Spence v Austin Health
[2012] VCC 1053
•17 August 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-01821
| ELISABETH SPENCE | Plaintiff |
| v | |
| AUSTIN HEALTH | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 August 2012 | |
DATE OF JUDGMENT: | 17 August 2012 | |
CASE MAY BE CITED AS: | Spence v Austin Health | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1053 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Injury to the left leg – pain and suffering only – whether consequences to the plaintiff are “serious”
LEGISLATION CITED – Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38)
CASES CITED – Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Kelso v Tatiara Meat Co Pty Ltd (2007) VSCA 267.
JUDGMENT – Leave granted to bring proceedings for damages for pain and suffering only.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Cvjeticanin | Maurice Blackburn Pty Ltd |
| For the Defendant | Mr D Churilov | Hall & Wilcox |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of her employment with the defendant on 28 March 2008 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this application is the left leg.
5 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
6 The impairment of the body function must be permanent.
7 Subsection 38(h) provides that consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
8 The plaintiff bears an overall burden of proof upon the balance of probabilities.
9 By subsection (38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.
10 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
11 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica (2006) 14 VR 602.
12 The plaintiff relied upon three affidavits and she was cross examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
13 The plaintiff is presently aged fifty six, having been born in December 1955. She is married with three children.
14 On 3 February 2003, the plaintiff commenced employment with the defendant as a switchboard operator.
15 On the said date, a Friday, whilst working in a temporary switch room at the Austin Hospital, (“the Hospital”) the plaintiff stepped off a darkened platform and fell to the ground, severely jarring her left leg (“the incident”).
16 Immediately after the incident, the plaintiff felt pain, predominantly to her left foot and ankle. She was taken to the Emergency Department at the Hospital, where she underwent x‑rays and was told there were no fractures. She was given some painkilling medication and sent home the next morning on crutches.
17 The following Monday, the plaintiff again attended the Hospital Emergency Department. Her left foot was very sore and she was informed by the physiotherapist that she had suffered an Achilles tendon injury. The plaintiff was advised she would require surgery. Her foot was painful and she had difficulty using crutches.
18 Accordingly, the plaintiff did not return to work, and shortly afterwards, she lodged a Claim for Compensation, which was accepted.
19 The plaintiff underwent surgery at the Hospital on 5 April 2008 (“the surgery”) performed by Dr Cronoiu. The plaintiff was hospitalised overnight and discharged in plaster, on crutches.
20 The plaintiff found it very difficult to use crutches and was followed up in the Hospital Outpatients from time to time. She was also under the care of her general practitioner, Dr McColl, at the Rosanna Medical Group (“Rosanna”), whom she first saw in relation to her incident injuries on 14 April 2008.
21 The plaintiff was in plaster for six weeks and then provided with a CAM walker. During that time, she received some home help. Whilst the surgery did repair the ruptured tendon, the plaintiff was left with ongoing symptoms in her left foot and ankle and she found it very difficult to mobilise on crutches.
22 The plaintiff underwent physiotherapy at the Hospital and remained off work until 21 May 2008, returning two hours a day, gradually working up to her allocated normal hours by approximately mid June 2008.
23 When she initially returned to work, the plaintiff was not confident using crutches and for a short time used a wheelchair. She was unable to drive herself to and from work.
24 The plaintiff continued to work twenty hours per week. She did not resume her greater pre-incident hours because of cutbacks by the defendant, not as a result of her injury.
25 The plaintiff’s left ankle continued to trouble her, with swelling and restriction in walking, and remained somewhat painful.
26 In cross examination, the plaintiff confirmed that by the middle of 2008, she was back to normal duties and could do her normal job. She was able to work more hours if they were they available to her. On her return to work, the plaintiff’s condition waxed and waned and it was not so bad she needed tablets every day.
27 On 1 September 2008, the plaintiff underwent an ultrasound. She undertook physiotherapy treatment from time to time into 2009. For a while, she had household help with gardening.
28 In cross examination, the plaintiff confirmed she experienced some deterioration in her left ankle condition in September 2008 and had physiotherapy treatment. The plaintiff saw Dr McColl from time to time and she was tried on some medication and also treated with nitro patches.
29 As the plaintiff’s symptoms persisted with ankle pain and swelling, she attended Mr Yap, surgeon, in December 2009. An MRI scan was organised later that month. He told the plaintiff she had a different sort of problem, called tendonitis, caused from pulling, and damage to the scar tissue.
30 When the plaintiff first saw Mr Yap, she also complained of a painful right hip and he arranged an MRI scan. However, since that time, her hip has not really been an ongoing problem.
31 Mr Yap suggested the plaintiff try orthotics, which were provided in early 2010. The plaintiff found they helped somewhat. Nevertheless, her symptoms continued and, accordingly, Mr Yap arranged for a Celestone injection (“the first injection”) on about 2 June 2010, which gave the plaintiff some relief.
