Peachey v Victorian WorkCover Authority (No 1)
[2022] VCC 939
•24 June 2022
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| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-03919
| KARIN LORRAINE PEACHEY | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE ENGLISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 and 28 April 2022 | |
DATE OF JUDGMENT: | 24 June 2022 | |
CASE MAY BE CITED AS: | Peachey v Victorian WorkCover Authority (No 1) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 939 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – pain and suffering – injury to the bilateral lower limbs – causation – aggravation – range
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335
Cases Cited:Peachey v Victorian WorkCover Authority (No 2) [2022] VCC 940; Victorian WorkCover Authority v Brassington [2021] VSCA 236; Lexa v Transport Accident Commission [2019] VSCA 123; Petkovski v Galletti [1994] 1 VR 436; Commonwealth of Australia v Beattie (1981) 35 ALR 369; Maimonis v Bourke & Ors [2019] VSCA 302; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12
Judgment: Leave granted to the plaintiff to commence a proceeding for pain and suffering damages in respect to the injury to her right foot and her left foot suffered throughout the course of her employment from 1 October 2014 to 31 December 2015.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N J Dunstan | Zaparas Lawyers Pty Ltd |
| For the Defendant | Ms S Manova | Hall & Wilcox |
HER HONOUR:
Introduction
1Mrs Karin Peachey, the plaintiff, brings two serious injury applications pursuant to s335(1) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”), which were heard together.[1] She seeks leave of the Court to commence common law proceedings for pain and suffering against her employer, Wilsons Security Pty Ltd (“Wilsons”), for injuries that occurred during the period of 1 October 2014 to 31 December 2015 when she was employed as a security guard.
[1]Proceeding number CI-20-03919 (Peachey v Victorian WorkCover Authority (No 1) [2022] VCC 939) and proceeding number CI-20-03951 (Peachey v Victorian WorkCover Authority (No 2) [2022] VCC 940). Although separate applications, the plaintiff produced one court book with one set of affidavits and medical material covering both applications
2The plaintiff is aged forty-four and is currently employed as a security guard with Zagamis. She is married and has a ten-year-old daughter.
3This decision deals with Mrs Peachey’s serious injury application regarding her feet.
4In the Particulars of Injury, “serious injury” is described as (a) permanent serious impairment or loss of function of her bilateral lower limbs including but not limited to plantar fasciitis and aggravation of degenerative changes in the feet.
5In order to establish an entitlement for leave to commence proceedings, the plaintiff must establish she has suffered a compensable injury to either of her feet which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, are described as being more than significant or marked, and as being at least very considerable, as per the narrative test set out in s325(2)(b) and (c) of the Act.
6At the outset, the plaintiff’s counsel acknowledged her alleged injuries to her feet could not be aggregated together, but that each injury had to stand alone, so to speak, to establish a “serious injury”.[2] I note the authorities confirm bilateral injuries involving separate body functions cannot be aggregated as a single impairment.[3]
[2] Victorian WorkCover Authority v Brassington [2021] VSCA 236
[3] Lexa v Transport Accident Commission [2019] VSCA 123
Issues
7Firstly, causation is in dispute. The defendant disputes the plaintiff’s alleged injuries to either of her feet occurred “out of or in the course of employment” pursuant to s46 of the Act. The plaintiff does not put her injury to each foot occurred as a result of a single workplace accident or incident, but rather, “throughout the course of employment” they evolved over a period of approximately six months, during which her shifts involved almost continuous walking and checking doors. There is also a factual dispute about the plaintiff’s duties as a security guard.
8Secondly, the plaintiff’s case was put on the basis that the injury to each foot was an “aggravation” injury. In an aggravation case, the principles of Petkovski v Galletti[4] need to be followed; namely, where the injuries are an aggravation of a pre-existing condition, there must be consideration of what the evidence discloses of the prior condition and the extent of impairment of the body function before and after the relevant injury.
[4] [1994] 1 VR 436
9Thirdly, the aggravation injury must of itself be a “serious injury”. The defendant does not accept the plaintiff has incurred a “serious injury” to either of her feet. Therefore, the “range” of the injury is in dispute.
The Plaintiff
10The plaintiff bears the onus of proof.
11Counsel for the defendant submitted the plaintiff was an unreliable witness and that she minimised and exaggerated her evidence to suit her case, so her evidence should not be accepted with respect to causation and whether the injury is a “serious injury”. The plaintiff was robustly cross-examined.
12The plaintiff was cross-examined about inconsistencies in her evidence. She was upfront in her response that she had forgotten things and stood “corrected”,[5] and did not try to second guess counsel’s questions.
[5] T73, L23
13The plaintiff said her sleep was disrupted by pain and conceded the medical records showed she reported previous problems with disrupted sleep in the years 2009, 2010 and 2013, so prior to working with Wilsons at Treasury Place.
