Noonan and Australian Capital Territory (Compensation)
[2023] AATA 3786
•20 November 2023
Noonan and Australian Capital Territory (Compensation) [2023] AATA 3786 (20 November 2023)
Division:GENERAL DIVISION
File Number(s): 2022/1680
Re:Glenn Noonan
APPLICANT
AndAustralian Capital Territory
RESPONDENT
DECISION
Tribunal:Member W Frost
Date:20 November 2023
Place:Canberra
The Tribunal sets aside the decision under review pursuant to subsection 43(1)(c) of the Administrative Appeals Tribunal Act 1975 and makes a decision in substitution that the Australian Capital Territory remains liable to pay compensation to Mr Noonan pursuant to sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988.
The Tribunal will make an order regarding costs in this proceeding pursuant to section 67 of the Safety, Rehabilitation and Compensation Act 1988 following receipt of any submissions from the parties which, unless agreed, should be given to the Tribunal by Mr Noonan within seven days of the date of this decision and by the ACT within 14 days of this decision.
............[SGD]................................................
Member W Frost
Catchwords
WORKERS’ COMPENSATION – denied liability – workplace injury – condition resulting in incapacity for employment – condition contributed to a significant degree by employment – ‘injury’ pursuant to the SRC Act – ‘disease’ pursuant to the SRC Act – compensation for medical treatment or incapacity – aggravation of acquired deformities – peripheral neuropathy – Charcot foot - decision under review set aside
Legislation
Administrative Appeals Tribunal Act 1975 s 43(1)
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A, 5B, 14, 16, 19, 67
Cases
Telstra Corporation v Hannaford [2006] FCAFC 87
Quinn and Australian Postal Corporation [1992] AATA 668
Woodhouse v Comcare [2021] FCAFC 95
REASONS FOR DECISION
Member W Frost
20 November 2023
INTRODUCTION
The Applicant, Mr Glenn Noonan, applied to the Administrative Appeals Tribunal (Tribunal) for review of a decision made by the Respondent, the Australian Capital Territory (ACT), affirming a determination that it had no present liability to pay him compensation for medical treatment or incapacity under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act), in relation to his accepted condition of ‘bacterial infection (left) (2nd toe); acute osteomyelitis (left) (2nd toe); and traumatic amputation of toe (left) (2nd toe)’.[1]
[1] Exhibit 1, pages 279-282 and 286-290.
The Tribunal has considered all of the documents filed pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act), together with the evidence and submissions provided on behalf of the parties. For the reasons that follow, the Tribunal sets aside the decision under review pursuant to subsection 43(1)(c) of the AAT Act and makes a decision in substitution that the ACT continues to be liable to pay compensation to Mr Noonan pursuant to the SRC Act.
ISSUES
The issues for the Tribunal to decide in this proceeding were:
(a)whether Mr Noonan continues to suffer the effects of the accepted ‘injury’ pursuant to the SRC Act;
(b)if so, whether Mr Noonan needs medical treatment in relation to that condition; and
(c)whether that condition results in an incapacity for employment.
BACKGROUND
Mr Noonan is 60 years old.[2]
[2] Exhibit 1, page 8.
In or around 2002, Mr Noonan commenced employment as an ambulance officer with the ACT Ambulance Service. He was previously employed with the New South Wales Ambulance Service since 1993.[3]
[3] Exhibit 1, pages 76 and 248.
On 20 June 2005, following an assessment of Mr Noonan in May 2005, Dr Brendan Klar, Orthopaedic Surgeon, relevantly reported to his general practitioner as follows:[4]
This gentleman has been bothered by pain and tingling in both feet for more than two years. His worst foot is the left foot. He finds that any walking aggravates his pain considerably, and the pain also wakes him at night time. He has been investigated in the past with nerve conduction studies by Colin Andrews which were reported as normal. He has had a glucose tolerance test and vitamin B12 levels, which I understand were all normal.
On examination, I can find no abnormality in either foot or ankle which would explain his pain. He has altered sensation and hypersensitivity from the midfoot distally bilaterally. He has no sign of tarsal tunnel syndrome, and no other neurological abnormality. Specifically, he has no long tract signs and no cerebellar signs. I agree entirely with Betty Domazet's assessment, that he has a painful peripheral neurology of unknown aetiology. I think it would be worthwhile trialling Endep at a dose of 10 mg nocte, and increase this to 20 mg nocte if required. I would strongly recommend that he see Roger Tuck for a full neurological review to see if he can find any cause for the neuropathy.
[4] Exhibit 3, page 1097.
In or around 2005 or 2006, Dr Roger Tuck, Neurologist, diagnosed Mr Noonan with ‘small fibre neuropathy’ of unknown cause.[5]
[5] Exhibit 2, pages 43-44, 47 and 64; Exhibit 3, page 1096.
On 30 November 2006, Mr Noonan was diagnosed with ‘acute paronychia’, which he had not noticed due to ‘sensory loss’.[6]
[6] Exhibit 2, page 44; Exhibit 3, pages 1055-1056, 1067-1068, 1091 and 1098.
On 19 December 2010, Mr Noonan presented to Calvary Hospital with what was recorded as ‘swollen L toes’.[7] The clinical notes recorded ‘small peripheral node neuropathy’ and ‘many years of numbness to forefoot’.[8] A discharge report of the same date stated that:[9]
[7] Exhibit 1, page 33.
[8] Exhibit 1, page 34.
[9] Exhibit 1, page 35.
Glenn presented to the ED with some left forefoot/second toe pain and redness. We discussed his background history of the peripheral neuropathy, obesity, ? glucose intolerance, ? mild hypertension.
o/e marked onychomycoses, second toe - mtp joint centred pain and redness, afeb, BP 144/88
Pt had an xray to exclude him developing a crahcot’s [sic] foot – I thought this showed a small calcaneal spur – I wonder whether he sometimes suffers with some plantar fasciitis.
Bloods showed a high urate, normal FBC, normal CRP.
The Discharge Diagnosis was
gout.
onychomycosis.
obesity. [emphasis in original]
Also on 19 December 2010, an x-ray report of Mr Noonan’s feet relevantly stated that there ‘is deformity of the second proximal phalanx probably related to previous trauma with secondary osteoarthritic changes’, some ‘patchy sclerosis is also identified in this region’, but no evidence of Charcot’s foot.[10]
[10] Exhibit 1, page 37.
On 21 December 2010, Mr Noonan presented to Calvary Hospital with ‘toe pain’ and fevers.[11] A discharge report of the same date stated that:[12]
Glenn has had a painful second left toe for about a week now. He was seen here on 19/12/10 and his wcc was normal and his urate was mildly elevated. His toenail fungal specimen is still pending. His pain, swelling and redness is getting worse now and his toe joint is very hot and red.
I have given him Indocid 50mg tds and panadeine forte for the pain. Also, in case this is cellulitis and not gout I have given him dicloxacillin 500mg oral qid.
He should have his toe reviewed in a few days to ensure that it is getting better and not worse.
[11] Exhibit 1, page 30.
[12] Exhibit 1, page 32.
On 23 December 2010, Mr Noonan presented to Calvary Hospital, with symptoms which the triage nurse described as ‘? cellulitis L) second toe’.[13] It was also recorded that Mr Noonan had previously attended ‘for peripheral neuropathy’ and this, together with cellulitis and a fungal infection of the toenail, was the impression recorded in the clinical notes from his attendance on 23 December 2010.[14] On the same date, a document was completed to transfer Mr Noonan to The Canberra Hospital with a diagnosis of ‘L foot 2nd toe infection – cellulitic, possible osteomyelitis. His[tory] peripheral neuropathy’.[15]
[13] Exhibit 1, page 19.
[14] Exhibit 1, pages 20, 22 and 23.
[15] Exhibit 1, page 25.
On 3 January 2011, Mr Noonan’s second toe on his left foot was amputated.[16]
[16] Exhibit 1, pages 83-87.
On 6 January 2011, an ACT Pathology report confirmed the identification of fungal elements in Mr Noonan’s toe nail.[17]
[17] Exhibit 1, page 39.
On 20 January 2011, Mr Noonan lodged a Claim for Workers’ Compensation with Comcare, being the then relevant insurer, in relation to an injury or illness comprising cellulitis, ulceration and amputation of the second left toe.[18] The claim form noted that the body part that was injured was the loss of the second left toe.[19] In response to the question about what action, exposure or event caused his injury or illness, Mr Noonan responded as follows:[20]
Being required to wear unsafe employer issued boots which caused & deteriorated toe nail infection to left 2nd toe resulting in ulceration & cellulitis & amputation.
[18] Exhibit 1, pages 40-55.
[19] Ibid., page 43.
[20] Ibid., page 45.
Also on 20 January 2011, Mr Noonan completed an Accident/Incident Report for the ACT, which stated that the injury occurred due to the nature and conditions of his employment from approximately August 2010.[21] The report described the injury as being an initial fungal toe nail infection, which progressed to a serious bacterial infection causing ulceration of the toe, resulting in amputation of the second left toe, due to ‘having to wear unsafe work boots issued by employer’.[22]
[21] Exhibit 1, pages 57-58.
[22] Ibid., page 57.
On 24 January 2011, Ms Noshin Lou, Podiatrist, wrote a letter in support of Mr Noonan’s request for specific footwear, which relevantly stated that:[23]
Mr Noonan has been experiencing bilateral pain and discomfort in the forefoot region since 2005 and was diagnosed with peripheral neuropathy of unknown nature.
In December 2010 he was admitted to the Canberra Hospital for infection of the left 2nd toe which resulted in amputation. During his admission he was referred for podiatry review with follow up appointments upon discharge.
Following podiatry assessment it was revealed that as the result of peripheral neuropathy the foot structure has changed, this will create pressure areas on both feet which can become ulcerated with further complications and possible amputations.
[23] Exhibit 1, page 56.
On 24 March 2011, Dr Ross Hendry, General Practitioner, reported to Comcare relevantly as follows:[24]
This 47 year old ambulance man first consulted me on 30th December 2010 in relation to his toe problem.
I note in his history he had seen Dr Haynes at this practice on 15th May 2002 in relation to bilateral forefoot pain and burning of six months duration. He was referred to orthopaedic surgeon, Dr Miniter, at that stage. In 2005 he saw a neurologist, Dr Tuck, who thought he had a small fibre peripheral neuropathy.
He also saw another orthopaedic surgeon, Dr Klar, in relation to this.
I[n] mid December he developed an infection in his (L) second big toe which he related to his work footwear causing a pressure ulcer, but which also related to his onychomycoses of this toe and also his diminished sensation secondary to his peripheral neuropathy. At the stage at which I had seen him he had already been seen by Calvary Hospital and been commenced on antibiotics, anti-inflammatories and analgesics. He had also seen another GP at this practice. Despite debridement of the toes, he subsequently developed an osteomyelitis and the (L) 2nd toe was amputated on 3rd January 2011 at The Canberra Hospital.
I believe that the causative factors were primarily his underlying peripheral neuropathy, followed by a subsequent pressure ulcer on his toe from the footwear (work or other) and the onychomycoses or paronychia.
The pressure ulcer may have been causative to the infection however his lack of sensation from his peripheral neuropathy may have masked the severity of the problem such that there was a delay in his presentation for treatment.
There could well be a contributing factor in Mr Noonan’s condition from his work footwear causing the pressure ulcer on the toe, however his associated peripheral neuropathy was also contributory.
I believe his employment with ACT Ambulance Service and the work footwear relate to his pressure ulcer on the toe and its subsequent amputation but that it is only partially responsible.