32 In cross examination, it was suggested to the plaintiff that she was able to cease medication and using the patches because of the assistance given by orthotics. She was unsure whether this was the case and thought she ceased those treatments after the first injection, but she agreed the orthotics significantly improved her situation.
33 In cross examination, the plaintiff agreed the first injection really helped and she felt quite good for four to five months thereafter and no further appointment was made with Mr Yapp. There was still a bit of pain but her left ankle was a lot better than it was. The plaintiff agreed that the first injection had fixed part of the problem but she still had the problem at the Achilles.
34 The plaintiff still had symptoms and her left ankle was still sore when she swore her affidavit in December 2010. She then had difficulty walking more than a kilometre. Gardening was harder for her and in particular, she had difficulty getting up from a kneeling position. She required orthotics, which meant she was restricted in her ability to wear sandals.
35 The plaintiff had a fear of ladders, which could be a problem given her husband’s MS condition which was diagnosed fifteen years earlier meant he ought not be using ladders and therefore she was used to performing household tasks that ordinarily her husband would perform. She had a fear of falling and re-injuring her tendon, but nevertheless, she did as much as she could at that stage to remain active.
36 In cross examination, the plaintiff agreed that as of December 2010, she did things at home if they needed to be done, but then said she did not have a full range of activities at that time.
37 The plaintiff continued in employment with the defendant until accepting a redundancy package in July 2011. Her normal seated duties involved no strain on her left leg and she had been able to work even using a CAM walker.
38 The plaintiff saw Mr Yap in February 2011 and was sent for an ultrasound of her left Achilles. Thereafter, he sent her for another injection on 6 April 2011 paid for by WorkCover (“the second injection”).
39 The plaintiff found the second injection quite helpful in reducing some of her pain, but not to the same extent as the first. Although Mr Yap did not recommend any further surgery, the plaintiff understood she would continue taking anti-inflammatories and avoid flare-ups.
40 Mr Yap also suggested the plaintiff try a heel raise, which gave significant improvement and formed part of the same piece of orthotics.
41 The plaintiff was cross examined as to the nature of her pain in early 2011. She initially said at that time her pain was at the top of her Achilles, but then said it was the same pain as before but it just got worse when she went back to see Mr Yap at that time.
42 The plaintiff saw Mr Yap again in November 2011 and in February this year, because her left lower leg was continuing to give her so much trouble. He again advised conservative treatment.
43 In re-examination, the plaintiff explained that she had continued to see Mr Yap when she had had increased pain. She had an appointment with him in the next few days which had been arranged by her doctor following the recent flare-up.
Current Pain
44 The plaintiff recently deposed she continues to suffer pain in her left leg, with some pain every day, which comes and goes throughout the day.
45 At times the pain flares up and becomes severe. There is such a severe flare‑up at least every month or so, usually because the plaintiff has tried to walk too much. Sometimes the plaintiff walks with a limp and if her pain is severe, then she can limp quite heavily, and if very severe, she is unable to walk at all.
46 The plaintiff’s pain during a flare-up is more severe than her normal pain.
47 The plaintiff can also notice pain increase if she stands in one place for fifteen minutes or so and she finds squatting or kneeling down tends to cause an increase in her pain, so she tries to avoid doing so.
48 The plaintiff deposed as to two recent flare-ups and gave further detail in her viva voce evidence.
49 The plaintiff described in the previous month or so having gone to the Ian Potter Gallery and experiencing severe pain after walking for about an hour, and then beginning to limp heavily. When she got home, she rested and took anti-inflammatory medication and the pain subsided after about two hours.
50 More recently, the plaintiff had a severe flare-up when she walked from her home to Waratah Special School (“the school”) where she now does volunteer work, assisting autistic children for two and a half hours per week.
51 Half an hour after leaving home, the plaintiff knew she was in trouble with her leg. There was increasing soreness, but she continued her trip. By the time she reached the school, her leg had flared-up and she was limping. She had no choice but to walk home later that day. She was in very severe pain for the rest of that day and her ankle was still very painful the next morning.
52 The plaintiff rang her general practitioner but could not get an appointment. Over the weekend, the plaintiff could barely walk because of pain. She took Ibuprofen anti-inflammatories, but they only provided limited relief.
53 When the plaintiff attended Rosanna early the next week, she was limping and in pain. She was sent for an x‑ray, which did not show any damage. She continued to experience very bad pain and returned to see her doctor two days later and again later in the week. She continued to take anti-inflammatories and was advised to use Voltaren gel, but the pain continued for another four days or so. An appointment was made for her to see Mr Yap.
