ROTHWELL and LINFOX AUSTRALIA PTY LTD
[2010] AATA 268
•16 April 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 268
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/2513
GENERAL ADMINISTRATIVE DIVISION ) Re COLIN LEE ROTHWELL Applicant
And
LINFOX AUSTRALIA PTY LTD
Respondent
DECISION
Tribunal G. D. Friedman, Senior Member Date16 April 2010
PlaceMelbourne
Decision The Tribunal sets aside the reviewable decision of 9 April 2009 and substitutes the following decision:
(a) Mr Rothwell suffered incapacity and impairment as a result of aggravation of right plantar fasciitis arising out of or in the course of his employment with the respondent on 17 October 2008, the subject of a claim dated 31 October 2008, which entitles him to compensation under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act).
(b) The Tribunal remits the matter to the respondent to determine amounts of compensation to be paid in respect of:
(i) the costs of all medical and related treatment expenses incurred in respect of the injury under s 16 of the SRC Act;
(ii) weekly payments of compensation in respect of incapacity for work for all periods when Mr Rothwell’s ability to earn was less than the normal weekly earnings under s 19 of the SRC Act.
(c) The respondent shall pay Mr Rothwell’s legal costs and disbursements in respect of these proceedings under s 67 of the SRC Act.
..................[signed]......................
Senior Member
COMPENSATION – 2007 injury – plantar fasciitis in right foot – forklift driver – further injury to foot – whether work-related aggravation
Accident Compensation Act 1985 (Vic)
Safety, Rehabilitation and Compensation Act 1988 ss 4(1), 4(9), 5A(1), 14(1), 16, 19, 67
REASONS FOR DECISION
16 April 2010 G.D. Friedman, Senior Member
1. Colin Rothwell has worked in warehouse and distribution positions for a number of years. In January 2007 while employed with Westgate Logistics he injured his right heel and received compensation under Victorian Workcover legislation for plantar fasciitis. In October 2008 while working for the respondent as a forklift driver he re-injured his heel and gradually returned to work. He now works full-time on modified duties. The respondent refused his claim for compensation for aggravation of his injury on the basis that he no longer suffers from plantar fasciitis and that the condition is not a work-related aggravation of the injury.
LEGISLATIVE BACKGROUND
2. Section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) provides:
(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
…
3. In s 4(1) of the SRC Act injury is defined as:
injury has the meaning given by section 5A.
In s 5A(1) of the SRC Act injury is defined as:
…
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
4. Incapacity for work is defined in s 4(9) of the SRC Act as an incapacity suffered as a result of an injury, either an incapacity to engage in any work or an incapacity to engage in work at the same level as immediately before the injury happened.
5. Section 16 of the SRC Act provides for an entitlement to compensation for medical treatment. Section 19 of the SRC Act provides for an entitlement to compensation for loss of earnings.
ISSUES
6. There was no dispute that Mr Rothwell previously suffered from plantar fasciitis as a result of an injury on 4 January 2007 for which he received compensation under the Accident Compensation Act 1985 (Vic). The issues before the Tribunal are:
· Did Mr Rothwell suffer an aggravation of his prior injury? If so:
· Did the aggravation arise out of or in the course of Mr Rothwell’s employment? If so:
· Did the aggravation result in incapacity for work so as to entitle Mr Rothwell to compensation under s 14 of the SRC Act?
· Is Mr Rothwell entitled to compensation under s 16 of the SRC Act for medical treatment and under s 19 of the SRC Act for loss of earnings?
DID MR ROTHWELL SUFFER AN AGGRAVATION OF HIS PRIOR INJURY?
7. Mr Rothwell told the Tribunal that in 2006 he commenced employment with Westgate Logistics performing duties such as forklift driving and picking and packing in the warehouse. He said that on 4 January 2007 he sustained the injury to his right heel when he tripped over an item in an aisle while stepping backwards. He explained that after two months he made a graduated return to work, and by October 2008 his symptoms had abated and were controlled as a result of specific exercises and the use of orthotics in his footwear, although there was occasional discomfort.
8. Mr Rothwell stated that on 17 October 2008 he stepped awkwardly from a forklift when his foot became caught in the safety bar as he was alighting, and he landed heavily on his right heel. He said that he reported the incident to his team leader, who completed an injury report which referred to damage to the right heel. Mr Rothwell stated that he was sent immediately to an employer-nominated doctor, who strapped the ankle, recommended crutches to lessen the weight on the heel, and arranged for CT and MRI scans. The doctor referred him to a physiotherapist, Mr M Fishman, whom he consulted the same day, and he has received medical treatment from various practitioners. He acknowledged that on the compensation claim form dated 31 October 2008 he did not include details of the events of 17 October 2008, but explained that he was following the advice of a supervisor, who suggested that he include details of the 2007 injury as the event leading to the 2008 injury. Mr Rothwell explained that he is unable to participate in sports that he formerly enjoyed, such as skiing, and can no longer join his children in simple activities such as kicking a football.