[24] Exhibit 1, pages 59-60.
On 28 March 2011, Dr Wendell Neilson, Vascular and Endovascular Surgeon, relevantly reported to Comcare as follows:[25]
I first met Mr Noonan on the 2nd January 2011, where he was readmitted under the Vascular service for infection and probable osteomyelitis of his left 2nd toe. He had been treated the week previously with oral antibiotics under Professor Hardman, unfortunately Professor Hardman was now on leave, and so Mr Noonan was admitted under my care. He was seen by me the day of his second admission, and was organised to have his toe amputated as he had failed conservative/antibiotic treatment.
Mr Noonan has a background history of idiopathic peripheral neuropathy, and is non-diabetic and a non smoker.
The toe was amputated without complication and he was discharged 2 days later. He has subsequently attended follow-up.
The exact aetiology of the infection that let [sic] to Mr Noonan’s amputation can never be known for certain, it is highly likely that the peripheral neuropathy played a role. It is well known that people suffering from peripheral neuropathy can develop pressure sores/ulcers that they are not aware of. This is why they are encouraged to attend podiatrists and regularly inspect their feet/toes for early signs of ulceration/infection. The type of foot wear is also very important to ensure that no rubbing of the toes occurs and that the weight through the foot is properly distributed. I am unable to say with any certainty if Mr Noonan’s shoes contributed to his eventual toe amputation, as I have not seen the shoes and how they fit for myself.
[25] Exhibit 1, pages 61-62.
On 16 April 2011, Comcare made a determination disallowing Mr Noonan’s claim for compensation for ‘Bacterial infection(left)(2nd Toe)’; ‘Acute osteomyelitis(left)(2nd Toe); and ‘Traumatic amputation of toe(left)(2nd Toe)’ under section 14 of the SRC Act.[26] Comcare was not satisfied the evidence established that Mr Noonan’s condition was contributed to ‘in a significant degree’ by his employment, pursuant to section 5B of the SRC Act.[27]
[26] Exhibit 1, pages 63-70.
[27] Ibid., page 68.
On 5 July 2011, following a request by Mr Noonan for reconsideration, Comcare affirmed its determination denying liability to pay him compensation under the SRC Act.[28] Mr Noonan applied to the Tribunal for review of that decision.
[28] Exhibit 1, pages 71-74.
On 15 March 2012, Dr David Hardman, Vascular Surgeon, provided a report to Comcare’s solicitors (now the ACT’s solicitors), which relevantly stated that:[29]
[29] Exhibit 1, pages 83-87.
On 3 January 2011 Mr Noonan underwent an amputation of his left second toe and the adjacent metatarsal head. The cause of this amputation was sepsis and tissue loss related to a mal perforans type pressure ulcer. The final step in this process of tissue distraction is the development of underlying osteomyelitis. The cause of this pressure ulcer was, more likely than not, related to the footwear Mr Noonan was wearing in the time leading up to his clinical presentation. In the hospital admission prior to the amputation Mr Noonan had two areas of callus with characteristic haemorrhage beneath that callus on the left 2nd toe. These areas were both debrided on the ward. The apical area of the callus had an ulcer with granulation tissue. The callus on the lateral aspect of the second toe was overriding an ulcer that contained pus. This pus was predominantly staphylococcus aureus which was sensitive to the antibiotics that Mr Noonan had been prescribed. The appearance of altered blood underneath a callosity is a characteristic appearance of a pressure injury. This appearance is often seen in the neuropathic foot. The precipitating cause of the injury is usually poor-fitting footwear.
As a background issue Mr Noonan has a well-documented small fibre peripheral neuropathy although the aetiology of this condition remains obscure. Nevertheless the effect is essentially the same as the effect of having diabetes. The neuropathic foot is at particular risk of developing pressure injuries of the type experienced by Mr Noonan. As a peripheral neuropathy develops, the position of the foot when weight bearing alters from the usual anatomical position with a longitudinal and transverse foot arch, to an anatomical position where weight is borne on the various bony prominences. Because of the numbness in the foot the patient is unaware of these pressure zones and does not take any steps to relieve the pressure. When Mr Noonan was reviewed by Dr Paul Miniter, Orthopaedic Surgeon, 27 May 2003, the distribution of callus was carefully described by Dr Miniter. At that stage the callus was predominantly on the ball of the first toe of the left foot. As such there were no calluses on the second toe at that review. I believe it is more likely than not that the calluses related to the area of the distal phalanx of the second toe do not relate to the underlying peripheral neuropathy as they are in a separate area to those described by Dr Miniter in 2003. As such these calluses are new, and as I have indicated above, they have the characteristic haemorrhage under the callus related to pressure which is, more likely than not, related to the footwear.
Mr Noonan has a past history of gout: this is documented in his medical records. There is a family history of gout, he was previously diagnosed and treated for gout 11.1.2009.
At the time of his initial presentation to Calvary Hospital, his tender inflamed toe would be clinically consistent with gout, and his uric acid levels were significantly elevated at the time of admission, a plain x-ray of the foot at that time showed osteoarthritic changes that may have been traumatic in origin or related to previous gout. From the medical record I was unable to identify a traumatic event that would be responsible for these changes.
The third issue that is discussed in the notes is the fungal infection of the first toenail. This fungal infection has been identified as trichophyton, a chronic fungal infection…found in toenails. It is unlikely to be a significant clinical factor in the events that lead [sic] to the amputation of the left second toe.
…
Footwear problems are a common cause of ulceration in the neuropathic foot. Inappropriate footwear is often a major cause of ulceration. The problem is so common that at the Wound Clinic that I run, we have a team of podiatrists present at the clinic as we recognise that early intervention with appropriate footwear significantly improves patients’ outcome. Inappropriate footwear does not cause appropriate offloading of the high pressure zones within the foot and this exposes the foot to injury and subsequent callus formation. That callus formation in itself further causes injury and associated tissue death which results in the underlying ulceration.
Appropriate footwear is an essential part of the management of the neuropathic foot. With appropriate footwear the problems experienced by Mr Noonan can be avoided.
…
The underlying small fibre peripheral neuropathy documented by Dr Roger Tuck was the major background problem responsible for the neuropathic foot. In our community diabetes is the commonest cause of peripheral neuropathy. Although Mr Noonan has many examples of elevated blood sugar levels, his fasting sugar levels are usually within the normal range. This would suggest that although Mr Noonan did not have diabetes at the time of his original presentation, he will probably develop diabetes at some stage in his adult life. The relationship between peripheral neuropathy and the development of the neuropathic foot, that is, a foot characterised by altered bone and muscle relationships, putting the patient at very real risk of pressure injuries from inappropriate footwear, is well described.
The peripheral neuropathy prevented Mr Noonan from being aware that there were high pressure zones in his foot when wearing specific footwear. In the usual circumstance patients would be aware that the footwear is uncomfortable or that the shoe is “pinching” on one part of the foot, and as such, adjust the position of their foot or seek new shoes. The peripheral neuropathy prevents the patient from receiving this feedback that potential damage is occurring. The patient persists wearing an inappropriate pair of shoes and usually presents with ulceration or pre-ulcerative changes. Once an ulcer is present, particularly in the foot, it becomes a focus of sepsis and the ongoing sepsis results in osteomyelitis…In the neuropathic foot the usual management of soft tissue sepsis and osteomyelitis is amputation of that toe to prevent the sepsis extending into the foot, and the patient undergoing a more major proximal amputation.
It is unlikely that the condition described…was a natural progression of a pre-existing condition, irrespective of employment. We know from the Miniter review 27 May 2003 that the callosities that were associated with the neuropathic foot experienced by Mr Noonan were well documented. These callosities do not involve the second toe, rather the callosity involved the base of the ball of the first toe. The involvement in the second toe is new, and I believe is related to the underlying footwear. Had Mr Noonan worn a pair of appropriate shoes it is more likely than not that the ulceration experienced by Mr Noonan that led to the subsequent amputation would not have occurred.
On 15 May 2012, Mr Allan Donnelly, Podiatrist, reported the following after reviewing Mr Noonan:[30]
Glenn’s left foot pronates quite clearly more than his right when he weight bears. You don’t need to see him walk to watch the foot fall right through the STJ and midfoot. He has a pair of moulded accommodative orthotics from an orthotist but they have made no difference at all to the foot pain.
…Even though Glenn’s biomechanics are stuffed in this foot I would not have expected them to cause so much pain. Because of his peripheral neuropathy and the collapsing midfoot I also thought that he may have a Charcots [sic] Arthropathy present. If you look at the weight bearing film you can see the complete collapse of the midfoot. However, there was no significant temperature differential between the right and left foot (1⁰ C). There is no sign of bone destruction on film and Charcots [sic] is not usually painful because of the neuropathy.
…The removal of the second and the huge third met head are unlikely to be dealt well with just shoes and orthotics.
[30] Exhibit 1, pages 89-90.
On 12 June 2012, in the Tribunal application made by Mr Noonan for review of Comcare’s decision affirming the disallowance of his workers’ compensation claim, a differently constituted Tribunal made a decision by consent in accordance with subsection 42C(2) of the AAT Act, that:[31]
1. the reviewable decision dated 5 July 2011 is set aside and in substitution it is decided that:
1.1the applicant suffered a ‘bacterial infection (left) (2nd toe); acute osteomyelitis (left) (2nd toe) and traumatic amputation of toe (left) (2nd toe)’ (injury), being a ‘disease’ that was significantly contributed to by his employment, and which is deemed to have been sustained on 19 December 2010;
1.2the respondent is liable to pay compensation to the applicant pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act), in respect of the injury…
[31] Exhibit 1, pages 91-92.
On 27 June 2012, Dr Gawel Kulisiewicz, Orthopaedic Surgeon, reviewed Mr Noonan and relevantly reported to his general practitioner as follows:[32]
On examination he has midfoot collapse. There is a surgical scar over the 2nd toe which appears well healed. There are callosities underneath the lesser metatarsals and crepitus over the 3rd metatarsophalangeal joint. There is also pain over the midfoot on palpation dorsally. His ankle range and movement is supple and symmetrical. He has good capillary return and palpable dorsalis pedis and posterior tibial pulses.
His x-rays demonstrate excision of his distal 2nd metatarsal and 2nd toe. There is degenerative change in the 3rd metatarsophalangeal joint as well as in the midfoot. There is collapse at the midfoot level.
I feel that Glenn is suffering from degenerative change as a result of his previous excision of his 2nd toe, in particular the 3rd metatarsophalangeal joint. He also has midfoot arthritis which is contributing to his pain.
[32] Exhibit 1, page 94.
On 19 July 2012, following a CT scan of Mr Noonan’s left foot, Dr Kulisiewicz conducted a review and reported that:[33]
His CT scan shows quite extensive degenerative change affecting his 1st TMT joint, his medial intercuneiform joint and his navicular cuneiform joint. There is also degenerative change in the 2nd TMT. This corresponds to his area of maximal pain and tenderness. Non-operative treatment of this includes the use of anti-inflammatories, Glucosamine and accommodative orthotics.
If this fails then Glenn would be a candidate for arthrodesis of his midfoot to relieve his symptoms. Certainly his previous surgery on that foot would have aggravated his degenerative change making weightbearing through that 1st metatarsal more difficult.
[33] Exhibit 1, pages 95 and 97.
On 4 June 2013, another CT scan was performed on Mr Noonan’s left foot, with the accompanying report stating that:[34]
The mid foot degenerative changes are again noted. It has progressed since the previous study with more marked subchondral cyst formation, areas of marginal erosion and bony fragmentation, raising the possibility of a superimposed Charcot component. No other significant interval change seen.