54 The first volunteer session at the school which the plaintiff recently attended, involved two and a half hours sitting with the children while they made pancakes. Other teachers were present and the plaintiff was the only volunteer. She was not required to stand for extended periods, squat or kneel throughout the session. The plaintiff found great satisfaction working with the children and hoped to increase her involvement to two sessions a week.
55 In cross examination, the plaintiff confirmed that she liked the volunteer work and it did not cause her any problems with her leg.
56 After the plaintiff was made redundant, she felt it was very unlikely she would find any work again. She was limited to doing sedentary work and at the age of fifty seven, thought it very unlikely to find new work. Although she was unlikely to work, she still wanted to do something and feel involved and the Waratah work gave her something to do that was valuable.
57 In cross examination, the plaintiff agreed that before these latest flare-ups, she was able to walk to work at the Hospital and also walk her dogs. She agreed that her pain typically lasted twenty to thirty seconds but could last longer. It was not a situation of pain twenty four hours a day. Her pain does not interfere with her sleep. She does not have problems sitting.
58 In cross examination, the plaintiff said she knew not to “push it”. She confirmed she could still get pain walking less than one kilometre. Her main pain is at the top of the Achilles and it is also around the scarring site, somewhere near the heel. She did not limp all the time and limping was not linked to walking too much. Sometimes she limped, having got up from a seated position.
Current Treatment
59 The plaintiff continues to take anti-inflammatory medication about two or three days a week and sometimes takes more tablets if there is a very bad flare-up. She does not really like taking medication. She attends Rosanna when she has a flare-up; however, she understands there is nothing further her doctor can do.
60 In cross examination, the plaintiff confirmed she takes two anti-inflammatories three or four times a week. She has not had prescription medication for a long time.
61 In cross examination, the plaintiff agreed she did not complain of left ankle problems to doctors at Rosanna between May 2011 and 2012. She explained this was the case because she was seeing Mr Yap and her ankle was probably good on the days she attended Rosanna for unrelated matters.
Current Activities
62 The plaintiff can walk for about a kilometre or so and then tends to experience increased pain. She still walks the dogs and tries to walk as much as she can and sometimes tries to walk a little further and only gets a small increase in pain, but at other times she has a severe increase in pain.
63 The plaintiff has two dogs. One weighs fourteen kilograms and the other is a much smaller dog. She walks each of them separately for about fifteen minutes over a kilometre every day. She sometimes has leg pain while walking them.
64 In re-examination, the plaintiff said that prior to the incident, she could walk up to ten kilometres, but she could not even try to walk that distance now.
65 In terms of housework, the plaintiff has difficulty cleaning the bath, the base of the shower and the fireplace, because those tasks involve low bending. She also finds it difficult to get into and out of low cupboards. She still does some gardening but not as much as she would like to.
66 The plaintiff finds it difficult to stand on ladders as she feels unsafe on her left ankle and fearful of falling and injuring it again. That makes it difficult to get into high cupboards, which she used to do on a small stepladder.
67 In re-examination, the plaintiff explained that she is not able to do the sort of cleaning that she used to. She has problems doing any tasks from a height, and also with bending. The extent to which she can clean has dropped quite significantly and she is not very happy with that situation.
68 On the weekend before the hearing when she did a bit of cleaning in the bathroom, the plaintiff had to lie down on the bed for about twenty minutes because her leg was sore. She does larger cleans less frequently and does not do the gutters at all. She expects, with her husband’s deterioration, she will have to do more, but she did not think she could do the lawns.
69 In cross examination, the plaintiff described a rather large garden at home, with her front lawn being one and a half times the size of the court room and the backyard, half the size. The plaintiff still prunes the hedges. She bought herself a kneeler and she can do weeding using it because she can push herself up from the ground. Otherwise, she could not put weight on her foot to get up. The plaintiff can cut up some small branches and carry them to a bin.
70 The plaintiff now tended not to garden at all because her foot began to ache. If she did not do the gardening, no one did it. She was too scared to work on a ladder because of problems with balance associated with her left leg.
71 The plaintiff’s husband continues to work with defendant as a personal services assistant. His condition has been deteriorating over the years and he is experiencing a loss of memory, loss of balance, slurred speech, shuffling when he walks and he only has limited vision in one eye.
72 The plaintiff knows her husband’s condition will deteriorate and she understands that she will be required to do more around the house. He used to clean gutters, change lights and do handyman jobs and some gardening. Now all he can really do is mow the lawn and last year they had to pay someone to clean the gutters.
73 About six weeks earlier, the plaintiff had tried to clean the guttering herself, standing on a ladder. Her husband held the ladder still. The plaintiff could only stay on the ladder for a short while as she felt unsafe. It is now just too hard to clean the gutters. If a light globe fails, then the plaintiff has to get her daughter to change it. The plaintiff now has to pay someone to do home maintenance tasks.
