Petrovski v Linfox Armaguard Pty Ltd
[2014] VCC 1369
•26 August 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-03438
| GEORGE PETROVSKI | Plaintiff |
| v | |
| LINFOX ARMAGUARD PTY LTD (ACN 099 701 872) | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 August 2014 | |
DATE OF JUDGMENT: | 26 August 2014 | |
CASE MAY BE CITED AS: | Petrovski v Linfox Armaguard Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1369 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Aggravation of pre-existing condition affecting both feet – whether the consequences of the aggravation were “at least very considerable” – credit
Legislation Cited: Accident Compensation Act 1985, s134AB(37)
Judgment: The plaintiff’s Originating Motion is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M Lang | Zaparas Lawyers |
| For the Defendant | Mr D McWilliams | IDP Lawyers |
HIS HONOUR:
Introduction
1 By an Originating Motion filed 18 July 2011, the plaintiff seeks the leave of the Court, pursuant to s134AB of the Accident Compensation Act 1985 (“the Act”), to bring a proceeding at common law to recover damages for injuries which he suffered in the course of and within the scope of his employment with the defendant.
2 The plaintiff alleges that he suffered an aggravation and/or acceleration of a pre-existing medical condition affecting his feet which has resulted in a permanent impairment of the function of his feet. He alleges that the consequences of the impairment of function meet the statutory test and entitle him to an order that he be given leave to recover damages for pain and suffering.
3 Ms M Lang of Counsel appeared for the plaintiff. Mr D McWilliams of Counsel appeared for the defendant.
4 The following evidence was adduced at the trial:
(a) The plaintiff gave evidence and was cross-examined;
(b) The plaintiff tendered his Court Book (“PCB”) pages 5-12 and 28.1-57: Exhibit A.
(c) The defendant tendered the following evidence:
(i) The Defendant’s Court Book (“DCB”) pages 1-23: Exhibit 1;
(ii) The entry dated 16 October 2003 from the progress notes of Dr Gross, general practitioner: Exhibit 2;
(iii) A schedule of the plaintiff’s earnings: Exhibit 3;
(iv) The plaintiff’s statement of earnings dated 26 July 2013: Exhibit 4;
(v) The entry dated 28 February 2011 from the progress notes of Dr Baglar, general practitioner: Exhibit 5.
5 The sole issue which the parties require me to consider is whether the consequences of the aggravation and/or acceleration of the pre-existing medical condition affecting the plaintiff’s feet are “at least very considerable”.
The Plaintiff’s background
6 The plaintiff was born in May 1965. He is now forty-nine years of age. He is a married man with two children. His daughter is about fifteen years of age. His son is about thirteen years of age.
7 The plaintiff commenced employment with Armaguard in about 2000. Armaguard was taken over by Linfox in about 2013. The plaintiff ceased employment with the defendant in about July 2006. He subsequently took up employment with another company, and has otherwise been fully employed from July 2006 and to the present time.
The Plaintiffs injury
8 The plaintiff was employed collecting coins from Telstra payphones in the Melbourne Metropolitan Area and in surrounding country areas. His usual hours of work were from 7.00am to 3.00pm. He usually worked about 10 hours overtime per week.
9 The task which the plaintiff implicated in the causation of the injury to his feet was the strain placed on his feet by being required to remove boxes of coins, which weighed between 3 to 5 kilograms, from public telephones. It involved a significant amount of walking. By reason of the need to carry the boxes of coins, he suffered additional bodily loading, which placed further strain on his feet.[1]
[1]PCB 6-7
The Plaintiff’s medical treatment
10 The plaintiff first attended Dr Baglar on 21 May 2004 complaining of pain in his feet. He referred the plaintiff to have an x-ray, which showed the presence of bilateral calcaneal spurs. He considered that the development of the spurs could be related to the fact that the plaintiff was required to walk and stand for significant periods of time.