[34] Exhibit 1, page 99.
In 2013, Dr Brendan Klar, Orthopaedic Surgeon, reported on three occasions to Mr Noonan’s general practitioner that he: ‘has left midfoot osteoarthritis, perhaps Charcot, with resultant collapse’; ‘left TMT joint collapse and osteoarthritis with Charcot changes, including separation of the first and second TMT joints’; and ‘left midfoot Charcot neuroarthropathy affecting mostly his first TMT joint’.[35] In the latter report, following a review of Mr Noonan on 5 September 2013, Dr Klar opined that if Mr Noonan ‘fails non-operative management, then a medial column reconstruction would be appropriate but he should try and avoid that’.[36] On 28 November 2013, Dr Klar reported that Mr Noonan ‘still has a fair bit of pain in his mid foot’, with x-rays showing ‘no deterioration in the mid foot region’, but ‘perhaps some evidence of consolidation appearing and starting to occur’.[37] Dr Klar further reported that he remained of the opinion that ‘surgery would not be of benefit to him at this stage’ and there are ‘significant risks in operating on Charcot foot like Glenn has’, although Mr Noonan ‘seems adamant however he wants his foot to return to normal and to allow him to keep working in his current role as a paramedic’.[38] Dr Klar explained to Mr Noonan that ‘his foot may never be normal and that the combination of his weight, occupation and Charcot foot issues may preclude him doing thsi [sic] type of work long-term’.[39] He noted that indications for surgery ‘would be failure of conservative management, deformity making footwear difficult or ongoing pain’.[40]
[35] Exhibit 1, pages 102-104.
[36] Exhibit 1, page 104.
[37] Ibid., page 112.
[38] Ibid.
[39] Ibid.
[40] Ibid.
On 21 January 2014, Dr Martin Sullivan, Foot and Ankle Surgeon, reviewed Mr Noonan and reported that he ‘has neuropathic arthropathy affecting his left foot’, and ‘increased hindfoot valgus and a tight Tendo-Achilles, which is contributing to his problems, which particularly involve arthritis of the navicular medial cuneiform of the first TMT joint’.[41] Dr Sullivan further reported that:[42]
Given that he has had no improvement in the boot and has pain, then he should undergo a Tendo-Achilles lengthening, medial displacement calcaneal osteotomy to realign the hindfoot and this should be followed by an arthrodesis of the navicular cuneiform first TMT joint with bone graft. The bone graft could be used from the calcaneal osteotomy.
He would need to be immobilised for twice the normal amount of time due to the neuropathy.
He understands the problem of neuropathy and non union etc.
If this fails then he may consider his other options which have been discussed with him.
Importantly attempted fusion of the first ray without correcting the hindfoot is more likely to lead to failure of the arthrodesis taking.
[41] Ibid., page 120.
[42] Ibid.
On 11 February 2014, Dr Sullivan provided a letter to Comcare in relation to his opinion of Mr Noonan, which relevantly stated that he ‘has neuropathic arthropathy affecting his left midfoot’ and ‘arthritic change in the naviculocuneiform and the third TMT joints’.[43]
[43] Ibid., page 126.
On 27 February 2014, Mr Donnelly, Podiatrist, provided a report to Comcare, which relevantly stated that:[44]
I first saw Glenn in May 2012 at the request of his treating GP Ross Hendry. At that stage Glenn had significant pain in his left foot following the post op procedure for the amputation of his second toe. X-rays at that time showed a significant shortening of the second met and an enlargement of the third met head. The amount of abnormal pronation at the sub talar joint in the left foot evident at that appointment was considerable. The removal of the second digit and the shortening of the second met significantly altered the biomechanics of his left foot. The mechanical stress during weight bearing had now shifted to the midfoot and his left foot took on the appearance of a Charcot Arthropathy.
The most appropriate approach to decrease his left foot pain was to limit the amount of abnormal pronation at the mid foot with a very robust functional foot orthotic. A neutral cast of both feet was undertaken and orthotics fabricated…
Unfortunately, I underestimated the amount of midfoot stress on the left foot and whilst his foot pain diminished initially Glenn quickly deformed the structure of his left orthotic which reduced his foot pain for a short period of time until the materials fatigued. At the same time Glenn consulted with Orthopaedic Surgeon Brendan Klar and was fitted with a Moon Boot to off load and stabilise his left foot. As I continued to review Glenn’s progress during this time it was clear that the moon boot did not adequately reduce the pronatory forces on his left foot at this time and pain in this foot continued as did the Charcot type deformity…I recasted both of Glenn’s feet and had a special set of orthotics fabricated for him. The left orthotic is based on a design specifically to stabilise feet affected by the condition Charcot Marie Tooth disease. These new orthotics when combined with the Moon boot produce a stabilising effect upon the foot that is close to a ‘Total Contact Cast’.
…
Glenn’s surgical options have recently increased since consulting with foot surgeon Martin Sullivan in Sydney…As you will be aware Dr Sullivan has offered the option of realigning Glenn’s rear foot and fixating the mid foot and fore foot.
Glenn will, however, still need orthotic assistance to provide ongoing support to his left foot after this surgery. His work as a Paramedic places a lot of stress upon his feet and he will always need medical grade footwear and custom made orthotics to work without foot pain.
[44] Ibid., pages 127-128.
On 13 March 2014, Dr Hendry, General Practitioner, wrote a letter in support of the proposed surgery, as follows:[45]
Glenn Noonan, age 50 years, has ongoing pain and disability in his left foot as a result of altered bio-mechanics following amputation of his left 2nd toe and metatarsal due to osteomyelitis from an infection secondary to his work foot wear.
He has had ongoing conservative therapy for the better part of a year without benefit and the surgical advice that he has obtained recommends the correction of the foot bio-mechanics by the operation described in the letter by Dr Sullivan, a copy of which I believe has been obtained.
I have no expertise in this area, however Mr Noonan is still in pain and is disabled by his situation, so surgery would seem appropriate after this time.
Finally, I re-iterate that this is all related to his worker’s compensable condition.
[45] Exhibit 1, page 129.
On 9 April 2014, Dr Geoffrey Stubbs, Orthopaedic Surgeon, provided a report to Comcare following his examination of Mr Noonan on the previous day, which report relevantly stated:[46]
[46] Ibid., pages 137-146.
Mr Noonan is an intensive care ambulance paramedic with ACT Health who now has a Charcot foot following long term peripheral neuropathy. He has had a previous amputation of the toe probably related to wearing work boots and for which liability has been admitted. However, Comcare have denied liability on this occasion.
…
His compensable problems begin on 19 December 2010. We should review the situation at that time. He had been with ACT Emergency Services Agency for ten years. He normally had no problems using the issued safety boots provided by his employer as part of the uniform over this time but the make of boots was changed in 2010.
He was known to have a peripheral neuropathy that went back about 20 years. He had been investigated for it and no cause for the peripheral neuropathy had been determined. The changes principally involved his left foot and leg though there was some numbness felt in the right leg from time to time. Diabetes and all other causes of peripheral neuropathy seem to have been excluded and for all practical purposes there had been little actual effect on Mr Noonan’s daily life. He was in a demanding fulltime permanent position and was really not troubled by the peripheral neuropathy.
However, in December 2010 he was aware that there was swelling and warmth in the second toe of the left foot and it was tender locally. He went to The Calvary Hospital and from there to The Canberra Hospital where he was admitted with the diagnosis of osteomyelitis secondary to the development of a neuropathic ulcer. The term ulcer is a little misleading as it implies that there was a permanent discharging sinus, probably the condition was seen before this had developed…
The foot was treated by an amputation of the second toe through the neck of the second metatarsal. The foot went on to heal and Mr Noonan returned to work after about three months off work. At this point ACT Emergency Services Agency changed the supplier of the safety boots. Mr Noonan did not go back into safety boots but rather went into orthopaedic shoes which have extra depth and width.
…
He stands with a mid-foot breach in his left foot. The hind foot has collapsed into mild valgus deformity leading to a total loss of the longitudinal arch of the foot. In the midfoot there is an abduction deformity with the metatarsals and the toes pointing out at about 30⁰ from the longitudinal axis of the foot. The second toe is missing. The skin of the foot is showing some callosity over the instep as a consequence of the loss of the arch but there are no obvious pressure points and no scars, ulcers or other areas of problems on the sole of the foot. Examination of the foot though, shows some dependent oedema in the foot and around the ankle which would be accounted for by the loss of the plantar foot pump.
…
His impaired sensation would make him vulnerable to local pressure effects. Steel capped shoes particularly those with a tight box were a poor choice for a foot of this sort. The boots that Comcare [sic] issues are therefore contributors to the development of an infection in his left foot. One might say that the infection might not have developed, indeed probably would not have developed, but for the shoe wear.
Since then he has progressed onto a Charcot joint. The Charcot joint is the inevitable consequence of a peripheral neuropathy. The exact mechanism is sometimes debated but the consequences of a longstanding neuropathy are quite straightforward. At some time a rapidly progressing arthropathy will develop.
The issue is therefore whether the amputation has led to an acceleration of the inevitable Charcot’s foot. This is a reasonable assertion. I ran a literature review hoping for specific answers pertinent to Mr Noonan’s situation. I could not find papers directly specific to Mr Noonan’s case but the literature suggests that the tipping point for progression in the diabetic foot is loss/damage to the interosseous muscles and toe and forefoot deformities. This is what the amputation of the second toe has caused.
Mr Noonan has a reasonable claim. The amputation of his toe (an accepted liability) has led to accelerated progression of the inevitable effects of neuropathy, Charcot’s foot. I cannot give a timeframe for this process but I think his assertion is reasonable.
…
He has a Charcot foot which is the development of rapidly progressing osteoarthritis in a foot deprived of normal sensation.
…
The relationship between his current condition and his injury on 19 December 2010 is not necessarily straightforward. A Charcot foot will develop in all neuropathic feet in time but Mr Noonan has a supportable claim that the loss of forefoot balance and inevitable injury to the interosseous muscles from the infection and subsequent amputation has hastened this process.
…
Mr Noonan’s initial and present condition is the same. No new condition has developed and the issue is whether there has been acceleration or not.
…
There is no evidence that he is voluntarily exaggerating his symptoms or claiming anything out of the ordinary.
…
On the balance of probabilities as distinct from possibilities, is the current condition suffered by Mr Noonan related to:
a) The incident of 19 December 2010?
b) A pre-existing, congenital, constitutional or underlying condition?
c) The natural progression of an underlying condition?
d) Underlying degeneration as part of the natural aging process?
e) Other health issues?
Taking the above into consideration and on the balance of probabilities as distinct from possibilities then the Charcot foot arises from a pre-existing, congenital and underlying condition; the peripheral neuropathy of unknown cause. I have conducted a literature review to research the situation as near as possible from particularly the secondary point; whether the imbalance resulting from the amputation may have accelerated the progression of the Charcot foot, I believe it has.
…
The prognosis for Mr Noonan’s current condition is poor. Midfoot arthrodesis typically does badly in the presence of a Charcot foot and a high percentage of them finish up as below knee amputations.
…
I can think of no other treatment other than mid-foot fusion, for the compensable condition, the osteomyelitis and amputation of the second toe, that would be helpful.
The question for assessment is not that the amputation affected the peripheral neuropathy, the peripheral neuropathy is really the cause of the amputation, but whether the amputation accelerated the inevitable progress of the peripheral neuropathy to development of a Charcot foot and the subsequent deformity and arthritis that results; I think it has. [emphasis in original]
On 1 May 2014, Comcare wrote to Mr Noonan in relation to his accepted condition, relevantly as follows:[47]
I have reviewed your file and the report from Dr G. Stubbs. As a result of such a review, I have therefore determined that you have a secondary condition of ‘aggravation of acquired deformities of ankle and foot’.
