Narenda Godala v KRT Riversdale Pty Ltd (WorkCover)
[2015] VMC 8
•31 MARCH 2015
IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
BETWEEN: No E12790219
NARENDA GODALA Plaintiff
-and-
KRT RIVERSDALE PTY LTD
Defendant
MAGISTRATE: GINNANE
WHERE HEARD: MELBOURNE
DATES OF HEARING: 11&12 MARCH 2015
DATE OF DECISION: 31 MARCH 2015
CASE MAY BE CITED AS: GODALA v KRT RIVERSDALE PTY LTD
Catchwords: Termination of weekly payments and medical expenses – plaintiff’s employment as a chef – long hours of standing- pre-existing ankle susceptibility –whether a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre‑existing injury or disease – whether employment a ‘significant contributing factor’
REASONS FOR DECISION
APPEARANCES Counsel Solicitors
For the Plaintiff Mr Dunstan Shine Lawyers
For the Defendant Ms De Guiro Wisewoulds
HIS HONOUR:
The nature of the plaintiff’s claim
By Complaint dated 5 August 2014 and Statement of Claim dated 4 August 2014 the seeks relief against the defendant as a result of an injury sustained out of and in the course of his employment as a chef , the particulars of which are:
(a).Right ankle injury
(b).Left ankle injury
(c).Severe osteoarthritis;
(d).Osteochondral lesions of the supermedial and supralateral talar dome
The plaintiff claims that he has been and remains incapacitated for employment and he seeks relief by way of:
(a). An order for weekly payments pursuant to s 93 of the Accident Compensation Act 1985 (‘the Act’) from 27 September 2013 and continuing in accordance with law
(b). An order for medical and like expenses pursuant to s 99 of the Act from 27 September 2013 and continuing in accordance with law
The defence contests the plaintiff’s assertion that:
(a).he sustained injury arising out of or in the course of his employment;
(b).any incapacity for work is materially contributed to by an injury arising out of or in the course of his employment
(c).the plaintiff’s employment is a significant contributing factor to the claimed injury
The plaintiff was represented by Mr Dunstan of counsel and the defendant by Ms De Guio of counsel.
I note merely at this stage that neither party addressed capacity in the course of the hearing by way of evidence save in passing in the course of final address and by reference to comments in one or other of the medical reports before the Court.
The plaintiff
The plaintiff was born in India on 30 August 1974. He is married and has one child aged 6. He completed school and then attended university for three years, obtaining a diploma in electronics and computer hardware and worked for four and a half years undertaking duties as a customer service engineer. He migrated to Australia on 2 February 2002 but was unable to find a job in his chosen field and so he retrained, undertaking a Certificate Ill in Commercial and Asian cooking. The plaintiff has been a chef for predominantly all of his paid employment in Australia. By all accounts of the evidence he has been very hard working. Moreover, the plaintiff impressed me in the course of giving his evidence and I have found no reason to question his account of matters.
The plaintiff’s previous work history
The plaintiff testified about his previous work history as a chef. This history included stints at the Melbourne Convention Centre and then at an establishment by the name of the ‘Urban Grooves’ in Greensborough from 2003 to 2005 and from 2005 to 2006 at the ‘Port Melbourne Pier.’ He worked with the defendant from 2008 to 2011.
The onset of right ankle pain in 2006
The plaintiff complained of right ankle pain as early as 2006.
At the time of onset of pain in 2006 the plaintiff was working at the ‘Port Melbourne Pier’. The plaintiff described the pain initially as not severe but it gradually worsened. He said the ‘Port Melbourne Pier’ was a busy establishment and he averaged 35 to 40 hours work per week. He said that his work area was confined to one level and that the kitchen had mats on the floor work surfaces. He complained of pain across the anterior aspect of his right ankle. He said that there was no real swelling but he had difficulty coping with his job because he stood all day. The plaintiff said it had worsened by 2013 when he stopped work as a chef with the defendant. He says that he is now experiencing similar symptoms in his left ankle.
