintiff might have commented on some swelling to the left foot. This is consistent with the plaintiff’s concession that if she made any complaint to Mr Raffle about her left foot it was of a very different nature than to the right as it was far less a troubling aspect to her than the right foot.
44.I am not satisfied by the plaintiff’s evidence that in addition to the complaint of the onset of right foot plantar fasciitis she made a complaint of left foot pain in 2013. The plaintiff’s recollection is not supported by the objective written evidence or other oral evidence. I am satisfied that the plaintiff experienced the onset of left foot pain in the form of plantar fasciitis not before at least June 2014.
The plaintiff is sedentary
45.The plaintiff was asked questions about her daily activities in the period following the termination of her employment with Qantas. On the basis of an onset of left sided plantar fasciitis the plaintiff was asked how she occupied her days from 30 December 2013 when her employment ended to 23 June 2014 when Dr Slesenger recorded left foot pain. She said that in the main she had spent her days playing computer games or watching television. She said she tried to stay off her feet as much as possible. She agreed with McKenzie that during this period she was not standing for anything approximating the amount of time that she had been standing during her employment with Qantas.
Dr Slesenger testifies
46.I have mentioned Dr Slesenger. He is the plaintiff’s treating practitioner and an Occupational Physician. He took over the care of the plaintiff from Dr Lim. He furnished 3 reports in relation to the plaintiff, dated 28 January 2014, 7 June 2014 and 1 December 2014[7]. The reports embraced a great number of matters including the vexed issues of the plaintiff’s work shoes and the anti fatigue mat.
[7] Ex P8
47.Dr Slesinger’s report dated 28 January 2014 stated:
“The plaintiff was provided with safety shoes.
The plaintiff was issued with shoes at the commencement of her employment and they were reviewed every 1-2 years.
Most recently these shoes were replaced in December 2012. She noticed immediately that the shoes were high arched and began to cause pain”.
48.Dr Slesenger diagnosed the plaintiff with right plantar fasciitis. Dr Slesenger also recorded a history of presentation by the plaintiff including radiology and x-ray. Dr Slesenger had been asked for his opinion about the relationship of plantar fasciitis to the plaintiff’s employment. He wrote that:
“Michelle has been required to stand for prolonged periods of time wearing inappropriate footwear. This has caused her symptoms and has continued to aggravate it throughout the initial period. She remained on standing duties until about August 2013 which further contributed to her symptoms.
49.Dr Slesenger’s opinion that the plaintiff’s shoes were “inappropriate” is contested as is the extent to which if at all there is a concluded body of opinion that prolonged standing can cause or contribute to or aggravate plantar fasciitis. On the facts of this case both matters warrant separate consideration.
50.In his further report dated 7 June 2014 Dr Slesenger wrote that the plaintiff’s current function was a limited and that she was “unable to stand for even short periods of time”. He went on to report that she suffers from pain in both heels but the pain is worse on the right heel. He said that the plaintiff “continued to see the podiatrist, who records that the main pain was around the posterior and inferior aspect of the right heel and by July 2013, the records show that she was also complaining of pain in the left foot.” The report of Mr Raffle is in fact silent as to the left foot. Mr Raffle wrote in his report dated 6 June 2014 that he had not seen the plaintiff for treatment since 23 July 2013.
51.Dr Slesenger reported that the plaintiff’s work required her to wear safety boots that were not specifically moulded to her requirements and that were “heavy and uncomfortable. They were poorly padded”. Dr Slesenger concluded with the opinion that he was satisfied that there is a “plausible work exposure that could be the cause of her impairment”. Moreover, he stated that “there is a temporal association between the onset of her symptoms and her work activities. I am therefore satisfied that her impairment is work-related.” I observe that Mr Doig, whose evidence I will address shortly, also placed considerable weight on the temporal connection of the plaintiff having been at work when the sudden onset of right foot pain occurred in order to arrive at a causative relationship between work and the claimed injury.
52.Dr Slesenger’s report dated 1 December 2014 recorded that the plaintiff had developed “bilateral heel pain, the right being worse than the left”. This comparative assessment of the plaintiff’s pain is consistent with her own evidence.
53.Dr Slesenger was cross examined. He said he commenced treating the plaintiff in December 2013, that is to say, almost a year after the sudden onset of the condition. He agreed that his clinical note dated 23 June 2014 that recorded “L heel recently onset – now work related” is his first entry relating to left foot pain.
54.Dr Slesenger was asked a series of questions directed to comparing and contrasting the plaintiff’s activities and the extent to which she was required to stand whilst employed with her activities after she ceased employment with Qantas. He confessed to being unaware that since the plaintiff’s employment ended she spent her days largely engaged in sedentary activities such as watching television and playing computer games.
55.Although Dr Slesenger’s report made mention that the plaintiff’s shoes were “heavy” he was directed to the plaintiff’s statement[8] that the “shoes are good and light however I have flat feet and the shoes do not offer much support for flat feet”. Dr Slesenger was only able to say that the plaintiff had told him that the shoes felt heavy.
[8] Ex D3
56.Dr Slesenger was shown a pair of shoes of the type worn by the plaintiff[9]. He examined footwear in the witness box. He said they lacked an insole and, in his opinion, they are “flat”. He said they do not have an arch support and that although he thought they were firm at the base they were “not particularly moulded”.
[9] Ex D10 It was agreed between the parties that the exhibit replicated the type of shoe worn
57.Dr Slesenger was asked whether the wearing of tight fitting shoes was a know cause plantar fasciitis. He said that plantar fasciitis is a “multifactorial condition” and this included the plaintiff’s middle age, being overweight but also, “standing on hard surfaces”. He said that the plaintiff presented with each of these personal and work characteristics. He said that there is some evidence in the relevant literature and studies to suggest that all risk factors have a compound effect in terms of the aetiology of the condition. Nonetheless elsewhere in cross-examination he said that he “placed little weight on the fact of shoes as a risk factor” for plantar fasciitis.