9. Dr D Elder, occupational physician, said that he carried out a clinical examination of Mr Rothwell on 11 December 2008 for the purposes of rehabilitation and a worksite assessment that recommended a return to normal duties. Dr Elder said that there was no clinical or radiological evidence to support a diagnosis of plantar fasciitis because there was no abnormality of the soft tissue, and that whatever condition Mr Rothwell had suffered previously had resolved. Under cross-examination Dr Elder agreed that his report did not contain a history of Mr Rothwell landing awkwardly on his right heel on 17 October 2008, and only referred to …the repeated requirement of stepping on and off the forklift in the course of his duties… which Dr Elder described as not being a risk factor for plantar fasciitis. Dr Elder agreed that he was aware that a corticosteroid injection had been administered one week before the examination, and that symptoms of plantar fasciitis might have been masked by the injection.
10. Dr T Kostos, consultant rheumatologist, in a report dated 22 December 2008, stated that his clinical examination of Mr Rothwell found tenderness at the right plantar fascia which was consistent with the events as described by Mr Rothwell. Dr Kostos diagnosed plantar fasciitis. On 7 January 2009 Dr Kostos said that he could not understand how Dr Elder had not found tenderness during his examination. Mr Fishman examined Mr Rothwell on the day of the 2008 injury and noted in a report dated 5 February 2009 that he had found tenderness over the right heel fat pad and the plantar fascia, which he said was explained by Mr Rothwell as an aggravation of plantar fasciitis when Mr Rothwell stepped off a forklift onto a concrete floor.
11. Dr P Braun, sports physician, stated in a report dated 3 August 2009 that Mr Rothwell was referred by a physiotherapist and gave a history of stepping off a forklift on 17 October 2008, tripping over a safety bar and landing heavily on the right heel with immediate aggravation including severe pain and swelling. Dr Braun found localised tenderness over the plantar fascia and diagnosed plantar fasciitis directly attributable to blunt trauma at work caused by an aggravation of the 2007 injury. He agreed that the history given by Mr Rothwell of the events of 17 October 2008, including the steps taken by the employer-nominated doctor on the day, would be consistent with a traumatic event. Mr N Papadopoulos, chiropodist and podiatrist, stated in a report dated 23 September 2009 that Mr Rothwell originally presented with plantar fasciitis of the right heel following the 2007 injury, and in January 2009 presented again with pain to the right heel, which Mr Rothwell attributed to an injury when he stepped from a forklift. Mr Papadopoulos concluded that Mr Rothwell had plantar fasciitis in his right heel following the 2008 injury.
12. Mr M Khan, orthopaedic surgeon, provided a detailed report dated 30 March 2010 after a clinical examination and a comprehensive history from Mr Rothwell. Mr Khan observed tenderness in the right plantar fascia and diagnosed chronic plantar fasciitis of the right foot. He concluded that Mr Rothwell sustained an injury or an aggravation of an injury arising out of his employment when he landed awkwardly on his heel on 17 October 2008, and that the condition was ongoing. In oral evidence Mr Khan rejected the suggestion that localised swelling of the heel was required before any conclusion could be reached that an aggravation of the condition had occurred. He confirmed that corticosteroid injections have an anaesthetic effect that could mask symptoms of plantar fasciitis during any subsequent clinical examination conducted within a relatively brief period such as one week.
13. The Tribunal finds Mr Rothwell to be a truthful and credible witness. His symptoms and history as expressed to various health professionals have been consistent for both the 2007 injury and the 2008 injury. He presents as a diligent and conscientious worker who has not sought to embellish his medical history or exaggerate his symptoms. His symptoms and version of events appear to be consistent with the diagnosis of plantar fasciitis, and the Tribunal finds that any failure to provide a detailed description of the 2008 injury in his claim for compensation is due to the manner of assistance he was given to complete the form, rather than any attempt to mislead the respondent or provide incorrect information.
14. The weight of medical evidence strongly supports an ongoing diagnosis of plantar fasciitis. The Tribunal gives little weight to the evidence from Dr Elder, whose primary task was to provide a rehabilitation and workplace assessment, rather than a clinical examination of the condition as presented by Mr Rothwell, and Dr Elder did not take a complete history from Mr Rothwell, particularly relating to the 2008 injury. In addition the Tribunal takes into account that Mr Rothwell underwent a corticosteroid injection about one week before being examined by Dr Elder, and that Dr Elder agreed with other practitioners, when giving evidence, that the effect of such an injection might include masking the symptoms of plantar fasciitis by reducing the amount of inflammation or swelling in the affected area.