74 Presently, the plaintiff’s husband is independent in terms of personal care, but he is becoming increasingly slow and eventually she will start to have to help him with those things and is worried how she will cope. Eventually, he will go into a wheelchair and require help getting in and out of bed, a situation she dreads because of her left lower leg injury. The plaintiff would like to keep him at home as long as possible and look after him herself, but she knows he will have to go into care sooner because she will not be able to care for him herself.
Treating Doctors
75 Dr McColl from Rosanna reported twice in 2009. He confirmed the circumstances of the incident and the plaintiff’s treatment thereafter.
76 As of August 2009, Dr McColl thought the plaintiff was significantly restricted by her tendon pain in her personal life. Her ability to garden, perform housework, walk, run and play sport were markedly impaired due to her pain. Dr McColl felt that the plaintiff would require assistance in some of those areas of her life indefinitely, until hopefully her symptoms were less restrictive.
77 Dr McColl noted that he referred the plaintiff back for more physiotherapy at the Austin in December 2008 and that she continued to have ongoing tendon pain. Mobic was prescribed in May 2009 with little effect. Patches were also applied in June 2009 but Dr McColl was then unsure of their effect.
78 Dr McColl thought the plaintiff was able to continue all pre-incident duties at the Hospital. He considered she would require ongoing analgesia, intermittent anti-inflammatories and physiotherapy to help her control her symptoms of pain and stiffness and she would also require assistance in certain areas of her life.
79 Dr Goh from Dr McColl’s clinic reported in June 2012 that he had seen the plaintiff for the last year or so. He noted Mr Yap was the main provider with respect to her foot and ankle issues. During the last year, Dr Goh had dealt with other aspects of the plaintiff’s medical health, including her foot issues.
80 Dr Goh confirmed the plaintiff’s treatment since the incident. He noted that she suffered from “chronic left leg pain/foot/Achilles/right hip pain as well”. He noted she struggled from day to day with constant pain in the left foot and ankle and needed analgesia when her pain got bad. She tried not to take too much medication, as her condition had been going for a long time, and only took it when she needed to and when the pain was quite bad.
81 Dr Goh noted that with her pain, the plaintiff was not able to stand for a prolonged period of time and she found it very hard to walk for prolonged distances and she started limping as well. She used her right leg more to compensate for the pain in her left leg and lately started to have issues with her right hip, in relation to which she was also seeing Mr Yap.
82 Dr Goh thought he was dealing with a Chronic Pain Syndrome which clearly had a multi factual component, not the pain alone was the major component. He thought the plaintiff suffered psychologically as well and that her frustration, coping abilities and psychological issues must be dealt with.
83 In the past few months when he had seen the plaintiff, Dr Goh noted how her condition had taken a toll on her and her mood seemed to have gone downhill and she presented quite teary in her consultations. He noted she was required to care for her husband with his MS condition. She tried to do her best, but that got very difficult when she could not stand for a longer time or walk certain distances without pain. He noted she was a strong person, who tried very hard. He noted that she would be sent to a psychologist.
84 In terms of prognosis, clearly, with all the operations and time spent with the plaintiff’s ankle and with her chronic tendon inflammation and pain to date, Dr Goh thought should she would not be able to return to pre-injury duties. If all that did not settle, he thought a referral to pain management would be very appropriate.
85 The Hospital notes describe an admission on the said date following the incident.
86 The plaintiff then complained of severe pain in the region of the left ankle and foot. On examination, there was tenderness noted over the posterior aspect of the heel.
87 X-rays show no bony injury and the plaintiff was given analgesics and her leg was immobilised with a plaster cast. Upon returning to the physiotherapy department in March 2008, further assessment revealed marked tenderness over the Achilles tendon. The strength of plantar flexion was markedly reduced. It was thought likely the plaintiff had ruptured her left Achilles tendon.
88 Accordingly, the plaintiff was admitted electively on 5 April 2008 and underwent surgical repair of the tendon under general anaesthetic without incident.
89 The post-operative course was uneventful and the plaintiff was discharged on 6 April 2008.
90 Later that month, the plaintiff returned for orthopaedic review. The surgical wound was healing well and she was current non weight bearing on the left leg but having some difficulty with crutches. Neurological and vascular functions were normal.
91 On review on 1 May 2008, the plaster cast was removed and a CAM walker was fitted. The plaintiff was advised to continue non weight bearing for a further three weeks and then commence partial weight bearing and she also continued to have physiotherapy.
92 The plaintiff attended the Fracture Clinic at the Hospital on 12 and 24 June 2008 when good progress was being made. On 4 September 2008, she complained of tightness in the muscles of the calf with associated pain. The tendon was intact and she was referred to the physiotherapy department for attention to the tight calf muscles.
