Turner and Comcare
[2008] AATA 612
•14 July 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 612
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W 200700037
GENERAL ADMINISTRATIVE DIVISION ) Re CHRISTINE TURNER Applicant
And
COMCARE
Respondent
DECISION
Tribunal Deputy President S D Hotop
Dr P A Staer, MemberDate14 July 2008
PlacePerth
Decision The Tribunal sets aside the reviewable decision of the respondent dated 5 January 2007 and, in substitution therefor, decides that on and from 1 June 2006 to the present date, and as at the present date:
· the respondent has been, and continues to be, liable, under ss 14(1) and 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”), to pay compensation to the applicant in respect of the cost of reasonable medical treatment obtained by her in relation to the right foot injury which she sustained on 24 January 2003;
· the respondent has not been, and is not, liable, under ss 14(1) and 19 of the Act, to pay compensation to the applicant for incapacity for work.
…………….[S D Hotop]...........
Deputy President
CATCHWORDS
COMPENSATION – Commonwealth employees – applicant suffered injury to foot when travelling to work – respondent accepted liability to pay compensation to applicant in respect of foot injury – respondent paid compensation to applicant for medical expenses and incapacity until 1 June 2006 – respondent determined that as at 1 June 2006 applicant’s foot injury no longer resulting in impairment or incapacity for work – applicant’s foot injury continues to result in impairment – applicant’s foot injury has not resulted in incapacity for work since 1 June 2006 – respondent continues to be liable to pay compensation to applicant for medical expenses but not for incapacity – decision under review set aside
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4(1), 14(1), 16 and 19
Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1
REASONS FOR DECISION
14 July 2008 Deputy President S D Hotop
Dr P A Staer, MemberIntroduction
1. Christine Turner (‘the applicant”) is, and at all material times has been, employed by Medibank Private Limited as a Customer Services Officer.
2. On 24 February 2003 the applicant claimed compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) in respect of an injury described by her as “fractured right foot”. In the claim form the applicant stated that the injury occurred on Friday, 24 January 2003 at 9.50am while she was walking on the footpath in William Street, Perth outside the Bankwest Tower, and she described the circumstances in which she suffered the injury as follows:
“I was on my way to work when my ankle rolled over (I think from a small object on footpath, possibly a little stone).”
In a “Workers’ Compensation FIRST Medical Certificate” issued by Dr L Surman, Perth Medical Centre, on 24 January 2003, the applicant’s right foot injury was described as:
“hairline # base 5th metatarsal”.
3. On 6 March 2003 Comcare (“the respondent”) accepted liability under s 14 of the Act to pay compensation to the applicant in respect of an injury described as:
“fracture of tarsal & metatarsal bones, closed (right)”.
The respondent thereafter paid compensation to the applicant in respect of that injury in accordance with the Act.
4. On 1 June 2006, however, a delegate of the respondent made a determination that, on and from 1 June 2006, compensation was not payable to the applicant under the Act in respect of her right foot injury.
5. Following a request by the applicant for a reconsideration of the determination of 1 June 2006, a review officer of the respondent made a “reviewable decision”, dated 5 January 2007, affirming that determination.
6. The applicant has applied to the Tribunal for review of the reviewable decision of 5 January 2007.
The Issue and the Tribunal’s Determination
7. The matter for the Tribunal’s determination is whether or not compensation, by way of medical expenses and incapacity payments, continues to be payable to the applicant under the Act in respect of her right foot injury.
8. For the reasons which follow, the Tribunal has determined that compensation by way of medical expenses continues to be payable to the applicant, but that compensation by way of incapacity payments has not been payable to the applicant as from (and including) 1 June 2006 and is not presently payable to her.
The Legislation
9. The relevant provisions of the Act (as in force at all material times) are as follows:
“4 Interpretation
(1) In this Act, unless the contrary intention appears:
…
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
…
disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.
…
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
…
(9)A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
…
14Compensation for injuries
(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
…”
Section 16 of the Act provides for the payment of compensation in respect of medical expenses incurred in relation to an “injury” (as defined in s 4(1)), and s 19 provides for the payment of compensation for incapacity for work resulting from such an injury.
