Pascoe v Aldi Stores (A Limited Partnership)
[2022] NSWPIC 572
•14 October 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Pascoe v Aldi Stores (A Limited Partnership) [2022] NSWPIC 572 |
| APPLICANT: | Brett Pascoe |
| RESPONDENT: | Aldi Stores |
| Member: | Christopher Wood |
| DATE OF DECISION: | 14 October 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Application for lump sum benefits for whole person impairment (WPI); whether there was a causal nexus between the accepted left foot injury and the development of a right foot injury; whether both body parts should be part of the referral to the Medical Assessor for assessment of WPI entitlements pursuant to section 66(1) of the Workers Compensation Act 1987; Kooragang Cement Pty Limited v Bates (Kooragang), Sarkis v Summitt Broadway Pty Limited t/as Sydney City Mitsubishi, ACQ Pty Limited v Cook and Aircare Moore Pty Limited v Cook considered and applied; Held – award for the applicant; applying common sense principles in accordance with Kooragang; there was a causal nexus between the applicant’s accepted left foot injury and the development of tendonitis in the applicant’s right foot/ankle. |
| determinations made: | 1. Award for the applicant on the question of whether the applicant suffered an injury to his right foot as a consequence of an accepted injury to his left foot. 2. The Application to Resolve a Dispute is remitted back to the President for referral to a Medical Assessor to determine the level of the applicant’s whole person impairment by reference to injuries to the left and right feet. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Mr Brett Pascoe, worked as an assistant manager with Aldi Stores (the respondent) from 2014.
He says that he started to develop pain in his left foot in or about July 2019 as a consequence of walking long distances during the course of his employment including prolonged standing. The respondent does not contest that he walked considerable distances during the course of his employment as an assistant manager which gave rise to an injury to the left foot.
The respondent’s own medical practitioner, Dr Doig, accepted that the applicant developed a condition specifically left foot planter fasciitis, commonly known as ‘Policeman’s Heal’. This is a well understood condition.
The applicant makes a claim for a lump sum based on whole person impairment (WPI) of 11% arising from injuries to both his conceded left foot injury and an alleged consequential injury to his right ankle, in particular his Achilles heel, in the form of tendonitis.
The respondent says that the applicant has failed to establish a causal connection between his left foot injury and the development of his right foot/ankle condition.
ISSUES FOR DETERMINATION
The parties are agreed that the only issue for determination by the Personal Injury Commission (the Commission) is whether the applicant suffers from an injury to his right foot/ankle as a consequence of his left foot injury.
If the Commission determines that the right ankle injury is a consequence of the applicant’s employment then the matter is to be referred for independent medical assessment to determine the level of WPI by reference to both left and right lower extremities for the purposes of s 66(1) of the Workers Compensation Act 1987 (the Act).
PROCEDURE BEFORE THE COMMISSION
The parties attended an initial telephone conference on 9 August 2022. Mr Harrison, solicitor, appeared for the applicant and Mr Lee for the respondent on instructions from the respondent’s insurer, Allianz Insurance Australia Limited (Allianz).
It was made clear by both legal representatives that the applicant’s claim was essentially an “all or nothing” case because if the applicant fails to establish his right foot injury is causally connected his employment by reason of favouring his left foot, he will not overcome the 10% WPI threshold necessary for him to receive benefits pursuant to s 66(1) of the Act.
Orders were made referring the matter to conciliation/arbitration on 20 September 2022 at which time counsel, Mr Brazel, appeared for the applicant and Ms Goodman appeared for the respondent.
There was an Application to Admit Late Documents made by the applicant in relation to a supplementary medical report of Dr Simon Kinny dated 30 August 2022. The respondent did not object to the report forming part of the material before the Commission on the basis that it does no more than to further define the “battle ground” between the two competing medico-legal positions of Dr Kinny and Dr Doig.
At the outset of the conciliation phase I again enquired as to the prospects for resolution and was assured by counsel that there was no scope for compromise. The parties clearly articulated the fundamental problem separating them and I was accordingly satisfied the matter was appropriate to proceed to arbitration and the parties understood the nature of the issues the Commission was being required to decide.
The applicant was present throughout the process.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and were considered in making this determination:
(a) the Application to Resolve a Dispute (ARD) and attached documents;
(b) the Reply and attached documents, and
(c) application for admission of late documents to which I have referred above.
Oral evidence
There was no application to call oral evidence or cross examine any witness.
