Tolley v Victorian YMCA Community Programming Pty Ltd
[2014] VCC 2104
•16 December 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-12-04174
| BRENDA TOLLEY | Plaintiff |
| v | |
| VICTORIAN YMCA COMMUNITY PROGRAMMING PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 September 2014 and 17 October 2014 | |
DATE OF JUDGMENT: | 16 December 2014 | |
CASE MAY BE CITED AS: | Tolley v Victorian YMCA Community Programming Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 2104 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the left ankle/lower leg – young plaintiff – aggravation of pre-existing condition – subsequent injury – consequences – pain and suffering only
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; Kelso v Tatiara Meat Co Pty Ltd [2007] 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Dressing v Porter [2006] VSCA 215; Peak Engineering & Anor v McKenzie [2014] VSCA 67
Judgment: Leave granted to the plaintiff to bring proceedings for pain and suffering damages in relation to injury sustained at work with the defendant on 6 November 2004.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Purcell | Maurice Blackburn |
| For the Defendant | Mr M Hooper | Wisewould Mahony |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by her in the course of her employment with the defendant on 6 November 2004.
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.
4 There, “serious” is defined as meaning:
“(a) permanent serious impairment or loss of a body function.”
5 The body function relied upon in this application is injury to the left ankle/lower leg.
6 The plaintiff relied upon three affidavits, sworn 21 October 2011, 11 October 2013 and 5 September 2014. The plaintiff and Mr Otis Wang were cross-examined. I have not summarised the affidavits and evidence of the plaintiff and the evidence of Mr Wang. However, I will refer to the relevant evidence of the plaintiff and Mr Wang in my reasoning. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant legal principles
7 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[1]
[1]Section 134AB(19)(a) of the Act
8 In order to succeed, the plaintiff must prove, on the balance of probabilities that:
(a) “the injury” suffered by her arose out of, or in the course of, or due to the nature of, her employment with the defendant.[2]
[2]Section 134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
(b) “the injury” with its resulting impairment must be permanent, in the sense that it is likely to continue into the foreseeable future.[3]
[3]Barwon Spinners (supra) at paragraph [33]
(c) “the consequences” to the plaintiff of her impairment to the left ankle/ lower leg in relation to “pain and suffering” must be “serious” – that is, “when judged by comparison with other cases in the range of possible impairments … be fairly described as being more than significant or marked and as being at least very considerable”.[4]
(d) the injuries to two separate body functions cannot be aggregated.[5]
[4]Section 134AB(38)(b) and (c)
[5]Lu v Mediterranean Shoes Pty Ltd & Ors (2000) 1 VR 511at paragraph [23]
9 Consequently, the Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
10 The test for “serious”, as set out in paragraph (b) and (c) of s134AB(38) of the Act, is sometimes referred to as the “narrative test”.
11 In determining the application, the Court:
(a) must make the assessment of “serious injury” at the time the application is heard.[6]
(b) notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[7]
[6]Section 134AB(38)(j) of the Act
[7] See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592 at 628; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
The issues
12 Counsel for the defendant informed the Court that:
(a) any consequences attributable to the work incident in 2004 resolved, if not by July 2009, then by approximately August 2011, that being the time when the plaintiff suffered injury to her right ankle; and
(b) this is a “range case”, namely that the consequences attributable to the plaintiff’s injury in 2004 do not meet the test of seriousness for pain and suffering, in that they could not be considered “as being more than significant or marked and as being at least very considerable” when compared to other cases in the range.
Investigations
13 An x‑ray of 2 May 2007 of the left ankle and foot reported:
“No evidence of a fracture or displacement of the mortise. Deformity at the head of the second metatarsus with a separate small bone fragment could be due to post-surgical change or from old trauma with a surgical screw imbedded in the head. A surgical screw at the talus is noted.”
14 On 12 September 2007, an MRI scan of the left foot concluded:
(a) no evidence of Morton’s neuroma;
(b) fluid signal in the 3–4 inter-metatarsal space raises the possibility of inter-metatarsal bursitis;
(c) additional findings include deformity in previous surgery related to the head of the second metatarsal with no bone-marrow signal changes, mild joint effusion at the first metatarsophalangeal joint with no bony signs of arthropathy, and oedema within the medial sesamoid bone of the great toe consistent with non-specific sesamoiditis.
15 On 29 January 2010, an x‑ray of the left ankle and foot confirmed a small screw lies in the head of the second metatarsal, consistent with immobilisation of an injury in the past, and a screw is also noted in the talus, consistent with a previous surgical repair in this region in the past. The articular surface of the second metatarsal head is irregular and slightly deformed, consistent with the previous injury. A small defect is noted in the lateral malleolus. This may relate to the plaintiff’s previous surgery. The ankle and foot appear otherwise normal.
16 On 8 January 2014, an injection in the right talonavicular joint and left sesamoid was performed.
17 On 8 January 2014, an MRI scan of the left ankle concluded:[8]
“MRI findings compatible with medial sesamoiditis secondary to an underlying bipartite morphology. No avascular necrosis.”
[8]Plaintiff’s Court Book (“PCB”) 119
The Plaintiff’s medical evidence
Dr John McCorkell, Ascot Vale Health Group
18 In October 2013, Dr McCorkell, general practitioner, confirmed that he examined the plaintiff on 12 November 2004 in relation to a left ankle injury. The injury occurred after a fall on 6 November 2004, as a result of the plaintiff’s duties as a lifeguard in a fitness centre. The plaintiff was initially diagnosed as suffering a soft-tissue ligamentous injury, and subsequent management consisted of rest, non-weight bearing, and analgesia, followed by physiotherapy and podiatry management. Her subsequent management has been under specialists, Dr Peter Braun, Mr Tim Schneider and Mr Bruce Love. Management has included ultrasound-guided steroid injection and ankle-stabilisation surgery in 2006, and post-operative physiotherapy. She was last seen at Dr McCorkell’s practice in January 2009, as she relocated to Mornington.
Dr Peter Braun
19 In October 2013, Dr Braun, sports physician, confirmed that he treated the plaintiff between July 2005 and August 2008 upon referral from her general practitioner. The plaintiff sustained an inversion injury, with typical swelling and bruising over the lateral aspect of her left ankle. She had undergone physiotherapy rehabilitation, but was aware of persistent posterolateral left ankle pain, interfering with her training, work, and physical activities in general.
20 The plaintiff underwent a corticosteroid injection which provided minimal benefit. The plaintiff reported that she was forced to give away her cross-country running, and surf-lifesaving, in addition to significant lifestyle and work activity restriction.
21 Dr Braun diagnosed:
· chronic Freiberg’s osteochondritis of the left second metatarsal head
· left ankle lateral ligament instability
· secondary tendinopathy of the left peroneus brevis and longus tendons.
22 Dr Braun referred the plaintiff to Mr Tim Schneider, foot and ankle surgeon, who proceeded with a left ankle and subtalar stabilisation, split peroneus brevis tendon graft, and second metatarsal osteotomy to deal with the Freiberg’s infraction.
23 When the plaintiff was last seen by Dr Braun, he said the plaintiff demonstrated good progress with her rehabilitation, achieving restoration of 75 per cent lunge range, and remaining free of metatarsalgia. She was walking without a limp, but not yet running. He said there were unresolved sequelae from the original work-related left ankle lateral ligament injury. Recurrent lateral ankle pain and swelling was impacting on her work capacity due to her decreased tolerance for standing (three hours), limited walking distance and inability to resume running. Her inability to stand for shifts of five hours prevented resumption of pre-injury work. She had qualified as a personal trainer, but remained unable to undertake employment in that capacity due to her limitations.
Mr Tim Schneider
24 In August 2006 and 2007, Mr Schneider, surgeon, confirmed the plaintiff underwent physiotherapy and corticosteroid injections, but had recurrent episodes of instability both in and out of work. She was initially treated conservatively, including strapping, and underwent ankle and subtalar joint reconstruction in July 2006. While having her ankle reconstructed, she had a minor procedure performed on her second toe for an unrelated incidental matter, which was of convenience.