…
After reviewing the available evidence, I have determined that the condition that you are currently suffering from is ‘bacterial infection(left), acute osteomyelitis(left) and traumatic amputation of toe(s)(left)’ with a secondary condition of ‘aggravation of acquired deformities of ankle and foot (left)’ under section 14 of the Act.
[47] Exhibit 1, pages 148-149.
On 4 June 2014, Dr Sullivan, Foot and Ankle Surgeon, provided an ‘Operative Report’ to Comcare.[48] The report stated that Mr Noonan had surgery on 3 June 2014, which was an ‘Arthrodesis of the naviculocuneiform first TMT joint with bone graft and internal fixation, ostectomy of the first metatarsal medial cuneiform joint, tibialis anterior tendon, medial displacement calcaneal ostectomy with internal fixation and Tendo-Achilles lengthening’.[49] The operative procedure was relevantly described as follows:[50]
A medial approach was made. An ostectomy of the medial cuneiform first metatarsal was carried out. The joint was denuded to the remaining cartilage. A biopsy of the synovium was carried out. Bone graft was harvested and the joints arthrodesed using an Arthrex plate and a speed staple.
A lateral approach was made and a medial displacement calcaneal osteotomy and Tendo-Achilles lengthening were carried out prior to this. An Arthrex 6.5mm screw was used. The Tendo-Achilles lengthening was performed using a small incision.
[48] Exhibit 1, pages 156-157.
[49] Ibid., page 156.
[50] Ibid.
On 2 September 2014, a report following an x-ray of Mr Noonan’s left foot noted that:[51]
There has been a previous fusion at the 1st metatarsal base and at the 1st tarso/metatarsal joint. There is collapse of the mid foot with severe degenerative changes at the tarso/metatarsal joints, particularly involving the first three TMTJ’s. A cannulated screw is noted within the calcaneus. There has been amputation of the 2nd toe to the level of the metatarsal neck.
[51] Exhibit 1, page 158.
On 3 February 2015, Dr Sullivan reviewed Mr Noonan and reported that he was ‘doing extremely well’, his ‘alignment looks good and his pain has improved’.[52] Dr Sullivan recommended a ‘strengthening programme’ and continued hydrotherapy.[53] The findings of an x-ray performed on the same date were that:[54]
There is a medial plate and screws and wire staple fixing the navicular and medial cuneiform bone. The bones are quite sclerotic in nature ? due to associated bone graft ? pre-existing. Overall alignment appears anatomical. Calcaneal screw is also noted.
There has been previous resection of the head of the 2nd metatarsal and 2nd toe. There is some deformity of the head of the 3rd metatarsal ? chronic malunited fracture.
[52] Exhibit 1, page 180.
[53] Ibid.
[54] Exhibit 1, page 181.
On 5 January 2016, Dr Sullivan reported to Comcare following review of Mr Noonan that his ‘pain has resolved’, a contemporaneous x-ray was ‘satisfactory’, but that he ‘is getting pain on the plantar aspect of the cuneiform region’ and ‘may require a plantar exostectomy’.[55]
[55] Exhibit 1, page 212.
On 5 February 2016, Dr Sullivan provided a further report to Comcare, which relevantly stated that his then recommended surgery for Mr Noonan ‘is based on pressure underneath the region of the cuneiform where he developed arthritis’ and that this was ‘related to his initial injury’.[56]
[56] Exhibit 1, page 213.
On 22 March 2016, Dr Sullivan performed a left plantar exostectomy medial cuneiform first metatarsal on Mr Noonan.[57]
[57] Exhibit 1, page 214.
On 25 February 2021, Mr Donnelly, Podiatrist, reported that, after surgery and with the use of orthotics, Mr Noonan has been ‘mobile and wound free until last year’, however:[58]
He now has problems with both feet and has also been diagnosed with T2DM which significantly increases his risk of developing foot complications. He has several areas of increased plantar pressure on both feet…his left foot has continued to deform and he has a large pressure area sub met one and a bony prominence developing in his arch on his left foot.
[58] Exhibit 1, pages 219-220.
On 26 July 2021, a report following an x-ray of Mr Noonan’s left foot stated that:[59]
The second toe has been amputated through the distal aspect of the metatarsal. A fusion of the joint between big toe metatarsal base and medial cuneiform has been performed. A fusion has been performed between the medial and intermediate cuneiform. There is good bone union here. There is a plantar spur. There is osteoarthritic change and mid tarsal joint between navicula and cuneiforms. Part of the staple lies within the mid tarsal joint. There is osteoarthritic change in the third toe MP joint. There is claw toe deformity of the third, fourth and fifth toes.
[59] Exhibit 1, page 227.
On 29 July 2021, Mr Donnelly referred Mr Noonan to The Canberra Hospital’s Emergency Department, reporting a ‘significant breakdown of a wound on his left foot, third toe’.[60] He was ‘concerned that this infection has reached a critical change and there is systemic involvement with serious implications’.[61] Mr Donnelly also noted that Mr Noonan had type 2 diabetes mellitus, peripheral neuropathy and ‘previous amputations from osteomyelitis in his left foot’.[62] Mr Noonan’s third toe on his left foot was later amputated.
[60] Exhibit 3, page 1078.
[61] Ibid.
[62] Ibid.
On 1 September 2021, Mr Donnelly provided a requested report to the ACT’s claims management agent, EML, which relevantly stated that:[63]
[63] Exhibit 1, pages 234-236.
I have been seeing Glenn for a number of years since his first amputation of the third [sic] toe on his left foot and the slow ongoing deformity of this foot that required extensive corrective surgery by Orthopaedic Surgeon Martin Sullivan. Since then, we have been trying to hold further deformity in both feet from the changes in Glenn’s gait over the years.
…
Glenn’s initial amputation of his third [sic] toe on his left foot resulted in clawing of the rest of his toes and collapse of the midfoot. This deformity typically results in pressure lesions on the apex of the digits with overlying callus and underlying necrosis. He underwent extensive corrective surgery but surgery generally only fixes one problem and there is no guarantee that other problems will not arise. It does not guarantee that the foot will not continue to deform over the years which is what has happened to Glenn’s feet. Both feet are now deformed and he has recently had the distal phalanges of both the digits amputated due to clawing deformity, ulceration, necrosis and Osteomyelitis (OM). I have not seen Glenn since his recent amputation. However, from my experience this surgery will resolve the OM in both those digits but will presuppose him to further foot deformity and ulceration on the apices of the remaining digits.
…
Amputation of parts of the foot result [sic] in loss of effective foot function. The foot under pressure forces gait changes over time resulting in deformity. This deformity results in uneven plantar pressures and then more pressure wounds. He has pressure areas on his left hallux and under the left midfoot. The loss of the second digits means he has only three remaining digits on the left foot, all of which now bear extra pressure. At this stage I have not seen the results of the amputation on his right second digit. Typically, this amputation causes problems with the apex of the third digit. With the loss of each digit the foot claws the remaining toes more, resulting in more pressure wounds.
…
Glenn will need ongoing podiatry for callus and corn debridement as well as total contact orthotics and footwear to ensure that the plantar pressures are not increased in one area that leads to ulceration and amputation. He has been wearing medical grade footwear and has had several pairs of total contact orthotics to try an[d] prevent peak plantar pressures. These need to change as his feet change shape.
…
Simply put, the less stress on Glenn’s feet, the longer he will keep them. The more he is on his feet in heavy boots and lifting, the more plantar load on the foot and the greater the likelihood of further ulceration and amputation. His feet will never be able to be returned to the condition they were before his first amputation. Our aim now is to prevent further ulceration and amputation which is proving to be a challenge. We get one issue sorted and then another appears.
On 12 October 2021, following a review of Mr Noonan, Dr Sullivan reported to his general practitioner, relevantly as follows:[64]
He is getting pressure over the medial aspect of the naviculocuneiform joint.
He needs an exostectomy as bone has developed over the medial cuneiform. At the same time I will remove the staple. There is a plate over the first metatarsal which doesn't seem to be causing problems at the moment.
He also has tight flexor tendons which is causing ulceration and infection and he has lost his second and fourth toes on the left and his second toe on the right.
He needs open flexor releases of the great toe, third toe and fifth toe on the left and great toe, third, fourth and fifth toes on the right.
[64] Exhibit 1, pages 261-262.
On 12 October 2021, a report following an x-ray of Mr Noonan’s left foot stated that:[65]
There has been a dictation through the second metatarsal and through the fourth proximal phalanx. There is expansion and deformity of the head of the third metatarsal likely post traumatic or post inflammatory. The appearances would suggest long-standing changes.
There is [sic] been fusion of the first tarsometatarsal joint and a screw is seen within the calcaneum.
There are osteoarthritic changes at the first, second and third tarsal metatarsal and the medial intertarsal joints. This is associated with some flattening of the longitudinal plantar arch.
No bone destruction or periosteal reaction is seen to indicate current bone infection.
[65] Exhibit 1, page 263.
On 13 October 2021, Mr Noonan’s rehabilitation manager emailed the ACT as follows:[66]
Mr Noonan reported Dr Sullivan informed him that the X-ray indicated there was a presence of a bony growth and one of the staples Dr Sullivan had originally placed during his previous surgery 5 years ago was coming out and thus causing that pressure area on his left foot.
Mr Noonan stated Dr Sullivan advised he required surgery to remove the staple and grind back the bony growth on his left foot. In addition, Dr Sullivan informed Mr Noonan that he also required to surgically straighten his right toes, as their shaped [sic] had changed due to Mr Noonan compensating so greatly.
[66] Exhibit 1, pages 264-265.
On 9 December 2021, the ACT determined that it had no present liability to pay compensation to Mr Noonan for medical expenses or to make incapacity payments under, respectively, sections 16 and 19 of the SRC Act, because it was satisfied that he no longer suffered from the effects of the previously accepted injury.[67]
[67] Ibid., pages 279-282.
On 16 December 2021, Mr Noonan requested a reconsideration of the determination.[68]
[68] Exhibit 1, page 283.
On 17 December 2021, the determination of no present liability under the SRC Act was affirmed on behalf of the ACT.[69] It was decided that:[70]
The medical evidence has outlined that you have a number of underlying conditions that can cause complications to the feet, including peripheral neuropathy and diabetes. Whilst it is not disputed that you continue to have issues with your feet that require medical treatment, the medical evidence does not support that your current complaints are as a result of the infection in your second left toe from 2010.
Rather, these additional conditions have developed over time, and have been complicated by your pre-existing conditions. The medical evidence does not support an ongoing relationship between your employment, and your current bilateral foot conditions.
[69] Ibid., pages 286-290.
[70] Ibid., page 290.
On 22 February 2022, Mr Noonan applied to the Tribunal for review of the ACT’s decision that it had no present liability to pay him compensation under the SRC Act.[71]
[71] Exhibit 1, pages 7-12.
On 28 April 2022, as a result of Mr Noonan’s application for review to the Tribunal being made outside the 60-day time limit under the SRC Act, his solicitor applied for an extension of time to make the application.[72]
[72] Exhibit 1, pages 296-298.
On 20 May 2022, a differently constituted Tribunal made an order under subsection 29(7) of the AAT Act, extending the time to 22 February 2022 for Mr Noonan to make his application for review of the ACT’s decision.