11 Dr Baglar organised for the plaintiff to see a physiotherapist. The only treatment which was provided to the plaintiff initially was the provision of special shoes described as “Asics Kayano”. According to a letter which Dr Baglar wrote to the insurance agent dated 22 September 2008, the plaintiff next saw Dr Baglar on 18 September 2008.[2] In a report dated 21 September 2009 to the plaintiff’s solicitors, he said that the plaintiff next saw him on 6 June 2009.[3]
[2]PCB 29-31
[3]PCB 32-33
12 In any event, the reason why the plaintiff saw Dr Baglar on 18 September 2008 or on 6 June 2009 was for treatment for foot pain. In the report dated 22 September 2008, Dr Baglar noted, on examination, that the plaintiff had lateral deviation of his ankles due to forced realignment of his feet. It is not clear to me what that means; however, it led to Dr Baglar urging the insurance agent to continue to supply the plaintiff with Asics Kayano shoes. The plaintiff has worn those shoes, as well as the placement of orthotics in his work boots and other shoes.
13 In the report dated 21 September 2009, Dr Baglar noted that when the plaintiff saw him on 6 June 2009, the arch of his right foot had collapsed and the foot pain that he was experiencing had become aggravated by the physical deterioration in his right foot.
14 Dr Baglar’s treatment of the plaintiff appears to be very much on the modest side. In a report dated 24 October 2012,[4] Dr Baglar repeated that he first saw the plaintiff on 21 May 2004, and next in June 2009. He then made the following observations which demonstrate the extent to which the plaintiff has resorted to medical treatment:
“After that episode, he disappeared again. I reviewed my medical notes when preparing this report and noted that he presented once a year since my last report and request[ed] Voltaren for his foot pain. Every time he presented, he had work clothing. I believe he is working currently. His engagement with us, as a patient with WorkCover claim, is unusual and very erratic. I have no information about the circumstances he is working in. He never requested any WorkCover Certificate.
I can’t state that he is unable to work because of his condition. I believe he can continue to work, provided [a] suitable pair of footwear is supplied periodically.”[5]
[4]PCB 34-35
[5]PCB 35. The “episode” which Dr Baglar referred to is the next occasion the plaintiff saw him in June 2009.
15 Apart from referral to physiotherapy, it would appear that the only other referral made by Dr Baglar was to Mr Williams, podiatrist. In a report dated 18 August 2004, Mr Williams wrote to the insurance agent seeking permission to provide the plaintiff with custom-made orthoses.[6] I infer that the permission was forthcoming because the plaintiff uses orthotics, and I infer from the nature of his evidence, that he uses orthotics daily in his work shoes, and in other shoes he wears, except for dress shoes.
[6]PCB 28.1
16 Dr Gross of the Bridge Street Clinic treated the plaintiff. He provided a report dated 24 October 2012. He said that the plaintiff was treated at the clinic on 30 June 2004. He was aware that the plaintiff had also seen Dr Baglar. Dr Gross said that the plaintiff was advised to have cortisone injections and to use anti-inflammatory medication, but he pursued neither. He noted that the plaintiff purchased heel lifts, which I assume he placed in his shoes for the purpose of attempting to gain some relief from the pain he was experiencing in his feet.
17 Dr Gross inspected the x-rays obtained by Dr Baglar. On examination of the plaintiff’s heels, he found that he was tender in the calcaneal areas of both heels. He advised the plaintiff to use Voltaren for one week. He reviewed the plaintiff one week later and noted that the plaintiff had experienced a 50 per cent improvement. He was not seen again by Dr Gross. He provided the plaintiff with two medical certificates dated 23 June 2004 and 30 June 2004. In the certificate dated 30 June 2004, he noted that the plaintiff was expected to be fit for normal duties from 30 June 2004.[7] It would appear that the plaintiff in fact returned to work on that date, or near enough to it.
[7]DCB 20-23
18 After the plaintiff returned to see Dr Baglar in June 2009, he noted that the plaintiff was complaining of bilateral foot pain which was worse in the mornings. The plaintiff told him that the first steps he took in the morning felt like he was “walking on pebbles”. The plaintiff also complained that the pain was aggravated, and presumably made worse, if he walked long distances, if he walked for longer than 10 minutes and when he walked up and down stairs and on rough surfaces.