58.Dr Slesenger agreed with Mr McKenzie that the pinpoint like pain in the heel of the foot and the sudden onset of it in the manner described by the plaintiff is a classic indicator for diagnosis of plantar fasciitis. Dr Slesenger said that the plaintiff’s presentation was not atypical for plantar fasciitis because in his experience it is more common to observe a gradual onset of symptoms as opposed to the immediate presentation of pain.
59.Mr McKenzie asked Dr Slesenger for his opinion of the report of Mr Polke that weight bearing and prolonged standing do not amount to known factors in the onset of plantar fasciitis and that the aetiology of heel pain is controversial. Dr Slesenger acknowledged that the aetiology of heel pain is controversial and that the quality of the empirical evidence that endeavours to make a causal link between weight bearing and prolonged standing in the onset or development of plantar fasciitis “was not great”.
60.Whilst Dr Slesenger’s evidence and acknowledgements were that the plaintiff came to plantar fasciitis with a series of non-work related factors such as age and obesity, both of which are commonly associated on presentation with a diagnosis of the condition, nonetheless, he was not prepared to adopt Dr Polke’s opinion that the plaintiff would have suffered the onset of plantar fasciitis because of the presence of those factors regardless of her employment with the defendant and the nature of it. Dr Slesenger testified about the multiplier effect of risk factors and that when a risk factor has a multiple greater than increasing the risk of association by a figure of 2, it will be regarded as a cause on the balance of probabilities. He said that the available evidence was that standing on hard surfaces increased the association of the condition by “somewhere between one and two” and that research is not yet at the stage at which those in his field can equate it to “the balance of probabilities”. Whilst the adoption of a medical “ready reckoner” may assist those tasked with the correlation of symptoms to diagnosis in a medico-legal sense, the question of the sufficiency of proof is a legal concept and although a medical opinion derived from a mathematical equation may assist that task, it cannot displace an assessment of facts in a given case whether a plaintiff has discharged her or his burden of proof.
61.As regards the onset of pain in the plaintiff’s left heel, Dr Slesenger said the development is explicable in part by reason of the aetiology of plantar fasciitis which most often presents unilaterally with the result that a sufferer will compensate by the overuse of and hence the additional weight bearing on the previously unaffected foot.
62.The nature of this explanation by Dr Slesenger to account for the sudden onset of plantar fasciitis in the previously unaffected left foot is also controversial and was a theory about which I heard conflicting opinions. It is not for instance an opinion shared by Mr Polke who testified for the defendant or of Mr Doig who gave evidence for the plaintiff. On balance and for the reasons expressed later in this decision I am not persuaded to accept it.
63.Dr Slesenger was asked questions concerning the anti fatigue matting. The mat caused him no concern. He said that it appeared to be of a type similar to those he had seen at workplaces probably over about the last 6 years. He said that their purpose is to “create a barrier so as to dampen the impact of walking”. He said there is a paucity of research to suggest they served much value where the activity is confined to standing but that the “hope is that the use of such a mat will obviate the risk” of the development of the condition. He fairly volunteered that he had no knowledge of the type of mat used by Qantas prior to December 2012 or how long they had been in use.
64.As regards the plaintiff’s prognosis, Dr Slesinger reported that she may improve with weight reduction, and that this may be facilitated by her referral to a bariatric surgeon. He reported that obesity is an independent risk factor for the development of plantar fasciitis in some 70% of patients presenting with it.
Thomas Kossmann
65.Mr Kossmann is an Orthopaedic Surgeon. He testified on behalf of the plaintiff. He furnished a report dated 26 November 2014[10] following on the plaintiff having been referred to him for medical assessment.
[10] Ex P9
66.Mr Kossmann said he deals with the condition of plantar fasciitis approximately 5 times a year. In his opinion inflammation occurs as a result of “micro traumas”. He characterised these micro traumas as small almost undetectable assaults or tears that may often go unnoticed but build up over time and contribute to the development of inflammation weakening the tissue of the fascia muscle causing the acute onset of the condition.
67.Mr Kossmann noted that the plaintiff reported the sudden onset of right sided heel pain and that in “July or August 2013 Ms. Keogh claimed to have developed similar symptoms in her left heel while at work…On 25 June 2014 a left heel ultrasound reported findings consistent with plantar fasciitis”. When cross-examined Mr Kossmann was asked about the diagnosis of left foot plantar fasciitis in July or August 2013 on the basis that such a date was inconsistent with the time frame for reporting of left heel pain and left sided plantar fasciitis by Dr Slesenger. Whilst Dr Kossmann did not say that the reference to 2013 was a mistake in his recording of the plaintiff’s history, I am satisfied it is a mistake, and my finding is reinforced by the reference to the 25 June 2014 left heel ultrasound that was performed on the plaintiff subsequent to her attendance on Dr Slesenger on 23 June 2014, which in turn accords with Dr Slesenger’s entry of recent onset of left foot pain.
68.Mr Kossmann reported that on physical examination the plaintiff’s weight was 125 kg, her height at 154 cm and she had a BMI[11] of 52.7. He said that the plaintiff walked with an antalgic gait and that she had bilateral pes-planovalgus. He said she was tender to palpation over the medial aspect of her right and left calcaneum and over the calcaneal tuberosity bilaterally. She was able to single toe raise on both sides but she was unable to single or double foot heel raise. She was non-tender to palpation around the subtalar joint. She had unrestricted ankle range of motion. He too diagnosed bilateral plantar fasciitis.