14The plaintiff conceded she had in fact, not been able to go ten-pin bowling since 2009 when she suffered a whiplash injury.[6] When asked about general practitioner (“GP”) notes from 2013 referring to joint pains in the hand, feet and left ankle, she was unable to explain the cause of her left ankle pain reported in March 2013. Neither was she able to explain her chiropractor’s report that states, “she is significantly restricted in her ankle movement”.[7] It is perhaps not surprising her recollection is imprecise, given she had twenty-two GP attendances in 2013.[8]
[6] T82
[7] T91
[8] Defendant’s Court Book (“DCB”) Modern Medical Dandenong medical records
15It was put the plaintiff exaggerated the distances she walked during her shifts, for example the reference to 30 kilometres per shift. She stated she once told her GP a co-worker showed her a pedometer at the conclusion of a shift which calculated the distance they had covered during the shift.[9] The plaintiff believed it was a conservative estimate and this incident occurred prior to the change in her duties at the six-month mark.
[9] T58
16The plaintiff agreed, when it was put to her that the bike rack opened in September 2015, and the hours of operation were “Open 6.00am, close– 19 hours,”[10] which was half-an-hour before her shift ended and half-an-hour after she commenced work. This cast doubt on her claim in her affidavit that she “constantly had to go down to the bike rack area as soon as someone needed their bikes”.[11]
[10] PCB 27
[11] PCB 27
17Overall, despite some inconsistencies in her evidence, she was without guile, and the plaintiff struck me as a hardworking, doughty character who gave earnest and straightforward plain-spoken evidence to the Court.
18I am not of the view the inconsistencies in her evidence either impugned her credit or caused me to seriously doubt her reliability as a witness.
Causation
19In support of her application, the plaintiff filed three affidavits. She was cross-examined on affidavits dated 9 April 2020, 1 September 2021 and 22 April 2022, and her husband filed an affidavit dated 6 September 2021.
Description of duties
20In her first affidavit, the plaintiff described commencing work for Wilsons in 2008. In September 2014, following maternity leave and sick leave, she was transferred to Treasury Place on Spring Street. She described the work as “very different” to her earlier work for Wilsons. One building on Macarthur Street was thirteen levels and the building on Spring Street was five levels:
“I had to walk around most of my shift … We had to patrol the outside and inside of both buildings and each level of the buildings … The shifts were usually 12 hours long. For the first 6 months or so I worked from about 6.30pm to 6.30am, 5 days a week. …
After 6 or 8 months into the work, an additional task was added. We had to look after the bike racks … This meant that we constantly had to go down to the bike rack area as soon as someone needed their bikes. The walking increased at that point. About 8 or so months later the tasks were then broken into zones … If something was happened (sic) in one of the zones, it meant that I would then have to walk to that zone from my zone. … .”[12]
[12] PCB 27-28
21The defendant relied on two affidavits from Mr John Wilcher, Operations Manager at Wilsons, both sworn 6 September 2021. The first affidavit describes the plaintiff as working the nightshift from 6.30pm to 6.30am and having to perform six patrols a night – three on either side of midnight – which would take 50 minutes each.
22The plaintiff was extensively cross-examined about the work she performed at Treasury Place. She stated, when she commenced in the role she asked Mr Wilcher about her duties. He told her:
“Don’t worry, just worry what the other[s] do, they know what they’re doing.”[13]
[13] T40, L13-14
23The plaintiff stated she did “a lot more” than six patrols a night for the first six months, estimating she did ten to eleven patrols –
”… basically as soon as we’d finished doing the walk through, each level, each tenancy, get back down to the control room, we would maybe stop for 10 to 15 minutes and go out again.”[14]
[14] T40, L16-19
24In summary, her evidence was, for the first six months, she had to walk continual shifts, some ten to eleven per 12-hour shift and each patrol took approximately 50 minutes. After six months, this reduced to six patrols per shift.
25Regardless of what the defendant stated the plaintiff’s duties were “supposed” to be, I accept the plaintiff’s evidence she was told to do what the other security guards did and that is what she did. Mr Wilcher did not personally tell her what her duties were, nor did he accompany her on any of her patrols. He had no direct knowledge of what she was actually doing each shift. The plaintiff gave direct and detailed evidence of her duties at Treasury Place for Wilsons and I have no reason not to accept her account.
26I accept the plaintiff’s evidence that the pain in her feet started virtually from the first day of working at Treasury Place and became progressively worse.
27I accept there is a temporal relationship between the timing of her foot pain and her work at Treasury Place. I now turn to whether the employment is a “significant contributing factor” to her feet condition.
28I next consider the medical evidence.