The Evidence
10. The evidence before the Tribunal comprised:
· the “T documents” (T1-T206, pp 1-312) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
· Exhibits A1-A4 tendered by the applicant, and Exhibits R1-R5 tendered by the respondent;
· the oral evidence of the applicant, and of Dr K Buttsworth, Mr S T Lim, Mr R Beaver, Dr S Overmeire, Dr J Bell, Mr R McWilliam and Mr P Hardcastle.
The Evidence of the Applicant
11. The applicant’s statement of evidence, whose contents she confirmed in her oral evidence, is as follows:
“1.I was born [in] 1952 and was at all material times employed by Medibank Private as a Customer Service Officer.
2.I have been employed by Medibank Private as a Customer Service Officer at its Perth Headquarters since approximately 2001.
3.I was at all material times employed on a full-time basis.
4.The Perth Headquarters of Medibank Private are located in the Bankwest Tower, Corner William Street and St George’s Terrace, Perth.
5.On the 24th January 2003 as I was walking towards the William Street entrance to the Bankwest Tower my right foot rolled on an uneven paver, causing me to stumble and almost fall to the ground (‘the accident’).
6.Immediately following the accident I began experiencing pain to my right foot.
7.When I arrived at work I was experiencing significant pain to my right foot and ankle and was barely able to walk.
8.I was advised to immediately attend Dr Lisa Surman at the Perth Medical Centre on Murray (sic) Street, and a colleague assisted me to Dr Surman’s rooms.
9.Dr Surman referred me for x-rays which showed that I had fractured the fifth metatarsal bone of my right foot.
10.I returned to the Perth Headquarters of Medibank Private and completed a claim for compensation before going home.
11.On the 25th January 2003 I attended my general practitioner, Dr Kym Buttsworth, for a second opinion and I was certified totally unfit for work for a period of approximately 6-8 weeks.
12.Comcare accepted my claim for compensation on 6 March 2003 and continued to pay my wages (or any shortfall in my wages) and my medical expenses until 1 June 2006.
13.In the period between the 25th January 2003 and the 1st June 2006 I continued to experience pain, swelling and restricted movement to my right foot.
14.I now suffer from pain and restricted movement to my right foot and ankle. In addition if I stand, sit or walk for prolonged periods of time, my right foot and ankle become swollen and I experience an increase in the level of pain to my right foot.
15.I have not been involved in any accidents or incidents since the 25th January 2003 which have caused me to suffer additional injury to my right foot or right ankle.
16.I have attended my General Practitioner, numerous Orthopaedic Surgeons and a physiotherapist.
17.I have, through APM Rehabilitation, attempted to return to my pre-accident duties at Medibank Private, however, despite being able to complete these duties over four days each week, I have been unable to return to full-time employment. My employment duties require me to sit for prolonged periods of time which causes my right foot and ankle to swell and aggravates the pain to my right foot. In addition I require regular breaks to stretch my right foot and ankle. As a result my productivity has been adversely affected.
18.I have been certified totally unfit for work by my General Practitioner on 5 July 2006, 12 July 2006, 19 July 2006, 26 July 2006, 2 August 2006, 23 August 2006, 30 August 2006, 25 October 2006 and 12 April 2007.
19.Between 14 June 2006 and 14 July 2006, my General Practitioner certified me fit to work 8½ hours on a Monday and Tuesday, 2 hours on a Wednesday and 8 hours on Thursday and Friday.
20.Between 6 September 2006 and 6 October 2006, 4 October 2006 and 4 November 2006, 1 November 2006 and 1 December 2006 my General Practitioner certified me fit to work for only 2 hours on each Wednesday falling within each respective period.
21.Between 8 November 2006 and 7 February 2007, I was certified by my General Practitioner as being fit to work 7½ hours a day on each Monday, Tuesday, Thursday and Friday and was only certified fit to work 2 hours on each Wednesday during that period.
22.I was certified unfit for work on each Wednesday between the 18th January 2007 and the 18th February 2007.
23.Between 14 February 2007 and 14 March 2007 I was only certified fit to work 7½ hours on Monday, Tuesday, Thursday and Friday and was certified totally unfit for work on each Wednesday during that period.
24.Between 7 March 2007 and 4 June 2007 my General Practitioner certified me as being fit for work for 8 hours a day, and for only 4 days each week.