On 5 September 2023, following a review of Mr Noonan, Dr Sullivan reported to his general practitioner, relevantly as follows:[73]
He needs an IP joint arthrodesis on the left great toe. He is getting pressure over the IP joint.
He also needs, as indicated in my letter date 12 October 2021, an exostectomy of the medial cuneiform and removal of the staple and hardware.
He is also getting pressure over the fifth toe and needs a limited exostectomy of the fifth toe.
He has had a below knee amputation on the right and his prosthesis needs to be adjusted as his leg is too long on the right which is putting more pressure on his left heel.
He was diagnosed with diabetes in 2020. He has been having problems with the left foot dating back to 2014 which preceded the diagnosis of diabetes by six years.
[73] Exhibit 2, page 29.
LEGISLATION
Subsection 14(1) of the SRC Act provides:
Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Subsection 5A(1) of the SRC Act relevantly defines ‘injury’ to mean:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment; ...
Section 5B of the SRC Act regarding the definition of ‘disease’ states that:
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
Section 4 of the SRC Act defines ‘ailment’ to mean ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’. It also defines ‘aggravation’ to include ‘acceleration or recurrence’.
Sections 16 and 19 of the SRC Act respectively provide for compensation to be payable in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances) and for the payment of compensation to an employee who is incapacitated for work as a result of an injury.
EVIDENCE
Lay evidence
Mr Noonan
The Tribunal has considered the undated written statement made by Mr Noonan during the course of this proceeding.[74] Mr Noonan also gave evidence at the Tribunal hearing and confirmed adherence to his written statement.
[74] Exhibit 2, pages 1-3.
Mr Noonan told the Tribunal that he was currently on a graduated return to work with reduced days, while undergoing rehabilitation following the amputation of his lower right leg in November 2022. He is performing ambulance road duties as a paramedic of approximately 20 hours per week on a rotating roster of two 10 hour shifts each week. The graduated return to work will see Mr Noonan return to full duties by mid-November 2023. This will comprise four 12-hour day shifts on a full rotating roster of four days working and four days off work.
In December 2010, shortly before the amputation of Mr Noonan’s second toe on his left foot, he was performing normal ambulance road duties, comprising 10-hour day shifts and 14-hour night shifts on a rotating roster. Following the amputation of his second toe on the left foot, Mr Noonan had a period of time off work.
Mr Noonan told the Tribunal that, when first diagnosed, his peripheral neuropathy caused ‘slight numbness’, an ‘altered sensation’ in the forefoot and ‘discomfort’ when walking. Prior to his recent lower right leg amputation, Mr Noonan experienced these issues equally in both feet.
In 2020, Mr Noonan was diagnosed with Type 2 Diabetes. From 2010, he recalled having the usual blood tests, but no specific diabetes test because there was no such concern. Mr Noonan currently takes medication to maintain his blood sugar level.
Mr Noonan told the Tribunal the deformity of his left foot due to the amputation of his second toe caused him ‘anxiety and stress’ if walking barefoot, and that the changed structure of his foot causes pain and difficulty walking or standing for long periods of time. He received treatment from his podiatrist, Mr Donnelly, whom he first saw in early 2013 and continues to consult. Mr Noonan told the Tribunal he found walking after the amputation ‘somewhat difficult’ because he had more pain in his foot.
Mr Noonan said that he attended on the Ankle and Foot Surgeon, Dr Sullivan in 2014 seeking a second opinion because he was not entirely happy with the progress of his left foot condition. On 4 June 2014, Dr Sullivan performed surgery to Mr Noonan’s mid-forefoot and added a staple to help ‘stabilise the bones’, together with a screw. The cost of this surgery was covered by Comcare, being the relevant insurer at the time, having accepted that it was related to Mr Noonan’s workplace injury. He had further surgery with Dr Sullivan around 2016 because there was a bone which was ‘starting to cause a pressure area’. He continues to have ongoing podiatry care with Mr Donnelly. Mr Noonan’s workers’ compensation claim for orthotics made by Mr Donnelly was accepted by the ACT in mid-2021.
Mr Noonan told the Tribunal that, between 2016 and 2021, he received treatment from Mr Donnelly to maintain and ‘look after’ his left foot due to ‘pressure areas that were developing’. In each year from 2016 to 2020, this podiatry treatment occurred approximately every six to eight weeks. Mr Noonan continues to see Mr Donnelly approximately every two months for some ‘minor procedures’, the prescribing of orthotics to reduce pressure areas and debridement to mitigate ulceration on his foot. Mr Noonan told the Tribunal he has had orthotics since 2014 to ‘provide the offloading’, following the surgery performed by Dr Sullivan.
Mr Noonan confirmed that he underwent one examination, by video, with Dr Mourad which occurred in 2021.
Later, in October 2021, Mr Noonan consulted with Dr Sullivan. He recommended surgery on Mr Noonan’s left foot, following an x-ray identifying issues requiring repair. The surgery would, among other things, remove a ‘staple’ inserted in 2014 because it was ‘attempting to come out’ of Mr Noonan’s foot and was presenting as a possible pressure area if this continued. Mr Noonan informed his rehabilitation manager of this recommendation from Dr Sullivan. He agreed the content of an email sent by his rehabilitation manager accurately recorded what Dr Sullivan told him was required in the proposed surgery.[75] This request for surgery was declined by the ACT and Mr Noonan has not yet had this surgery because of the financial cost. Mr Noonan consulted with Dr Sullivan earlier this year and he again recommended surgery, including the removal of the staple and other matters, such as with the ‘great toe’ on the left foot due to ‘the structural changes of my left foot’, causing his toes to begin ‘clawing’ as a result of ‘pressure areas’ and ‘structural changes’.
[75] Exhibit 1, pages 264-265.
Mr Noonan told the Tribunal that his podiatrist, Mr Donnelly debrides areas of callus under his left foot where there are pressure ulcers developing and other areas along the remaining three toes that have calluses, and addresses any ‘open wound’. Mr Noonan said that, because he no longer has his second toe, the big toe has ‘moved over’ on an angle and he is now walking on the edge or side of that toe, rather than the pad, causing the development of a pressure area on the side of the toe and under his foot. As a result of walking on the side of his big toe, Mr Noonan said he needs the calluses debrided. Mr Donnelly made a ‘block’ for the space created by the amputation of his second toe, but this was unsuccessful, so they ‘just deal with the calluses’.
Mr Noonan could not recall having any issues with his left foot prior to presenting to hospital in 2010, which resulted in the 2011 amputation. He previously had ‘good feet’ and ‘everything worked normally’, with no calluses or pressure areas.
In late 2012, Mr Noonan first noticed that his toes were becoming ‘claw-like’ as a result of the loss of his toes; the now three remaining toes are ‘clawing’ and taking the weight of five toes.
As previously mentioned, in 2022, Mr Noonan had his right leg below the knee amputated. In the lead up to this operation, he presented to hospital and was told he had developed cellulitis in his foot, after probably having been bitten, which was the cause of the primary infection. It was said to be unrelated to his diabetes and considered a ‘superbug’, including golden staph, and was a ‘major infection’ which almost took his life. Mr Noonan was off work for more than 12 months and is now on the aforementioned graduated return to work. He is now working as a paramedic with a prosthetic right leg.
By way of cross-examination, Mr Noonan agreed he was diagnosed with ‘peripheral neuropathy’ by Dr Tuck in 2005 and had experienced symptoms shortly beforehand. Mr Noonan was referred to the letter from his treating general practitioner, Dr Stuart Haynes, dated 16 May 2002, which recorded Mr Noonan providing ‘a history of bilateral forefoot pain for approximately six months’ and that he ‘complains of pain and parasthesia [sic] extending over the dorsal aspect of both feet from ankle to toes’.[76] Mr Noonan told the Tribunal that he accepted he had these symptoms for six months before May 2002. He agreed that this meant he had nine years of peripheral neuropathy before the lesion on his second toe.
[76] Exhibit 3, page 1054.
Mr Noonan was referred to the five clinical notes from his visits to general practitioners between May and August in 2010.[77] He agreed that there was no mention of any problems with his feet due to work-issued boots and that he had attended for different reasons. Counsel for the ACT asked Mr Noonan whether he had not really been aware of problems with his feet because of the numbness. He replied that it may not have been a problem early in 2010.
[77] Exhibit 3, pages 970-972.
Mr Noonan was referred to the history he provided to Dr Leon Le Leu, Occupational Physician, that the problems with his foot arose shortly after the boots were issued in 2010, and it was put to him that he had not raised this problem at the time because he was unaware of any problem with the boots due to the numbness he experienced in that area. He said, ‘No, not entirely’ and that he only had ‘a small numbness’ in his foot; it was sore from his work boots, but this was not raised because he attended for another reason.
Counsel referred Mr Noonan to a medical record from the Emergency Department of Calvary Hospital from 19 December 2010.[78] It was put to Mr Noonan that he had not at that time noticed that he had a marked fungal infection in his toe or gout. Mr Noonan told the Tribunal he does not have gout, the file only recorded a high urate level. He agreed these were ‘similar symptoms that relate to gout’ and that the fungal infection was noticed because he had a red and sore toe and presented to hospital with that issue.
[78] Exhibit 3, page 889.
Counsel referred to the report of Dr Le Leu of 27 February 2023 and the reference to Mr Noonan’s daughter, on 31 December 2010, telling him that his ‘toe was swollen and red again’.[79] It was put to Mr Noonan that it was not him, but his daughter who identified this issue with his toe. Mr Noonan disagreed and told the Tribunal he had also noticed the swollen toe. He denied having problems monitoring his feet due to peripheral neuropathy and referred to still being able to see his feet and it being swollen and red. Mr Noonan said that at the time he had asked his daughter for her opinion about his foot.
[79] Exhibit 2, page 11.
Mr Noonan was referred to the following passages in his written statement in this proceeding:[80]
My left foot has continued to deteriorate since 2010 requiring numerous specialist consultations including varying orthotic prescriptions to my left foot including the use of a moonboot in 2013.
My right foot has borne increased weight and pressure over the years due to my ongoing left foot symptoms and defects.
[80] Exhibit 2, page 2.
It was put to Mr Noonan that his right foot symptoms were not specifically related to the problems with his left foot. He told the Tribunal that he ‘had to compensate for the pain’ he was experiencing in his left foot, and was walking slightly differently which probably put pressure on his right foot, although Mr Noonan said it may have only been ‘minor’.
Counsel referred Mr Noonan to a clinical note made by his general practitioner on 4 March 2013, which recorded that he had a three-day history of right ‘foot pain’ with a prior history of ‘wearing a tight party shoe 3 days a go [sic] on feet for long time’.[81] Mr Noonan denied wearing such shoes and was unsure why this was recorded.
[81] Exhibit 3, page 973.
Mr Noonan was referred to two further clinical notes from 6 April 2016 and 27 May 2016, which referred respectively to ‘Post surgery’ and Mr Noonan’s wound being ‘nearly healed’.[82] The relevant operation, being a ‘Left plantar exostectomy medial cuneiform first metatarsal’, was performed on 22 March 2016.[83] The associated report noted, in post-operative instructions, that Mr Noonan ‘will weight bear as tolerated’.[84] He agreed to being able to mobilise shortly after this operation.
[82] Exhibit 3, pages 978-979.
[83] Exhibit 1, page 214; Exhibit 3, page 1090.
[84] Ibid.