15. The Tribunal accepts the evidence from the other practitioners and finds that Mr Rothwell suffers from plantar fasciitis of the right foot, which arose from trauma suffered on 17 October 2008 in the manner described by Mr Rothwell and has not resolved. This constitutes an aggravation of the 2007 injury, rather than any transient or temporary pain arising from the prior injury that might be caused by stepping on and off a forklift.
DID THE AGGRAVATION ARISE OUT OF OR IN THE COURSE OF MR ROTHWELL’S EMPLOYMENT?
16. In accepting Mr Rothwell’s version of events of 17 October 2008, the Tribunal finds that the aggravation occurred in the course of his employment with the respondent, and also arose out of the employment because alighting from the forklift was an activity required of him by the employer.
DID THE AGGRAVATION RESULT IN INCAPACITY FOR WORK SO AS TO ENTITLE MR ROTHWELL TO COMPENSATION UNDER S 14 OF THE SRC ACT?
17. Mr Rothwell told the Tribunal that as a consequence of the injury on 17 October 2008 he was unable to work on 17 October 2008, 3 November 2008 and from 10 November 2008 to 10 December 2008. He said that he then commenced a graduated return to work for four hours per day for four days per week until 16 February 2009, after which he resumed normal hours, but performing modified duties. Mr Rothwell produced medical certificates and certificates of capacity provided by his general practitioner.
18. The Tribunal finds that the aggravation resulted in incapacity for work so as to entitle Mr Rothwell to compensation under s 14 of the SRC Act.
IS MR ROTHWELL ENTITLED TO COMPENSATION UNDER S 16 OF THE SRC ACT FOR MEDICAL TREATMENT AND UNDER S 19 OF THE SRC ACT FOR LOSS OF EARNINGS?
19. Mr Rothwell stated that on the day of the 2008 injury he was seen by the company-nominated doctor and referred for physiotherapy. In relation to treatment, Mr Rothwell said that he continued physiotherapy (including ultrasound treatment) and consulted his general practitioner, who provided certificates of incapacity identifying plantar fasciitis as the cause of the incapacity. He also consulted his podiatrist and a radiologist for CT and MRI scans. The general practitioner administered a corticosteroid injection on 4 December 2008, which provided temporary benefit from pain, and a further injection on 5 January 2009. In about December 2008 he commenced a return to work program performing clerical duties four hours per day, and later increased this to full-time hours on modified duties that were within his capabilities, such as forklift driving that minimises pressure on his heel. He said that he wears orthotic inserts in his footwear and always purchases the best quality boots to give maximum support to his right foot. He said that he still attends the physiotherapist regularly.
20. Mr Rothwell said that his return to work involved fewer hours than a normal week, and his modified duties do not include picking and packing.
21. The Tribunal finds that the Mr Rothwell received medical treatment for the aggravation which entitles him to compensation under s 16 of the SRC Act, and that he may have suffered a loss of earnings which entitles him to compensation under s 19 of the SRC Act.
DECISION
22. The Tribunal sets aside the reviewable decision of 9 April 2009 and substitutes the following decision:
(a)Mr Rothwell suffered incapacity and impairment as a result of aggravation of right plantar fasciitis arising out of or in the course of his employment with the respondent on 17 October 2008, the subject of a claim dated 31 October 2008, which entitles him to compensation under the Safety Rehabilitation and Compensation Act 1988 (the SRC Act).
(b)The Tribunal remits the matter to the respondent to determine amounts of compensation to be paid in respect of:
(i)the costs of all medical and related treatment expenses incurred in respect of the injury under s 16 of the SRC Act;
(ii)weekly payments of compensation in respect of incapacity for work for all periods when Mr Rothwell’s ability to earn was less than the normal weekly earnings under s 19 of the SRC Act.
(c)The respondent shall pay Mr Rothwell’s legal costs and disbursements in respect of these proceedings under s 67 of the SRC Act.
I certify that the twenty-two [22] preceding paragraphs are a true copy of the reasons for the decision herein of:
G. D. Friedman, Senior MemberSigned: ............................[signed]...............................................
Associate Grace HorzitskiDate/s of Hearing 12 and 13 April 2010
Date of Decision 16 April 2010
Counsel for the Applicant Mr M Carey
Solicitor for the Applicant Maurice Blackburn
Counsel for the Respondent Mr N Rattray
Solicitor for the Respondent Thomson Playford Cutlers
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