25.In or about March 2007, Medibank Private refused to accept the recommendations and certification provided by my General Practitioner. It advised me that if I did not work each Wednesday, despite being certified unfit to do so, that my employment record would be noted as my being absent without leave and I would be counselled for the same.
26.Medibank Private advised me that in order to enable it to prepare more efficient scheduling and rostering of staff, it would convert my employment status from full-time to part-time.
27.I continue to work Monday, Tuesday, Thursday and Friday of each week, however I continue to be certified totally unfit for work on Wednesday of each week. I work a total of 32 hours each week.
28.I continue to attend my General Practitioner and require analgesic and anti-inflammatory medication and anti-inflammatory gels to apply to my right foot in an attempt to reduce the pain. In addition I am required to use orthotics.
29.I have been advised that Comcare is attempting to assert that any ongoing symptoms and/or incapacity for work I experience is related to underlying conditions of bilateral pes planus and hallux valgus deformity.
30.Prior to the accident I have never suffered from any pain or discomfort to my right foot or ankle or been incapacitated for work as a result of an injury to my right foot or ankle.
31.I was unaware that I suffered from pes planus, which I understand to be the condition known as ‘flat feet’, until I attended my physiotherapist subsequent to the accident.” (Exhibit A1)
12. In her oral evidence-in-chief the applicant elaborated on the symptoms she experienced in the period immediately following the sustaining of her right foot injury. She said that her right foot rolled over on the right side and she then felt “a burning pain” (which she also described as “nothing really”) and, as she was travelling in the lift to the 16th floor of the building, the pain progressed and, by the time she arrived at her desk, her foot was starting to hurt and she had to sit down. She said that the whole of her right foot was now sore and she described the symptoms as “worse than a burning … more like a throb”, but that there was no swelling at that time.
13. The applicant said that, about 30 or 40 minutes later, she “hopped” to Perth Medical Centre using a friend as a “crutch”, then to SKG Radiology (which was nearby) for an x-ray, before returning to Perth Medical Centre about 1½ hours after the accident. She said that her right foot was now swollen and the pain was “excruciating”.
14. The applicant said that the next morning (a Saturday) she experienced a “throbbing pain” and attended her general practitioner, Dr Buttsworth, who prescribed anti-inflammatory pain-killers and strapped her foot with a “light strapping”. She said that her whole foot was now swollen and bruised and that her right ankle was also now swollen. She said that her foot was strapped for 6–8 weeks, during which time the pain and bruising decreased and the swelling subsided, and that she was “on crutches” for about 2½ months, after which she “used one crutch as a walking stick” for 7–8 months. She said that the symptoms at the bottom of her foot improved but the symptoms at the top of her foot “kept going”. She added that the bottom of her foot was now “OK” but that she now experiences a “dull pain” or “ache” at the top of her foot.
15. In cross-examination the applicant acknowledged that it was not until “quite a while” after the accident that she noticed the pain at the top of her foot.
16. The applicant described her work duties as answering telephone inquiries and processing claims using a computer. She said that she is allowed to take a break of up to 5 minutes approximately hourly (up to a maximum of 22 minutes per day), and that she has a lunch break of 30 minutes, and morning and afternoon tea breaks of 15 minutes each, per day.
The Evidence of the Medical Witnesses
Dr Kym Buttsworth
17. Dr Buttsworth has been the applicant’s treating general practitioner since September 2001. He said that he first saw the applicant in relation to her right foot on 25 January 2003, and that he had no record of her having any foot or ankle problems prior to January 2003.
18. In examination-in-chief Dr Buttsworth was referred to his clinical notes in respect of his treatment of the applicant following the injury to her right foot on 24 January 2003 (Exhibit A2). He said that, when he saw her on 25 January 2003, her right foot was visibly swollen and she complained that her whole foot was sore. He said that he applied a compression bandage and put her on crutches.
19. Dr Buttsworth said that the applicant’s right foot injury was “very slow to recover”. He said that initially her right foot pain was “generalised” but that, as the swelling subsided, she was able to identify “specific sites of pain”. His clinical note of 6 May 2003 refers to soreness at the talus of the right foot, and he explained that this was located just in front of the ankle joint. Subsequent clinical notes in the period May–July 2003 refer to the applicant’s right ankle. The clinical note of 30 July 2003, however, refers to soreness at the top of the right foot, and subsequent clinical notes refer to ongoing pain across the top of the right foot or soreness/aching in the right foot.