It was put to Mr Noonan that, following this surgery in March 2016, he reported no concerns for two years regarding his feet until 10 May 2018, when the reason for visiting his general practitioner was recorded as ‘LBP/numbness foot’.[85] Mr Noonan was referred to, and attended on, Dr Justin Pik, Neurosurgeon.[86] The subsequent report from Dr Pik dated 29 May 2016 relevantly stated that Mr Noonan ‘is troubled by increasingly significant numbness in both feet’, which ‘has started to disturb his sleep and has been waking him up at night’, he ‘looked to be overweight’, ‘walked with a normal gait and was able to walk on his heels as well as his toes’.[87] Dr Pik opined that Mr Noonan ‘has symptoms in his feet highly suggestive of peripheral neuropathy’.[88] Mr Noonan told the Tribunal he agreed that he ‘could walk’ and had a normal gait and accepted that he could walk on his toes.
[85] Exhibit 3, page 983.
[86] Exhibit 3, page 1060.
[87] Ibid.
[88] Ibid.
Counsel referred Mr Noonan to the letter of Mr Donnelly dated 25 February 2021, which stated that he ‘now has problems with both feet’.[89] Mr Noonan told the Tribunal that Mr Donnelly was checking both feet, debrides his calluses and open wounds on his feet ‘if they were present’, noting that Mr Donnelly stated that Mr Noonan had been ‘wound free until last year’ since the 2016 surgery.[90] However, Mr Noonan could not recall whether he had no wounds between 2016 and 2020 and again said that Mr Donnelly debrided his calluses during this time, but did not recall whether he also addressed his wounds or whether these started ‘later on’.
[89] Exhibit 1, page 219.
[90] Ibid.
Counsel then referred Mr Noonan to the following passage from Mr Donnelly’s letter of 25 February 2021:[91]
He now has problems with both feet and has also been diagnosed with T2DM which significantly increases his risk of developing foot complications. He has several areas of increased plantar pressure on both feet and a recurring pressure wound on the apex of his second digit right foot that is proving hard to resolve. As you can see from the attached photos, his left foot has continued to deform and he has a large pressure area sub met one and a bony prominence developing in his arch on his left foot. His right foot has deformed as well and he has another bony prominence in this arch as well as the persistent wound on the apex of his second digit.
[91] Ibid.
In this regard, Mr Noonan was referred to his written statement regarding deterioration of his right foot being due to the issues in the left foot, and it was put to him that both feet were deteriorating due to his longstanding peripheral neuropathy. He told the Tribunal that the deterioration in his feet was as a result of ‘what my left foot was going through’, peripheral neuropathy was ‘still there’, but he did not think it was a ‘primary cause’. Mr Noonan agreed, based on the clinical notes, that from 2016 to 2018 he was not complaining of any symptoms from surgery. Mr Noonan also accepted that, while he was being monitored and having calluses debrided, there were no wounds on his feet between 2016 and 2020. To this end, Mr Noonan also agreed that, since 2018, whenever he reported symptoms they had been in both feet; he told the Tribunal they were ‘always’ in both feet.
Dr Sullivan saw Mr Noonan in 2021 and surgery was recommended to his foot. Mr Noonan confirmed to the Tribunal that he has continued to function despite not having this recommended surgery. Dr Sullivan in 2023 again recommended surgery with additional elements from that proposed in 2021. Mr Noonan said this was because ‘things have deteriorated since’ 2021 and he had ‘put up’ with the pain and difficulty walking because he needed to earn a wage.
Counsel referred to the email summary Mr Noonan’s rehabilitation manager provided to the ACT regarding Dr Sullivan’s recommendations from 2021 and he again agreed that this was a summary of his recollection.[92] It was put to Mr Noonan that Dr Sullivan was not called to give evidence in this proceeding because his opinion is that Mr Noonan’s issues are due to peripheral neuropathy. Mr Noonan told the Tribunal he could not comment on Dr Sullivan’s opinion. He had asked Dr Sullivan about the cause of his problems during an examination in 2021 and Dr Sullivan said that the primary cause of his problem was not neuropathy, but a ‘compressed nerve’ in some area of the body and that changes in the foot were ‘due to deterioration’ of the foot as a result of Mr Noonan still ‘weight bearing’.[93]
[92] Exhibit 1, pages 264-265.
[93] The Tribunal notes that, following the close of Mr Noonan’s evidence, the parties informed the Tribunal that, despite attempts, neither party had been successful in contacting Dr Sullivan in relation to this proceeding.
In re-examination, Mr Noonan was referred to Dr Pik’s report from May 2018 and told the Tribunal this consultation lasted approximately 20 or 30 minutes, and that he had walked in front of Dr Pik in bare feet. Counsel for Mr Noonan referred him to discussions with Dr Sullivan regarding the staple in his foot. He told the Tribunal that Dr Sullivan said the staple was ‘trying to come out’ and ‘needed to be removed’ because it would present a ‘pressure area’ on the medial aspect of his foot, and this could break down and he may lose the foot due to an infection getting into the bones ‘quite rapidly’. Mr Noonan was also referred to the treatment he has obtained from Mr Donnelly and said that the podiatrist provided orthotics to hold his feet in the correct shape and to stop the progression of the deformity.
Medical evidence
Dr Leon Le Leu – Occupational Physician
On 5 October 2011, Dr Le Leu provided a report to Mr Noonan’s solicitor, which diagnosed him with a ‘[l]eft second toe infection leading to osteomyelitis and subsequent surgery against a background of long-standing peripheral neuropathy’.[94] Dr Le Leu opined that Mr Noonan’s symptoms substantially arose from his employment and that:[95]
·Firstly it is noted that, although he had a previous diagnosis of peripheral neuropathy which would make him less able to detect a small injury to the feet, he had no difficulty for some years using the previous standard issue boots; this was despite leading a very active lifestyle including gymnasium work, scuba-diving, et cetera.
·With the advent of the Taipan boots he immediately felt uncomfortable and noted that his feet will become very sweaty during the day because the boots did not “breathe”. This was contributed to by the standard issue socks which had not been a problem in the previous boots which did “breathe”.
·The resulting maceration of the skin due to being continually bathed in sweat would have made his skin more vulnerable to injury.
…
He has sustained some whole person impairment. The relevant table in the Comcare Guides is table 9.4 and there is a descriptor under 2% WPI which is “any toe except the first toe through the metatarsal”. Note that the descriptor “Transmetatarsal amputation” which gives 16% WPI is for amputation of all the toes through the metatarsals although the table does not make this clear.
Hence he has 2% WPI. [emphasis in original]
[94] Exhibit 1, pages 75-82.
[95] Ibid., pages 81-82.
On 27 February 2023, following an examination of Mr Noonan on the same date, Dr Le Leu provided a report in this proceeding, which relevantly stated that:[96]
[96] Exhibit 2, pages 7-28.
As noted below, Mr Noonan is still on sick leave due to his right transtibial amputation. He has his new prosthetic right leg, although he has not been able to take it home yet.
When I last saw him 12 years ago, he was still actively working as a paramedic. He worked in that role until he went on leave on 26 July 2022.
…
over the last 18 months to 2 years, he has developed further pressure areas over the left foot because the foot structure is changing. Mr Noonan showed me a pressure wound under the ball of the big toe and a pressure area over the media aspect of the arch.
…
In the left foot, he now has three toes performing the weight-bearing that five toes would normally do. He has ongoing pressure areas, and the left big toe is clawing since he lost structure in the foot due to his first operation - in particular the removal of much of the left second metatarsal.
…
Concerning the pressure areas on the left side, he has seen Dr Sullivan again on referral from his general practitioner. Dr Sullivan said that there was a bony prominence, and a staple used in the reconstruction procedure had to come out. Mr Noonan needed minor surgery to fix that problem before it "went bad" – perhaps two fairly minor procedures. These have been rejected by EML, who stated that these pressure errors [sic] did not arise at work.
He remains concerned about losing the left leg if the left foot is not rapidly attended to.
…
His left foot diagnosis results from a complex combination of injuries against a background of peripheral neuropathy of unknown cause (developing well before any diagnosis of diabetes mellitus) and started with his left second toe amputation along with part of the second metatarsal bone. This has resulted in a cascade of problems leading to further amputations and ongoing pressure effects, which will themselves need surgical correction as recommended by Dr Sullivan.
…
The prognosis for his left foot condition is poor, but the proposed surgery for his pressure areas, which will be followed by new orthotics, may improve his comfort there.
Dr Le Leu gave evidence at the Tribunal hearing.
He told the Tribunal that the rationale for his opinion was that Mr Noonan had longstanding neuropathy of unknown cause, which was identified by Dr Tuck among others, and Mr Noonan was able to continue working. He was issued with ‘rather poor boots’ and his feet were ‘always sore’. The work-issued socks were also ‘a problem’. Mr Noonan’s left foot became ‘more painful than the right’, he developed an infection in the second toe, which was diagnosed as osteomyelitis, and this led to its amputation. As a result, Dr Le Leu opined, the ‘dynamics’ of Mr Noonan’s foot were altered and various measures were taken to address this problem, such as orthotics, but Mr Noonan continued to experience problems. Dr Le Leu told the Tribunal the origin of Mr Noonan’s left foot problems, despite his pre-existing neuropathy, was the original infection in his left foot requiring amputations and this ‘has continued to the present’ with the architecture and dynamics of the left foot.
Counsel for Mr Noonan asked Dr Le Leu to explain the ramifications of the amputation on the structure of the foot. He told the Tribunal that the main weight bearing in the foot is taken by the sole, but the toes also take part of the weight and are important in the balance of the foot by directing forces down through the toes. The first and second toes are the ‘strongest contributors to balance and weight bearing of the toes’. The removal of the second toe ‘does significantly affect’ the toes’ contribution to weight bearing and the balance of the left foot, and changes the forces going through the underside of the foot, because there is ‘no longer that support at the front of the foot’.
Dr Le Leu was referred to the report of Dr Stubbs, Orthopaedic Surgeon, from 2014.[97] He told the Tribunal this was well argued and well researched and that Dr Stubbs finally ‘came up’ in support of the aetiology of Mr Noonan’s condition. Dr Le Leu was aware that, based on Dr Stubbs’ report, liability had been accepted for Mr Noonan’s secondary condition of ‘aggravation of acquired deformities of ankle and foot’ and subsequently underwent surgery in 2014.[98]
[97] Exhibit 1, pages 137-146.
[98] Ibid., pages 148-149 and 156.
Dr Le Leu further stated that, when he reviewed Mr Noonan in February 2023, his situation was complicated by the recent below knee amputation of his right leg. Dr Le Leu noted that Mr Noonan had two toe amputations of the left foot, he was still working, but he had underlying pain and functional issues. In this regard, Dr Le Leu told the Tribunal Mr Noonan’s situation with his left foot was ‘just a continuation’ of the original condition for which he saw him in 2011, accompanied by the passage of time and subsequent surgeries.
Counsel asked Dr Le Leu whether he agreed that, as a result of Mr Noonan’s second left toe amputation, podiatry treatment remains necessary. He agreed and said that, other than the surgery proposed by Dr Sullivan, podiatry is ‘the only thing likely to assist’ Mr Noonan. Dr Le Leu was referred to the reports of Mr Donnelly from 2021. He told the Tribunal that he was not a podiatrist, but that Mr Donnelly summed up Mr Noonan’s situation very well in relation to diagnosis and loss of foot function ‘due to pathology identified’. Dr Le Leu told the Tribunal he would not differ from that expert podiatrist opinion. Dr Le Leu was asked whether he agreed that ‘clawing’ could develop as a result of the amputation. He told the Tribunal that clawing was an attempt to ‘make up for the muscular deficiencies’ due to the absence of the second toe following the initial operation. Counsel asked Dr Le Leu whether he was of the same opinion in relation to the collapse of Mr Noonan’s mid-foot. He told the Tribunal that he would defer to a podiatrist on this issue, but that ‘the integrity of the mid-foot depends on the integrity of the toes’ because they are ‘providing support at one end’. As a result, the loss of the second left toe and now another ‘is going to cause a loss of integrity of the mid-foot’.