25 Mr Schneider reported that the plaintiff was still having difficulty with the third toe of the left foot, and that she required a Helal osteotomy, which is a simple displacement osteotomy of the third toe to alleviate the pain.
Mr Bruce Love
26 In September and December 2007 and August 2013, Mr Love, orthopaedic surgeon, reported on the plaintiff. In September 2007, Mr Love reported that osteotomy of the third metatarsal of the left foot was required. He opined that the symptoms in her left foot developed as a result of her inability to use an orthotic, which was a consequence of her undergoing an ankle reconstruction.
27 In August 2013, Mr Love reported that, on 26 March 2008, a Helal osteotomy of the third ray of the left foot was performed. On 15 April 2008, the plaintiff returned to report that her foot had been trodden upon and this had caused the wound to burst. As a result, the wound was slow to heal, but at last review in May 2008, she reported being pain-free and comfortable. She had not been seen since that time.
Mr Andrew Wynd
28 In November 2008, Mr Wynd, physiotherapist, reported to the defendant’s insurer that he had been treating the plaintiff and, at last review in October 2008, she was generally doing well. She was jogging up to 15 minutes with no pain, and had no pain with general activities of daily living, and seemed motivated. He thought she could return to sporting activities slowly, but would likely have some permanent mechanical change in her foot that could cause problems of a degenerative nature in the future.
29 In relation to a return to previous employment as a personal trainer and lifeguard, he thought the plaintiff would be limited in high level exercises that her personal training role required. In particular, repeated jumping, hopping and sprinting activities. He thought she could perform full lifeguarding duties. He recommended she continue with a general strengthening and condition program and manage her symptoms herself.
Mr Matthew Mollica
30 Mr Mollica, podiatrist, provided reports dated 28 October 2009, 15 February 2010, 25 November 2011 and 16 July 2013. Mr Mollica confirmed that he treated the plaintiff since November 2003 when she had been diagnosed with Freiberg’s osteochondrosis at the head of her left second metatarsal.
31 In March 2008, the plaintiff consulted Mr Mollica after having suffered from an ankle injury whilst at work in November 2004. She was prescribed replacement foot orthotics in late 2008. She sustained a left ankle sprain in early August 2009. Mr Mollica diagnosed a marked sprain with the potential of concurrent bone damage.
32 The plaintiff returned in November 2011 as a result of sustaining a right fibular fracture whilst rollerblading on 28 August 2011. Mr Mollica noted the plaintiff walked with a limp, but demonstrates a healing right lateral ankle incision. In July 2013, Mr Mollica confirmed the plaintiff still wears prescription foot orthotics.
Dr Mohamed Elsiwy, Beach End Medical Clinic, Mornington
33 In June 2011, Mr Elsiwy, general practitioner, treated the plaintiff. He confirmed the plaintiff suffered an injury when working as a lifeguard. She rolled her left ankle, which was in a plaster cast for ten days. She underwent physiotherapy and made a good recovery, but was not totally pain-free. Earlier, her same ankle was diagnosed with Freiberg’s disease which affected her left second metatarsal and required orthotics. She was unable to continue wearing her orthotics because of her ankle injury. She complained of ongoing lateral pain in her left ankle, was seen by Dr Peter Braun in 2005, and received injections which provided short-term relief. She sustained another injury when she stepped on a wet surface, which did not cause any further injuries. She had ongoing pain in her left ankle and consulted Mr Tim Schneider, who performed a peroneus brevis reconstruction and left second Weil’s osteotomy in July 2006. She underwent physiotherapy with a good recovery. She began to notice pain in her third metatarsal and had surgery to the third metatarsal performed by Mr Bruce Love in 2008 with some improvement, but with persistent tingling between her toes.
34 In July 2009, the plaintiff rolled her left ankle which was put in a cast. She developed ongoing pain in her left ankle and was unable to drive for long distances. She underwent injections to her left ankle in January 2010. An MRI scan was performed which showed bilateral ankle impingement. Mr Otis Wang, surgeon, performed an arthroscopy and debridement of her left ankle gutter and synovitis. She underwent physiotherapy. She is doing well after her last surgery, and did not report further exacerbation of her pain until that present time.
Dr Cheryl Jeffery, Beach End Medical Clinic, Mornington
35 In August 2013 and June 2014, Dr Jeffery, general practitioner, reported that the plaintiff’s left ankle experienced a flare up of pain which she thought might be because of the problems with her right ankle, hence she had been favouring the left. Dr Jeffery said the plaintiff was to undergo an arthroscopy in the near future, which she anticipated would give relief to the right ankle and relieve the pressure on the left ankle. She said the plaintiff was unable to take part in sport because of the left and right ankle pain. She could not stand for long periods, which affects her work prospects. She is able to perform activities of daily living, but suffers pain in the left ankle whilst doing so.
36 In June 2014, Dr Jeffery reported that the plaintiff had been reviewed by Dr Sallipuram, anaesthetist and pain medicine specialist, in regard to her bilateral ankle pain. He suggested she undergo pain management and pain rehabilitation care with Dr Terrence Lim.
Mr Otis Wang
37 In February 2011 and September 2013, Mr Wang, foot and ankle orthopaedic surgeon, provided medical reports relating to the plaintiff. Mr Wang reported that the plaintiff had been diagnosed with Freiberg’s disease of the left second metatarsal head preceding her ankle injury and had been wearing orthotics to support the left second toe. She was unable to continue with the orthotics because she suffered an ankle injury while working as a lifeguard with the defendant. She was in a cast for approximately ten days and a hairline fracture of the tibia was diagnosed. She underwent physiotherapy. She received injection treatment from Dr Peter Braun in 2005, which provided short-term relief. Shortly thereafter, she reinjured her left ankle whilst at a swimming pool when she stepped on a wet surface. She did not sustain new injuries with this incident. She had ongoing lateral ankle pain and was referred to Mr Schneider, who performed a peroneus brevis tendon reconstruction and a left second Weil’s osteotomy to the metatarsal in July 2006. She was playing sport with minimal pain and without restriction.
38 The plaintiff underwent a third Weil’s osteotomy to the metatarsal performed by Mr Bruce Love in 2008. She made a good recovery; however, she had persistent tingling between the third and fourth toes.
39 In July 2009, the plaintiff re‑rolled her left ankle. She was in a cast for two days but, since then, had ongoing pain in the left ankle and was unable to drive for long distances.
40 In January 2010, the plaintiff underwent further injections to her left ankle which provided four to five days of relief. She was prescribed prednisolone. She described persisting pain in her left ankle, mainly in the lateral ankle joint. She reported being significantly compromised by the pain.
41 In March 2010, Mr Wang performed a left ankle arthroscopy and debridement of the lateral ankle gutter and synovitis. After surgery, she attended physiotherapy.
42 In May 2010, Mr Wang reported to the plaintiff’s general practitioner that six weeks after her left ankle arthroscopy and debridement, the plaintiff had no pain and no instability. She was able to run 50 metres on the weekend with an ankle brace without problems. Mr Wang’s opinion was that the injury to the left ankle sustained at work initiated a whole chain of events of multiple therapies, surgeries and re‑injuries.
43 In August 2011, the plaintiff injured her right ankle when rollerblading. She underwent tibular plate fixation at Frankston Hospital under Mr Large. She returned to Mr Wang in February 2012. Despite continuing physiotherapy, she complained of ongoing pain in the lateral ankle. Mr Wang said the plaintiff had ongoing anterolateral impingement of the right ankle. He recommended an ultrasound and cortisone injection, as well as a CT scan to rule out any osteochondral lesion, which were performed.
44 On 19 March 2012, the plaintiff underwent a right ankle arthroscopy and lateral ligament reconstruction with peroneal tenodesis. She was placed into a Cam walker and was to remain non-weight bearing. She commenced rehabilitation in November 2012. Mr Wang referred her for an ultrasound and cortisone injection as she reported impingement pain.
45 In December 2012, the plaintiff was seen with medial impingement pain, as well as tib-post-tenosynovitis. She required a further ultrasound-guided cortisone injection.