[11] Body Mass Index
69.Mr Kossmann went on to note that in accordance with the reference made by Dr Bloom to the American Medical College of Occupational and Environmental Practice Guidelines, a BMI greater than 30 amounted to a an association for the condition and so he wrote:
“Ms Keogh’s Body Mass Index is 52.7. Therefore, in Ms Keogh’s case, there is an association between the amount of time standing, her weight and plantar fasciitis.”
70.Mr Kossmann was aware of the plaintiff’s prolonged work history of standing prior to the sudden onset of pain. Mr Kossmann said that the matter of the plaintiff’s shoes had not been mentioned to him at all and none had been furnished to him for his examination or opinion. He also said that he had been unaware of the provision and use made of anti fatigue mats in the workplace. He was shown and touched the mat that was adopted in December 2012. He agreed that it was “quite cushy” and he said it would not cause him any concern. He was shown the type of shoes worn by the plaintiff between December 2012 and January 2013. He said the shoe is cushioned. Mr Kossmann was asked if he shared Mr Polke’s opinion that there is an absence of empirical evidence to support a view that plantar fasciitis can be brought on by the wearing of footwear. Mr Kossmann said he would not say so “unquestionably” although the reason for his hesitation was not developed. Mr McKenzie asked then whether he agreed that by reference to a far more limited time frame of December 2012 to January 2103 the wearing of inadequate footwear would cause the condition and he agreed with Mr Polke that it would not.
71.Mr Kossmann also agreed with Mr Polke on the more limited basis that the onset of the condition is “multifactorial”. He said that in his opinion the plaintiff must have suffered “micro traumas” prior to the sudden onset of pain. He said that the micro traumas could include the many years of standing and that her wearing of the contentious footwear for the short period of time could have resulted in a micro-trauma and hence be regarded as amounting to a cause.
72.Mr Kossmann agreed with the opinion of Mr Polke’s expressed in his report dated 11 October 2014 that the aetiology of heel pain is controversial. However, he did not agree with Mr Polke’s opinion that the onset of the plantar fasciitis could have happened in any event to a person such as the plaintiff with her particular characteristics. Mr Kossmann said that in his opinion plantar fasciitis is not a condition but an injury occasioned by micro traumas causing inflammation that manifests in acute pain.
73.Furthermore Mr Kossmann disagreed with an approach to the matter of arriving at a diagnostic cause that on the one hand would include the plaintiff’s non-work related risk factors but on the other hand exclude her many years of prolonged standing on hard surfaces because, as he put it, to do so is to ignore the existence of the many people who are overweight to the same if not a greater extent that the plaintiff and who are of the plaintiff’s same age range but do not suffer from plantar fasciitis.
74.Mr Kossmann was directed to the opinion expressed in reports by Mr Bloom that there is insufficient evidence that standing and weight bearing are factors that cause the onset of the plantar fasciitis. Mr Kossmann said that he did not “necessarily agree with this literature” on the matter and that “I have my own theories” by which I understood Mr. Kossmann to be referring to the prevalence of “micro traumas”.
75.Mr Kossmann thought that his theory of micro-traumas in relation to the pathology of the condition was consistent with but expressed differently to the opinion of Mr Polke who on 11 October 2014 wrote that “it was considered that it probably represents a degenerative attritional or fatigue interstitial tear of the plantar fascia near the calcaneal insertion associated with chronic inflammation and eventual fibrosis”. Mr Kossmann said that tears need not always be symptomatic and that to some extent it would depend on the resolve and make up of the individual about whether complaint of pain was made. This could be the situation in a particular case but in this proceeding the evidence from the plaintiff is all one way and which was that that before December 2012 she had no problem with her feet.
76.I am not persuaded that I could find the probability that the plaintiff suffered unknown micro traumas that were asymptomatic. Mr Kossmann used the example of athletes such as soccer players as an example of persons who might experience this type of a trauma. The plaintiff was not an athlete. I found Mr Kossmann’s evidence and reference to many almost imperceptible traumas apt to distract rather than illuminate one of the disputes I am called on to decide which is whether the prolonged standing at work on hard surfaces could be a mechanism and therefore a cause of plantar fasciitis.
77.In regard to the later onset of left sided plantar fasciitis Mr Kossmann’s explanation although consistent with Dr Slesenger was inconsistent with Mr Polke and in particular Mr Doig.
Mr Doig’s evidence
78.Mr Doig gave evidence in chief on behalf of the plaintiff. His reports dated 5 June 2014 and 7 November 2014 were received into evidence[12].
[12] Ex P10
79.Mr Doig provided a report to the plaintiff’s solicitors dated 5 June 2014 in which he noted that the plaintiff had been referred to him by Dr Lim. He first saw the plaintiff on 24 September 2013. On examination he found the plaintiff’s pain and tenderness under the heel consistent with plantar fasciitis. In addition he noted that she had undergone an ultrasound which confirmed the diagnosis. He referred to the provision of an injection of local anaesthetic and steroid to try and settle the pain. He said he reviewed her on 22 October 2013. The plaintiff said that the injection had given some relief but had worn off. Mr Doig considered a plantar fascial release reasonable step. Mr Doig considered the mechanism of injury was consistent with the plaintiff’s prolonged standing on concrete floors.
80.By a further report dated 7 November 2014 (described as an addendum to his report of 5 June 201) Mr Doig commented on the report made by Dr Bloom dated 26 November 2013. He agreed with the characterisation of the plaintiff as “morbidly obese” and agreed with Mr Bloom’s diagnosis of plantar fasciitis. He said he had read through “the AMA book on Disease Causation” and said in regards to Mr Bloom’s use of the Guidelines that, “I agree that according to the Guidelines that the date on prolonged standing at work is a potential risk factor is inconclusive”. He also agreed with Mr Bloom that effect of the Guidelines that prolonged standing at work amounts to a potential risk factor “is inconclusive”. He said:
“There is not a hard scientific connection between prolonged standing at work on the development of plantar fasciitis and in other words people can develop plantar fasciitis without prolonged standing at work. I agree that her condition of the plantar fasciitis was not specifically caused by her work but in my report I said that the pain that she developed in her heel came on whilst she was at work and she found that the pain was aggravated while she was standing for prolonged periods of time.”