At the time of onset of pain in 2006, the plaintiff was living in South Yarra and he attended on his then General Practitioner Dr Frooms. On 10 August 2006 Dr Frooms referred the plaintiff for x-ray and then onto Mr Andrew Beischer, Foot Surgeon who in turn on 25 September 2006 sent the plaintiff for MRI. The results of the MRI were reported as:
"1. Anteromedial talar dome OCD measuring up to 1 cm in size. It manifest as a marrow stress response and overlying chondral thinning (without a frank chondral defect). The marrow stress response extends into the body of the talus (inferomedially).
2. Deficient anterior talofibular ligaments. Previous healed high-grade partial tear of the calcaneofibular ligament. Minor scarring of the deep fibres of the MCL
3. Mild tendonosis of peroneus longus (at the anterolateral margin of the calcaneum).
4. No discrete peroneal tendon tear.
5. Appearances at the subchondral margin of the proximal aspect of the lateral cuneiform are consistent with degenerative phenomena.
6. Minor chronic proximal plantar fasciitis.
7. Minimal osteophytic lipping of the anterior tibial plafond and talar neck."
Mr Beischer considered that the plaintiff was suffering from an early osteochondritis of the right foot involving the talar dome and in December 2007 the plaintiff had a right ankle arthroscopy performed by Mr Beischer and after a couple of months the plaintiff returned to work with ‘Urban Grooves’ and he continued on with that employer until the middle of 2008. The plaintiff said that although it was at about this time that his right ankle was becoming a problem again, it was not until he commenced employment with the defendant at the Studley Park Boat House in September 2008 that the pain became acute.
The plaintiff’s hours of work with the defendant
The plaintiff commenced employment with the defendant in October 2008. The hours the plaintiff worked with the defendant were on some not infrequent occasions considerable. The uncontroverted evidence by the plaintiff was that his employment involved:
·3 weekday shifts 9 am to 4pm;
·2 Double shifts (weekends) of 9am to 4pm and 6pm to 10pm
I also heard unchallenged evidence from the plaintiff that in the busy Christmas and New Year and summer season, and indeed extending into the month of March, the venue was particularly busy and that on such occasions when the plaintiff worked double shifts, the turnover was so great, that after cleaning and the like it was common to have no more than 30 minutes rest between shifts.
The plaintiff said that the floor of the kitchen was hard and there weren’t any rubber mats to account for the inevitable spillages and so the floor was on occasions slippery. The plaintiff’s case included a narrative involving occasions of minor ‘slips and slides’. The plaintiff said in evidence in chief that the kitchen floor was subject to oil spillages, there was ‘lots of water’ and the floor was required to be cleaned between shifts and that he had slipped on the steps perhaps on ‘6 to 18 occasions’. None of the plaintiff’s treating doctors or those to whom he has been seen for medico legal purposes have recorded any complaint of slips during the plaintiff’s employment and indeed the plaintiff did not complain in evidence that he had slipped.
The plaintiff testified that in fulfilling his employment he was required to navigate some 5 steps in order to travel from the kitchen level to the store room and back again and also to carry produce up and down and back and forth, a process he said on average occurred up to 15 times a day. It was not explained in the plaintiff’s evidence if this estimate was carried out in the course of a single shift or a double shift.
There was evidence too of work as a chef performed by the plaintiff from time to time at other establishments and on days when not engaged with the defendant, including long hours between 7.00 am and 9.00pm at the Australian Open held in January. There was some other limited work at two other establishments but they were on the plaintiff’s uncontested evidence minimal and there was nothing to suggest that he had sustained any separate or discrete injury or trauma in such other work.
By about October 2009 the plaintiff said he felt a need to attend on his General Practitioner, who at this point in time was Dr Naidoo. The plaintiff was referred back to Mr Beischer. A further MRI was performed in January 2010. The findings of MRI reported the presence of an osteochondral defect involving the medial superior talar dome. There was the presence of an osteochondral lesion of the lateral aspect of the talar dome involving the posterior third. In relation to the lateral ligament there were some changes in the anterior talofihuladigam. The radiologist noted, among other matters, significant deterioration since the earlier MRI was performed. This is relevant because between the two dates the plaintiff’s work was the only significant additional fact adverted to in evidence. Mr Beischer suggested another operation. The plaintiff was a little frightened about having an operation. Not embracing the idea of surgery the plaintiff battled on. He said he self managed his discomfort and pain by taking Voltaren.