Medical evidence
29The plaintiff stated:
“… The prolonged walking continued to be a problem. …
… I started to feel pain in my feet virtually from the first day of doing the Treasury [P]lace work however the feet pain got a lot worse as time went on. I did have some feet pain in about 2013, however the pain was intermittent and wasn’t bothering me too much until I started doing all the walking in September 2014.”[15]
[15] PCB 28
30The plaintiff’s treating GP and allied health professionals’ reports, namely Dr Sharon Banks, senior osteopath, and Chalerm Tuantab, podiatrist, do not specify when the plaintiff’s plantar fasciitis developed and whether it is work related. At its highest, Mr Tuantab’s opinion is it is a condition aggravated; “pain and symptoms return” as a result of the plaintiff’s “industry”.[16]
Plaintiff’s medical legal reports
[16] PCB 74
(a) Dr James Rowe – occupational physician
31Dr Rowe confirmed the plaintiff’s diagnosis of plantar fasciitis. He notes, in 2014, the plaintiff attended her local GP complaining of bilateral foot pain, and referral for an x-ray.
32When asked whether employment was a “significant contributing factor to the development of the injury”, he stated he was satisfied the plaintiff’s –
“… injuries have developed as a result of the nature of her work performed over time, … the excessive walking, sometimes up to 30km per day.
She denied any previous history of injury or of any other precipitating event that led to the development of her present and ongoing symptoms.”[17]
[17] PCB 89
(b) Mr Ash Moaveni – orthopaedic surgeon
33Mr Moaveni prepared a report dated 3 August 2021 and diagnosed the plaintiff with left and right foot midfoot arthritis with plantar fasciitis and 2nd and 3rd webspace bursitis. He was of the opinion the plaintiff’s employment “was a significant contributing factor to the development of the said injuries …”.[18]
[18] PCB 108
(c) Dr Gavin Weekes – pain specialist
34Dr Weekes assessed the plaintiff and prepared a report dated 5 August 2021. In his report he refers to previous foot and ankle issues “prior to the onset of the abovementioned symptoms” of bilateral foot pain.[19] He also considered the ultrasounds from 2016 and 2017 and an MRI scan of her feet.
[19] PCB 117
35In terms of diagnosis, in his opinion, the plaintiff has –
“… chronic bilateral foot pain which has developed on the background of metatarsal bursitis and plantar fasciitis.
… It is my opinion her employment was a significant contributing factor.”[20]
[20] PCB 119
Defendant’s medico-legal reports
(a) Dr Terence Saxby – orthopaedic surgeon
36Dr Saxby prepared five reports, dated 8 July 2021, 6 August 2021, 19 August 2021, 7 September 2021 and 1 April 2022. He confirmed the plaintiff’s diagnosis of plantar fasciitis.
37In his opinion, this is a common condition and he stated: “It is well documented that this is not specifically a work-related condition”.[21] He described it as caused by a “constitutional problem,” specific to patient-related factors “rather than any work environment”. In his opinion, the prolonged standing and walking by the plaintiff from October 2014 to December 2015 may well have aggravated the plaintiff’s symptoms but he does not believe there is any evidence it aggravated the underlying condition itself.[22] He stated:
“… In my opinion the pain that Ms Peachey suffered was caused by the underlying condition and prolonged standing and walking made the pain worse, but the prolonged standing and walking did not permanently change or aggravate or make the underlying condition worse. Her pain I believe is the consequence of her condition not due to an aggravation of the condition.”[23]
[21] DCB 26
[22] DCB 26
[23] DCB 26
38In his final report dated 1 April 2022, he states:
“… in my opinion … increase in pain does not represent a worsening of the condition. It merely represents that the underlying condition has been made symptomatic or more painful by the activity.”’[24]
[24] DCB 46
39Dr Saxby’s opinion is based on his review of the literature and that –
“… there is no specific predilection for type of work or activities or any other occupational environment that could make this condition worse”.[25]
[25]DCB 27
40He stated:
“… I believe plantar fasciitis tends to run its own course irrespective of the type of employment or type of activities. In my opinion it is likely that Ms Peachey would be in the same position with or without the work she carried out. … .”[26]
[26] DCB 27
41Dr Saxby had regard to the chiropractic notes of 2009 and 2013 and noted a previous history of foot pain:
“…I believe it is most likely there is a pre-existing condition of plantar fasciitis … I believe that her work may have aggravated the pain but has not aggravated the condition itself. … the vast majority of patients with this condition will gradually improve over time with 99% improving over 18 months or two years but occasionally patients can go many years and very rarely the patient becomes chronic and the condition is permanent.”[27]
[27] DCB 27
42In his report dated 7 September 2021, Dr Saxby opined that the x-ray from 28 October 2014 reports bilateral plantar calcaneal spurs are likely caused by longstanding plantar fasciitis. He notes these spurs were of longstanding duration and would have been present well before 28 October 2014 and thus predate the onset of the plaintiff working at Treasury Place.[28]
[28] DCB 44