20. Dr Buttsworth was involved in Graduated Return to Work Programmes for the applicant which were prepared and managed by Advanced Personnel Management in the period from May 2004 to October 2005 under which the applicant increased her working hours from 32 hours per week in May 2004 to 35 hours per week in November 2004 which she maintained until the completion of the Programme in October 2005. Dr Buttsworth confirmed that the applicant is presently working 4 days per week and a total of 32 hours per week. He opined that, because of her right foot injury (which he described as a “chronic low-grade injury”) and its associated symptoms (which he described as “chronic ache/soreness, especially at the end of the day”), she is not capable of working full-time hours.
21. In cross-examination Dr Buttsworth said that his finding on examination of the applicant’s right foot on 25 January 2003 was consistent with her having suffered an ankle sprain, but he added that she could have also suffered an injury to her mid-foot. He described her foot injury is “moderate to severe”.
22. Dr Buttsworth was referred to the applicant’s symptom of soreness at the talus of the right foot which he noted on 6 May 2003. He said that it was difficult to say whether this was a new pain or an existing pain which had become more prominent. He added that the applicant’s right foot pain symptoms had “all started together” and that it was “not a case of one pain stopping and another commencing”. He said that the applicant’s present foot pain is in a different location from the initial pain site, and that the present pain problem started in May 2003.
23. In re-examination Dr Buttsworth reiterated that initially the applicant’s whole foot was sore, but as time went by – more specifically, from May 2003 – specific pain points emerged.
Mr Soo Tee Lim
24. Mr Lim, Orthopaedic Surgeon, said that he first saw the applicant in January 2004 on a referral from Dr Buttsworth, and that he had seen her about 6 times, most recently on 3 March 2005. He confirmed that he had prepared 5 reports regarding the applicant’s right foot condition dated 7 January 2004 (T52), 15 January 2004, (T56), 26 February 2004 (T64), 25 October 2004 (Exhibit A3) and 10 June 2005 (T127).
25. Mr Lim’s report of 25 October 2004, which was addressed to the respondent, states as follows:
“…
In reply to the questions as asked in your letter, the answers are as follows:
1.What is the specific diagnosis of the condition from which Ms Turner currently suffers?
Ms Christine Turner was referred and seen in my Rooms for the first time on 7th January 2004. She works as a Customer Officer with Medibank Private.
On 24th January 2003, at approximately 10.00am, she tripped on the pavement resulting in a painful right foot. She was seen by Dr Surman of Perth Medical Centre in Hay Street. X-ray showed an undisplaced fracture of the base of the fifth metatarsal of the right foot. She was treated with strapping but found it difficult to continue working. She subsequently saw her family doctor, Dr Kim (sic) Buttsworth and was given a period of two months off work. Crutches were required for 8–10 weeks and she had physiotherapy after that. I believe she returned to work on a graduated basis, working initially two days a week and then four days a week.
When seen in my rooms on 7th January 2004, she was working four days a week. Swelling and pain in the right foot persisted. She was noted to have bilateral pes planus and also hallux valgus deformity. Prior to the injury she had never had any problems with her feet. Ever since the injury pain had persisted and she pointed to the mid area on the mid dorsum of the right foot. She could walk for a distance of about 10 minutes after which the foot would ache.
X-ray showed an undisplaced fracture of the fifth metatarsal which had completely united. Isotope bone scan done on 13th January 2004 showed a focus of moderate hyperaemia on the dorsal aspect of the right foot and this would probably relate to the second cuneiform or its articulation with the navicular. There was also low grade increased uptake in the base of the fifth metatarsal.
MRI showed a small focus of cystic resorption within the proximal lateral aspects of both the medial and intermediate cuneiforms, with mild marrow oedema extending into the intermediate cuneiform from the subchondral abnormality. Taking into account both the isotope bone scan and the MRI results, it is my opinion she had suffered post-traumatic arthrosis of the mid foot as a result of the injury she sustained in January 2003.
2.In terms of probability as defined (sic) from possibility, is Ms Turner’s current condition still directly related to her work-related injury of 24th January 2003?