81.Mr Doig reported as well that:
“In the Guidelines that you have kindly sent to me plantar fasciitis mechanism of aetiology is either describes idiopathic which means that it has come on spontaneously or from weight bearing on hard surfaces and that is one of the reasons why I have assessed her as this as being work-related.
…
In summary this patient has significant evidence that she has plantar fasciitis. For the reasons outlined in my initial report and in this report I consider that work was a contributing factor to her problem because of the prolonged weight bearing. I fully accept that there are other aetiological determinants here as well including morbid obesity but from the history that she gave me she said that it came on at work and has continued to cause her trouble since then. That is the reason that I assessed her as being work-related...”
82.Mr Doig also referred to that part of Dr Bloom’s report that it was “reasonable to accept that any situation that she is in that demands prolonged weight bearing is likely to temporarily exacerbate the symptoms and that is exactly what she found particularly at work.”
83.Although Mr Doig maintained in his 7 November 2014 report that the plaintiff’s work had been a contributing factor to her condition, the focus of this later report altered in emphasis and focussed greater concentration on the plaintiff’s size. He wrote that:
“I suspect that the major contributor to her situation is in fact the morbid obesity but because she gave a history that the injury came on at work and continued to be aggravated by her work I felt it was reasonable to state that work has contributed to her situation”.
84.Mr Doig was an impressive witness. He was considered in the manner of giving his evidence. He frankly acknowledged the uncertainty in the medical community about plantar fasciitis. The sum effect of his evidence was that it is difficult to do more than to recognise that certain characteristics are more commonly associated with plantar fasciitis than not. He did not assert that the presence of any one or more factors amounted to a cause of it. He said the condition is idiopathic.
85.Mr Doig was cross examined by Mr McKenzie. He said that he did not hold any note of complaint that the plaintiff made to him about her left foot. He said that had the left foot been mentioned by her in passing he may not have made a note of it, however, had it been raised as a matter of concern he thought he would have made a note and this would also have been the case had he said to her, “let’s deal with one foot at a time”.
86.Mr Doig was presented with certain facts distilled from the evidence including that the plaintiff had not been at work between the periods 30 December 2013 to 23 June 2014 and had largely kept off her feet. Furthermore from the middle of 2013 the plaintiff had been working modified duties and reduced days of work and hours. As well Mr Doig was shown the footwear the plaintiff had worn between 5 December 2012 and 8 January 2013.
87.Mr Doig acknowledged that his reports are silent as to a complaint by the plaintiff about her work shoes. On examining the shoes in the witness box Mr Doig said that they appeared unlikely to bring on heel pain. Also Mr Doig said he was unaware of any empirical studies that tight shoes caused plantar fasciitis. As to the fitness for purpose of the footwear the plaintiff was provided he agreed with Mr Polke that the shoes were spongy, soft and had some give in the heel. He was asked about the arch of the shoe and said that although it did not have much of a medial arch “most shoes don’t in any event”. As to the complaint that the shoes had a high arch, he did not think they did.
88.Mr Doig was shown the anti-fatigue mat introduced into the workplace in December 2012, and after examining it, said that it presented as “nice and spongy” and it appeared to him to be “okay”.
89.The sum effect of Mr Doig’s evidence was to exclude the shoes worn by the plaintiff and the anti fatigue mat deployed at the workplace as causes of plantar fasciitis.
90.Mr Doig was asked a series of questions about the aetiology of plantar fasciitis. He was directed to the American College of Occupational Medicine Practice Guidelines. Mr Doig said he had had recourse to the AMA Disease Causation Guidelines and the American College of Occupational Medicine Practice Guidelines. He was asked about the 2 extracts from Disability Guidelines.[13] He said he had not had regard to them when assembling his reports but that it appeared to him that there was nothing different in them from that extracts contained in the report of Mr Bloom.
[13] Ex D11 and D12
91.Mr Doig agreed with Mr Polke’s opinion regarding the aetiology of plantar fasciitis and that age and a high body mass index “are both significant risk factors” in the onset of the condition.
92.Mr Doig accepted that there was no evidence that the plaintiff having experienced a precipitating traumatic event but that the history the plaintiff had given to him in consultation was that the “pain developed at work and came on as a result of standing on concrete floors”.
93.Mr Doig was asked if he agreed with Mr Polke’s opinion that the plaintiff would have suffered a similar condition without a history of standing at work. He said that whilst the plaintiff might have developed plantar fasciitis irrespective of standing at work he could not exclude it on the balance of probabilities.
94.Mr Doig accepted Mr McKenzie’s proposition that he had placed considerable reliance on the temporal connection between the onset of left foot plantar fasciitis having occurred at work. This being the case he was asked how he reconciled the onset of left foot plantar fasciitis in about August 2014 against the backdrop of the plaintiff not having worked since December 2013 and furthermore having led a sedentary lifestyle since that time. Mr Doig frankly acknowledged that it remained a conundrum.
95.Mr Doig was not prepared to adopt the explanation advanced by Dr Slesenger and Mr Kossmann that the subsequent onset of plantar fasciitis to a previously unaffected foot may be brought on by a greater load or pronation on the unaffected foot resulting in traumas and when associated with other risk factors causing its onset as a bilateral condition. Mr Doig refuted the explanation attributed to the left foot because he said that weight is evenly distributed when standing and this is almost impossible to displace. Mr Doig said that it is not possible to contend that weight bearing can be distributed from an affected foot to the unaffected foot with the result that greater weight is borne by the unaffected foot thereby acting as a cause of or a contributor to the onset of plantar fasciitis in the previously unaffected foot.