19 Dr Baglar observed that the plantar arches of the plaintiff’s feet were lower than normal and his examination elicited tenderness on palpation of the plaintiff’s heels. He considered that a diagnosis of chronic bilateral plantar fasciitis was appropriate. He considered that the plaintiff would continue to suffer aggravation of that condition with prolonged walking and standing. He added that the plaintiff would require modified footwear to accommodate that condition. He considered that the plaintiff would not be fit for employment requiring excessive “ambulation” and prolonged standing.
20 In conclusion, Dr Baglar suggested that the plaintiff might require cortisone injections from time to time because they can provide long-lasting relief. He then made an interesting remark that “although some surgeons recommend surgery”, that a surgical approach has proved to be disappointing. I assume the reference to “surgeons” and their recommendations is a general observation rather than specifically directed to the plaintiff. The plaintiff has not been referred to a surgeon for treatment. The only surgeons he has seen are for medico-legal purposes. Dr Baglar has treated the plaintiff by the prescription of Panadeine Forte and Voltaren.
The Medico-legal assessments
21 The plaintiff has been examined by Mr Shannon, orthopaedic surgeon, on 1 March 2010;[8] Mr Flanc, vascular and general surgeon, on 14 April 2010[9] and 9 October 2012;[10] Dr Boys, orthopaedic surgeon, on 15 May 2014,[11] and Mr Edwards, orthopaedic surgeon on 30 May 2013[12] and 7 August 2014.[13]
[8]PCB 6-9
[9]PCB 36-42
[10]PCB 43-48
[11]PCB 12-18
[12]PCB 49-52
[13]PCB 54-57
22 I do not propose to summarise the histories taken by each of these surgeons and the opinions which they have expressed, save in very short compass. My reasons for not doing that are because they agree the plaintiff is suffering from plantar fasciitis. According to Mr Edwards, a more particular diagnosis is that the plaintiff has plantar calcaneal spurs, which are consistent with plantar fasciitis, and also consistent with accessory naviculae. He may also have a subcalcaneal bursa.[14]
[14]PCB 51
23 Again, confining my short analysis of the medical evidence to Mr Edwards, it is clear that there is a constitutional element to the medical condition affecting the plaintiff’s feet. Mr Edwards described the constitutional element and the aggravation of the constitutional element by the plaintiff’s work in the following way:
“… there is a constitutional element to this man’s conditions. In essence, plantar fasciitis is fatigue failure of the plantar fascia. It is certainly consistent that this man’s work aggravated or caused a condition to which he was prone. Accessory naviculum is a constitutional condition. Degeneration or inflammation of the synchondrosis between the accessory naviculum and the naviculum at the insertion of the tibialis posterior can cause pain and is associated with pes planus. This can be aggravated by trauma – which our patient denies but most certainly could be aggravated by a job requiring extensive walking and standing.”[15]
[15]PCB 52. It is an opinion which he repeated at PCB55-56
24 Mr Shannon examined the plaintiff for the purpose of determining whether the plaintiff had suffered a permanent impairment pursuant to the AMA Guides, which is of little use in this proceeding. Mr Flanc provided a similar opinion to Mr Edwards, although Mr Flanc is a vascular and general surgeon and does not have the very particular and special interest which Mr Edwards professes in the treatment of feet and ankles. Dr Boys provided a similar opinion to Mr Edwards, that the medical condition suffered by the plaintiff has a constitutional element. Where he and Mr Edwards part company is that Dr Boys does not accept that the plaintiff has suffered a compensable injury. In any event, I prefer the opinion of Mr Edwards relevant to diagnosis and compensability.
The Plaintiff’s consequences
25 I have given consideration to the matters deposed to by the plaintiff in his affidavits, his oral evidence and the medical reports. On the basis of that consideration, I have concluded that the plaintiff’s Originating Motion must be dismissed.