It is most important to bear in mind that Ms Turner had no previous problems with her feet. Ever since the injury on 24th January 2003 her foot has become symptomatic. She could walk for a distance of about 10 minutes after which the foot would ache. She generally does not require any anti-inflammatory or analgesia and prefers to avoid them.
She has pre-existing bilateral pes planus together with hallux valgus deformity. Prior to the injury she had never had any foot problems. She was seen in my Rooms for the first time on 7th January 2004 at almost a year since the initial injury. With the bone scan and MRI tests it is my impression and opinion that she has post-traumatic arthrosis and the changes on the MRI did suggest some chondral pathology and I would attribute this to the injury she had in January 2003 which was work-related. It is my opinion that her ongoing foot pain is the result of the injury she sustained on 24th January 2003.
3. If not, how did it occur?
Please refer to Question 2.
4.What other issues or factors may be aggravating/causing or have aggravated/caused the condition diagnosed above?
She has pre-existing bilateral pes planus with hallux valgus deformity. Usually pes planus would certainly suggest some degree of pre-existing ligamentous laxity and therefore with such hyper-mobility, any injury would certainly inflict traumatic disruption of joints, hence resulting in chondral damage as suggested on MRI. I would consider pes planus a ‘disadvantage’ as this does suggest some alteration of the mechanical axis. Without a normal arch which, to some extent, could cause some mechanical stress effect of the joint articulation (sic).
6.(sic) If there are non-work-related factors, what percentage of her condition is still related to the work-related injury of 24 January 2003 and what percentage is due to other factors? (eg: normal course of degenerative condition).
Ms Turner had entirely asymptomatic feet until the injury on 24th January 2003. I believe the injury has caused post-traumatic arthrosis of the mid foot. There has been no previous pain and on symptomatic grounds, there was no suggestion of any arthritis or ongoing degeneration of the feet until her injury. It is my opinion that the present ongoing mid foot pain is a result of the injury sustained in January 2003.
…”
26. In his oral evidence Mr Lim adhered to the opinion, expressed in his abovementioned report, that the applicant’s ongoing right mid-foot pain is directly related to the work-related injury which she sustained on 24 January 2003, notwithstanding that pain symptoms in the mid-foot did not become apparent until at least 4–6 months after the injury was sustained.
27. Mr Lim was asked whether the applicant was capable of working 37.5 hours per week. He opined that physical factors did “not really” prevent her from so doing, but he added that it would depend on “how [she] feels and how she is coping”.
Mr Richard Beaver
28. Mr Beaver, Orthopaedic Surgeon, examined the applicant, at the request of her solicitors, on 17 August 2006 and he prepared a report on that date (T196). Mr Beaver’s report states as follows:
“…
I gained the history that Mrs turner is a customer service officer working for Medibank Private. This is a desk based occupation which she has done for five years. She works 32 hours a week. She has had to reduce her hours because of problems with her foot. I note the past history of low back pain at the age of 18 after a motorcycle accident and also in the same accident she sustained a dislocation of the right hip. This has not left her with longstanding problems. She denies any previous injuries or pain in the feet or ankles. She is a smoker. She is not diabetic. She plays no sport although she did social ice-skating until 7 years ago. She denies any injuries to her feet or ankles when ice-skating.
History of the current disorder:
On 24 January 2003 she was walking from the train station to work in William Street when she twisted her right foot on an unstable paving slab the foot was turned suddenly inwards. She prevented herself falling. Her foot was not immediately painful and she was able to walk to work albeit in some discomfort. As time wore on the pain increased steadily over the next few hours with increased swelling over the lateral side of the right foot. She was referred to a doctor in Hay Street who ordered an x-ray which showed an undisplaced fracture at the base of the 5th metatarsal of the right foot. She could hardly walk by then. This was strapped and she was not immediately supplied with crutches. However, with increasing pain and an inability to walk she obtained crutches. She went to see her own doctor the next morning who put her off work where she remained off work for 4-5 weeks mainly resting her foot. The pain improved in the lateral side of her right foot and indeed went on to settle down completely over this area. She had some physiotherapy to the ankle. She was doing quite well until six months following her fall (sic) when she developed pain on the dorsum of the mid-foot on the right and she had never had this pain before. This pain has now become the main problem and has persisted not responding to physiotherapy.