Qantas witnesses
96.Mr George McConaghie is the Health Manager Coordinator Catering for Qantas. He said his duties involve overseeing WorkCover recipients and administering employees undertaking alternative duties. He produced into evidence the anti fatigue mat of the type purchased by Qantas and utilised by the plaintiff from on or about 5 December 2012. He was not able to give any specific evidence about the type of mat used prior to 5 December 2012 save to say that all mats “would have been complaint with Australian Standards and would probably have been tested in the workplace”. He said that “in all probability they would have been of similar thickness”. He was unable to produce a mat of the type in place before 5 December 2012. It needs to be remembered that the plaintiff’s complaint made in the course of her evidence was about the effectiveness of the mat rolled out prior to 5 December 2012.
97.On the question of the footwear Mr McConaghie was unable to give specific evidence or produce footwear of the type in place before the shoes that the plaintiff wore in December 2012.
98.It was suggested to Mr McConaghie in cross-examination that mats were introduced because of a concern that long periods of standing may cause injury to a worker who was required to stand for prolonged hours and in particular a risk of the onset of plantar fasciitis. He said that Qantas did not have concerns about risk exposure to specific injuries such as plantar fasciitis but that the introduction of the matting was a preventive measure against the risk of injury generally.
99.Mr McConaghie said that there was no protocol that dictated the turnover of mats but rather that they were replaced on a needs basis.
100.Mr Luke Arulaah is the Production Supervisor Food Division with Qantas. He said he has been employed in the food department and the catering division of Qantas for 25 years. He indicated that the plaintiff reported to the leading hand who in turn reported to him. He said he knew the plaintiff. He said there had been no evidence of any complaint regarding the anti fatigue mat or the work shoes. He said that he could not recall any discussion with the plaintiff in relation to the mat or the shoes or in relation to her standing in the performance and discharge of her employment. He was unable to give evidence about the type of footwear worn either before or after 5 December 2012. His evidence about the point in time at which Qantas introduced matting was not specific. He said at different points in his evidence that it might have occurred “6 or 7 years ago” or “8, 9 or 10 years ago”. He was unable to give any relevant evidence about the comparative qualities of the matting used otherwise than to say that “they would have passed OH & S”. He said as well that, “maybe this mat was slightly thicker than the old mat”.
Dr Bloom’s evidence
101.I have already made reference to Dr Bloom in these reasons. He testified on behalf of the defendant. He is an Occupational & Environmental Physician. He prepared 4 reports dated 26 November 2013, 15 July 2014, 13 August 2014 and 11 February 2015. They were received into evidence[14]. One matter that arose in connection with Dr Bloom’s evidence was the use he made of and references to various guidelines other than those that the defendant had provided to the plaintiff’s solicitors prior to the hearing. At the end of the day the matter was dealt with in the running of the case and I am satisfied that there was no prejudice occasioned to the plaintiff as a result.
[14] Ex D9
102.In final address counsel for the plaintiff submitted that I should exercise a degree of caution in adopting the evidence of Dr Bloom. He submitted that he was very uncertain about the contents of some of the very material he relied upon to support his opinions and expressed in his reports, and that he was apt to cavil with the expressions that were adopted in the very same material where they appeared to be at odds with his own opinions. I am not prepared to adopt the extent of the criticisms levelled at Dr Bloom. In some part at least I think the more likely explanation is that he was unfamiliar with the recent change in formatting of information contained in documents referred to by him as opposed to being unfamiliar with the information itself. I am satisfied that his opinion was in some aspects predicated on his familiarity generally with information referred to in Guidelines and I acknowledge that he could not say if his references to findings distilled from the literature or studies referred to in his reports was based on his general knowledge or were specifically researched at the date of the preparation of the reports.
103.Dr Bloom was asked questions concerning the American College of Occupational & Environmental Health Guidelines and that part of them extracted as Exhibit D10 (pages 367 to 375). Page 375 of contains a heading “Diagnostic Criteria”. Dr Bloom said that because he did not regard the plaintiff’s diagnosis of plantar fasciitis to be in question he did not believe that he specifically looked to this part of the Guidelines, although he said, he was otherwise familiar with the contents. He agreed that he made no reference to the diagnostic criteria in his reports. He was directed to Table 14.2 and asked about the connection acknowledged between the condition of plantar fasciitis and the mechanism of it that is described as “Prolonged weight bearing Degenerative changes Idiopathic”. At first Dr Bloom argued contested that the Table included weight bearing as a recognised mechanism of injury but recanted from this argument when his attention was directed to the narrative under Diagnostic Criteria at pg 367 that, “The criteria presented in Table 14-2 follow the clinical thought process, from the mechanism of illness or injury to unique symptoms and signs of particular disorder and finally to test results, if any tests are needed to make a correct diagnosis”. Dr Bloom then said that irrespective of the same he was “not clear about that to be quite honest” by which I understood his evidence to be that he was not willing to adopt the statement expressed at p 368 in Table 14-2 that the mechanism of injury for plantar fasciitis should include “Weight bearing on hard surfaces”. When asked by Mr Mckenzie if close to 14 years employment carried out by standing in a largely static position could lead to plantar fasciitis, he said, that “I have not found good evidence of that”.
104.Dr Bloom was also directed to the statement contained in the Guidelines at pg 369 headed “Work-Relatedness” and that part of it expressed as follows:
“Prolonged weight bearing may aggravate Morton’s neuroma, metatarsalgia, hallux valgus, and plantar fasciitis, although the strength of the association is not great”.
105.Dr Bloom initially responded by saying that the extract concerning work relatedness was concerned with a “foot or ankle disorder” whereas he was concerned more specifically with plantar fasciitis. He subsequently accepted however that plantar fasciitis is indeed a foot disorder. In any event, he said he was informed on the issue of work relatedness by the ACOEM V.3 Guideline[15] for work relatedness and that this fortified his thinking.