26 I will firstly set out what the plaintiff’s deposed to in his affidavits relevant to consequences which he said have resulted from the compensable injury:
· The necessity to wear Asics Kayano shoes, and use of orthotics in his other shoes except dress shoes. Difficulty wearing dress shoes because of the absence of the support provided by orthotics.
· Persistent pain under the ankle bone on the inside of both feet, which is worse in his right foot, and a feeling of pulling and straining. The pain is eased by placing weight on the outside of his feet.
· Pain when he takes his first steps in the morning.
· Walking up steps or slopes increases the pain he experiences. His feet feel unstable as if his ankles will roll inwards.
· The pain increases if he is on his feet for more than 30 minutes. He will experience increased discomfort and a pulling feeling around his ankles.
· Restriction in undertaking domestic tasks around his home, and playing with his children, for example kicking a football with his son.
· Interference with his enjoyment of social occasions, such as attending functions within the Macedonian community and engaging in folkloric dancing.
· The requirement for medical treatment. He has seen Dr Baglar monthly for treatment for his ongoing heel ankle pain. He uses Panadeine Forte about once a week when the pain is at its worst and Panadol or Panadeine on other occasions.
27 The defendant submitted that the nature and extent of the consequences contended for by the plaintiff lacks substance.
28 Firstly, the plaintiff has been employed full time on unrestricted duties with the defendant and with his present employer. He has not been absent because of any level of incapacity caused by the medical condition affecting his feet, except for an initial period referred to in medical certificates which I will refer to below.
29 Next, the plaintiff has not seen Dr Baglar monthly. He conceded that in fact he has probably seen Dr Baglar once a year since June 2009.
30 Next, he has resorted to the use medication relatively infrequently. He takes Panadeine Forte once or twice a month. He uses Voltaren as infrequently. Furthermore, the passage from Dr Baglar’s report set out in paragraph 14 above strongly suggests that the plaintiff has had very little medical treatment, and has ignored advice that he should investigate having more treatment. The only conclusion I can reach from the evidence of Dr Baglar is that the plaintiff has had very little medical treatment because he does not need it.
31 Next, the tasks required of the plaintiff in his employment with his present employer require the plaintiff to be on his feet for significant periods of time. He estimated that in an average working day, the total period of time he is on his feet would be about 3 to 4 hours. He is able to manage that amount of standing. It seems to me that it is inconsistent with prolonged standing, which Dr Baglar considered was something that was likely to aggravate the medical condition affecting the plaintiff’s feet. It seems to me that the lack of interference with the plaintiff’s capacity for work is demonstrative of the fact that he does not suffer from pain and suffering and incapacity anywhere near to the extent that he swore to in his affidavits.
32 Next, the plaintiff saw Dr Baglar on 28 February 2011. Dr Baglar noted that the plaintiff’s pain was well controlled by the use of Voltaren.[16] The plaintiff effectively conceded that was the case.
[16]Exhibit 5
33 Next, the plaintiff was able to wear work boots and ordinary footwear with the assistance of orthotics. The real interference with his capacity to walk and stand occurred when he wore dress shoes. The frequency that he wore dress shoes was when he attended formal functions, such as weddings and other functions within the Macedonian community. His evidence on that score was vague, but I was left with the impression that the frequency with which he attended functions of that kind were relatively rare over an average year.
34 Next, the plaintiff made a point in his first affidavit that he was not provided with a trolley to undertake the carriage of the boxes of coins; however, when he saw Dr Gross on 16 October 2003 for treatment for an unrelated left elbow injury, Dr Gross noted “often uses trolley to carry calling containers”.[17] When the plaintiff was confronted with that clinical note, he then conceded that trolleys were provided, but he said that they were inappropriate and made his work more difficult. I considered this to be of some importance in evaluating the plaintiff’s creditworthiness and reliability.