93 Mr Vincent Yap, surgeon, first saw the plaintiff on 9 December 2009. The plaintiff was then complaining of intermittent pain over the posterior medial aspect of her left ankle, which had been associated with fullness and swelling. She had also been complaining of right lateral hip pain over the previous six months.
94 Clinical examination of the foot and ankle revealed mild pes planus, with complete restoration of the medial arch with active tip toe test. There was tenderness over the tibialis posterior region, without any tenderness over the repair site. The tendo Achilles was in full continuity and intact throughout its length to its point of insertion at the calcaneum.
95 There was a good range of motion of the left ankle with mobile subtalar and midfoot joints. There was tenderness over the abductor insertional site of the right hip, as well as over the greater trochanteric region, which Mr Yap thought was consistent with bursitis and tendinopathy. He noted the MRI scan of the left foot of December 2009 showed a longitudinal split or tear within the peroneus brevis tendon, although that was clinically asymptomatic.
96 The MRI scan of the right hip of that month revealed evidence of bursitis with tendinopathy and there were also degenerative changes within the superior labrum.
97 On review in January 2010, the plaintiff’s right hip symptoms had largely resolved. However, pain and tenderness over the tibialis posterior tendon of the left foot continued, consistent with tenosynovitis and tendinitis. Mr Yapp noted the presence of a reduced medial arch in association with tibialis posterior tendon tenderness was found to be consistent with early tibialis posterior dysfunction and the plaintiff was prescribed a trial of full-length medial arch support insole with tibialis posterior relief.
98 In May 2010, that pain and tenderness had persisted, despite the trial of the arch, and the plaintiff was recommended to have local anaesthetic and a Celestone injection into her left tibialis posterior tendon sheath.
99 In late June 2010, there was significant symptomatic relief following those injections, which indicated a positive diagnostic test for tenosynovitis with tendinopathy consistent with tibialis posterior dysfunction. The plaintiff was advised to continue using the full-length medial arch support and advised that she may require a rigid constrained support, such as a custom made orthotic, should her symptoms continue. No follow up arrangements were made unless there was a reported further deterioration.
100 Following those examinations, Mr Yap anticipated that conservative non surgical treatment with injections into the sheath would be sufficient to control the plaintiff’s symptoms, particularly at this early stage of tibialis posterior dysfunction. He did not think then the plaintiff needed to change her job.
101 On review in October 2010, the plaintiff reported significant improvement in her left foot pain following the ultrasound injection and she had been wearing the medial arch support. There was mild tenderness over the left tibialis posterior insertional site, as well as the tendo Achilles repair site. However, there was no pain with provocative stressing, as well as with resisted dorsiflexion, plantar flexion, inversion and eversion of the left foot and ankle.
102 In February 2011, the plaintiff reported that her left tibialis posterior tenosynovitis had largely resolved following the injection and also the use of the arch support. However, over the last two months she had been complaining of midline left tendo Achilles pain with associated tenderness without any recent injury.
103 On examination, the previously repaired tendo Achilles rupture site was palpable and was in continuity. The proximal end of the tendo Achilles at the musculotendinous junction was softer in consistency and there was an equivocal calf squeeze test with reduced plantar flexion on calf squeeze compared to the contralateral right tendo Achilles.
104 An ultrasound of the left tendo Achilles was arranged to exclude a partial tear at the musculotendinous junction and to confirm continuity of the repair site. The ultrasound of February 2011 showed evidence of inflammation consistent with paratenonitis. The plaintiff still had pain and tenderness over the musculotendinous region of the left tendo Achilles despite continued use of an insole and she was advised to undergo a further injection, which she underwent in April 2011. The injection unfortunately did not confer much improvement to her pain. Clinically, she still had focal tenderness and she was advised regarding a trial of the heel raise to de-tension the tendo Achilles.
105 In late November 2011, the plaintiff reported pain in the area of the tendo Achilles junction had improved significantly since the introduction of a heel raise. There was only mild tenderness of the proximal myotendinous junction and mid substance of the left tendo Achilles. The repair site was still intact and in continuity. The plaintiff was advised to continue with strengthening and stretching exercises and use the heel raise.
106 On the last review in February 2012, the plaintiff advised that since the heel raise and the exercises, the junction pain had improved significantly. However, three weeks before she presented with spontaneous left-sided high posteromedial mid calf pain.
107 On examination, clinically, there was no defect palpable in the repair site and it was intact. There was focal tenderness at the musculotendinous junction at the mid calf posteromedially. The plaintiff was advised to continue with stretching exercises and avoid gym sessions for at least the next month to allow inflammation at the musculotendinous junction to settle.