In approximately May 2010 the plaintiff said her needed respite from the work with the defendant and so he took up part time work as a chef for a company that held a catering contract with the Etihad Stadium and he worked a shift from 8.00am to 3.00pm.
The car accident and the return to India
In September 2010 the plaintiff was involved in a motor vehicle accident. The injuries he suffered are unrelated to any matter of pathology of the foot. However by dint of his injuries he was unable to continue performing work at Etihad and so in about October or November of 2010 he took the opportunity to return to India to see family and friends. He remained in India until June 2011 when he returned to Australia. He said that whilst he was in India he rested and did not work. He noticed some improvement with his foot.
Although the plaintiff returned to Australia in June 2011 he did not return to work with the defendant until about September 2011. The plaintiff said that in the period from his return to Australia in June 2011 and returning to work with the defendant he had ‘no pain during this period’. When the plaintiff recommenced with the defendant, it was in the same capacity as previously, as a full time chef.
The plaintiff said that after ceasing employment with the defendant he worked as a chef at a venue called ‘Portland’ in the CBD for ‘3 or 4 times’ for about 5 weeks commencing in October 2013 and concluding in November 2013. He said he experienced pain in his right ankle and he found it difficult to get to and from work.
In January 2014 the plaintiff was operated on by Dr Anita Boecksteiner, Orthopaedic Surgeon, at the Werribee Hospital. She performed an osteotomy of the medial malleolus and treated micro fractures of the medial dome. She noted full thickness loss of cartilage. Post-operatively the plaintiff was in plaster and had bed rest for about 6 to 8 weeks and a period of about 5 weeks on crutches. The plaintiff said that it was not until about June 2014 that he could ‘walk slowly’. He underwent physiotherapy and hydrotherapy sessions. He told the Court that his condition gradually improved.
From July 2014 the plaintiff worked as a driver for ‘Uber’ but this work proved too painful. The plaintiff estimated he worked between a minimum of 15 hours a week and a maximum of 35 hours a weeks as a driver.
The plaintiff says that his right ankle is still painful and he said it was ‘bad’. Reports tendered in evidence record the plaintiff having complained that the ankle aches especially on use and upon long intervals of standing and that it also tends to swell. It is very stiff and he has lost power in the ankle. It is noted among the reports that the plaintiff often wakes at night in pain. The plaintiff says that he takes Endone only when required because he experiences unwelcome side effects and he also takes two tablets of Panadol Osteo tablets twice per day. He said that he sees his general practitioner approximately every 4 to 5 weeks.
The expert medical evidence and testimony
Ms Boecksteiner, Orthopaedic Surgeon testified on behalf of the plaintiff. She said that the plaintiff had attended on her in the order of 10 occasions.
Ms Boecksteiner holds the opinion that the problem with the plaintiff’s ankles is related to weight bearing activities over a long period of time and the build up of wear that his activities bring.
Ms Boecksteiner reported that when the plaintiff came to see her in September 2013 he gave her a history of his many years of work as a chef and he described the pain in his ankle that he said had experienced for approximately six years.
Ms Boecksteiner was aware that in 2007 Mr Beischer had performed an arthroscopy and that the plaintiff had returned to see Mr Beischer in 2009 when his ankle started hurting again.