FINDINGS AND REASONS
At the outset I note that the evidence before the Commission was relatively limited in scope. There were no clinical records from treating doctors however, diagnostic reports and correspondence passing between treating doctors is in evidence. The respondent’s counsel said that there were gaps in the evidence which did not sufficiently explain the applicant’s contention that his right heel condition was related to the conceded left foot injury.
Consistent with my observations at the conclusion of the arbitration, I wished to review the material to assess the likely chronology surrounding the development of the applicant’s respective conditions (left and right foot/ankle).
I am satisfied on balance that there is sufficient material for me to make the decision set out below.
Evidence of the applicant, Mr Brett Pascoe
The applicant’s statement is, as I have alluded above, fairly short and light on detail. It is dated 27 June 2022 and appears at page 54 of the ARD. Very little of what is in the statement is in issue at least up until the development of right heel symptoms. As an assistant manager at Aldi he said he walked on hard floors for long periods throughout the day. This much also emerges from the various doctors’ reports and indeed Dr Doig, the respondent’s medico-legal specialist, opines that the work described by the applicant is consistent with the development of the left foot condition which has been conceded by the respondent.
The applicant says that he started to notice pain in about July 2019 and in correspondence from the respondent’s insurer, Allianz, the notional date of injury for the purposes of payment is 25 July 2019.
The applicant persevered on with his employment and tried the use of inner soles for approximately three months after developing his pain in July 2019. He says he thought it would resolve over time and he was taking pain killers. He says that in October 2009 [sic] he undertook diagnostic ultrasound. Pausing here, I note that the first ultrasound of the applicant’s left foot was undertaken on 23 October 2019[1]. It was also at this point when he made his claim for workers compensation benefits, submitting a WorkCover certificate of incapacity.
[1] Page 3 of the ARD.
The relevant treating doctor was his general practitioner, Dr Brenda Omune, and thereafter he received treatment from both a podiatrist and physiotherapist. The podiatrist apparently prescribed the use of a moon boot.
The applicant says that while he was using the moon boot, he started to overcompensate, favouring his right leg which altered his gait. It is his contention that the pain in his right Achilles heel was a result of overcompensating during the period wearing the moon boot and thereafter using crutches.
He notes that the pain in his right Achilles tendon did not improve after he transitioned from wearing the moon boot, using crutches instead, and “is still painful from time to time”[2].
Medical evidence
[2] Paragraph 24 of Mr Pascoe’s Affidavit, page 55 of the ARD.
Dr Omune has provided a single report of 18 October 2019 directed to Allianz. We do not have Dr Omune’s clinical records but it seems to be accepted by Allianz that she first saw the applicant in relation to left heel symptoms on 15 July 2019. She said he was not responding to conservative treatment and although we do not have the benefit of specific questions put to her by Allianz, she opined that it was a well known fact that one of the risk factors for developing planta fasciitis is in people whose occupations require a lot of walking or standing on hard surfaces.
Ultrasound appears to have taken place shortly after she wrote that report and an ultrasound report from North Coast Radiology is in evidence[3].
[3] Page 24 of the ARD.
Dr Sonja Schleymer
Dr Schleymer is the applicant’s treating orthopaedic surgeon and has provided several reports being correspondence between her and Dr Omune and the applicant’s subsequent treating rheumatologist, Dr Zia.
In her first report to Dr Omune dated 10 March 2020[4], Dr Schleymer records:
“Brett has on and off trialled moon boots, insoles and at some point tried some physiotherapy, has never really pursued any of his management”.
[4] Page 38 of the ARD.
The applicant was mobilising with his moon boot but is recorded as refusing to put his heel down in and out of the boot[5].
[5] Paragraph 3 of report of Dr Schleymer to Dr Omune dated 10 March 2020.
It is useful to note here that Dr Schleymer records the fact of the applicant having a cavovars foot deformity which is bilateral. This is more commonly understood as “high arches” and was a matter which was on some interest to the respondent in its submissions as to possible causes of the applicant’s right heel pain.
Dr Schleymer reported regularly to Dr Omune and it appeared that the applicant’s problems were becoming chronic. I note that in her report of 16 June 2020[6], Dr Schleymer records:
“In the interim from overcompensation he has also developed right insertional achilles tendinopathy which is making life fairly hard”.
[6] Page 41 of the ARD.
In a report to Dr Omune dated 10 September 2020, Dr Schleymer records that the applicant’s right heel pain had improved following a cortisone injection but his left heel problems were continuing. There was restriction in the applicant’s ability to walk and by that stage Dr Schleymer was canvasing the possibility that the applicant might see a rheumatologist to assist him with what was becoming a chronic problem. Further diagnostic tests were conducted at the back half of 2020 and Dr Maryan Zia saw him in February 2021.