[15] Ex D11
106.Dr Bloom was asked to comment on the comity or lack thereof between his report dated 26 November 2013 that plantar fasciitis is an idiopathic condition and a opinion expressed by Mr Polke in his report dated 11 October 2014, that:
“The etiolgy of heel pain is controversial and more often than not it follows a self-limiting cause.
It occurs, typically in middle aged, often overweight people who are usually not able to recall any precipitating event; it was considered that it probably represents a degenerative attritional or fatigue interstitial tear of the plantar fascia near the calcaneal insertion associated with chronic inflammation and eventual fibrosis”.
107.Dr Bloom said he did not regard his opinion and the view expressed by Mr Polke as inconsistent and that he regarded the extract from Mr Polke as directed to the pathology of plantar fasciitis and not its cause.
108.Dr Bloom was directed to his report dated 26 November 2013. He was asked about his reference to the use he made of the American College of Occupational and Environmental Medicine Practice Guidelines and ‘other available literature’ and his opinion that ‘according to the Guidelines, data on prolonged standing as a potential risk factor is inconclusive’. His report went on to say that:
‘Thus, taking into consideration all the available evidence and the ACOEM Guidelines, plantar fasciitis is considered an idiopathic condition or disease process that relates to personal biomechanical factors and, in the absence of an acute traumatic event, is not considered an injury’.
109.Dr Bloom said that the lack of work relatedness was supported by the subsequent onset of left foot pain at a time when the plaintiff was engaged in predominantly sedentary activities.
110.Dr Bloom agreed with Mr Ajzensztat of counsel that standing may well aggravate the symptoms associated with the condition but not amount to a cause of the condition. He said the question whether or not an exaggerated gait brought about as a result of the onset of unilateral plantar fasciitis was not a matter he was able to express an opinion upon without undertaking a study of such relevant literature as might exist on the topic.
Mr Polke’s evidence
111.Mr Polke gave evidence. He is an Orthopaedic Surgeon and his reports dated 11 October 2014, 11 November 2014 and 24 February 2015 were received into evidence[16]. His first report was made “on the papers” not having examined the plaintiff.
[16] Ex D13
112.Mr Polke noted in his report dated 11 November 2014 following examination that the plaintiff was morbidly obese and that she walked into examination with a waddling gait but had no need for support but was unable to walk on her heels and she was tender under both heels although there was minimal swelling and her ankle and hind foot movements were near normal. He referred to x-rays of 10 January 2013 evidencing a calcaneal spur and an ultrasound of 25 June 2014 of the left foot reporting plantar fasciitis previous ultrasound of the right foot having also reported plantar fasciitis.
113.He confirmed the plaintiff suffered from bilateral plantar fasciitis. He confirmed the content of his previous report that plantar fasciitis has no relationship to the plaintiff’s employment as any number of activities such as prolonged standing, sitting and even lying in bed at night causes heel pain. Thus Mr Polke acknowledged a central plank of the plaintiff’s claim as it related to the association of the nature of the plaintiff’s work by way of prolonged standing to the onset of the right sided plantar fasciitis.
114.Mr Polke said there was no particular incident in the plaintiff’s employment which caused the heel pain and nothing the plaintiff could recall that precipitated it. He repeated his comments about the aetiology of plantar fasciitis and said:
“It occurs, typically in the middle-aged, often overweight were usually not able to recall any precipitating traumatic event; it was considered that it probably represents a degenerative attritional or fatigue interstitial tear of the plantar fascial near the calcaneal insertion associated with chronic inflammation and eventual fibrosis. The significance of the “heel spur” in the main fact being a variant unrelated to the heel pain itself.
Morbid obesity, which Ms Keogh suffers from, is said to be a contraindication the surgery. Conversely, with these patients, weight loss should be encouraged as a Conservative treatment measure.
I concur that plantar fasciitis is a disease process/condition are not an injury. On the balance of probabilities she would have suffered a similar condition with similar symptoms had she not worked in a job at Qantas. In other words, she had sufficient causal factors that would have contributed to her condition other than prolonged standing and weight-bearing.
Had prolonged standing caused it, once she had left work, any work-related exacerbation would have ceased.”
115.Mr Polke concluded his report by addressing the matter of the effect if any of the new work shoes that were issued in December 2012 and, in particular, the plaintiff’s complaint that the footwear was narrower than previous footwear and with a higher arch and steel caps. There was also the complaint that the previous fatigue mats were replaced with new amounts which were spongy. Mr Polke noted the plaintiff’s complaint that the use of the new footwear became stressful as they seem to restrict her movement and weighted her down rather than assisting her with her height differential to the work bench.
116.Mr Polke’s opinion was that he did not consider the high arch of the footwear as a cause of her plantar fasciitis. In his view the shoe was more likely to distribute the plaintiff’s weight away from her heels and therefore tend to reduce the direct pressure placed on her heels.
117.Mr Polke also expressed the opinion that the anti fatigue mat introduced in December 2012 has a perforated spongy consistency that would tend to relieve any direct pressure placed on the plaintiff’s heel as opposed to aggravating the plaintiff’s pain.
118.Mr Polke provided a further report dated 24 February 2015. He noted that he had been supplied with footwear of the contentious type used by the plaintiff for the very short period of time and that after examining the shoes, he formed the view that there was nothing about the footwear that would make him believe they were responsible for the production of the plantar fasciitis of the right or left foot. He said that having examined the shoes in detail he noted that there was “good, spongy, soft padding inside the shoes under the heel as well is the rest of the foot.” He concluded his report with the opinion that the footwear was not a significant contributing factor to the aggravation, acceleration, exacerbation or recurrence of the plaintiff’s left or right foot condition. He said the footwear was not particularly high arched and was an irrelevant consideration.