Ms Boecksteiner said that the plaintiff attended with a new MRI scan that showed a large cyst in the bone, in the corner of the talus, deteriorating cartilage over the top of it and a smaller cyst in the lateral talar dome. Ms Boecksteiner assessed the situation and explained to the plaintiff that his options were limited such as arthroscopic debridement of the areas. Ms Boecksteiner thought there may be a bit of cartilage that was lifting up and hurting when the plaintiff was ‘darting around and on his feet as a Chef’. Ms Boecksteiner thought that grafting these cysts to support the cartilage over the top of them was a possibility, but that osteochondral plugs in this area can work quite well to support the cartilage and the bone. She reported having discussed such matters with the plaintiff. She organized a three dimensional CT scan to get a better look at the area to see if the cysts were bony or if they had mainly fluid in them. The plaintiff returned with the results. The CT scan showed that the cyst was made up of multiple small cystic spaces interlinked by bone and with deteriorating cartilage over the top. Ms Boecksteiner said that she discussed surgery with the plaintiff further and advised him that if he went down the path of grafting he would need an osteotomy of his medial malleolus to access the site. The plaintiff decided to go ahead with surgery and this was performed at the Werribee Public Hospital on 2 January 2014. Ms Boecksteiner performed a right ankle osteotomy of the plaintiff’s medial malleolus which revealed the medial talar dome. The area had a cartilage defect of 6mms x 4mms, but only 2mms to 3mms of it was on the weight bearing top surface of the talus. When the calcified layer was scrapped by Ms Boecksteiner it revealed good solid bone beneath which was able to support cartilage surface grafting. It was judged too small for mosaic plasty and it was curettaged and a micro fracture was performed. The medial malleolus was fixed with two small AO screws. A lateral arthrotomy was performed and the lateral dome was inspected, and there was grade one cartilage and the anterior lip of the tibia was removed which was a spur shape. Post operatively the plaintiff was treated non weight bearing for a period of time in a cast and then the cast was removed and he started performing non weight bearing ankle exercises.
By 10 February 2014, Ms Boecksteiner started the plaintiff performing some partial weight bearing using crutches and by the eight week mark he was fully weight bearing without crutches. Ms Boecksteiner reported that by 16 April 2014, some three and a half months following his surgery, the plaintiff reported good results until the three month mark, but then had had two weeks of increased pain. He started getting a clicking feeling medially and it was very puffy along the medial malleolus. The plaintiff had an MRI scan to look at the medial malleolus. The conclusion was consistent with the osteotomy and the talar dome drilling or micro fracture technique and the anterolateral exposure of the ankle.
By May 2014 the plaintiff was still experiencing pain and there was some synovitis away from the surgical scars. Ms Boecksteiner reported that she injected his ankle with 40mgs of Depo Medrol. Ms Boecksteiner reviewed the plaintiff on 13 June 2014 and although he had improved, he still had some soreness anterolaterally and so she started him on physiotherapy with deep tissue massage in that area. She also noted that he was sensitively medially from right over where the screws were inserted. X-rays showed the osteotomy was healed and she said that it had been decided as reasonable to take out the screws.
Ms Boecksteiner reported that the plaintiff has symptoms in his left ankle and that MRI scan reveals much lesser, but similar problems on the talar dome to his right ankle.
Ms Boecksteiner accepted that the plaintiff made no report of injuries prior to the start of his ankle pain around 2006. However, Ms Boecksteiner reported that small movements and starting in different directions can cause escalated wear in an ankle. She described the plaintiff’s problem as a degenerative process that may have been aggravated by long hours of standing, moving and changing direction in fulfilling and discharging his duties as a chef.
Ms Boecksteiner’s opinion is that standing contributes overall to degenerative lesions and to wear, and that the cystic change in the plaintiff’s bones is also causally related to wear.
Ms Boecksteiner expressed the opinion that in the future the plaintiff might require further surgeries and investigations. She believes that he is still at risk of further degeneration over time and causing him to have full blown arthritis of his ankle rather than two small areas and that this might result in him requiring a significant operation which would reduce his overall range of motion of his ankle, such as a fusion or an ankle replacement and that there is a increased risk of this likelihood in the plaintiff as opposed to the ordinary and unaffected member of the community who has a normal ankle with normal cartilage.