By way of cross-examination, Dr Le Leu agreed that he was not a specialist in orthopaedics or rheumatology, but had a general knowledge of foot anatomy as an occupational physician through seeing people with leg, foot and ankle injures due to their employment or otherwise.
Counsel for the ACT referred Dr Le Leu to the opinions expressed in his report from 2011.[99] He agreed with the proposition that Mr Noonan had symptoms of peripheral neuropathy for over 20 years and this led to ongoing susceptibility to foot damage that he may not notice. Dr Le Leu also agreed that the feet of a person with peripheral neuropathy tend to deteriorate and that the lack of sensation means they might have minor injuries or pressure points that are not noticed. Dr Le Leu further agreed that Charcot foot does not occur in the absence of a peripheral neuropathy. In this regard, Dr Le Leu agreed that the effect of Mr Noonan’s work-issued boots may have hastened the development of Charcot foot, but there was always a risk that this condition would develop at some point.
[99] Exhibit 1, page 81.
Counsel referred Dr Le Leu to his opinion in the 2023 report that the prognosis for Mr Noonan’s left foot condition was ‘poor’, and was asked whether this was because the peripheral neuropathy causes his foot to deteriorate. Dr Le Leu told the Tribunal that it was due to ‘a combination’ of Mr Noonan’s ‘altered structure’ from the toe amputations and the ongoing effect of peripheral neuropathy. Dr Le Leu disagreed with the proposition that currently the main reason for Mr Noonan’s left foot condition was his peripheral neuropathy, and said that if this was the case he would expect the now non-existent right foot to have developed symptoms of a similar nature at a similar rate as the left foot. To this end, Dr Le Leu told the Tribunal that ‘something precipitated symptoms quickly in the left foot’ and he identified this as being the osteomyelitis and subsequent amputation of the second left toe.
Importantly, Dr Le Leu told the Tribunal that it would be ‘sheer speculation’ to opine that the original injury due to Mr Noonan’s work boots had been overtaken by the effects of his peripheral neuropathy. He told the Tribunal this was because there were two factors involved in that original injury and it would be ‘fiction’ to say the effects of the accepted injury had ceased. More specifically, Dr Le Leu opined that, given the many years Mr Noonan has had an altered structure and function of his left foot, it could not be said that the contribution from his original injury had been erased by the peripheral neuropathy. Finally, Dr Leu told the Tribunal that it was reasonable to say that both factors, the long-standing peripheral neuropathy and the accepted injury, were ‘significant’ in Mr Noonan’s current presentation, and one was not necessarily more prominent than the other. The Tribunal agrees with this opinion and finds that it is supported by the majority of the medical evidence in this proceeding.
As previously stated in these reasons, Mr Noonan was diagnosed with peripheral neuropathy in or around 2005. In 2011, his second left toe was amputated, and it was subsequently accepted that Mr Noonan’s employment had significantly contributed to this injury, being a ‘disease’ under the SRC Act.
In 2011, Dr Neilson, Vascular and Endovascular Surgeon, opined that the exact aetiology of Mr Noonan’s infection that led to the amputation of his second left toe ‘can never be known for certain’, although it is ‘highly likely that the peripheral neuropathy played a role’.[132] While Dr Mourad later noted, and agreed with, Dr Neilson’s subsequent statement that he was unable to say ‘with any certainty’ if Mr Noonan’s work boots contributed to Mr Noonan’s amputation because he had not seen the shoes and how they fitted, Dr Neilson had relevantly stated in 2011 that the type of footwear was ‘also very important to ensure that no rubbing of the toes occurs and that the weight through the foot is properly distributed’.[133]
[132] Exhibit 1, page 61.
[133] Ibid.
In this regard, in 2012, Dr Hardman, Vascular Surgeon, opined that the cause of the pressure ulcer was ‘more likely than not’ related to Mr Noonan’s work-issued boots.[134] He further stated that the appearance of altered blood underneath a callosity is characteristic of a ‘pressure injury’ often seen in a neuropathic foot, but that ‘the precipitating cause of the injury is usually poor-fitting footwear’.[135] Dr Hardman reviewed the report of Dr Miniter, Orthopaedic Surgeon, from 2003, which described the areas of callosity on Mr Noonan’s feet at that time. Dr Hardman noted that there were no calluses on Mr Noonan’s toe at that time and, as a result, it was ‘more likely than not’ that the calluses related to the second left toe that ultimately led to its amputation ‘do not relate to the underlying peripheral neuropathy as they are in a separate area’ to those identified in 2003, and are therefore ‘more likely than not’ related to the footwear.[136] Dr Hardman proceeded to state that footwear problems are a ‘common’ and ‘major’ cause of ulceration in a neuropathic foot.[137] This is because inappropriate footwear does not provide appropriate ‘offloading’ of the ‘high pressure zones’ within the foot, which exposes it to injury and subsequent callus formation. This in turn causes further injury and associated tissue death.[138] Dr Hardman opined that the peripheral neuropathy prevented Mr Noonan from being aware that there were high pressure zones in his foot when wearing specific footwear, which led to ulceration, sepsis and osteomyelitis.[139] The management of this combination is amputation to prevent the sepsis extending into the foot.[140] Accordingly, Dr Hardman reported, it was unlikely that Mr Noonan’s condition was a natural progression of a pre-existing condition irrespective of his employment. Rather, had Mr Noonan worn appropriate footwear it was ‘more likely than not that the ulceration experienced by Mr Noonan that led to the subsequent amputation would not have occurred’.[141]
[134] Exhibit 1, page 84.
[135] Ibid.
[136] Ibid.
[137] Ibid., page 85.
[138] Ibid.
[139] Ibid., page 86.
[140] Ibid.
[141] Ibid.
Following Dr Hardman’s report from March 2012, Comcare accepted Mr Noonan’s claim for compensation by way of agreed terms the subject of a Tribunal decision made in June 2012.[142] The decision found that Mr Noonan suffered the injury, being a ‘disease’ under the SRC Act, that was contributed to, to a significant degree, by his employment.
[142] Ibid., pages 91-92.
In 2012, Dr Kulisiewicz, Orthopaedic Surgeon, relevantly opined that Mr Noonan was suffering from ‘degenerative change as a result of his previous excision of his 2nd toe’ and this surgery ‘would have aggravated his degenerative change making weightbearing through that 1st metatarsal more difficult’.[143] This opinion from 2012 accords with the recent evidence of both Dr Le Leu and Professor Carter.
[143] Ibid., pages 94 and 97.
In 2014, Dr Sullivan, Ankle and Foot Surgeon, recommended surgery to Mr Noonan’s left foot.[144] Mr Donnelly, Podiatrist, also relevantly noted in 2014 that the removal of Mr Noonan’s second left toe ‘significantly altered the biomechanics of his left foot’ and the ‘mechanical stress during weight bearing had now shifted to the midfoot and his left foot took on the appearance of a Charcot Arthropathy’.[145] Also in 2014, Dr Stubbs, Orthopaedic Surgeon, opined that the infection in Mr Noonan’s toe ‘might not have developed, indeed probably would not have developed, but for the shoe wear’.[146] He also reported to Comcare that it was ‘a reasonable assertion’ that the imbalance resulting from the toe amputation led to an ‘acceleration of the inevitable Charcot’s foot’, arising from the peripheral neuropathy, ‘and the subsequent deformity and arthritis that results’.[147] Dr Stubbs’ literature review suggested that ‘the tipping point for progression in the diabetic foot is loss/damage to the interosseous muscles and toe and forefoot deformities’ and that this ‘is what the amputation of the second toe has caused’.[148] Furthermore, Dr Stubbs opined that there was no other treatment than that recommended by Dr Sullivan.[149]
[144] Ibid., pages 120 and 126.
[145] Ibid., pages 127-128.
[146] Ibid., page 142.
[147] Ibid, pages 142-146.
[148] Ibid.
[149] Ibid., page 145.
In May 2014, based on Dr Stubbs’ report, Comcare accepted liability for what it found to be a secondary condition, which it described as ‘aggravation of acquired deformities of ankle and foot(left)’.[150] In June 2014, Dr Sullivan performed the recommended surgery on Mr Noonan and relevantly inserted a staple into his foot joints.[151] In 2016, Dr Sullivan performed further surgery on Mr Noonan’s left foot.[152]
[150] Ibid., pages 148-149.
[151] Ibid., pages 156-157.
[152] Ibid., page 214.
In 2021 and 2023, Dr Sullivan recommended, among other things, removal of the staple inserted in the surgery from 2014.[153] While Dr Sullivan did not give evidence to the Tribunal, and no adverse inference is drawn because neither party was successful in contacting Dr Sullivan in this proceeding, Mr Noonan’s unchallenged evidence to the Tribunal was that removal of the staple was required because it was coming out and causing a pressure area on his foot.[154]
[153] Exhibit 1, pages 261-262 and Exhibit 2, page 29.
[154] See also Exhibit 1, pages 264-265.
At the Tribunal hearing, Counsel for the ACT asked Professor Carter, Endocrinologist, whether Mr Noonan’s peripheral neuropathy was the single main significant factor in his current presentation, with the Charcot foot secondary. Importantly, Professor Carter disagreed with this proposition and told the Tribunal that the ‘anatomical abnormality’, brought about by the toe amputation, changed the weight distribution on the foot, making ulcers very common. Under cross-examination, Professor Carter accepted that an altered anatomy of the foot following amputation of the second left toe would lead to altered pressure areas on the foot and result in increased susceptibility to the development of calluses, ulcers and infections. He further agreed that there was obviously a change in the foot’s structure following amputation of Mr Noonan’s second left toe.
While Professor Carter maintained his written opinion that the main factors for Mr Noonan’s current left foot condition are his peripheral neuropathy and the alteration of pressure areas caused by the Charcot’s abnormality, he agreed with the proposition that there was a relationship between Mr Noonan’s accepted conditions, including the condition arising from the amputation, and his current condition. Professor Carter told the Tribunal he considered there to have been ‘a progression’ and that once there are anatomical deformities, unless treatment is instituted to change the history, there will be ‘progressive abnormalities’, because the anatomy of the foot has changed and its capacity to weight bear is reduced compared to a foot with no anatomical deformity. Professor Carter further stated that the amputation of Mr Noonan’s second left toe had ‘aggravated the abnormalities’ in his foot and ‘it would have contributed to the further anatomical abnormalities’, and ‘alteration in the anatomy’ of the foot ‘has led to where he is today’. The Tribunal agrees with this opinion; it accords with the weight of evidence regarding the effect of the amputation and its continued significance. Professor Carter maintained that Mr Noonan’s Charcot foot ‘is the more important of the two’ issues, however he agreed that the amputation ‘would had to have played a role in contributing to the abnormalities’.
In contrast both to the above medical evidence, and also to the ACT’s position in this proceeding, its expert Dr Mourad, Orthopaedic Surgeon, opined that Mr Noonan’s left toe condition had never been significantly contributed to by his employment. He considered that the initial onset of Mr Noonan’s left second toe condition in December 2010 was due to his longstanding peripheral neuropathy.[155] The ACT did not adopt this position in the proceeding and consequently made no submission, in line with Telstra Corporation v Hannaford [2006] FCAFC 87, that the Tribunal should find that Mr Noonan did not initially suffer a compensable left toe condition.