Dr Schleymer saw the applicant again after he had consulted Dr Zia, at which time she said that there was still marked tenderness in his right Achilles and his left planta fascia region. At that point Dr Schleymer reassured the applicant that she felt he was starting to get better.
Dr Schleymer reported to Dr Omune on 27 May 2021 after a follow up consultation with Dr Zia that the applicant was slowly getting better, the suitability of a neurologist also being involved was canvassed.
Dr Maryan Zia
Dr Zia saw the applicant at the request of Dr Schleymer and she initial reported on 18 February 2021[7].
[7] Page 35 of the ARD.
In terms of the applicant’s history she records the development of pain in June 2019 and says:
“He used an insole which did not help him. He then had to walk on the front of his feet… He was given rest and had to wear a moon boot for a couple of months. He then used crutches. While he was using the moon boot and crutches he started to get pain in his right foot at the insertion area of the Achilles tendon.”
I note here that Dr Zia refers to pain in the applicant’s feet (my emphasis). There is no other relevant history and she diagnoses planta fasciitis in both feet; right Achilles tendonitis.
Dr Zia saw the applicant in May 2021, reporting back to Dr Schleymer that he was having ongoing pain behind his heels, worse on the right-hand side[8]. Essentially treatment was conservative and a four-point plan was set out.
[8] Page 37 of the ARD.
Dr Kinny
Dr Kinny has provided three reports variously dated 5 July 2021, 31 May 2022 and the late served report of 30 August 2022.
The first report appears in the ARD at pages 31 to 37. The history taken by Dr Kinny is broadly consistent with that of the other practitioners involved in his treatment and assessment. He notes (in terms of fixing when certain events occurred) that the applicant first developed heel pain in July 2019 and spent the next three months trying to continue to work despite ongoing left heel discomfort. He finally saw his general practitioner in October 2019. I take this to be Dr Omune and diagnostic ultrasound shortly thereafter and to which I referred above revealed the diagnosis of planta fasciitis. Consistent with Dr Omune’s report, the applicant then saw a podiatrist who arranged for him to wear a moon boot over two months, which did not help, and then he also used crutches but again this did not help. I pause to note here that this is broadly consistent with what the applicant has said in his statement. Dr Kinny expressed the opinion that:
“The claimant has also gone on to develop insertional Achilles tendinopathy on the right side, indicating an underlying tendency to such inflammatory conditions, but also certainly as a result of favouring the left side whilst it was so painful and whilst it was immobilised. He recorded that he has pes cavovars in both feet which pre-disposed him to the development of inflammatory foot conditions.”
Dr Kinny’s second report of 31 May 2022 directly addresses questions put to him by the applicant’s solicitors and unequivocally states:
“I therefore remain of the opinion that the right Achilles tendonitis pathology is a consequential injury arising from overcompensating due to the left foot planta fasciitis.”
Dr Kinny’s final report directly addresses the opinions of Dr Doig and basically sets out that they must agree to differ.
In addressing the question of causation, the following words used by Dr Kinny accentuate the difficulties:
“There is considerable legal argument regarding the possibility of contra-lateral consequential injuries. My approach to this has always been if one side is ‘overused’ as a result of an injury on the other side an inflammatory condition that arises, such as tendonitis, this can lead on to structural damage. However it is also possible that temporary abnormal gait due to an injury on one side might result in secondary pain symptoms and muscle fatigue at various sites.”
Evidence of the respondent, Aldi
The respondent relies upon four medico-legal reports of Dr Graham Doig and various other documents which are largely drawn from that material filed by the applicant.
Dr Graham Doig
There are four reports before the Commission from Dr Doig dated 4 November 2019, 14 November 2019, 9 December 2021 and a late filed report dated 2 August 2022. No objection was taken to the latter report in the same way as the late served report from Dr Kinny was admitted into evidence.
The time of Dr Doig’s initial appointment is of some interest in that it was in a period which as I understand the respondent’s submission, there is a real contest as to how the applicant was presenting himself and importantly when he first experienced problems with his right foot, making use of a moon boot.
Dr Doig first assessed the applicant on 31 October 2019 and diagnosed planta fasciitis effecting the left foot/heel. On page 2 of his report, under the heading “Current Complaints”, Dr Doig records:
“Mr Pascoe was complaining principally of left sided, planta foot pain and discomfort on the lateral border and Achilles, the latter I believe due to walking by mechanically and normally. He is now developing some discomfort in the right Achilles tendon” (my emphasis)[9].