108 Mr Yap concluded, although the plaintiff had a successful repair of the tendon, she later presented with tibialis posterior tendinopathy and tenosynovitis, which he thought may be due to excessive stress, overcompensation and overuse of the tibialis posterior tendon, leading to tenosynovitis. He noted, fortunately, the majority of those related symptoms had settled with conservative management, including the use of a full medial arch support, as well as injections. He noted the subsequent development of left tendo Achilles pain at the musculotendinous junction in early 2011 had been related to paratenonitis, as well as tendinopathy changes at the surgical repair site and the myotendinous junction.
109 Mr Yap thought it likely the plaintiff would have ongoing intermittent symptoms related to the tendinopathy changes at the junction and the repair site. However, in the absence of a re-tear with an intact repair of the left tendo Achilles, he thought those symptoms were best treated non surgically with self managed calf stretching exercises and a heel raise to de tension the tendo Achilles during acute flare-ups of her symptoms. He thought no surgical intervention of any kind was reliable in alleviating her current symptoms, which would not preclude her from continuing work as a telephonist and switchboard operator at the Hospital.
Medico-Legal Examinations
110 Mr W Edwards, foot and ankle surgeon, saw the plaintiff in May 2012.
111 The plaintiff then complained of pain focussed on the proximal end of her wound. It was very sensitive. She described sporadic or intermittent pain present daily, which tended to come with activity. It was sharp, aching and shooting and typically lasted about twenty or thirty seconds, but could last longer. She felt weak and the hind foot felt stiff. Sometimes she limped, and certainly there was swelling.
112 Mr Edwards noted there was a thirteen centimetre well-healed scar along the posterior medial aspect of the plaintiff’s left foot and leg. She was able to double foot toe stand and her heel inverted. She was barely able to single foot toe stand at one repetition. She walked with a relatively stiff gait, limping.
113 Ankle dorsiflexion on the left was fifteen degrees, as opposed to eighteen on the other side, and plantar flexion was forty degrees on both sides. The plaintiff had free movement of the subtalar joint in the ankle and there was no foot tenderness.
114 There was some tenderness at approximately one centimetre medial to the proximal end of the wound, which produced pain. The plaintiff had a slight weakness of the peronei. She had powerful function of the tibialis posterior, tibialis anterior and the long motors to her toes. The residual foot had largely altered sensation but there was no area of complete numbness. There was diffuse but symmetrical callosity in the MTP joints of the toes.
115 Mr Edwards noted he had reviewed an MRI scan which showed nothing sinister, but was consistent with generalised tendinopathy of the Achilles.
116 Mr Edwards confirmed the plaintiff had suffered a tendo Achilles rupture and had ongoing problems associated with that with tendinosis of the tendon. He thought she had atypical wound sensitivity, which may have neurogenic elements.
117 Mr Edwards thought the plaintiff was suitable for sedentary or semi-sedentary duties. He considered she would require ongoing treatment in the form of physiotherapy, insoles to support the foot and supportive shoes. He thought she may well come to surgery, for instance, tendo Achilles debridement or FHL transfer. If the tibialis posterior dysfunction became significant (Mr Yap’s diagnosis), Mr Edwards thought this may need further intervention, as at first instance, insoles and supportive shoes, and further down the track, a flat foot reconstruction.
Investigations
118 An x‑ray of the plaintiff’s left ankle was carried out in March 2008. No discrete fracture was identified.
119 An ultrasound of the left ankle and left hind foot was carried out in April 2008. It was reported there was a complete tear of the Achilles tendon.
“There was a thick Achilles tendon containing high density material with a focal deficit extending 1.3 centimetres in plantar flexion and increasing to [indecipherable] centimetres dorsiflexion. The insertion of the Achilles tendon had a normal appearance.”
120 It was concluded there was a complete Achilles rupture.
121 X-rays of the left foot were carried out on 8 August 2008 at the request of Dr Houghton.
122 It was reported mild osteoarthritic changes were noted across the intertarsal and tarsometatarsal joints, as well at the first metatarsal phalangeal joint. A small plantar spur was thought present. There was no evidence of focal lesion or stress fracture.
123 There was an ultrasound of the left Achilles tendon organised in September 2008 by Dr McColl.
124 It was reported there was generalised fusiform swelling of the tendon with maximal calibre of 20 x 16 millimetres. There was textural irregularity and some fibre disruption with several areas of calcification and ossification noted, the largest 5.7 millimetres in diameter. In addition, there was linear echogenic material along the fibre direction of the tendon centrally. It was reported appearances were consistent with generalised Achilles tendinopathy with areas of dystrophic calcification, indicating chronicity and suspected suture material related to previous surgery. The possibility of several small partial tears was raised, though there was no evidence of complete fibre disruption. There was a small amount of surround fluid noted, including retro calcaneal bursitis.