Ms Boecksteiner was directed in evidence in chief to that part of her report in which she said that she did ‘not have the exact figures on how many hours he stands for his job or whether he slipped in the kitchen without major injury being reported’ but that ‘all of these things would contribute to the wear in his ankles’. Mr Dunstan of counsel gave Ms Boecksteiner a narrative derived from the evidence, of the hours the plaintiff worked for the defendant including a calculation of hours worked otherwise than with the defendant. Ms Boecksteiner explained a process in which when the cartilage deteriorates and fluid finds its way into the bone under compression and that such type of cystic change can be related to the cartilage wear that the plaintiff has experienced. Ms Boecksteiner said that spraining and twisting the ankle can accelerate the cartilage damage. According to Ms Boecksteiner all factors are contributors to a recurrence, aggravation acceleration or deterioration of the plaintiff’s pre-existing condition.
In Ms Boecksteiner’s opinion the plaintiff was in a vulnerable and susceptible position as apposed to a person who has a normal ankle with normal cartilage. This observation was in accordance with her report dated 10 October 2014 in which she noted that she had organised ‘a three dimensional scan to get a better look at the area to really see if these cysts were bony or if they had mainly fluid in them…the CT scan showed that the cyst was really made up of multiple small cystic spaced interlinked by bone and with deteriorating cartilage over the top’.
In cross-examination Ms Boecksteiner was asked about the comparisons that may be drawn from three MRI’s undertaken on the plaintiff’s ankle on:
·25 September 2006;
·28 January 2010;
·2 August 2013
Between the report of MRI of 25 September 2006 and 28 January 2010 Ms Boecksteiner agreed that the stress response had increased and that although an increase was inevitable as part of the degenerative process, however, in her opinion, the plaintiff’s work accounted for an increased acceleration in degeneration.
Ms Boecksteiner was directed under cross-examination to the MRI dated 2 August 2013 and the conclusions expressed in the radiologist’s report accompanying the scan of evidence of previous inversion injury with prior injuries of anterior tibiofibular ligament and calcaneofibular ligament and superomeidial ligament. Ms Boecksteiner agreed with the report of an inversion type of injury commensurate with swelling of the ligaments on the side of the foot. She thought the size and shape were ‘if anything smaller’ but that nonetheless, the plaintiff’s reporting of increased pain may have been due to some ‘cartilage actually falling off’. In addition, she thought that swelling or edema may account too for the report by the plaintiff of increased pain in the talfer dome.
Ms Boecksteiner was asked her opinion whether if the combined effect of a total of 20 months other employment by the plaintiff was excluded from a consideration, the plaintiff’s naturally occurring degenerative condition and its presentation could be accounted for by reason of his employment with the defendant. Based on the period of employment with the defendant being some 8,000 hours and the employment with others being 284 hours, Ms Boecksteiner said in her opinion, it would.
Mr Mangos
Mr Mangos, General Surgeon testified. He examined the plaintiff at the request of the plaintiff’s lawyers. He said he explained to the plaintiff that he had a couple of options available by way of treatment with an arthroscopic debridement of the areas in issue amounting to least intrusive intervention.
Mr Mangos said CT examination showed that the cyst affecting the plaintiff was really made up of multiple small cystic spaces interlinked by bone and with deteriorating cartilage laid over the top. Mr Mangos explained that there may be a bit of cartilage that is lifting up and hurting the plaintiff in consequence of ‘darting around on his feet as a chef’.
In addition to his oral testimony, Mr Mangos had examined the plaintiff and reported on his findings on examination by way of written report dated 12 November 2014[1]. Mr Mangos said that the plaintiff described the pain he experienced prior to 2006 as ‘nuisance value’.
[1] Ex P3
During evidence Mr Mangos was furnished with the more detailed history of work activity of the plaintiff prior to commencing with the defendant. He said that in his opinion, they seem to be ‘all aggravating features’ but he went on to say that that he placed relative importance on the work undertaken with the defendant because it was the place at which the greatest concentration of work occurred. In an exposition and explanation similar to that of Ms Boecksteiner, Mr Mangos said that although the plaintiff’s condition was progressive, in his opinion the progression had been accelerated to the extent that without the work performed with the defendant it could have taken a further 10 years.
Mr Mangos said that in his opinion, the plaintiff’s employment with the defendant was a significant contributing factor to the injuries namely osteochondral damage involving the talar dome and severe degenerative changes in the tarsal bones of the right ankle.