46 Mr Wang’s evidence to the Court was that in January 2014, he organised a further MRI scan of the left ankle. It showed two major findings. First, it showed a condition called medial sesamoiditis, namely under the big toe of the left foot there was inflammation of a small bone that sits underneath the metatarsal head. The small bone had an underlying split. The MRI showed an acute change to that separation with inflammation. He said the split was a congenital condition; however, the sesamoiditis, and the changes on the MRI are not congenital. That points to more of an acute inflammation. Further, the MRI showed there was some hyperintensity within the ankle joint, consistent with post-surgical change which may signify some ongoing granulation tissue synovitis or inflammation and scar tissue in the ankle joint itself.[9] He said it is highly likely that the issues raised by the current MRI are related to the initial injury in 2004. Mr Wang said the plaintiff had previous surgery to the ankle, she has had a similar problem of inflammation which was operated on. The recurrence of a similar type of inflammation in the ankle in conjunction with the forefoot condition is consistent with the original injury and surgery that she had. He said the condition can fluctuate over a lifetime and there is a risk of chondral damage and arthritis long-term. The treatment for a person under sixty years of age would be an ankle fusion.
[9]Transcript (“T”) 3, 17 October 2014
47 Mr Wang said the chances of the plaintiff requiring an ankle fusion depended on the inherent risk of developing degeneration of the cartilage from the original injury. If she has ongoing instability, then she is more likely to accelerate the process. He did not delineate ongoing instability in the examination but said she had a condition of functional instability. That is, there is a natural inclination when someone has an injury to favour that ankle, and to get functional instability which can lead to ongoing impingement and synovitis. The latest MRI scan shows a degree of recurrence of the scar tissue inflammation, and she is likely to have functional instability.[10] He recommended a further cortisone injection. If that does not assist, then a repeat arthroscopy can be considered. Mr Wang’s evidence was the plaintiff has inflammation in the big toe which is acute. The plaintiff has a bipartite sesamoid which is congenital, but because of the left ankle and forefoot issues, the left ankle issues have increased the loading in the region of the congenital bipartite sesamoid, with the result that she has micro-instability and inflammation in the big toe which is acute.[11]
[10]T15, 17 October 2014
[11]T7, 17 October 2014
48 In cross-examination, Mr Wang said, in response to a question about the relationship of the 2004 injury with the 2009 injury, in his experience, if you have a significant injury to an ankle, requiring surgery, it is natural to favour that ankle.[12] He said it was arguable that if the plaintiff did not have the initial injury in 2004, she may not have injured her ankle again.[13] He believed she was predisposed to re-injure her ankle.[14]
[12]T14, 17 October 2014
[13]T16, 17 October 2014
[14]T16, 17 October 2014
49 In cross-examination, Mr Wang was asked whether the 2010 surgery was more related to the 2009 injury or the 2004 injury. He said the two are interrelated. In 2004, the plaintiff had a peroneal reconstruction. She had ongoing impingement. An arthroscopy was performed with a good result. Then she returned with sesamoid abnormal loading.
50 Mr Wang said when the plaintiff consulted him in 2012, he concentrated on the right ankle. The plaintiff did not complain about the left ankle. When he last saw the plaintiff, subsequent to his report in 2013, the plaintiff described left-sided symptoms along the sesamoid.[15]
[15]T25
51 In re-examination, Mr Wang said the right ankle injury has caused complications in managing the left ankle, in that six weeks of non-weight bearing and gradual weight bearing would put her left side more at risk. This is supported by the MRI finding of January 2014.
52 Mr Wang said the sesamoid problem in the left foot is difficult to manage, given her ankle injury. He would be reluctant to excise the sesamoid, because this can cause transfer loading to other parts of the forefoot and because of her previous history.
53 It was Mr Wang’s opinion that the plaintiff’s injury to her left ankle sustained at work initiated a whole chain of events with multiple therapies, surgeries and re-injuries. He said her future capacity for work would be guarded, given her history of re-injury.
Mr Stuart Imer
54 In September 2010 and July 2013, Mr Imer, physiotherapist, provided medical reports relating to the plaintiff’s treatment. In 2010, Mr Imer confirmed he treated the plaintiff following her surgery in March 2010. He confirmed that he had previously seen the plaintiff after her foot surgery in 2008, whilst her usual practitioner at that time was on leave. In 2010, he confirmed that he saw no reason why the plaintiff could not continue her role as a sports trainer or gym-based training. He said her recent ankle function was excellent (referring to her left ankle).
55 In 2013, he confirmed that he had not treated the plaintiff since September 2012.
Peninsula Health
56 In September 2013, the hospital reported that the plaintiff attended the Emergency Department on 28 August 2011, after having twisted her right ankle while falling off her skateboard. The plaintiff was transferred to the Frankston Hospital and underwent an open reduction and internal fixation of her right ankle fracture by Mr R Large. The procedure was uncomplicated and she was discharged home with crutches. She made good progress and was referred for physiotherapy.
57 In November 2011, the plaintiff was advised to continue physiotherapy. She had not been seen at the hospital regarding the right ankle fracture.
Ms Fiona Senini
58 In February 2013, Ms Senini, physiotherapist, confirmed that she treated the plaintiff in respect to her left ankle injury on 13 January 2012 and 3 January 2013. The plaintiff provided a history of injuries to the left and right ankles. She reported she was managing relatively well until she injured her right ankle in August 2011. She then increased the load through her left ankle which caused the pain to return.
59 The plaintiff complained of ongoing issues around the left foot and ankle, which made it difficult for her to be on her feet for any length of time. This caused an inability to work in certain jobs or areas of the workforce. She reported having to resign as a lifeguard and swim instructor, as she was required to stand for eight-hour shifts.
60 Ms Senini said the plaintiff was able to work in some capacity; ideally, in a role where she is seated most of the time. If she was involved in a job that required mainly standing, she would require regular breaks when needed. Currently, she was employed in work experience in a factory which required her to be on her feet for quite a bit. The plaintiff reported pins and needles which then turns into pain.
61 Ms Senini said the plaintiff has weakness and loss of range of movement in her left ankle. Without treatment, this may continue to deteriorate and cause more pain. The plaintiff must work on improving her ankle function and settle the pain, otherwise she will be restricted in any work capacity.
62 The plaintiff reported severe night pain in her left foot and ankle, making sleep difficult. She often sleeps with an icepack to help settle the pain and swelling. If she cannot improve her sleep, this will affect her ability to work effectively.
Dr Clayton Thomas
63 In March 2014, Dr Thomas, consultant in rehabilitation and pain medicine, treated the plaintiff on referral from Dr Jeffery in respect to both ankles. He reported on examination, the plaintiff complained of constant pain at 7 out of 10 at worst, 2 out of 10 at best, 4 out of 10 on average.
64 Current medication included Lumin, an anti-depressant, and Panadol Osteo. The plaintiff described a high degree of interference with daily functioning:
· 9 out of 10 for affecting mood, walking and sleeping
· 10 out of 10 for enjoyment of life
· 8 out of 10 for relating to other people
· 7 out of 10 for normal work; and
· 6 out of 10 for general activity.
65 The plaintiff reported that inactivity, elevation, heat or cold packs were helpful. The pain was worse first thing in the morning or when she put her foot down after sitting for any length of time. She reported significant weight gain and was booked in for a gastric sleeve at the end of March 2014. He said she presented as a reliable historian. Dr Thomas said the plaintiff sustained an injury, initially to her left ankle at work requiring a number of surgical interventions in view of persistent pain. She also had a number of cortisone injections into the left foot and ankle.
66 Complicating the left ankle injury was an injury to her right ankle when she was at a roller derby in which she apparently dislocated the right ankle. She required surgery, leaving her with ongoing pain into the right foot and ankle. Dr Thomas said the plaintiff has bilateral pain in both feet and ankles and he thought there was an overriding Pain Syndrome. There is a degree of degenerative problems in both feet and ankles. He said she warranted a multi-discipline pain management rehabilitation approach.