(b) Dr Amanda Sillcock – consultant occupational physician
43Dr Sillcock provided a report dated 19 September 2016 providing a clinical opinion about the plaintiff’s claim for worker’s compensation. Dr Sillcock stated, of the plaintiff:
“She attributed her foot pain to walking a lot and said she has plantar spurs.”[29]
[29] DCB 18
44In reviewing the 28 October 2014 x-ray of both feet, Dr Sillcock notes:
“‘… There were small calcaneal spurs bilaterally.”[30]
[30]DCB 20
45In reviewing the 8 April 2016 ultrasound of both feet, Dr Sillcock noted:
“‘… The right foot was reported as showing a bursal neuroma complex in the second intermetatarsal webspace and bursitis in the third webspace. There was also moderate plantar fasciitis with a partial thickness deep surface central tear. There was (sic) similar findings on the left foot.”[31]
[31] DCB 20
46Dr Sillcock diagnosed the plaintiff with bilateral plantar fasciitis in the feet. She stated:
”In my opinion Ms Peachey’s foot condition is consistent with having to walk a lot … .”[32]
[32]DCB 22
47She went on to state:
“I believe that the plantar fasciitis is a new injury. … .”[33]
[33] DCB 22
Submissions
48In submissions, counsel for the plaintiff clarified the plaintiff’s case was put on the basis that between 1 October 2014 and 31 December 2015, the plaintiff’s employment aggravated the pre-existing condition: “And that’s the injuries we rely upon here. It is an aggravation of pre-exiting pathologies in the feet which have led to, in our view, the accepted diagnosis of plantar fasciitis in both feet.”[34]
[34] T138
49The injuries suffered during that period were an aggravation of the bilateral plantar fasciitis and “the pain and the symptoms have never ceased since then”.[35] Further, counsel submitted the plaintiff’s medical evidence “is that the doctors accept that employment in that period caused those injuries by way of aggravation”.[36] This is consistent with the evidence of the plaintiff having spurs diagnosed in 2013, confirmed by x-ray in October 2014. The aggravation has occurred during the period of employment.
[35] T139
[36] T139
50The defendant argued Dr Saxby’s conclusion should be preferred to Dr Rowe, Dr Moaveni and Dr Weekes as they based their conclusions on incorrect histories and were not shown the x-rays from 28 October 2014 which showed the plaintiff had “bilateral small plantar calcaneal spurs”. Further, counsel for the defendant argued Dr Rowe was unaware of the spurs diagnosed in June 2013, Mr Moaveni was not aware of clinical notes from the plaintiff’s GP referencing foot pain prior to September 2014 and Dr Weekes does not refer to heel pain and spurs diagnosed in June 2013.
51I do not accept that criticism. I note Dr Rowe[37] and Mr Moaveni[38] refer to the progress notes from Modern Medical Dandenong amongst the material considered, and Dr Weekes referred to the plaintiff’s report of “previous foot and ankle issues”.
[37] PCB 85
[38] PCB 102
Finding regarding causation
52I have accepted the plaintiff’s evidence regarding her duties.
53I accept the medical evidence from the plaintiff’s GPs supports that, as early as 2013, and confirmed by x-ray in October 2014, the plaintiff had small bilateral calcaneal spurs on her feet. This condition pre-existed as of 1 October 2014.
54I accept the medical evidence of Dr Rowe, Mr Moaveni, Dr Weekes and Dr Sillcock, that the aggravation of the plaintiff’s plantar fasciitis (or a new injury according to Dr Sillcock) was caused by her employment at Wilsons between 1 October 2014 and 31 December 2015.
55Dr Rowe and Mr Maoveni, and, to a limited extent, Dr Weekes, were aware of the plaintiff’s pre-existing condition of bilateral small plantar calcaneal spurs. I accept the plaintiff’s evidence that she had little foot pain prior to her commencement at Treasury Place, although on her evidence, it would appear she had plantar fasciitis at that point. Although there is one entry on 17 June 2013 that she complained to her GP of “bilateral heel pain 7/12,” I accept her evidence that at that point in 2013, her pain was “intermittent,” “not bothering [her] too much” and largely asymptomatic.
56I accept the opinions of Dr Rowe, Mr Maoveni, Dr Weekes and Dr Sillcock, that the aggravation or development of pain as a result of her plantar fasciitis is an injury that arises out of the plaintiff’s employment.
57Dr Saxby’s report opines as the plantar fasciitis is constitutional, the worsening of the plaintiff’s symptoms, such as her experience of pain, does not reflect any worsening or aggravation of the underlying condition itself. He separates the symptoms from the diagnoses.
58I am satisfied by authorities supporting the proposition, there can be an aggravation of a previously existing injury by activity which increases pain.
59In Commonwealth of Australia v Beattie,[39] it was held pain brought on by work activity may constitute an aggravation of a pre-existing injury even though no pathological change takes place. This position was confirmed by the Court of Appeal in Maimonis v Bourke & Ors[40] where the Court said, at paragraph [60]:
“We add only this with respect to the worsening grounds. The legal conception that the extended definition of ‘injury’ can be satisfied by the onset or progression of symptoms, in the absence of any deleterious effect having been caused upon an underlying condition, is one which we think that some but not all medical practitioners would be likely to understand. … .”