Although Mr Mangos was directed to and questioned about the report on findings of MRI and the changes noted and whether they are explicable in any event as part of the normal degenerative progression of the plaintiff’s condition, Mr Mangos expressed a conclusion in accord with Ms Boecksteiner.
Ian Jones
Ian Jones, Orthopaedic Surgeon saw and examined the plaintiff on 4 February 2015 at the request of the defendant’s solicitors. Mr Jones testified on behalf of the defendant.
Mr Jones took a work history from the plaintiff that included his employment history prior to commencing with the defendant in 2008 and Mr Jones reported that the plaintiff’s work as a chef with various employers including the defendant included long periods of standing, walking, carrying, lifting and having to walk up and down steps.
The plaintiff told Mr Jones that he had not suffered any injury or insult to his right foot or ankle. Mr Jones reported that the plaintiff could not establish the actual date of the onset of his ankle pain but that he noticed it during his employment in 2006 and that on returning to work after his one to two days off he would experience some aching symptoms in the right ankle joint for which he took Panadol. The plaintiff told Mr Jones that he tolerated the symptoms for a few months and then consulted his General Practitioner at the Toorak Medical Centre.
Mr Jones recorded the history of X-rays and imaging of the plaintiff’s right ankle and of his referrals and of surgery and subsequent return to employment with the defendant following the arthroscopic surgery that had provided him with some improvement. Over a period of about 12 months the plaintiff reported to Mr Jones that his ankle was ‘OK’.
Mr Jones noted in his report that the plaintiff had described that in about late 2009 or early 2010 he was experiencing a gradual increase in his level of pain in his right ankle resulting in a referral back by his general practitioner to Mr Beischer.
Mr Jones reported that the plaintiff was not engaging in any sporting activity and apart from his work his habits appeared to be fairly sedentary.
Mr Jones concluded his report of findings with the opinions that the plaintiff suffers osteochondritis dissecans that affected initially his right and subsequently his left ankle. Mr Jones is also of the opinion that although the plaintiff’s employment ‘involving prolonged standing, lifting and carrying may have exacerbated his ankle symptoms’ he had ‘no reason to believe that they have accelerated the progress of his ankle arthritis’ and that ‘the effects of any exacerbation of his ankle complaints during the time he was employed have resolved’.
Mr Jones reported that the plaintiff suffers from painful left and rig symptoms and signs are more pronounced on the right side and he expressed the belief that there was some developing osteoarthritis in both ankle joints secondary to osteochondral lesions affecting the talar dome of both left and right ankle joints.
Mr Jones also noted the absence of any specific injury during the course of employment at the Studley Park Boathouse or any previous history of left or right ankle injury and he did not believe that the plaintiff’s right or left ankle condition has been caused by his employment. Nonetheless Mr Jones believed that the prognosis for the plaintiff is poor for the plaintiff’s left and right ankles and he believes that progressively the ankle joints will deteriorate with the development of more pronounced osteoarthritic symptoms to the point where further surgical treatment will be required either in the form of arthrodesis or arthroplasty.
Dr Davison, Occupational Physician undertook an independent medical assessment of the plaintiff at the request of the defendant’s insurer on 19 December 2013. Dr Davison was not required for cross-examination and his report was received into evidence.
Dr Davison reported that he did not believe that the plaintiff’s left and right ankle conditions would permit him to return to work as a chef and that any return to suitable employment would have to be sedentary in nature.
Dr Davison also reported that although his employment involved prolonged standing, lifting and carrying and that this may have exacerbated his ankle symptoms, he had no reason to believe that they have accelerated the progress of his ankle arthritis and that he believed that the effects of any exacerbation of his ankle complaints during the time he was employed have resolved.
Dr Davison pointed out that the plaintiff’s condition preceded his employment at the Studley Park Boathouse. This is not disputed by the plaintiff. He also expressed the view that the plaintiff’s duties, which involved standing and walking, were not onerously long. Dr Davison reported that ‘there were two longer shifts of approximately10 hours per week (given the one and a half to two hour break between shifts). The other shifts are considered to be of normal length’. This observation and reporting by Dr Davison needs to be modified in light of the plaintiff’s evidence of not infrequent occasions of almost continuous work from one to the other shift on busy weekends and particularly during the festive and holiday season.