119.Mr Polke was directed under questioning to his second report dated 11 November 2014 and, in particular, page 3. Mr McKenzie asked him about the time difference between the reported onset of left sided plantar fasciitis and the relatively sedentary lifestyle of the plaintiff from July/August 2013 when she was on modified duties and reduced work hours to 30 December 2013 and thereafter when her evidence was that her activities were in the main watching television and playing computer games. The defendant’s purpose in highlighting this different lifestyle was to suggest a fallacy of a supposed connection between prolonged standing and the onset of the condition or the injury.
120.In re-examination Mr Polke said that did not believe that the condition of plantar fasciitis can arise from weight bearing on hard surfaces. He did not agree with the conclusion in the literature that prolonged weight-bearing may aggravate the condition.
121.Mr Polke said that degenerative tears could be asymptomatic for a number of years before pain becomes acute. He agreed as well that the condition is multi factorial and that age and height were factors frequently attendant with a diagnosis of the condition but he excluded weight bearing and standing as contributory factors. He said, “I do not believe standing could aggravate symptoms of the condition”. Whilst Mr Polke was very determined in his opinions, his capacity to reconcile them with the data such as it exists and was relied on by the plaintiff in order to make good a connection between the injury and its mechanism was less so.
Legal Submissions
122.In terms of the relief sought by the plaintiff and the claim adumbrated in the Amended Statement of Claim Mr Ajzensztat submitted that the left foot condition, that is to say, the onset of left sided plantar fasciitis is no more than the consequential effect of the right foot plantar fasciitis injury sustained by the plaintiff as a work injury. The left foot plantar fasciitis is put as a consequential effect of the right foot plantar fasciitis but Mr Ajzensztat submitted that if I was not satisfied on the balance of probabilities of this then the left foot would not be compensable but the right foot plantar fasciitis should be compensable. He also submitted that there was no contest joined in the proceeding regarding the asserted psychological/psychiatric injury arising from either unilateral or bilateral plantar fasciitis. I agree with this analysis.
Significant contributing factor
123.The words “contributing factor” recognises that an injury may be caused by more than one factor. The inclusion of “significant” means that where there is more than one factor involved and one of them is the worker's employment then its importance needs to be assessed in order to determine if it is a significant contributing factor or not. There may be also more than one factor which is significant and of course one factor may be more significant than another but this does not diminish the question whether employment is a significant contributing factor to the causation of injury. It may be of lesser significance than another but nonetheless satisfy the description of “significant.
124. In Meddis v. Victorian WorkCover Authority (County Court, judgment 24 April 1996) Judge Rendit, said this:
“I consider a broad meaning can only be given to the words 'significant contributing factor' as the facts of each case must be looked at in the light of its own circumstances and an assessment made factually whether the employment was a significant contributing factor to the happening of the injury. In this regard, I consider it means more than de minimis but less than a major or dominant factor. Indeed, one can have several significant contributing factors which are unrelated but which play their part in the occurrence of the injury. I consider that it is basically a question of fact”.
125. In Allman v. Major Finance and Engineering Pty Ltd[17] Judge Strong described ‘significant’ as meaning ‘of considerable amount of effect’.
[17] (County Court, judgment 14 March 1997)
126. Ashley J (as he then was) has spoken about the area of overlap between the statements of Judge Rendit and Judge Strong and he observed in Popovski v Ericcson Australia Pty Ltd[18] that there is an apparent point of disagreement in that the minimum requirement of the Meddis formulation is that the contribution of employment to injury be “more than de minimis”, whereas the “single requirement of the Allman formulation is that such contribution be ‘of considerable amount or effect’’. His Honour considered that the Allman formulation more accurately reflects what he called, the “sense of the legislation”. As His Honour pointed out, the adjective which parliament chose to insert was “significant” not “material”, nor the phrase “to a recognisable degree” all of which as His Honour noted owe their development to different legislative arrangements. Further His Honour said it is an adjective which implies a contribution of greater dimension than that conjured up by such of these other formulations. His Honour stated that that it is important to keep at the forefront of consideration that what will amount to “considerable” in any particular case will, of course, be a matter for determination on the facts and that at a practical, as distinct from conceptual level, the distinction between an employment contribution exceeding de minimis and an employment contribution of considerable amount or effect may be more apparent than real[19].
The section 5 (1B) factors
[18] [1998] VSC 61 at [61]
[19] The reasoning applied was not disturbed on appeal in Ericsson Pty Ltd v Popovski (2000) 1 VR 260
127. In deciding whether “injury” within sub‑paragraph (b) or (c) of the Act has been caused to a worker, the duration of the worker’s current employment, the nature of the work performed and the particular tasks of the employment must be considered: (s.5 (1B) (a), (b) and (c) of the Act). I am satisfied that the nature of the plaintiff’s work was that she was required to stand, essentially in one place, over the course of each day of her work which was in excess of 13 years. The work she performed was essentially static and required little movement by her as she placed designated items on a tray and then swept the tray along rollers to a second worker. Other than the plaintiff being required to occasionally walk some few paces to a refrigerator and back again her routine was set in stone. The plaintiff would rotate within the course of her working day to the extent that she might alter sides with her co worker at the assembly bench. The tasks were limited. In the period after the onset of injury and her return from a mixture of annual leave and sick leave the duties were moderated in the manner they were executed and the plaintiff was able to be seated as required and from July/August 2013 her duties were altered and she remained seated and her hours and days were reduced.