[39](1981) 35 ALR 369 at 378
[40][2019] VSCA 302
60I am satisfied, on the balance of probabilities, persuaded by the weight of the medical opinion, including the defendant’s occupational physician (who was of the view it was a work-related new injury), that there is a causal connection between the plaintiff’s injury and her employment and the aggravation of her bilateral plantar fasciitis arose out of her employment.
61The plaintiff has sustained an injury and I am satisfied her employment was a significant contributing factor in aggravating the plaintiff’s pre-existing plantar fasciitis in her right and left foot.
Is the injury an aggravation?
62In an aggravation case, the principles in Petkovski v Galletti[41] need to be followed; namely, what does the evidence disclose of the prior condition and the extent of impairment of the bodily function before and after the relevant injury? The aggravation itself must be a “serious injury”.
[41]Supra
63In June 2013, the GP notes record the plaintiff had “bilateral heel pains” and “has spurs”. The plaintiff confirmed she had intermittent heel pain prior to 2014; however:
“The pains I got after working at Treasury go right across the foot down to the metatarsals, down the toes, the ball of the foot, round that area, which … doesn’t seem to be mentioned anywhere.”[42]
[42] T84, L24-28
64The plaintiff stated she started to feel pain in her feet from virtually the first day of working at Treasury Place. In 2013, she stated, whilst she did have pain in her feet which she described as “intermittent,” she noted it was not “bothering me too much until I started doing all the walking in September 2014”.[43] She described her symptoms developing about a month after she was there, “and it just continually got worse, it never improved. The more walking that was placed on us the more of course it placed pressure on the feet.”[44]
[43] Plaintiff’s affidavit affirmed 9 April 2020 at paragraph 16 – PCB 28
[44] T64, L17-21
65Although Mr Wilshire stated that 1 September 2016 was the first time the plaintiff told him she had seen a doctor in relation to shoulder issues, the plaintiff stated she had numerous conversations with Mr Wilcher, including prior to 1 September 2016, about her feet and her shoulders, including a request to be transferred from the site.[45] Her duties were not modified and she stated she took medication in order to perform her duties.[46]
[45] T52-53
[46] T53
66The plaintiff estimated complaining to Mr Wilshire about her feet, “probably the next day” after she started. She stated:
“… I don’t walk normally because of my feet. To use an example, to walk on a beach with crushed shells, … If you can imagine that sort of pain, that’s what I’m getting now and that is continual. … .”[47]
[47] T72
67The contents of the GPs’ notes from Monash Medical Dandenong are relevant as they contain references to the plaintiff reporting issues with her feet to her GP prior to and during the period of 1 October 2014 and 31 December 2015. The relevant entries include:
· On 17 June 2013, Dr Demirtzoglou noted:
“bilateral heel pains- 7/12
has spurs
advised footwear choice.”[48]
[48] DCB 161
· On 28 October 2014, Dr Kumar ordered an x-ray of the “(Foot/feet) ; bilateral’.
· On 30 October 2014, Dr Kumar notes discussing the x-ray results, and notes:
“c/o bilateral heel pain
Dx bilateral spur
symptomatic treatment.”[49]
[49] DCB 171
· On 2 February 2015, an entry by Dr Geoff Feben notes:
“R plantar fasciitis and achilles tender incipient achilles tendonitis discussed footwear [eg sketches] insoles and consider steroid inj.”[50]
· On 30 April 2015, an entry by Dr Kumar notes:
“c/o heel pain
Dx heel spur
symptomatic treatment
Rx: Brufen tablets (Tablet, Coated) 400 mg [30] - Qty: 1*30 Rpts: 0 - Take 1, 3 times a day.”[51]
[50] DCB 173
[51] DCB 173-4
68The plaintiff’s 2013 diagnosis, prior to the claimed workplace injury, was of bilateral heal pain and spurs. The plaintiff has described pain from this condition as “intermittent” and “not bothering me too much” and treatment involved advice on footwear choice.
69I accept the plaintiff’s evidence about impairment consequences following her commencement at Treasury Place. Despite each foot being assessed as an aggravation injury, the evidence discloses the plaintiff had mild symptoms in her feet in 2013 and was thereafter largely symptom free and able to perform moderately physical work with Wilsons. So even though these principles regarding aggravation apply, I conclude that the pain and suffering consequences as identified are caused by the aggravation injury to each of the left and right feet. The plantar fasciitis was relatively asymptomatic when she started working at Treasury Place.
Is the aggravation injury a “serious injury”?
70Petkovski v Galletti[52] is authority for the proposition –
“… an injured person is to be compensated for, but only for, such disabilities as are proved to have resulted from the relevant accident.”