Mr Michael Fogarty
67 Mr Fogarty, orthopaedic surgeon, examined the plaintiff in July 2013 and March 2014 at the request of the plaintiff’s solicitors.
68 In March 2014, the plaintiff reported that her left ankle and foot was “alright”, but that she had good and bad days with it, particularly, when she first put her weight on it and when she was getting out of a car. The most painful spot was over the sesamoid bone under the first metatarsophalangeal joint. Mr Fogarty diagnosed a lateral ligament injury to the left ankle requiring reconstruction plus aggravation of pain in the thickened metatarsal head (the second toe), treated by second metatarsal neck osteotomy. A third metatarsal neck osteotomy was carried out. A further operation on the left ankle involved removal of an interior osteophyte from the distal tibia and clearing the lateral gutter.
69 It was Mr Fogarty’s view that the diagnosis was consistent with the stated cause; namely, the lateral ligament injury of the left ankle. He said the plaintiff is restricted in the footwear she can wear and the period of time standing, and has difficulty with walking for long periods. He said she could wear runners with orthotics. She cannot wear high heels. She is not able to run at any speed. He said the restrictions are permanent and likely to last for the foreseeable future. He was of the view that the restrictions and injury impact on the plaintiff’s lifestyle and activities of daily living. He thought it was possible that her condition will deteriorate over time. He said the injury the plaintiff suffered can be considered significant for such a young person, having a significant effect on her ability to participate in and enjoy active sport. Further, it may also be affecting her ability to find suitable employment.
70 The prognosis for the plaintiff’s left ankle and foot remains fair. No further medical treatment is required at present except for the mild analgesia, which she requires from time to time.
Mr Clive Jones
71 In March 2010, Mr Jones, orthopaedic surgeon, examined the plaintiff at the request of the defendant’s insurer. He said ankle reconstruction is by no means a benign procedure and he thought the original injury, in November 2004, was still a significant contributing factor. He said there was less than satisfactory function in the left foot and ankle which prevents a number of activities, including running and involvement with sport. He expected, in the longer term, that she will continue to experience at least some degree of pain and restriction in her left ankle and foot, which he was unable to quantify.
72 Mr Jones said the fact that the plaintiff did have another sprain in 2009 is indicative of the fact that she has a vulnerable ankle and foot in which the 2004 injury remains a significant feature.
The Defendant’s medical reports
Mr Robert Marshall
73 In October 2007, Mr Marshall, surgeon, examined the plaintiff at the request of the defendant’s insurer. The plaintiff made a WorkCover claim in respect to severe pain in the region of the heads of the third and fourth metatarsals of the left foot.
74 The plaintiff was referred to Mr Bruce Love, orthopaedic surgeon, who requested approval for an MRI examination of the left foot to investigate persistent pain in the metatarsal heads. He also requested approval for the performance of a metatarsal osteotomy of the third metatarsal. Mr Love stated that, in his opinion, the current symptoms in the plaintiff’s foot have developed as a consequence of her inability to use orthotics after her ankle reconstruction by Mr Schneider.
75 Mr Marshall said her present problems are a direct consequence of the shortening of the second metatarsal performed by Mr Schneider. Her third metatarsal is now taking the brunt of the weight, and it is for this reason Mr Love wishes to do an osteotomy on that bone. Mr Marshall’s opinion was that it was a perfectly reasonable procedure, but he said it was not related in any way to her original ankle injury. He said it could take up to three months to recover after the proposed surgery. He believed the nature of her highly arched feet was, in the first place, the reason Mr Schneider decided to perform an osteotomy on the second metatarsal, which he regarded as an unrelated incidental matter.
Mr Clive Jones
76 In December 2010, Mr Jones, orthopaedic surgeon, examined the plaintiff at the request of the defendant’s insurer. He said the plaintiff had an ankle reconstruction for instability which seems to be successful. She has had osteotomy procedures on the forefoot which do not appear to have been particularly helpful. He said it was unlikely that the plaintiff will ever regain full and normal function in her left foot. He said, in relation to employment, the plaintiff does not have normal function in her left foot and she will never achieve it. She could perform modified pre-injury duties. He said she was unable to return to full-time employment as a sports trainer. He believed a swimming pass and gymnasium program would be useful in self-help.
Mr Peter Scott
77 In September 2011, Mr Scott, surgeon, examined the plaintiff at the request of the defendant’s insurer. Mr Scott diagnosed a lateral ligament injury to the left ankle as a result of a work accident in November 2004, and aggravation as a result of a further accident in 2009, resulting in instability to the ankle joint requiring two operations, the first in July 2006 and the second in February 2010, when a left ankle arthroscopy showed evidence of a large anterior spur in the distal tibia causing impingement. Following the 2010 operation, the plaintiff had marked improvement with minimal ongoing calculable organic disability. He said that any aggravation of her pre-existing osteochondritis of the second metatarsal of the left foot, which may have occurred as a result of the ankle injury, has now resolved.
78 Mr Scott’s prognosis was that the plaintiff had made an excellent recovery from her unstable ankle and she should have no further troubles with this joint. He said her condition had stabilised and no further treatment is recommended. He thought she would be minimally inconvenienced.
Associate Professor John A L Hart
79 In July 2012 and September 2013, Associate Professor Hart, surgeon, examined the plaintiff at the request of the defendant’s insurer. He said the plaintiff injured her left ankle in 2004 when working as a swimming instructor and lifeguard with the defendant. Prior to that, she was diagnosed with Freiberg’s disease affecting the second left metatarsal head, which is a condition of avascular necrosis of the second metatarsal head of unknown aetiology.
80 Associate Professor Hart said that the plaintiff is suffering from a resolved lateral ligamentous disruption and lateral impingement of the left ankle. She has full mobility in the left ankle and hindfoot with a stable ankle. It was his opinion the left ankle condition was stabilised.
81 Her metatarsalgia has resolved, except for her medial sesamoid pain. He said she was suffering from pre-existing Freiberg’s disease of the left second metatarsal head, which was aggravated by her inability to wear insoles following the ankle injury and the treatment for that condition was accepted. He said she complained of pain over the first metatarsal head which has been diagnosed as being from the medial sesamoid. She has bipartite sesamoid which is not related to her injury. The plaintiff reported mild numbness in the interspace between the third and fourth toes on the dorsum of the left foot, which he said is presumably a traction injury to the digital nerve of that interspace during the initial operation. It only caused a minor disability. The numbness in the foot is related to the original injury as an operative complication.
82 The plaintiff made an excellent recovery from the lateral reconstruction and the arthroscopic procedure carried out for the impingement of the left ankle. He said the plaintiff was mildly obese and it would be advisable for her to lose weight as this may be a factor in causing persistent pain. He noted she was currently completing a Master’s degree in biotechnology.
83 In July 2012, Associate Professor Hart said the operation performed on 24 February 2010 in respect to the plaintiff’s left ankle joint was a synovectomy and clearance from the lateral recess of the ankle of scar tissue presumably related to the reconstruction performed in July 2006. It was appropriate treatment. He thought it was possible that a football injury in 2009 aggravated a pre-existing situation due to lateral impingement. He thought it unlikely the anterior spur was directly related to the lateral ligament injury and was not responsible for the impingement.
84 In September 2013, Associate Professor Hart examined the plaintiff. It was his view the plaintiff’s left foot and ankle had not significantly changed since he last saw her. Her symptoms remained unchanged, although she reported they were a little worse because she is relying more on her left foot because of right foot problems.
85 It was his opinion the plaintiff had made an excellent recovery from her left ankle surgery. Her impingement pain had been relieved and she did recover full mobility in the ankle and hindfoot. The metatarsalgia over the second and third metatarsal heads had been relieved, although she had persistent discomfort over the medial sesamoid. She had an altered sensation over the dorsum of the left foot which he could not explain. It was his opinion the altered sensation on the dorsum of her foot is a complication of the treatment carried out for the accepted injury and therefore is directly related to the work injury. She has an ongoing problem with the right ankle. The right ankle influences her ability to walk, stand and drive for prolonged periods. From his point of view, her left ankle and foot had recovered full mobility and her left ankle is stable. She has a full capacity for work with respect to the left ankle alone. She may be limited in activities which involve prolonged standing and walking because of the problems with her right ankle.