[9] Page 10 of the Reply.
Dr Doig did not otherwise address the symptoms the applicant reported in his right foot, in expressing his opinion in response to the specific questions put to him by Allianz on behalf of the respondent. He opines in answer to the question of whether the applicant’s employment was a main or substantial contributing factor to the development to his injury that:
“Mr Pascoe’s employment has been a substantial contributing factor to the development of the condition due to the nature of his employment walking being 20 and 30km per day. He is anatomically pre disposed towards an increased risk of developing the condition due to his pes cavus deformity”[10].
[10] Page 12 of the Reply, at point 4.
Dr Doig opines on the applicant’s pes cavus deformity which he says is bilateral and symmetrical. He notes that in the medical literature there is an increased risk of developing planta fasciitis with this anatomical configuration. He then goes on to say:
“Mr Pascoe is unlikely to have developed planta fasciitis without exposure to his current employment conditions which involves repetitive periods of prolonged standing and walking as outlined earlier in my report”[11] (my emphasis).
[11] Page 5 of the Reply, at point 5.
Dr Doig’s second report dated 14 November 2019 responds to further questions put to him by Allianz.
The next report from Dr Doig is dated 9 December 2021 and responds again to questions put to him by Allianz. By this stage, the applicant had developed and had received treatment for his right foot injury which is addressed in the evidence. Interestingly he records on this occasion that the applicant developed right heel pain in April 2020 with medical imaging consistent with Achilles tendinopathy on a background of pre-existing degeneration at the talocrural articulation[12]. This is of course inconsistent with Dr Doig recording the applicant complaining of right foot pain at the time of his first examination in October 2019. Dr Doig maintains his previous view that the development of planta fasciitis in the left foot was consistent with the applicant’s employment but in so doing, says that he was unable to provide any scientific evidence in the medical literature that planta fasciitis pre-disposes towards Achilles tendinopathy in the contra lateral lower limb[13].
[12] Page 21 of the Reply.
[13] Page 21 of the Reply, at point 2.
Addressing WPI, Dr Doig concludes in relation to the right ankle, that there was a zero percent permanent impairment to the whole person (referrable to that body part). There was no further discussion of the connection (or lack thereof) between the left foot injury and the development of right foot pain.
The final report of Dr Doig is that of 2 August 2022. It directly addresses the question of whether the applicant’s right heel Achilles tendonitis was a function of his altered gait caused by the accepted chronic left planta fasciitis and Dr Doig was asked to expressly address the opinions of Dr Kinny which have been outlined about. He repeats that there was nothing he could find in the literature outlining a pathological condition in one lower limb pre-disposing towards problems in the contra lateral leg. He concedes, as mentioned by Dr Kinny, that questions on point are often raised at expert independent medico-legal examiner conferences.
Dr Doig says that in his opinion the Achilles tendonitis is completely separate from the planta fasciitis and may have developed as a result of separate injury at or out-with [sic] work with a prior or current employer. He also disagrees with the methodology used by Dr Kinny to calculate WPI.
Other medical evidence
As noted above, the respondent relies upon various documents filed on behalf of the applicant in his ARD. Primarily these are various diagnostic reports being ultrasound and MRI reports[14]. In addition, the respondent includes in the material before the Commission, reports of Dr Zia and Dr Schleymer which have been detailed above under the applicant’s evidence.
[14] Pages 24-33 of the Reply.
The diagnostic material broadly focuses on the left foot and does not deal with the right and I will not revisit the reports of Dr Zia and Dr Schleymer at this point.
REASONS FOR DECISION
As noted by applicant’s counsel in submissions addressing causation of the applicant’s right heel injury, the Commission is to apply the commonsense test propounded in Kooragang Cement Pty Limited v Bates (1994) 35 NSWLR 452. The correctness of this approach was reinforced by the Court of Appeal in Sarkis v Summitt Broadway Pty Limited t/as Sydney City Mitsubishi [2006] NSWCA 358 whereby Handley JA and with whom Bryson JA agreed. Causation in Common Law and Workers Compensation is a commonsense test which includes normative and policy evidence and for strong policy reasons is not satisfied by “but for”.
I also note that causation is very fact specific[15].
[15] See for example the High Court’s decision in Roads and Traffic Authority v Royal [2008] HCA 19 and Roads Corporation v Dykes [2011] VSCA 118.