125 There was an MRI scan of the left foot organised in December 2009 by Mr Yap.
126 It was reported some tendinosis of the peroneus brevis tendon was noted with a small longitudinal split within the tendon as described. There was severe Achilles tendinosis and no evidence of tibialis posterior tendon abnormality.
127 Mr Yap organised a left Achilles tendon ultrasound in February 2011.
128 It was reported there was diffuse mild thickening of the Achilles paratenon, with traces of fluid within. Given the clinical presentation, it was noted the appearances were consistent with mild Achilles paratenonitis. It was suggested an ultrasound-guided corticosteroid local anaesthetic injection may be of value for further diagnostic and therapeutic purposes. It was reported there was also diffuse fusiform swelling of the Achilles tendon with no perceived internal vascularity thought to represent post-surgical changes as opposed to diffuse low grade tendinosis.
129 Mr Yap carried out an ultrasound-guided Achilles tendon injection on 6 April 2011. It was noted preliminary ultrasound demonstrated Achilles tendinopathy with mild thickening of the paratenon. Tendinopathy was most marked centrally. The procedure was uneventful.
The Defendant’s Medical Evidence
130 Mr Michael Shannon, orthopaedic surgeon, examined the plaintiff in March 2011 and recently re-examined her in June 2012.
131 On the first examination, the plaintiff complained of pain on the medial side of her ankle, which had been resolved by the injection. She had persistent pain at the top of the tendon which caused her to limp. She found that she was stiff and sore after sitting. She was able to walk to work, which took ten minutes, and she could walk for a maximum of twenty minutes. She drove without difficulty and she was taking no medication. The plaintiff complained her tendon still got sore with overuse, such as looking after her large garden.
132 On examination, the plaintiff had difficulty standing on her heels but she could stand on her toes. There was diffuse thickening of the tendon and some tenderness at the musculotendinous junction. The plaintiff had a normal range of dorsiflexion of the ankle and a near normal range of plantar flexion. There was tenderness at the junction and no local tenderness over the tendon. Tibialis posterior was quite strong and there was mild calf wasting.
133 Mr Shannon noted previous investigations, including the ultrasound of the Achilles tendon of February 2011.
134 Mr Shannon thought the tendon had healed and the plaintiff had regained a good range of ankle movement. In his view, the ultrasound-guided injection had resulted in resolution of tibialis posterior tendonosis. He noted the plaintiff had some ongoing and more recently increasing discomfort at the junction, with an ultrasound suggesting some thickening of the paratenon and some tendinosis consistent with the nature of the injury. He thought that was a source of residual discomfort which would restrict more strenuous activities.
135 Mr Shannon noted some recent improvement with an injection. He thought further surgery was unlikely but it was likely the plaintiff was to be troubled from time to time indefinitely by tendon discomfort. She was restricted doing more strenuous activities but could maintain her garden. She would also be limited walking long distances and squatting and climbing stairs.
136 Mr Shannon noted the initial diagnosis of a ruptured tendon, the secondary tendonitis of the tibialis posterior which had resolved, but at that stage the plaintiff had residual tendonosis in the tendon and mild paratenonitis.
137 On re-examination, the plaintiff advised she had had a further injection which gave her temporary relief but the pain had recurred. She had been fitted with new orthotics which helped a little. She had not been able to resume going to the gym, which she used to do daily. She stated she had gained about twelve kilograms in weight because of relative inactivity. She could walk for fifteen minutes before her leg started to ache and she walked her two dogs.
138 On examination, the plaintiff had tenderness over the upper quarter of the Achilles tendon. There was virtually a full range of movement of the ankle and subtalar joint. Tibialis posterior was intact. Despite a reasonable range of movement, she appeared to walk with a significant limp.
139 Mr Shannon noted there had been little change in the plaintiff’s condition since the previous examination. She had ongoing scarring, discomfort and tenderness in the tendon following surgery. She no longer had any evidence of tibialis posterior tendonitis. She had quite a good range of ankle and subtalar joint movement but still walked with a limp.
140 Mr Shannon thought the plaintiff’s condition had stabilised and she was unlikely to benefit from further specific treatment, although it would be useful for her to continue to wear orthotics, which seemed to be giving her some relief. He thought that she would have ongoing mild loss of use of her lower limb from the compensable injury.
141 Mr Michael Polke, orthopaedic surgeon, examined the plaintiff in April 2010 for assessment of permanent impairment.
142 The plaintiff then complained of pain around the left ankle medially and laterally, particularly after resting, and much more after walking for more than twenty minutes. There was still some swelling around the ankle and her symptoms had levelled out. The plaintiff had ceased patches and stopped non steroidal anti-inflammatory medication. She was then taking Tegretol for night seizures and Zoloft for depression.