Mr Otis Wang
86 In May 2010, Mr Wang, orthopaedic surgeon, reported to the plaintiff’s general practitioner that six weeks after her left ankle arthroscopy and debridement, the plaintiff had no pain and no instability. She was able to run 50 metres on the weekend with an ankle brace without problems.
Dr Cheryl Jeffery
87 In August 2013, Dr Jeffery, general practitioner, reported that the plaintiff had a flare up of right ankle pain and had been referred to Dr Wang for further assessment.
Credit
88 The plaintiff answered all questions put to her in a direct and frank manner. She made appropriate concessions. She agreed the pain to her ankles – left and right – was about the same.[16] She gave her evidence without embellishment, and appeared straightforward in her presentation. Whilst counsel for the defendant was critical that she had not referred to playing touch football in her affidavit, given her age at the time of injury and the time that has elapsed since injury, I do not consider that affects her credit. Counsel for the defendant raised with her, the failure to refer to her right ankle injury in her first affidavit. The plaintiff’s evidence was that she thought the claim related to her left ankle injury, and she disclosed the fact she had the Freiberg’s condition because it affected the left foot. Further, her right ankle was in a cast when she saw her solicitors, and her solicitors were well aware of the right ankle injury. The plaintiff referred to her right ankle injury in her second affidavit. I accept there can be no attack on the plaintiff’s credit for not disclosing the right ankle injury until the second affidavit. Overall, she appeared to me to be a genuine witness. I note that Mr Thomas said the plaintiff presented as a reliable historian. Mr Scott described the plaintiff as genuine and well motivated.
[16]T49, L7
Analysis of the evidence
89 It was not in dispute that the plaintiff suffered a work-related injury to the left ankle in the nature of an initial inversion injury. What is in issue is the relationship of the work injury in November 2004 to her current presentation.
90 Counsel for the defendant submitted that the consequences attributable to the 2004 injury resolved by July 2009, with the intervention of a new injury when the plaintiff rolled her ankle in a hole on the football field. Alternatively, the evidence demonstrates sufficient resolution of symptoms in the left ankle, such that there were no serious injury consequences ongoing as at August 2011 when the plaintiff injured her right ankle. Finally, counsel submitted that if I did not find for the defendant on the above issues, then the consequences of the 2004 injury are not “serious” within the statutory definition.
91 I must make the assessment at the time of hearing the application. Accordingly, I place greater weight on the most up-to-date medical evidence of Dr Jeffery, Mr Wang, Ms Senini, Dr Thomas, Mr Fogarty and Associate Professor Hart.
92 The up-to-date medical evidence is that the left ankle/foot injury continues to be a cause of the plaintiff’s current presentation which is not just an ankle problem, but also part of the ball of the joint under the big toe.
Injury in 2004 and re-injury in 2009
93 Following on from the work injury to the left ankle in November 2004, on 25 July 2006, the plaintiff underwent a left ankle and subtalar joint reconstruction performed by Mr Schneider, orthopaedic surgeon.
94 The plaintiff’s evidence was that sport had always been her passion. After the 2004 injury, she could not return to her pre-injury work, but worked lighter duties. She underwent various medical procedures. She suffered ongoing pain and was taking pain relief for her ankle, and attending physiotherapy. In 2007, she trained and played football, her ankle was strapped and she took painkillers. She was taken off the field due to her ankle injury. She ceased playing football.
95 In August 2008, Dr Braun reported that there were unresolved sequelae from the original work-related left ankle lateral ligament injury. He said the recurrent lateral ankle pain and swelling was impacting on her work capacity due to decreased tolerance for standing (3 hours) and walking, limited walking distance, and inability to resume running. Her inability to stand for shifts for 5 hours had prevented her return to pre-injury work. The plaintiff had qualified as a personal trainer, but was unable to work in that capacity due to these limitations. The plaintiff’s evidence was she was exempted from the practical components of the course.
96 In December 2008, Mr Mollica, the plaintiff’s podiatrist, confirmed the plaintiff was unable to do any degree of physical activity owing to left foot pain. Between 2007 and 2008, she was a volunteer trainer for the Port Melbourne Football Club. She was put in an area near the forward pocket to minimise the running she had to do. She strapped her ankle when doing this activity, her ankle was very sore afterwards and she would ice her ankle after every weekend. I accept that immediately prior to July 2009, the plaintiff was suffering pain in her left ankle.
97 Accordingly, I accept that by the time the plaintiff rolled her left ankle in July 2009, she was still experiencing the consequences of the 2004 work injury.
98 In July 2009, the plaintiff suffered a further inversion injury to the left ankle when playing football. She underwent further left ankle injections in January 2010. In February 2010, Mr Wang, orthopaedic surgeon, performed a left ankle arthroscopy.
99 The medical evidence was that by 2009, the plaintiff had already undergone two surgeries to the left ankle and she had a vulnerable ankle. I rely upon the evidence of Mr Wang, treating orthopaedic surgeon. Mr Wang’s evidence was that following the original left ankle injury, the plaintiff was predisposed to re-injure that ankle. Mr Wang said it was arguable that if she did not have the initial injury in 2004, she may not have injured her left ankle again in 2009. In re-examination, Mr Wang said that if a patient has a reconstruction, there is a higher risk, than in the general population, to re-injure it. He confirmed that in talking of re-injury, he was also talking about ordinary activities of daily living that in a healthy or sound ankle may not cause injury at all.
100 This was supported by the earlier evidence of Mr Jones, orthopaedic surgeon, in 2010. Mr Jones said the fact that a worker did have another strain in 2009, is simply indicative of the fact that the plaintiff had a vulnerable left ankle and foot in which the 2004 injury remains a significant feature. In his report of 6 March 2010, Mr Jones notes the plaintiff ruptured her lateral ligament complex in her ankle in 2004, which led to chronic instability and subsequent ankle reconstruction. He said “ankle reconstruction is by no means a benign procedure and I imagine the original injury in November 2004 is still a significant contributing factor” and that in the longer term, “she will continue to experience at least some degree of pain and restriction in her left ankle and foot”. He said that “the 2004 injury is still contributing, at least in part, to the less than satisfactory function in this lady’s foot and ankle”.
101 The evidence of Mr Wang (the treater) is that the plaintiff’s left ankle injury sustained at work initiated a chain of events with multiple therapies, surgeries and re-injuries, prior to the unrelated right ankle injury. I now turn to examine additional events and circumstances.
102 In 2010, Mr Wang conducted a left ankle arthroscopy, debridement and synovectomy. In cross-examination, Mr Wang gave evidence about the need for the surgical treatment in 2010. The exchange was as follows:
Q:“The need for that surgery [in 2010] arose out of the injury suffered in July 2009 more so than in November 2004?---
A:Well, once again they’re inter-related, aren’t they? So 2004 – well, she has had the previous peroneal reconstruction. Then she has seen me, she has had a complication of that, she’s got ongoing impingement; she has had the arthroscopy; she has had a good result from that and then some time later she has come back with sesamoid abnormal loading, so they are all inter-related.”[17]
[17]T32, L5-14
103 In July 2012, Associate Professor Hart expressed the view that the surgery performed in February 2010 presumably related to the reconstruction performed in July 2006. He said it was possible that the football injury in 2009 aggravated a pre-existing situation due to the lateral impingement.
104 In view of the evidence of Mr Wang, Mr Jones and Associate Professor Hart, I accept the injury in 2004 continued to be a significant contributor to the plaintiff’s presentation in 2010 as to her need for an arthroscopy, debridement and synovectomy to the left ankle.
105 It follows from the above that I do not accept the submission of the defendant that the consequences attributable to the 2004 injury resolved by July 2009.