[52](Supra) at paragraph [40]
71Further:
“… the applicant must establish what injury was caused by the accident; where there is a pre-existing condition, it necessarily follows that an analysis must be made of the extent of impairment of a body function before and after the relevant injury.
… next, ‘the injury’ … ‘must involve serious long-term impairment … of a body function’.”[53]
[53] (Supra) at paragraph [50]
72I take into account the methodology in Haden Engineering Pty Ltd v McKinnon[54] for evaluating the “pain and suffering” consequences.
[54](2010) 31 VR 1
Pain and suffering
73In her first affidavit, the plaintiff stated:
“I continue to have pain in both my feet which is there most of the time. The pain increases the more I walk or stand. The pain is usually worse on days that I am working. I get a burning pain in the soles of my feet, at the top of my feet and between my toes. If I am on my feet for more than about one and a half hours the pain is a lot worse.”[55]
[55] PCB 32
74In her evidence to the Court, the plaintiff described the pain in her feet as like walking “on a beach with crushed shells”.[56]
[56] T72
75She stated if she had to walk for prolonged periods, her feet start burning. She stated that after working at Treasury Place, the pain no longer stayed in her heels:
“… it went to the plantar fasciitis, and down to the metatarsals and therefore swelling between the toes - sorry, in between the - before the toes, what do you call them, I think that is the metatarsal area, under the ball of the feet, sometimes it feels like there’s – well, it feels like there’s swelling, and other times it feels like it’s juts ripping apart.
… .the intensity [of the pain] now is extreme.”[57]
[57] T102-103
76The plaintiff stated the pain fluctuated in her feet, depending on treatments, and whilst the symptoms subside following treatments, she denied her podiatrist’s report that she had said her pain had reduced to every three to six months. Whilst regular treatments get the pain levels down, she has missed treatments for a number of months due to cancellations, so “the pain levels have increased therefore I am now back to constant pain”.[58]
[58] T87, L 31
77The plaintiff estimated the pain in her feet was “10 out of 10 pain” and she took Nurofen or Nurofen Plus every day to dull the pain.[59]
[59] T78, L 12-19
78The plaintiff’s pain intensity appears to be severe and fluctuates to the extent the plaintiff has “treatments” such as with her podiatrist. She takes medication daily to moderate the intensity of the pain. The effect of such a daily medication regime has had a flow-on effect, as the plaintiff now has an ulcer.[60]
[60]T104. The plaintiff stated: “As it turned out there is an ulcer in the duodenal area which was very likely to have been brought on by taking the Nurofen and the Nurofen Plus and all those Nurofen type Products.”
Impact on daily activities
79In her first affidavit, the plaintiff stated:
“… I try to limit the amount of walking that I do. We have had to purchase a small 4 wheel drive vehicle, … I use it to get around the Bairnsdale property … I even use it sometimes when I go to the shed which is 150 metres away from the house
Sometimes I get woken by the pain and burning in my feet at night.
… After about 10 minutes of driving I start to feel the pain in my feet increasing. …
Once I do some gardening or any housework, I then feel totally exhausted due to the pain in my feet and shoulders.”[61]
[61] PCB 32-33
80In her second affidavit, the plaintiff noted she continued to suffer from disturbed sleep because of the pain in both her feet. She also stated she suffered increased pain in both feet, “if I drive for more than about 10 to 15 minutes”.[62]
[62] PCB 38
81The plaintiff also described being restricted in what she can do with her daughter, “I cannot run around or play for long because of my feet pain”.[63]
[63] PCB 33
82The disabling effect of the plaintiff’s pain may be informed not only by what the plaintiff has lost but also what is retained.[64] To that end, the defendant noted the plaintiff can work up to 56.75 hours per week, and as her husband has retired and has a “left arm that doesn’t work”,[65] she assists him around the farm, for example by moving hay bales using a type of low trailer,[66] and in caring for their ten-year-old daughter. She also drives long distances when travelling to and from work.
[64] Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [27]
[65] T23
[66] T22
Effects on employment
83The plaintiff stated she is also restricted in jobs she can do, “Because of my feet pain I need to avoid work which involves me walking or standing”.[67]
[67] PCB 34
84In her second affidavit, she noted she remains employed as a security guard with Zagamis and works almost exclusively at the Patties gatehouse “which involves sitting in the gatehouse for most of the time and only occasionally getting up to check on vehicles”.[68] She noted sometimes not being able to accept or continue shifts at other locations such as Coles or Woolworths, “because I could not manage these particular jobs due to my pain after having to stand for prolonged periods”.[69] In comparison with Wilsons, her current role at Zagamis involves minimal walking.[70]
[68] PCB 40
[69] PCB 40-41
[70] T101
85In her third affidavit, she noted she remains working for Zagamis, but “most of the time I just sit in the office” and she is no longer required to do as many foot patrols, “usually only about two times a week”.[71]
[71] PCB 128
86Whilst the plaintiff does not have a job involving modified duties, I accept her new employer has, to a certain extent, been able to accommodate her restrictions so that the majority of the work she does is sitting down rather than foot patrol. That said, she still has to partake in foot patrols, and turn down shifts if they are not of a sedentary nature.