128. In considering whether employment is “a significant contributing factor” to injury, paragraphs (d) (e), (f) and (g) of s.5 (1B) direct attention to aspects of the worker or her lifestyle which, where relevant, have contributed to a particular injury. Most relevantly however from the defendant’s perspective is (d) because very obviously the fact of the matter is that the plaintiff presented in her employment with Qantas as significantly overweight and at the onset of the pain in 2013 she was aged 52. All of the practitioners agreed that the excessive weight and middle age are conditions often associated with persons diagnosed with plantar fasciitis. Of course, in terms of the plaintiff’s presentation, the defendant takes the plaintiff as it finds her and it was not suggested otherwise by the defendant. However a central controversy concerned the extent to which, if at all, the existence of such non work related conditions that the plaintiff presented with are no more than mere association of such a condition but not a cause of it or contributor to it.
129. The plaintiff submitted that each of the medical practitioners whose evidence and opinions she relied on held to their opinion that her employment in the sense of prolonged standing could be regarded as a factor associated with the onset of plantar fasciitis by way of cause. By comparison the plaintiff contended that the defendant’s medical witnesses could not exclude prolonged standing as factor contributing to the onset of that condition. I agree.
130. In giving effect to s 5 of the Act, I think it would be wrong of me to approach the matter on a construction that paragraphs (e) (f) and (g) are relevant only where there is evidence relevant to them so that such evidence may be put in the balance against the worker. I regard the relevant law directs me to be aware that the absence of facts falling within any of those aforementioned sub-paragraphs as was very much the case here may itself tell in favour of there having been significant employment contribution to injury in a particular case.
Findings of Fact
(i)The plaintiff suffered a sudden onset of unilateral plantar fasciitis on 8 January 2013;
(ii)The onset occurred at work and hence there was a temporal connection with the plaintiff’s employment;
(iii)The plaintiff’s work consisted on regular ongoing periods of lengthy standing in a substantially static position for a period in excess of 13 years;
(iv)The Guidelines utilised by Dr Bloom and adopted by Mr Polke identify that a recognised mechanism of injury for plantar fasciitis is prolonged weight bearing on hard surfaces;
(v)The plaintiff was at the cusp of middle age when she commenced employment with Qantas;
(vi)The plaintiff was overweight when she began with Qantas and significantly overweight when she suffered the acute onset of plantar fasciitis on 8 January 2012;
(vii)The plaintiff’s presentation with non work related risk factors for the development of plantar fasciitis is not a reason to exclude a consideration of work relatedness to the onset of the condition to the right foot;
(viii)The plaintiff was required to stand on hard surfaces for a period in excess of 13 years which on the evidence could have accounted for almost half the period of time before the introduction of anti fatigue mats which depending on the evidence commenced anywhere between 6 to 10 years ago;
(ix)I am satisfied that the presentation by the plaintiff with non work related risk factors or associations amounted to “significant contributing factors” to the onset of right and left sided plantar fasciitis but I am also satisfied that the nature of the plaintiff’s work was a “a significant contributing factor” to an injury of right sided plantar fasciitis;
(x)The plaintiff made no complaint about mats at any time before the onset of the right sided plantar fasciitis on 5 December 2012;
(xi)The mats used by Qantas complied with applicable OH&S Standards but I am also satisfied by the evidence of the Qantas witnesses that there was no designated time allocated for the changeover of mats and it appears to have occurred on an ad hoc basis. I also accept the plaintiff’s evidence that prior to December 2012 the cushioning effect was minimal and she felt as if she was standing on concrete;
(xii)The mats were liable to degradation from wear and tear over time and hence susceptible over time to a reduction in their cushioning effect;
(xiii)The issue of the mats and the shoes are not however determinative of the question of causation because I accept the evidence of Dr Bloom that the provision of mats are more purposeful in diffusing the weight bearing load of a worker who is ambulant as opposed to a worker such as the plaintiff who is predominantly in a static standing position throughout their work day;
(xiv)There is no evidence on the balance of probabilities that the shoes worn by the plaintiff caused or contributed to plantar fasciitis;
(xv)As regards causation the plaintiff undertook her employment for a prolonged period standing on hard surfaces and this is one type of recognised mechanism of injury for the condition of plantar fasciitis;
(xvi)The plaintiff’s plantar fasciitis presented in an unusual manner in that it presented unilaterally and presented suddenly and not by a gradual onset referrable to symtomology;
(xvii)The plaintiff suffered the onset of left sided plantar fasciitis more than a year and a half after the temporal risk factor for plantar fasciitis occasioned by the work relatedness of prolonged standing on hard surfaces in the workplace had dissipated and when she had been leading a sedentary lifestyle but at a time nonetheless at which she remained imbued with the personal characteristics that amount to recognised associations or risks of a cause of its onset;
(xviii)I am not satisfied that the plaintiff’s work amounted to “a significant contributing factor” to the onset of left sided plantar fasciitis. I am not satisfied that the plaintiff has discharged her burden of proof on the balance of probabilities that the onset of left sided plantar fasciitis was caused by her employment. I am satisfied that on an application of common sense the passage of time and the altered lifestyle the plaintiff was leading at the time of the onset of left foot plantar fasciitis in 2014 renders the association of work relatedness something less than “a significant contributing factor”.
Conclusion
131.The result of the evidence in this proceeding is that in accordance with the principles of law in determining whether a plaintiff has proved on the applicable standard of proof that her employment amounts to “a significant contributing factor” to injury I am so satisfied as regards the onset of right sided plantar fasciitis but not for left sided plantar fasciitis.
132.I therefore order that the plaintiff is entitled to relief in the form that the decision of the defendant to terminate the plaintiff’s entitlement to weekly payments from 30 December 2013 is set aside. I dismiss that part of the plaintiff’s application to set aside the defendant’s notice of rejection dated 19 August 2014 for compensation for left sided plantar fasciitis.
133.I will grant the parties a period of 7 days from the publication of this decision to submit a minute of order to give effect to these reasons or to have the matter brought on for mention if necessary.
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