The right ankle injury
106 In August 2011, the plaintiff suffered a rollerblading injury to her right ankle and underwent a fibular plate fixation at Frankston Hospital.
107 The plaintiff’s evidence in October 2011 was that she continued to suffer ongoing left ankle pain, worse in the morning, for which she was taking medication, and it was limiting her in her sporting activities.
108 In March 2012, Mr Wang performed a further right ankle arthroscopy and lateral ligament reconstruction.
109 The plaintiff reported to a number of medical witnesses[18] that after she injured the right ankle, she increased the load through her left ankle which caused pain the left ankle/forefoot.
[18]Ms Senini, Dr Jeffery, Mr Wang and Associate Professor Hart
110 Mr Fogarty was aware of the plaintiff’s right ankle surgery, which he regarded as separate.
111 In September 2013, Associate Professor Hart reported that her symptoms were a little worse, because she was now relying on her left foot because of the injury to the right foot.
112 I accept the plaintiff experienced increased problems and pain in her left ankle/foot, due to her increased loading on the left ankle and foot at the time that her right foot was injured.
Altered sensation
113 In September 2013, Associate Professor Hart noted an altered sensation over the dorsum of the left foot, which he believes was a complication of the treatment carried out for the injury sustained at work and was therefore directly related to the work injury.
114 In cross-examination, Mr Wang was asked if numbness between the third and fourth toes was related to the ankle injury in 2004. Mr Wang said:
“Well, once again, it’s sequence of events and likely causal probabilities. What is known is she has had multiple surgeries in the forefoot and it is up to the Court to decide whether that was related to her ankle injury. It is my view that the ankle injury exacerbated her forefoot. She has some residual symptoms of numbness in terms of function. This may be satisfactory for her level but the fact of the matter is she still has some (indistinct) in the forefoot but it is my view that if someone has an ankle problem, it can cause abnormal biomechanics and it can increase the load of her forefoot. Even though the two were initially unrelated, once those two came together at the time of surgery, thereafter they are inter-related.”[19]
[19]T31, L11-24, 17 October 2014
115 Based on the evidence of Associate Professor Hart and Mr Wang, I accept that the plaintiff’s complaint of altered sensation over the dorsum of the left foot and numbness was directly related to the work injury.
Pre-existing condition: Freiberg’s disease
116 It was accepted that the plaintiff had a pre-existing condition known as Freiberg’s disease. Specifically, she suffered chronic Freiberg’s osteochondritis of the left second metatarsal head.
117 The evidence of Mr Wang and Mr Love was that the Freiberg’s disease was aggravated by the plaintiff’s inability to wear orthotics following the left ankle injury and treatment. The plaintiff reported to Associate Professor Hart that she was unable to wear an orthotic as a result of her left ankle injury, which resulted in an aggravation of pain in her forefoot.[20]
[20]PCB 7
118 Mr Schneider surgically treated the left ankle and the second toe. He stated that the second toe was an unrelated, incidental matter. However, Mr Schneider makes no reference to the plaintiff’s inability to wear orthotics following her left ankle injury. Mr Marshall reviewed the comments of both Mr Love and Mr Schneider. Mr Marshall believes the surgical treatment of the second toe was unrelated to the injury to her ankle, and is actually the result of the plaintiff’s arched feet.
119 As to the Freiberg’s disease, I prefer the evidence of both Mr Love and Mr Wang, who are treaters. Both specifically address the issue of the plaintiff’s inability to wear orthotics for a period of time as a result of the 2004 injury, and clearly state that this resulted in an aggravation of the pre-existing Freiberg’s disease.
Other circumstances
120 Mr Wang’s evidence to the Court was that an MRI scan was conducted in January 2014 of the left ankle, which showed:
(a) medial sesamoiditis and inflammation, namely, under the big toe of the left foot there was inflammation of a small bone that sits underneath the metatarsal head; and
(b) hyperintensity of the ankle joint.
121 Mr Wang considered that these issues are related to the 2004 injury. The plaintiff has had a recurrence of inflammation in the ankle, in conjunction with the forefoot condition. He said the condition can fluctuate over a lifetime and can result in an ankle fusion. Mr Wang was asked if the symptoms and changes that have occurred since 2010 (as demonstrated on the 2014 MRI evidence), were unlikely to be related to the 2004 injury. Mr Wang said, in a lifetime, biomechanics accumulate, and this could be a quick or slow process. Taking into account the timeframe of approximately ten years, Mr Wang opined that there was still an interrelationship between the 2004 injury and the symptoms and changes that occurred since 2010.
122 Counsel for the defendant submitted that the sesamoiditis results from a congenital condition due to a split in the small bone under the plaintiff’s big toe.
123 Mr Wang gave evidence that the split in the small bone under the big toe was a congenital condition. However, the sesamoiditis, and the changes on the MRI are not congenital. That points to more of an acute inflammation.[21] I accept Mr Wang’s evidence on this point. He performed the surgery on the plaintiff and reviewed the MRI scan of January 2014.
[21]T3, 17 October 2014
124 Mr Fogarty was provided with the MRI findings of January 2014. He was aware of the MRI findings outlined by Mr Wang. Mr Fogarty said it was possible that the plaintiff’s condition in respect to her left ankle will deteriorate over time. This is consistent with the evidence of Mr Wang that an ankle fusion could potentially be required in time. Mr Fogarty said the prognosis of the plaintiff’s left foot and ankle remained fair.
125 Associate Professor Hart did not review the plaintiff after 2013, so was unaware of the MRI findings of January 2014.
126 The plaintiff’s current evidence is that she continues to have symptoms in her left ankle. Mr Wang explained to her that he should treat one ankle at a time and while her right ankle was being actively treated, she should put the left ankle on hold. I can infer that the plaintiff reported left ankle pain to Mr Wang.
127 Based on the medical evidence, I do not accept the submission of counsel for the defendant that the consequences attributable to the 2004 injury resolved by July 2009, with the intervention of a new injury when the plaintiff rolled her left ankle on the football field. I also reject the submission of counsel for the defendant that the evidence demonstrates sufficient resolution of symptoms in the left ankle such that there were no serious injury consequences ongoing as at August 2011 when the plaintiff injured her right ankle. The appropriate test is whether the plaintiff has a “serious injury” as at the date of hearing.
128 I accept the plaintiff’s evidence that she has symptoms in both her left ankle and foot, and right ankle. In considering the consequences the plaintiff has suffered, in accordance with Ashley JA in Dressing v Porter & Anor,[22] it is necessary for me to decide what symptoms afflicted the plaintiff in consequence of the left ankle/foot injury, and with what effect. I have not taken into account the symptoms and consequences of the right ankle injury.
[22][2006] VSCA 215
129 In Peak Engineering & Anor v McKenzie,[23] the Court of Appeal said:
“In a case of this kind, where two different injuries are concurrently producing pain and suffering consequences for the applicant, it will ordinarily be necessary to make findings about all of the pain and suffering consequences which are operative at the date of the trial. This would seem to be an essential pre-condition to the task of deciding which of the pain and suffering consequences are attributable to which injury. The matters identified in the previous paragraph were all directly relevant to the enquiry in the present case, and needed to be addressed squarely.
It is possible to imagine a case where the consequences of the original injury are so clearly separate and distinct from the consequences of the subsequent injury that no ‘disentangling’ is necessary. But this was not such a case. As the appellants pointed out, there was evidence indicating that certain of the pain and suffering consequences which his Honour regarded as relevant were attributable to the knee injury as well as to the hand injury.”
[references omitted]
[23][2014] VSCA 67 at paragraphs [24]-[25]
Consequences
130 It is now necessary for me to determine whether the plaintiff qualifies for a serious injury in respect to the left ankle/foot alone.