[155] Exhibit 2, page 49.
Dr Mourad opined that Mr Noonan’s current left toe condition was contributed to by his history of symptoms consistent with a peripheral neuropathy affecting both feet for almost 20 years.[156] With respect, the weight of medical evidence in this proceeding does not support the opinion that there was no contribution from the workplace injury. The Tribunal prefers the evidence of Dr Le Leu, which is supported, as detailed above, by the majority of the medical professionals who have examined and reported on Mr Noonan’s condition, including many vascular and orthopaedic surgeons, lest it be considered that Dr Le Leu’s skills and qualifications as an Occupational Physician do not make his opinion on this matter preferable to others, which is not suggested by the Tribunal. Accordingly, the Tribunal is not satisfied that Dr Mourad’s findings regarding causation and the contribution from employment are open on all of the available medical evidence.
[156] Ibid., page 47.
Dr Mourad agreed that Mr Noonan’s amputation of his second left toe was permanent and currently affecting him, but opined that this was due to his peripheral neuropathy and associated issues, such as Charcot foot. However, Dr Mourad did agree in cross-examination that the amputation changed the architecture of the foot to some degree; this can change the way a person walks, and ‘theoretically’ the resulting compensation by the foot for the loss of the toe can lead to structural changes. To this end, Dr Mourad conceded that Mr Noonan’s altered foot structure ‘maybe’ contributed to the development of his Charcot foot and agreed that there was an increased risk that amputation made Mr Noonan more susceptible to developing Charcot foot and pressure sores, although this was said by Dr Mourad to be ‘insignificant’ in the larger scheme of things.
However, based on the weight of medical evidence before the Tribunal, it is satisfied that Mr Noonan’s previously accepted condition has continued beyond 9 December 2021, being the date liability was determined, on behalf of the ACT, to have ceased. On balance, the Tribunal is satisfied that Mr Noonan continues to suffer from the left toe condition and that this continues to be contributed to, to a significant degree, by his employment with the ACT.
Mr Noonan has suffered an unfortunate series of conditions that have resulted in his current presentation. These include the longstanding peripheral neuropathy, the accepted injury including amputation of his second left toe, development of Charcot foot, the recent diagnosis of diabetes and other factors. However, the Tribunal is satisfied that the previously accepted injury continues to play a significant role in his present situation such that Mr Noonan’s employment still contributes to a significant degree. The Tribunal therefore does not accept that the injury has been crowded out, or overtaken, by other conditions or events. The Tribunal also does not accept that a five-year gap in significant reported issues with Mr Noonan’s foot, together with the concurrent emergence of issues with his right foot, demonstrates that his left toe condition was due solely to underlying peripheral neuropathy or has been overtaken by other conditions. In this regard, As Dr Le Leu opined, this hiatus in serious treatment to Mr Noonan’s left foot can be attributed to the evident good management by his podiatrist, Mr Donnelly. The Tribunal is satisfied that the weight of medical evidence demonstrates that Mr Noonan’s workplace injury has contributed to a significant degree to his current state. To this end, the Tribunal does not accept that there is a ‘discontinuity’ between Mr Noonan’s current symptoms and the symptoms for which liability had previously been determined.[157] The Tribunal is not satisfied that such a finding is open on all of the medical evidence set out in these reasons. Mr Noonan’s previously accepted ailment continues as a result of the effects of the amputation of his second left toe. While it is acknowledged that the peripheral neuropathy has also likely made this level of contribution to Mr Noonan’s current presentation, under section 5B of the SRC Act, the Tribunal need only be satisfied that employment continues to be one of any number of significant contributors to a person’s condition. That is, employment must make ‘a significant contribution’, not be ‘the significant contribution’ to the relevant condition. Taking a longitudinal view of the weight of medical evidence, which pointed to the initial injury continuing to have an impact on Mr Noonan’s left foot in multiple ways, the Tribunal is satisfied that his employment continues to retain the requisite degree of contribution to his current condition.
[157] Quinn and Australian Postal Corporation [1992] AATA 668.
In Woodhouse v Comcare [2021] FCAFC 95, Derrington J at [85] and [90], with whom Rangiah and Collier JJ agreed, relevantly held as follows, noting that the Court was dealing with the pre-2007 amendments to the SRC Act:
Logically, the causes of a disease or ailment tend to cease once the condition is suffered and the employee ceases employment or the causative factors are remedied. However, having been caused by the contribution of the employee’s employment, the condition itself often continues and compensation is payable to the extent to which it results in death, incapacity or impairment. It does not follow that, in order for Comcare to remain liable, the employee’s employment needs to remain a constant and continuing contributor to the ongoing injury. That would rarely, if ever, be the case. However, what is required is that the contribution requirement remain in place in the sense that the disease or ailment continues to have the characteristic of having been contributed to in a material degree by the relevant employment. To say that the employment factors continue to contribute in a material way to the employee’s condition is an inarticulate way to express this. It is preferable to say that the causal nexus between the employee’s employment and suffering of the disease continues unbroken. In this way, the operative effect of the expression “was contributed to” in the definition is not spent once it has connected the employee’s employment with the contraction or aggravation of the ailment. In order for a disease to remain one in respect of which Comcare will be liable, it must retain the continuing characteristic that it was contributed to in the necessary degree by the employment. If at any later point in time the ailment suffered by an employee ceases to have that character, it will also cease to be a “disease”, and will therefore cease to be an “injury” in respect of which compensation is payable pursuant to s 14 of the SRC Act. For the duration of each of the periods in respect of which the question of compensation is being determined, it must be possible to say that the contribution requirement was satisfied in respect of the ailment.
…
Comcare has no liability under s 14 in relation to an ailment, the continued existence of which can no longer be said to have the necessary causal connection to the employee’s employment. The mere fact that the ailment suffered may once have had the necessary connection is irrelevant. Even where the ailment continues unabated, if it ceases to have the characteristic of being one which was relevantly contributed to by the employee’s employment, Comcare’s liability ceases.
On the whole, the Tribunal prefers and accepts the evidence of Dr Le Leu in this proceeding, which it has found is consistent with the majority of the other medical practitioners’ opinions before the no present liability decision regarding the impact of Mr Noonan’s employment on his left foot, in finding that Mr Noonan’s left toe condition, being contributed to the requisite level under the SRC Act, would have long lasting effects. Having regard to the accepted medical evidence, the Tribunal is satisfied that Mr Noonan continues to suffer from the injury which first arose in 2010. That is, the Tribunal is satisfied that the causal nexus between his accepted workplace injury in 2010 and his suffering of the disease continues unbroken.
As set out above in these reasons, section 5B of the SRC Act provides that a disease relevantly means an ailment suffered by an employee that was ‘contributed to, to a significant degree’ by the employee’s employment. Subsection 5B(3) of the SRC Act states that ‘significant degree’ means ‘a degree that is substantially more than material’.
As a result of the Tribunal’s acceptance of Dr Le Leu’s evidence, the Tribunal is satisfied that Mr Noonan’s condition continues to be significantly contributed to by his employment with the ACT. Accordingly, the Tribunal finds that the ACT continues to be liable to pay compensation to Mr Noonan under the SRC Act. The Tribunal has also considered the matters set out at subsection 5B(2) of the SRC Act and finds, based on all the evidence, that they do not displace the above finding that Mr Noonan’s employment contributed to a significant degree to his ailment. Mr Noonan has been employed by the ACT during all of the relevant period from 2010 to the present and has, on the evidence, required period of time off as a result of medical treatment for his accepted injury and other matters. There was no dispute about the nature of, and particular tasks involved in, Mr Noonan’s employment. While it is accepted that Mr Noonan had peripheral neuropathy before the occurrence of the accepted injury in 2010, the Tribunal is satisfied, as was Comcare, that his employment contributed to a significant degree to that injury. The Tribunal has in this decision found that the accepted injury continues to be significantly contributed to by that employment with the ACT. There were no other activities, not related to employment or other medical conditions, that were raised as a possible cause of Mr Noonan’s relevant ongoing condition. Accordingly, the ACT is liable under the SRC Act in relation to Mr Noonan’s condition because the necessary causal connection with his employment remained from 9 December 2021.
The Tribunal is therefore satisfied, on the balance of probabilities, that Mr Noonan’s employment significantly contributed to his condition, and continues to do so from 9 December 2021. Having weighed all the evidence in this proceeding, on balance, the Tribunal is satisfied that Mr Noonan’s condition, or ailment, continues to be contributed to, to a significant degree, by his employment with the ACT.
Does Mr Noonan need medical treatment?
As a result of the Tribunal’s above findings, it follows that the Tribunal is satisfied that Mr Noonan continues to have a need for medical treatment, noting that the nature of such treatment is a matter for determination by the ACT following the Tribunal’s decision and on the presentation by Mr Noonan of any relevant material. Therefore, pursuant to section 16 of the SRC Act, the ACT continues to be liable to pay compensation to Mr Noonan for the cost of medical treatment obtained in relation to his condition.
Does Mr Noonan’s condition result in incapacity for employment?
Given the Tribunal’s above findings, it also follows that the Tribunal is satisfied that Mr Noonan’s condition would continue to result in incapacity for employment if that arose as a result of any related medical treatment or other associated matters, noting again that these are determinations for the ACT to make upon consideration of material provided by Mr Noonan. Therefore, pursuant to section 19 of the SRC Act, compensation continues to be payable by the ACT to Mr Noonan as a result of any incapacity he has for work as a result of his compensable condition.
Costs
Under subsection 67(8) of the SRC Act, where the Tribunal makes a decision setting aside a reviewable decision and making a decision in substitution for the reviewable decision that is more favourable to the claimant, the Tribunal may, subject to that section, order that the costs of the proceeding incurred by the claimant, or a part of those costs, shall be paid by the responsible authority, here being the ACT.
Accordingly, the usual course in circumstances where the Tribunal has set aside the decision under review and made a decision that is more favourable to Mr Noonan under the SRC Act would be for the Tribunal to order that his reasonable costs in this proceeding be paid by the ACT, as agreed or taxed. The parties did not make any express submission on the issue of costs in this proceeding. Unless the Tribunal is informed that the parties reach agreement as to costs in this proceeding following the publication of this decision, the Tribunal will receive any further submissions from Mr Noonan regarding this issue within seven days of the date of this decision, and from the ACT within 14 days. The Tribunal will then proceed to make an order in relation to costs pursuant to section 67 of the SRC Act.
DECISION
The Tribunal sets aside the decision under review pursuant to subsection 43(1)(c) of the AAT Act and makes a decision in substitution that the ACT remains liable to pay compensation to Mr Noonan pursuant to sections 16 and 19 of the SRC Act.
The Tribunal will make an order regarding costs in this proceeding pursuant to section 67 of the SRC Act following receipt of any submissions from the parties which, unless agreed, should be given to the Tribunal by Mr Noonan within seven days of the date of this decision and by the ACT within 14 days of this decision.
I certify that the preceding 174 (one hundred and seventy-four) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.
...........[SGD].............................................................
Associate
Dated: 20 November 2023
Date(s) of hearing:
23-24 October 2023
Date final submissions received:
28 August 2023
Counsel for Applicant: Mr Karl Pattenden
Solicitors for Applicant:
Mr Angus Bucknell, Rachel Bird & Co Lawyers
Counsel for Respondent:
Ms Tamsin Waterhouse
Solicitors for Respondent:
Ms Laura Hinwood, Sparke Helmore Lawyers
Key Legal Topics
Areas of Law
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Employment Law
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Administrative Law
Legal Concepts
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Judicial Review
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Costs
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Statutory Construction
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