Dr Davison reported that although the plaintiff has ceased work his pain has not diminished and is present even when sitting. In Dr Davison’s opinion, this does not support the claimant’s contention of a work-related condition. I prefer the contrary evidence that despite lack of use the account of pain is explicable as explained by Ms Boecksteiner and Mr Mangos.
Dr Davison’s view is that the plaintiff is suffering from a gradually deteriorating pre-existing condition and that the plaintiff’s employment has not contributed to any aggravation, acceleration, exacerbation or deterioration. Dr Davison also holds the opinion that the plaintiff’s condition will persist indefinitely and that his physical capacity may improve with successful surgical treatment.
Mr Davison has reported that prior to his injury the plaintiff enjoyed swimming and cycling in the summertime.
Drawing the strands together
Mr Godala is a 38-year-old, right-hand dominant commercial chef who suffered an injury to his right ankle as a result of workplace activity. The plaintiff commenced work at the Studley Park Boat house-as-a chef in Kew in 2008. He worked on a full-time basis until 2010, when he returned to his native India for 10 months following a motor vehicle accident in which he sustained a left shoulder injury. He returned to Australia in 2011 and was offered his old job back. Subsequently, he worked five days per week as a commercial chef including three morning shifts (from 8 or 9 am until 4 or 5 pm) and two ‘double’ shifts. On a double shift the plaintiff commenced work at 9 am and then worked through until about 3.30 pm when he was expected to receive a one and a half to two-hour break before resuming duties which continued until about 9:30pm. I am satisfied by the plaintiff’s evidence that he frequently had a scant period of time to recover and recuperate between shifts. As would be expected, as a chef the plaintiff spent virtually all of his time standing and walking around in the kitchen and allied places.
The plaintiff‘s pain in the right foot/ankle that he first encountered in 2006 recurred during 2009. There was no specific incident. He suffered a left shoulder injury in a motor vehicle accident and returned to India for many months and after returning to Australia returned to work with the defendant.
Despite treatment with anti-inflammatory medication and analgesia, there has been persisting pain in the plaintiff’s right foot. Despite reducing his level of physical activity following on his resignation and some short work as a chef, the amount of pain the plaintiff has experienced has increased.
The plaintiff has pain and swelling in the right foot/ankle that extends from the medial to the lateral malleoli regions and is maximal over the anterior aspect of the ankle. The pain is present whether sitting, standing or walking. The plaintiff says he now has similar pain in the left ankle/foot.
Legal Submissions
It is agreed between the parties that the commencement point for considering ‘injury’ in this case is 2006 and that it is elusive and unnecessary to try and identify a cause for the onset of injury.
Significant contributing factor
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'. There are many statements that have been made in decided cases, the sum total of which are, I venture to suggest, consistent with the comments I have expressed.
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’.
In Allman v. Major Finance and Engineering Pty Ltd[2] Judge Strong described ‘significant’ as meaning ‘of considerable amount of effect’.
[2](County Court, judgment 14 March 1997)
In Popovski v Ericsson Australia Pty Ltd[3] Ashley J (as he then was) spoke about the area of overlap between the statements of Judge Rendit and Judge Strong and commented on the 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’’. Ashley J thought[4] the Allman formulation more accurately reflects 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 he pointed out, owe their development to different legislative arrangements. Further his Honour said ‘significant’ is an adjective which implies a contribution of greater dimension than that conjured up by such other formulations as have been struck. 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.
[3] [1998] VSC 61
[4] Popovski [at 61]
As far as the evidence is concerned it is uncontested that as a chef the plaintiff stood mainly all day. I am satisfied that a prolonged standing contributed significantly to the nature of his condition. It began in 2006 but was not really severe until he went to the Studley Park Boat House in 2008. I am satisfied that his condition was significantly aggravated by employment with the defendant and that the development by way of the natural progression was significantly accelerated. The plaintiff worked full time, he stood mostly while he was working and was working in the kitchen and the storeroom which were at different levels which he was required to navigate by stairs taking materials there and bringing them back again on average at least fifteen times a day.