Treatment
87In October 2014, the plaintiff saw a GP, Dr Kumar, about her feet pain and was referred for foot x-rays. In May 2016, a chiropractor, Dr Adamopoulos, referred her to an orthotist. In 2017, she started seeing podiatrist, Mr Tuantub, and in September 2017, she had an ultrasound and MRI scan of her feet.
88In her second affidavit, she referred to taking Voltaren, Nurofen or Nurofen Plus up to five times a week and increasing painkillers on days “that I have to do washing, gardening and other household chores”.[72] This medication regime was confirmed in her third affidavit.[73]
[72] PCB 42
[73] PCB 129
89The plaintiff did not distinguish the medications taken for either her feet pain or her shoulder pain in her medication regime, however, she estimated her feet pain was “10 out of 10 pain” and she took Nurofen or Nurofen Plus to dull the pain.[74] In evidence, she stated the pain management was for her “shoulders and feet”[75] and that prior to commencing work at Treasury Place, she was not taking any medication for her shoulders or her feet.
[74] T78, L12-19
[75] T104
90The plaintiff attends for podiatry treatment and has been seeing her podiatrist, Mr Tuantab since 2017. She stated she had been able to get her pain levels “down,” “but that’s with ongoing treatment and ongoing management”.[76]
[76] T87
91She wears orthotic insoles in her shoes. The regular treatment from her podiatrist continued during lockdown and she also has regular massage therapy for her shoulders and feet.[77]
[77] PCB 41
Medical evidence regarding pain
92The plaintiff’s GP, Dr Demirtzoglou, stated the plaintiff –
“… continues to have feet pains and knee pains – although she is not doing the work intensity as before … .”[78]
[78]PCB 79
93Further, he stated:
“Ms Peachey is able to perform her pre-injury duties but to a modified degree where she is not walking for long distances, on her feet for many hours … She is currently working - performing similar security duties and she is content with her current duties.”[79]
[79] PCB 79
94The plaintiff’s osteopath, Dr Sharon Banks, stated:
“Karin is still able to work currently, however does require regular osteopathic treatment for regular pain management.”[80]
[80] PCB 82
95The plaintiff’s podiatrist, Chalerm Tuantab, stated:
“… due to the persistent and chronic pain, Ms. Peachey has had significant trauma and detriment to her abilities to complete activities of daily living.”[81]
[81] PCB 73
96With respect to the extent and intensity of her pain, he stated:
“The prognosis for Ms Peachey; In my professional experience in dealing with complex and chronic lower limb pathologies, I believe Ms. Peachey’s injuries will have lifelong impacts on her activities of daily living and quality of life. Due to the now chronic nature of her injuries, Ms. Peachey will require further and ongoing care to be able to function. I do not believe that in Ms. Peachey’s current profession, with her current pathologies, that she will be able to live without some degree of pain or discomfort from her workplace injuries.”[82]
[82] PCB 74
97In respect of both her left and right feet, Dr Rowe stated:
“There has been no real improvement in her symptoms in the past 5+ years, despite the use of orthotics and continued conservative treatment. As such these restrictions are likely to be permanent.
…
She is unable to walk or stand for prolonged periods of time of which was an integral part of her pre-injury employment.
This incapacity is likely to be permanent. … .”[83]
“She continues to suffer with pain and restriction in both her shoulders and in both feet … .
…
[83] PCB 90 (left foot) and PCB 92 (right foot).