143 On examination, there was no limping and the plaintiff did not use any walking aides. She could not tip toe with her left foot but was able to heel walk. Mr Polke noted the surgery scar and that the plaintiff’s tendon was intact. There was minimal posteromedial swelling but the range of ankle and hind foot movements were full.
144 There was a decrease of half circumference of two centimetres on the plaintiff’s affected left leg and she had decreased power in plantar flexion.
145 Mr Polke noted the August 2008 x‑ray, September 2008 ultrasound and December 2009 MRI scan.
146 Mr Polke thought the plaintiff suffered from post-traumatic operation repair of her Achilles tendon, scarring with bursitis and tibial posterior tendinitis. He considered her condition had stabilised and that she continued to suffer from residual symptoms as a result of her injury. He considered active exercises at home should be encouraged, particularly restricted ankle and hind foot exercises.
Overview
147 There is no dispute that the plaintiff suffered a compensable injury in the incident, namely a rupture of the Achilles tendon, which was repaired surgically.
148 The plaintiff’s claim for weekly payments was accepted, as was her claim pursuant to Section 98C of the Act.
149 There is no suggestion that the plaintiff suffered any left leg problems prior to the incident.
150 The issue for determination is whether the impairment from the left Achilles injury is serious and permanent.
151 Counsel for the defendant conceded the plaintiff has residual problems which may be mild or moderate, but submitted that any impairment in relation thereto, did not reach the high threshold of serious.
152 I found the plaintiff to be an honest, truthful witness, who was prepared to concede improvement following various medical procedures. There is no evidence challenging the veracity of her complaints. No medical practitioner has found evidence of functional overlay or exaggeration by the plaintiff on examination.
153 Further, I accept the plaintiff is a motivated woman, having shown a good work ethic returning to work after the various procedures and recently obtaining volunteer work after her employment ceased.
154 Whilst the tendon repair was found to be intact, the plaintiff later required injections into the tendon, which indicated a positive diagnostic test for tenosynovitis with tendinopathy consistent with tibialis posterior dysfunction. Further, in early 2011, Mr Yap noted the subsequent development of left tendo Achilles pain at the musculotendinous junction related to paratenonitis, as well as tendinopathy changes at the surgical repair site and the myotendinous junction. More recently, the plaintiff’s complaints have also involved mid left calf pain.
155 Despite improvement which the plaintiff acknowledges following injections and the use of orthotics, she continues to experience daily, although not constant left ankle pain, aggravated by prolonged standing or walking.
156 In the plaintiff’s case, however, flare-ups are a major ongoing problem as evidenced by two recent occurrences where the plaintiff experienced severe pain after simply walking at the Gallery and to the school. Her pain following the latest flare-up was so severe that she required a number of attendances with her doctor at Rosanna and a review with Mr Yap, and further x rays were arranged.
157 Whilst the plaintiff may on occasion be able to walk a kilometre without difficulty, at other times, she has problems with left ankle pain when walking shorter distances. Standing for in excess of fifteen minutes in the one spot causes an increase in left ankle pain, as do other weight bearing activities.
158 Although the plaintiff has not complained of left ankle pain to her general practitioner in recent times, she has seen Mr Yap in this regard and he has provided ongoing conservative treatment.
159 Whilst the plaintiff has not taken prescription medication for some time, she regularly takes anti-inflammatory medication for her left ankle pain despite not being keen on taking any medication, as her doctor confirmed.
160 I accept the plaintiff’s ongoing left ankle pain affects daily activities such as housework involving bending or working on the ground in the garden. She is also very limited in her ability to do overhead cleaning and can no longer do any work on a ladder in the house or garden.
161 These restrictions are of particular concern to the plaintiff at present and will be so increasingly as her husband’s health deteriorates and the plaintiff has to do an increasing amount of domestic tasks.
162 Although she can do a range of household duties and some gardening, the plaintiff does so at a significantly different level and to a much lesser extent than before the incident and the interference with these activities is of concern to her.
163 There is no suggestion that the plaintiff’s left leg problems have in any way impaired her capacity for work. Prior to the incident, she was working as a switchboard operator with the defendant. She returned to her duties after a short period of time and was able to perform them without difficulty in a seated position. The plaintiff agreed that by mid 2008, she was in a position where she could have resumed her full pre-injury hours if those hours were available.
164 Whilst it was submitted by defendant’s counsel that this situation was instructive as to the plaintiff’s level of disability, in my view, it was not a significant indicator as the plaintiff’s job was light and able to be performed whilst seated.
165 Taking into account all the evidence, I am satisfied that the plaintiff’s left ankle impairment is serious.
166 As the plaintiff’s left ankle pain and restriction has continued for some time despite various treatment modalities, I accept that the impairment in relation thereto is permanent.
167 Accordingly, I grant the plaintiff leave to bring proceedings for damages for pain and suffering.
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