[17]Exhibit 2
35 Next, the plaintiff’s pain and suffering consequences were mostly directed to his capacity to undertake domestic tasks, engage in social activities, engage in activities with his wife and children, and need to rest at the end of a working day. For example he was asked whether he could use a mop. He said he could, but that it would cause him pain in his feet if he did more than a modest amount of mopping. He said he could kick a soccer ball and an Australian Rules football with his son, but again, it would cause more pain in his feet. He tended to play a less involved role when kicking a football with his son by simply passing the ball back to him, or sitting while his son kicked a football. He said that he sometimes went shopping with his wife, but the impression I was left with was that when his wife and daughter went on shopping trips, that he would decline to go because of the walking and standing that would be involved.
36 Next, the plaintiff was asked why he gave instructions for the preparation of a statement of earnings dated 26 July 2013, which represented that he did not have the capacity to earn 60 per cent of his “without injury” earnings, being $527 gross per week.[18] The statement was prepared to advance a claim that the plaintiff was entitled to leave to bring a proceeding to recover damages for his loss of earning capacity; however, the statement is simply wrong. A comparison with the plaintiff’s actual gross earnings demonstrates that in the financial year ending 30 June 2012, he earned $76,399 gross. It should be remembered that the plaintiff has not been absent from his work, except for the period referred to in the medical certificates. Therefore, I see no reason why I should not accept that what he has earned in subsequent years is consistent with what he earned in the financial year ending 30 June 2012. He found it difficult to explain why the document was prepared making that representation. He conceded that it was wrong.
[18]Exhibit 4
Findings
37 I accept that the plaintiff suffered from a constitutional medical condition affecting his feet as described by Mr Edwards. I accept that he suffered an aggravation or acceleration of that condition as described by Mr Edwards. I accept that he has some level of pain and some level of interference with his capacity to work in his pre-injury employment, and, in some respects, in the domestic, social and recreational activities which were part of his life before he suffered the compensable injury. However, there are aspects of the plaintiff’s evidence which seriously undermine his creditworthiness and reliability. For example his evidence of the extent to which he has seen Dr Baglar since June 2009 is wrong. His resort to medication is relatively infrequent. He has had very little medical treatment, and indeed, the extent to which he has resorted to medical treatment is modest. He has not pursued advice to have other medical treatment, and I find that was because it was not necessary.
38 I accept that the plaintiff does have pain at the end of the day in his feet; however, he rests and obtains a restful night’s sleep. Despite the pain he experiences taking the first few steps each morning, he is able to dress for work, put on his work boots and engage in work which requires him to be on his feet for significant periods of time during the day. I accept that he may be less inclined to engage in additional time on his feet, for example using a mop, kicking a football with his son and going shopping with his wife and daughter, but it was not the case that the plaintiff said he could not do those things. He did not do them because of his concern not to expose himself to more pain, but it was not my impression that the additional pain was so disabling as to prevent him from engaging in those activities to some degree.
39 The importance of what the plaintiff swore to in his affidavits regarding how often he saw Dr Baglar and whether he used a trolley or not comes into focus. They demonstrate a lack of candour on the plaintiff’s part. These matters add to the level of doubt I am left with about the plaintiff’s creditworthiness and reliability.
Conclusions
40 In the process of determining whether the consequences are “at least very considerable”, I must consider what the plaintiff has lost, but I can be informed of what the plaintiff has lost by what he has retained.
41 I consider that what the plaintiff has lost is rather more modest than what he contended for in his evidence. I do not consider that the consequences which I accept he has proven reach the standard of being “significant” or “marked”. What he has lost is his capacity to engage in some physical activities with his son, his wife and daughter, and to fully engage in infrequent social occasions within the Macedonian community. However, he still has the capacity to engage in those activities to some degree. It was not my impression that he said they were completely lost to him. Lastly, I find it difficult to accept the plaintiff’s evidence that at the end of each working day, he is in so much pain and is so disabled that he is not capable of engaging in those domestic, social and recreational activities either at all, or even to a modest extent.
42 In the end, I think, when the relevant comparison is made, what is called for by s134AB, that it cannot be said that the consequences of the impairment of the function of the plaintiff’s feet are “at least very considerable”.
43 Therefore, the order I make is that the plaintiff’s Originating Motion be dismissed.
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