The pain in her feet increases with walking and prolonged standing. She says her feet are painful while she is at work and if she is on her feet, standing or walking, for more anymore than about 30 minutes.”[84]
[84] PCB 89
98Mr Moeveni stated the plaintiff reported –
“… pain in the feet which is constant but worsens on walking, after lying down and after standing following a period of sitting. The right foot pain is worse on the dorsum of the foot over the 4th and 5th metatarsal and numbness is reported over the forefoot. Ms Peachey describes hypersensitivity of the foot which fluctuates depending on the amount of time spent in standing and walking.”[85]
[85] PCB 104
99Dr Weekes stated:
“Ms Peachey describes right foot pain, which can affect the whole of the right foot but is predominantly affecting the metatarsal heads on the dorsum of her foot. Left foot pain is most severe again over the metatarsal heads but more so on the sole of her foot. She does describe how her whole foot is constantly affected by pain, the right side more than the left side and sometimes the pain can radiate up towards the knee and even to the hip and gluteal region. She describes the pain as constant, stabbing, burning and gives a pain score of up to 8/10.”[86]
[86] PCB 118
100Dr Saxby, commenting on a report by GP, Dr Elias, stated:
“I would believe that the plantar fasciitis resolved and no longer impacts upon level of function.”[87]
[87] DCB 27
101In a report dated 19 August 2021, he notes:
“The current complaints are ongoing pain but she has less pain in the heel region of both feet.”[88]
[88] DCB 40
Other evidence about the disabling effect of pain
102A consideration in this case is the plaintiff’s stoicism. The evidence of the disabling effect of her pain is diminished by the fact the plaintiff is employed part time but sometimes works full-time hours, and, further, she assists around the farm, as her husband is disabled, and helps to raise their ten-year-old daughter. It could be said she has, in effect, been “prepared to put up with [her] pain and suffering and get on with [her] business as best [she] can”.[89]
[89] Dwyer v Calco Timbers Pty Ltd (No 2) (supra) per Nettle JA at paragraph [3]
103The plaintiff takes Nurofen, Nurofen Plus and Voltaren on a daily basis for pain but is not on prescribed medication. She sees her podiatrist regularly – weekly – for treatment for her feet. Whilst the pain does subside with treatment, I accept the plaintiff’s evidence she continues to have chronic pain in both feet. As well as medication for pain relief, treatment consists of a combination of orthotics, and from the podiatrist, dry needling and shockwave treatment.
104The plaintiff’s husband noted, after 2015, she did not cook so much at home as she found the standing difficult, and “Even now, there are days when she has been forced to be on her feet a lot at work and when she gets home, she has great difficulty walking because she is in so much pain”.[90]
[90] PCB 46 and 48
105The fact the plaintiff is able to work, on a part-time basis, but with some weeks that are the equivalent of full-time hours, is relevant to the question whether the pain and suffering consequence of the injury is “serious” but it is not determinative, and it is necessary to consider the evidence as a whole.[91] The plaintiff has returned to work as a security guard but has specified her duties are predominantly sedentary, in a gatehouse, with only two walking patrols per week. She detailed work shifts she has refused that have involved standing and walking. In Haden Engineering Pty Ltd v McKinnon,[92] the President noted “the cases recognise that some plaintiffs may be more ‘stoical’ than others,” and that the injury is not to be viewed as any less serious merely because he/she manages to remain more active than might have been expected given the level of pain.
[91] Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12 at paragraph [26]
[92](Supra) at paragraph [13]
Analysis of impairment consequences
106The plaintiff’s counsel referred to Dodds-Streeton JA in Kelso v Tatiara Meat Co Pty Ltd[93] where her Honour stated:
“The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
[93](2007) 17 VR 592 at paragraph [196]
107The ability to stand upright and walk, both distinguishes us as humans and is a development milestone in the early stages of life. The ability to stand and walk are skills embedded in the motor memory and executed automatically. The experience of continual pain as described by the plaintiff when engaging in this most utilitarian activity is, to my mind, a “very considerable” consequence.
108Whilst complaint of pain does not establish the veracity of pain, the weight of the medical reports supports the plaintiff’s reports of pain as continual pain in each foot. Although agreeing the pain subsides following treatment, the plaintiff’s evidence described the pain as “10 out of 10” and “like walking on broken shells” She has pain in both her feet most of the time, more if she is standing or walking. She is on a combination of daily over-the-counter medications, which has caused an ulcer, wears orthotics and has weekly treatment from her podiatrist using a combination of both hands-on and invasive therapies.
109The consequences of the injury to each foot are that she is able to work only because the job she has involves relatively minimal standing and walking to that usually required in her industry. She continues to assist her husband around the farm and in raising her ten-year-old daughter, but she struggles with tasks. It is painful to drive for longer than ten minutes. She is sometimes “woken by the pain and burning in [her] feet at night”.[94] Whilst her affidavits and evidence did not detail an extensive range of social and recreational activities that exclusively affected her feet (noting her husband described her as a “workaholic”),[95] most usual day-to-day activities involve standing or walking. She detailed methods she employs to reduce standing and walking, such as the small four-wheel drive vehicle used on the farm, with a special low floor trailer, and when driving the car, using cruise control. She noted, after gardening or housework, she is exhausted due to the pain in her feet.
[94] PCB 32
[95] PCB 45
110The medical evidence supports the finding her prognosis is poor and she has had no improvement in her symptoms for five years. It appears her condition is permanent for the foreseeable future.
111Taking all the consequences detailed into account, which individually may be less than the sum of the whole, together with the pain the plaintiff experiences when doing the most simple yet the most universal of activities, namely standing and walking, I am satisfied by the evidence, on the balance of probabilities, that these consequences, to the right foot and the left foot, when judged by comparison with other cases in the range of possible impairments, can fairly be described as being more than significant or marked and as being as least very considerable.
112I am satisfied the plaintiff has established an entitlement for leave to commence a proceeding for pain and suffering damages in respect to the injury to her right foot and her left foot suffered throughout the course of her employment from 1 October 2014 to 31 December 2015.
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