Pain
131 The plaintiff’s evidence as to pain is that she continues to suffer from ongoing left ankle/foot pain which fluctuates. The pain is worse in the morning when she gets out of bed, and then tends to loosen up during the day. Towards the end of the day, the ankle becomes painful again. She needs to ice it. The plaintiff’s evidence to the Court was that the left ankle had not fully recovered before the subsequent right ankle injury.[24] She gave evidence that, prior to the right ankle injury, she was taking regular medication of antidepressants and sleeping tablets. She said the sleeping tablets were prescribed to help ease or relax her legs when she slept.[25] There was evidence she was prescribed a repeat of Voltaren tablets in August 2008.[26] Currently, the plaintiff said the right ankle pain is about the same as the left.[27] She said she has good and bad days. Some days it will be a struggle to move because of the left ankle/foot.[28] She suffers activity-based left ankle pain.[29] She said her ankle pain is made worse by standing in one spot for too long or walking for too long. She has difficulty with uneven surfaces or stairs.
[24]T47, L1, 16 October 2014
[25]T47, 16 October 2014
[26]T33, 16 October 2014
[27]T49, L7
[28]T54, L13
[29]T50, L7
132 The plaintiff reported the pain she suffered to a number of the doctors. She reported this to Mr Wang and Associate Professor Hart. Both Dr Jeffery and Mr Wang accepted the plaintiff’s complaint of pain in the left ankle.
133 The plaintiff reported to Dr Jeffery that she had experienced a flare up of pain in the left ankle. In fact, Dr Jeffery said this may be because of the problems with the right ankle, and the loading of weight onto the left ankle/foot.
134 Associate Professor Hart noted the plaintiff’s comments on this aspect. The plaintiff reported to Associate Professor Hart the symptoms of pain, swelling and numbness are sometimes worse in the left ankle than they were previously, which she attributes to taking more weight on the left. He accepted that the altered sensation over the dorsum of the foot was related to the work injury.
135 Mr Wang’s evidence was that the right ankle injury has caused complications in managing the left ankle, in that six weeks of non-weight-bearing and gradual weight-bearing put her left side more at risk. He said this was supported by the MRI finding of January 2014.
136 Dr Thomas said the right ankle injury complicated the left ankle injury, but did not specify how.
137 The plaintiff reported to Ms Senini that she suffers weakness and loss of range of movement in the left ankle. She reported to Associate Professor Hart that she suffers numbness. She told the Court that she has constant numbness in the ankle[30] and suffers a feeling like pins and needles around the scar on the left ankle.[31] These are consequences which I can take into account in respect of the left ankle/foot.
[30]T54, L13
[31]T53, L9
138 I note the plaintiff’s evidence in cross-examination is that this year, she underwent a gastric sleeve operation. As a result, she has lost between 20 to 25 kilograms. The loss of weight has taken some of the pressure off both ankles and provided some small relief in symptoms. The plaintiff said the left ankle pain is now not as bad as in 2011; however, I accept that despite her weight loss, there has only been some small relief in symptoms, and no medical witnesses have suggested the improvement is permanent.
139 I accept that pain in the left ankle/foot is a consequence that I can take into account. The plaintiff reported pain in both feet. I accept that I can only take into account the pain the plaintiff suffers in the left ankle/foot alone.
Medication
140 In March 2014, the plaintiff reported to Mr Fogarty that she was taking Panadol Osteo at the rate of about six per day, and Nurofen, usually two at the end of each day. That was before she commenced employment full-time with Nuttelex in June 2014.
141 The plaintiff’s evidence was that she works around forklifts and machinery and as a consequence, she was required to sign an agreement with her employer that she is not under the influence of any prescription medication. Normally, she takes medication on her way home from work. The plaintiff’s evidence was that she uses over-the-counter medication, three or four days per week on multiple occasions per day, usually two tablets at a time, depending on the time she spends on the factory floor. Currently, she is taking more medication than initially. She has Panadeine Forte and Endone. She last took Panadeine Forte a couple of months ago, when she first started work, as she is required to wear steel-cap boots. At the end of the day both feet were “in agony”.[32] I have considered the fact that the plaintiff also experienced pain in her right foot, but her evidence is that both feet were in agonising pain.
[32]T81, L22
142 I accept the level of pain medication is a consequence which I can take into account. I accept that the plaintiff’s left ankle/foot injury is a contributor to the pain medication she takes. I take into account, as a consequence, the pain medication the plaintiff takes as a result of the left ankle/foot alone.
Treatment
143 The medical evidence is that the plaintiff consulted Mr Wang and underwent an MRI scan in January 2004. She has received cortisone injections in respect to the left and right ankles after the MRI scan in January 2014. At her last attendance with Mr Wang, she was told the only option for her left ankle was either an ankle fusion, or an ankle replacement which she is not prepared to consider at her age.
144 Dr Thomas said the plaintiff required a multi-disciplinary pain management rehabilitation program for both the left and right ankle.
145 Dr Fogarty thought it was possible the plaintiff’s condition will deteriorate with time, but did not elaborate. At the time, Dr Fogarty thought her current treatment was appropriate, being analgesia from time to time. He hoped the gastric sleeve operation would result in weight loss which would benefit all weight-bearing joints, including the joints of her left ankle and foot. The plaintiff conceded that her left ankle pain has slightly reduced after losing weight.
146 Currently, the plaintiff consults her general practitioner monthly.
147 Mr Wang expressed future concern about the sesamoid problem. He was aware the plaintiff had a cortisone injection recently, but said there is a risk that the sesamoiditis is persistent. If this is the case, surgical options are poor. He said he would be reluctant to excise the sesamoid because of her previous history. He also gave evidence about cortisone treatment. Cortisone injections are an anti-inflammatory agent. In combination with off-loading through orthotics, there can be some improvement, but not always curative. He said the plaintiff is vulnerable to re-injury and risk of chondral damage, that is, arthritic change. I accept that the possibility of further deterioration and treatment is a consequence in respect to the left foot alone which I can take into account.
Daily activities
148 The plaintiff reported to a number of doctors that she could not stand for long periods. The plaintiff reported this to Dr Jeffery, Ms Senini, Mr Fogarty and Associate Professor Hart. Associate Professor Hart accepted this was due to the right ankle. Mr Fogarty, and Ms Senini, commented on the left ankle alone, and said she was restricted in the period of time standing. Dr Jeffery said she could not stand for long periods which affect her work prospects. It was unclear whether this was because of the left ankle alone or both ankles.
149 The plaintiff’s evidence was that she lives with her mother. Her mother suffers pulmonary fibrosis and requires care. As a consequence, she is required to perform housework duties such as hanging out the washing, doing the shopping and the like. Her evidence was that she works at a slower pace when performing housework. She said a task that should take a couple of hours could take a whole day, or she splits the task over a couple of days.[33] Due to the left ankle, she is slower in performing these chores. Once a week her mother participates in a walking group. Her mother requires bottled oxygen to exercise, and as a result, the plaintiff carries the oxygen in a backpack and goes with her mother. She does this to assist her mother, even though the walking aggravates the pain in her left ankle/foot.
[33]T75, L5-8
150 The plaintiff’s evidence to the Court is that she owns a dog, but she is unable to provide the dog with the physical activity it needs due to the pain and discomfort in her left ankle/foot. She takes her dog to the leash-free park where her dog can run about while she is seated. On occasions she will walk in the park with the dog, while on other occasions she will just sit down.[34] I accept that her inability to freely participate in physical activity with her dog is a consequence I can take into account.
[34]T55
151 Mr Fogarty accepted that the plaintiff would be restricted in walking for long periods because of the left ankle alone. He accepted that this restriction would impact on the plaintiff’s lifestyle and activities of daily living. Dr Jeffery said the plaintiff is able to perform activities of daily living but suffers pain in the left ankle.
152 I accept that the plaintiff’s daily activities are affected by the left ankle/foot injury and the right ankle injury, and this is a consequence I can take into account insofar as it is contributed to by her left ankle/foot alone.