Section 5 (1B) of the Act
The Act requires by s 5(1B) that in determining for the purposes of the Act whether the plaintiff’s employment was a significant contributing factor to an injury I must take into account:
(a) the duration of the worker's current employment; and
(b)the nature of the work performed; and
(c)the particular tasks of the employment; and
(d)the probable development of the injury occurring if that employment had not taken place; and
(e)the existence of any hereditary risks; and
(f)the life-style of the worker; and
(g)the activities of the worker outside the workplace—
I am satisfied that the duration of the plaintiff’s work was considerable certainly by comparison with other relevant periods of employment. I am also satisfied that nature of the work performed by the plaintiff taken together with the tasks required to be performed by him with the defendant namely the standing for extended periods of time, navigating a slippery floor, traversing up and down stairs repeatedly and retrieving supplies was also relevant and significant as a contributory factor to an aggravation or acceleration of his condition.
I am also satisfied by the evidence that on the balance of probabilities the plaintiff would in all probability have suffered a development of his condition irrespective of his employment with the defendant but that I prefer the evidence of Ms Boecksteiner and Mr Mangos that the development of the pre existing ankle susceptibility was progressed by the employment with the defendant. I am satisfied by the medicine that the progression was at least to a recognisable degree.
Sub-paragraphs (e), (f) and (g) of s.5 (1B) directs attention to aspects of the plaintiff such as hereditary risks or his lifestyle or activities outside of work which, where relevant, might have contributed to a particular injury. The paragraphs in question are not only relevant where circumstances fitting them are present such that they can be put in the balance against a plaintiff. Indeed the absence of facts falling within any of the sub-paragraphs may tell in favour of there having been significant employment contribution to injury in a particular case.
There was really no evidence led by on behalf of the plaintiff in regard to his lifestyle and the effects of his ankle condition on it and there is really only brief mention of lifestyle in the medical reports. Dr Davison noted that the plaintiff can walk a distance of approximately 500 m. He can stand for about 30 minutes and sit for unrestricted periods. He has difficulty squatting principally due to right ankle pain. He is able to drive a car for up to an hour and a half and drives and collects his six year old son to and from school. He manages limited shopping and housework. His wife cooks all the meals. His day is spent generally feeling depressed but spending a deal of time watching TV. He states that he is otherwise well.
Conclusion
I am satisfied on the balance of probabilities that the plaintiff came to his employment with the defendant with a naturally occurring degenerative ankle condition. I am satisfied that there is a sufficient connection disclosed in the medical evidence to conclude on the balance of probabilities that the work performed in the discharge of the plaintiff’s employment with the defendants meets the description of a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre‑existing injury or disease. Furthermore, in light of judicial guidance I am satisfied that the plaintiff has established on the balance of probabilities that the work with the defendant was a significant contributing factor.
I also am satisfied that the plaintiff has no current work capacity within the meaning of the Act.
The plaintiff is entitled to the relief claimed and I will hear the parties on the final form of order and costs.
Jones v Dunkel
Lastly and lest it be thought the matters was overlooked, I should dispose of one matter raised by the defendant; that because Dr Beischer was not called to give evidence by the plaintiff that it was open to me, and I should, draw an adverse inference against the plaintiff in accordance with the principle expressed in Jones v Dunkel[5]. I disagree with the submission. I accept that the plaintiff had the carriage of the matter and it was with him that resided the burden of proof to discharge the essential elements of his claim on the balance of probabilities. I am not persuaded that the absence of oral testimony from Dr Beischer impeded me in arriving at the conclusion I have that the plaintiff’s employment with the defendant was ‘a significant contributing factor’. As I have already mentioned, the work performed with the plaintiff need not be the only significant factor at play and neither need it be less or more significant than other factors, or other significant factors, but the employment with the defendant must at least be a significant factor. I have reached the determination that it was and I was not impeded in arriving at this conclusion by reason of the absence of viva voce evidence from Dr Beischer.
[5] (1959) 101 CLR 298
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