That the applicant has bilateral pes cavus or high arches and may be pre-disposed to injury is not in dispute. There is nothing before the Commission however, which suggests that this condition was causing the applicant any difficulty prior to the events described in his statement as leading to left heel pain. Whilst there is some inconsistency in the history in terms of the distances walked by the applicant, I do not regard this as material. On any view of it he was walking long distances in the course of his employment as an assistant manager with the respondent.
The respondent has accepted that the applicant’s left planta fasciitis is work related.
There is disagreement between the two doctors who have assessed the applicant for medico-legal purposes, Drs Kinny and Doig. They agree on diagnose but not on causation. As observed to counsel during the hearing, they essentially cancel each other out.
The respondent’s counsel argued that giving the benefit of the doubt, as Dr Kinny has done to the applicant, cannot mean that he is saying that the right foot condition is causally related to the left and he needs to go far more than that in establishing the chain of causation was not broken. Counsel also contended that there were gaps in the applicant’s history in terms of when he started to use crutches or a moon boot. She conceded that the Commission does, from time to time, make findings on causation where there is some certainty around such matters but the gaps in the applicant’s history do not allow the necessary causal nexus to be drawn. I do agree that the applicant’s statement is somewhat light on detail however, by reviewing the medical material the gaps in history are capable of being addressed in the way in which applicant’s counsel contends for.
On review of the various medical reports relied upon by both parties, it is reasonable to infer that the applicant commenced to wear a moon boot at some point between approximately late October 2019 and through to March 2020, and more likely not before the end of 2019. He was referred to a podiatrist once the initial diagnosis was made and this was in October 2019.
Dr Omune referred the applicant to a podiatrist and to a physiotherapist following ultrasound in October 2019. The podiatrist prescribed the use of a moon boot. Dr Schleymer recorded on 10 March 2020 that the applicant by that stage had trialled moon boots for various periods by the time he saw her. By mid-2020 Dr Schleymer again reported that the applicant had developed right insertional Achilles tendinopathy as a result of overcompensating for his left foot injury[16].
[16] Report of 16 June 2020.
The proximity of the development of right foot pain to the left foot condition is significant. As a matter of common sense even though the applicant undoubtedly had a condition which may have at some point pre-disposed him to the development of bilateral pain by reason of his pes cavus condition, the well documented history of right foot pain and quite frankly most importantly, from Dr Doig who saw the applicant on 31 October 2019 shortly after the development of left heel problems, cannot be ignored. The applicant was seemingly pain free and able to walk long distances up until July 2019 when he developed symptoms. It was only a matter of at most three months before the right heel pain developed and by this stage it seems likely that the applicant had begun to trial a moon boot or shortly thereafter. It is likely to have been well before March 2020[17] his underlying pes cavus or high arches condition may have heightened the response to favouring the left foot however, the point is the condition had not manifested itself in anyway prior to the development of symptoms in July 2019. Medical minds obviously differ and the medico-legal practitioners have noted that it is a point of debate. There has been no attack on the applicant’s credit and when one considers the treating doctors, the consistent history and reporting of injury and its temporal link to overcompensation while wearing a moon boot, the applicant’s claim is made out.
[17] See again Dr Schleymer’s report of 10 March 2020.
Essentially without the treatment of the applicant’s left foot injury, the right foot would not have developed. The injury to his right foot was obviously not the proximate or precipitating cause of incapacity for work but the causal chain was unbroken and resulted from the injury to the left foot. The decision in ACQ Pty Limited v Cook; Aircare Moore Pty Limited v Cook [2001] HCA 28 is important here. Causation is a question of fact so the particular action or activity in one case may be a mere ‘but for’ but in another case it may be part of commonsense causation. A particular action or activity such as favouring one limb over another cannot be predetermined as a mere ‘but for’ or as a commonsense causation without having related to all of the facts of the case.
I find that the applicant’s conceded left heel injury is causally connected with the subsequent early development of right heel symptoms, specifically insertional Achilles tendinopathy.
Whether or not the impacts of that injury continue to the point where they are to be taken into account in WPI of course is another matter and I note Dr Doig has provided a 0% assessment in this regard.
For completeness I note that the ARD also included reference to an associated psychological injury. This aspect of the claim was not pressed and I make no findings accordingly. The matter ought be remitted to the President for referral to a Medical Assessor to determine WPI by reference to a (conceded) injury to the left foot in the form of planta fasciitis and a consequential injury to the right foot in the form of Achilles tendonitis.
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