Sport
153 The plaintiff’s evidence was that sport had been a very important part of her life. Her evidence to the Court was that she was as active as possible before suffering the left ankle injury in 2004. At weekends, she was always at sport.[35] She said she would always go for a run. As motivation, she used “all the bad stuff” (family and school problems), as motivation to push through a training session.[36] A number of the medical witnesses referred to the plaintiff’s enjoyment of playing sport. The plaintiff’s evidence to the Court was that she loved her involvement with the Port Melbourne Football Club, it “brought me so much joy”.[37]
[35]T77, L23
[36]T76, L4-10
[37]T76, L20-23
154 The plaintiff injured herself when she was working for the defendant after school and at weekends. After her injury, she qualified as a personal trainer. Following her first surgery with Mr Schneider, the plaintiff returned to work with the defendant doing casual light duties as a receptionist. She worked reduced hours. She could not return to her former employment position because of her left ankle/foot injury.
155 The plaintiff’s evidence was that she had to strap her left ankle to play sports after suffering her injury. In 2007, she trained and played football. Her ankle was strapped, and she took pain medication. Sport had been her passion, so she attempted to do what she could.[38] In the 2007 football final, she had to be taken off the ground due to her left ankle injury.[39]
[38]T24, L16
[39]T30, L24
156 In 2007, she commenced a Bachelor of Health Science degree at Deakin University. After starting the Health Science degree, she was advised she should try to become active within the sports community, so she approached the Port Melbourne Football Club, where she obtained a job as a volunteer sports trainer. She performed this job until August 2011. The club was aware of her ankle injury and so she was placed into the area near the forward pocket to minimise the running. She was still required to run. She strapped her ankle when doing this activity. She told the Court that she had to take pain relief to get through those duties. Her ankle was very sore afterwards. She told the Court that she had a love for football. She would ice the left ankle in the car on the way home and take pain relief at night.[40] Mr Fogarty, referring to the left ankle alone, said she cannot run at any speed, she has restrictions on the period of time standing, and walking for long periods.[41] He accepted her injury to the left ankle has a significant effect on her ability to participate in and enjoy active sport. Prior to the right arthroscopy, Dr Jeffery reported that the plaintiff no longer takes part in sport because of the pain in the left and right ankle.
[40]T47, L7
[41]PCB 125
157 The plaintiff’s evidence was that she enjoyed sport and enjoyed keeping fit. All medical witnesses accepted that she would be limited in her sporting activities. The plaintiff gave consistent evidence in Court as to her enjoyment of sporting activities. After injuring her left ankle, she tried to remain as active as possible, which was difficult, particularly when she had a number of setbacks and further surgeries.
158 I accept that, for this particular plaintiff, an inability to play the sports that she played before her injury, and wished to play subsequent to her injury, is a significant consequence. This is in the context that, prior to November 2004, she represented Victoria in under‑16 water polo, she attended the National Surf Lifesaving Carnival as a 17‑year-old in the Open Women’s Division, and was an active member of the South Melbourne Lifesaving Club. At school, she had competed in the Victorian State Cross-Country Championship. In general, she enjoyed sport and enjoyed keeping fit. The evidence is that by the time of the right ankle injury, the plaintiff had reduced her sporting activities significantly. The plaintiff’s evidence was that she thought roller blading might be a sport she could undertake as her ankles would be strapped in a boot. On her first training session she injured her right ankle. Accordingly, I accept that in large part her sporting activities were affected because of her left ankle/foot injury.
Weight
159 The plaintiff’s evidence was that as a result of her left ankle injury, she has been restricted in her sporting activities and has gained considerable weight. As a result, she has had to undergo gastric sleeve surgery. There was no evidence that prior to the injury, the plaintiff experienced difficulty controlling her weight. I accept the increase in weight and the need for a gastric sleeve procedure is in part a consequence of the compensable injury and to a degree it is a relevant fact that I can take into account.
Footwear
160 The plaintiff’s evidence was that she prefers to wear thongs since her left ankle injury, although she can wear runners with orthotics. She attempted to wear high heels at some social functions, but has ceased doing so as it causes her pain. Mr Fogarty said the plaintiff could not wear high heels. I accept this is a consequence I can take into account in respect to the left ankle/foot alone.
Work
161 The plaintiff told the Court that when she worked as a lifeguard after her left ankle injury, she had to decrease the hours of shifts and was put on alternate duties.[42] Currently, the plaintiff is working with Nuttelex, which makes some allowance for her. Ms Senini said the plaintiff could work in some capacity, but that ideally she would need to sit most of the time. If she was involved in a job that required mainly standing, she requires regular breaks when needed. The plaintiff was employed in work experience in a factory which required her to be on her feet. The plaintiff reported pins and needles, which then turns into pain, to Ms Senini.
[42]T39, L5
162 Mr Fogarty and Mr Wang thought her injury would affect her ability to find suitable work.
163 Dr Jeffery said that the plaintiff could not stand for long periods and this affects her work prospects.[43]
[43]PCB 55
164 Associate Professor Hart said in respect of her left ankle and foot alone, she has a full capacity for work. However, he said because of the right ankle, she may be limited in activities which involve prolonged standing and walking. Associate Professor Hart is the minority view. Mr Wang, Dr Jeffery and Dr Fogarty opined that the plaintiff would have difficulties with her work capacity due to the left ankle/foot injury. I accept that a restriction on work capacity is a consequence which I can take into account in respect of the left/ankle foot alone.
165 Further, the evidence was that the plaintiff wanted to undertake sport as a career. She completed a Certificate III in fitness and, in February 2007, a Certificate IV as a fitness trainer. The plaintiff gave evidence that she recently considered undertaking a Masters of Education to become a school teacher. One of her majors would have been physical education. She deposed in her affidavit sworn on 5 September 2014, that in early 2014, she enquired about the Masters of Education course. She further gave evidence that she contacted a relevant physical education department about the course, and she was advised there was a prospect she would fail the physical component. She gave examples of having to pass a beep test or run around an oval, which related to her restrictions on running.[44] I accept that the left ankle/foot injury is a significant contributor to her limited capacity to complete the physical component of a Masters of Education course. I accept that this is a consequence that I can take into account in respect of the left ankle/foot only.
[44]T67, 16 October 2014
The right ankle injury
166 The plaintiff’s evidence is that she has pain in her right ankle following the roller derby injury. The right injury compounds the left injury as, before injuring the right ankle, she would favour the left ankle, placing more weight on her right ankle. This she can no longer do. I accept this is a consequence I can take into account.
Social activities
167 The plaintiff’s evidence is that she has become less social. She has lost contact with her friends. She cannot stand for too long, which means she avoids going to bars and clubs. As she no longer plays sport, she has lost contact with people. I accept that this is a consequence which I can take into account.
Conclusion
168 Based on the evidence, I am satisfied that the consequences attributable to the 2004 injury are current and ongoing. The evidence is that the plaintiff injured her left ankle at the age of seventeen and has endured the consequences for ten years. There is no evidence that her left ankle/foot will improve. A number of the doctors considered her left ankle was stable. Others suggested she was at risk of deterioration. Accordingly, I accept the plaintiff’s injury is permanent.
169 Taking all the evidence into account, namely the plaintiff’s experience of pain, the treatment and level of medication the plaintiff takes, the limitations on domestic and sporting activities, the consequences of increased weight, the work consequences, and the possible future medical treatment, I am satisfied that the consequences to the plaintiff can be described as “more than significant or marked”, and can fairly be described as “at least very considerable” when judged by comparison with other cases in the range of possible impairments. In making this assessment, I have only considered the consequences to the left ankle/foot alone.
170 In considering the consequences, I have not treated each consequence as equal, but rather attributed appropriate weight to each consequence in light of the evidence and the surrounding circumstances. I take into account the plaintiff’s age, namely twenty-seven years, and the fact that there is unlikely to be any improvement.
171 In all the circumstances, I consider the plaintiff has satisfied the test with respect to her left ankle/foot injury. In reaching this conclusion, I have considered the symptoms which afflicted the plaintiff in consequence of her compensable injury and with what effect. I am satisfied that the pain and suffering consequences of the compensable injury met the serious injury test. I have not taken into account consequences of the right ankle injury, other than as stated in my reasons.
172 Accordingly, I grant leave to the plaintiff to bring proceedings for pain and suffering damages in relation to the injury sustained at work with the defendant on 6 November 2004.
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