… She finds her symptoms persist but are helped by non-steroidal anti-inflammatory agents. She has not had any injection therapy or surgery. At the present time she finds that the right mid-foot is uncomfortable every day. Also there are days when the pain is actually severe approximately one day a fortnight and when the pain is severe she has to rest her foot. The pain is made worse by walking long distances more than 10 minutes at a time and sitting for long periods. It is improved by moving the joints and elevation and rest. The pain levels vary from 4 out of 10 on a visual analogue scale on a normal day to 8 out of 10 when the pain is severe. The pain prevents her from bushwalking which was one of the activities she enjoyed doing although she is still able to go camping she is unable to participate in the bushwalking. She is unable to dance which she used to do frequently with her husband. She has significant problems with stair climbing and walking on surfaces with an incline.
Physical examination:
Examination reveals a middle aged lady with bilateral pes planovalgus and hallux valgus deformities in her feet. She has a normal gait pattern and no dystrophic features. Her peripheral pulses are present. There is no tenderness over the base of the 5th metatarsal on her right foot. There is a full range of motion in the ankle subtalar and midtarsal joints although there is some discomfort on moving the midtarsal joint. Tenderness is localised to the medial and intermediate cuneiforms of the right foot dorsally. There is also pain on plantar flexion of the 2nd and 3rd metatarsals.
Radiological assessment:
X-rays dated from 24 January 2003 reveal an undisplaced crack fracture of the styloid process of the 5th metatarsal base on the right foot.
A CT scan dated 6 May 2003 shows no abnormality in the mid foot.
A CT scan dated 3 May 2004 shows cystic changes and sclerosis in the medial and intermediate cuneiforms consistent with an arthrosis of the metatarso-cuneiform joints.
An MR scan of the right foot and ankle dated 5 February 2004 show cystic changes on the lateral aspects of the right medial and intermediate cuneiforms indicating an arthrosis and similar changes are seen on the MR scan dated 24 February 2005.
A bone scan dated 13 January 2004 shows increased uptake in the right medial and intermediate cuneiforms.
In answer to your specific questions:
…
c)The cause of the client’s injuries and symptoms are in my view directly related to the falls (sic) and the injury to her right foot and ankle sustained on 24 January 2003. I would point to the fact that there is no radiographic evidence of arthritis in the x-rays taken immediately after the injury where subsequent investigations show the development of this arthrosis. The injury to her foot was sufficiently severe to avulse a piece of bone from the base of the 5th metatarsal and such a twisting injury is entirely consistent with injuring the tarsometatarsal joints. I believe that this twisting injury was of sufficient violence to cause damage to these joints in the mid foot and to explain the development of a posttraumatic arthrosis. I disagree strongly with the comments of Mr John Bell who ascribes no disability to this lady’s twisting injury. If, as he says, degenerative changes were already present why was there no evidence of x-ray changes visible immediately after the fall. Similarly I disagree with the comments of Dr Mc William.
…
g)This lady is able to continue working although the prolonged sitting may tend to cause stiffness and pain in the foot and reduce her ability to work full-time.”
29. In his oral evidence Mr Beaver adhered to the opinions expressed in his abovementioned report. When asked, however, whether the applicant was capable of working 37.5 hours per week, he opined that she was so capable.
Dr Steven Overmeire
30. Dr Overmeire, Consultant Occupational Physician, examined the applicant, at the request of Medibank Private, on 12 October 2006 and he prepared a report dated 19 October 2006 (Exhibit R4). Dr Overmeire’s report states as follows:
“…
HISTORY:
Ms Turner is a 54 year old call centre worker with right foot pain
Occupation/Work Duties and Education:
She has worked at Medibank Private, as customer service officer in the call centre, for the past five years. She normally works 37½ hours per week. She stated that she answers general enquiries from the public. She stated that she works to strict performance criteria and undergoes constant quality monitoring of calls. She stated that she is expected to complete seven calls per hour.
She stated that she normally takes two 15-minute breaks for tea and one half-hour break for lunch. She stated that no other breaks are scheduled into her normal work day. I note from your referral letter, however, that 22 minutes of discretionary ‘off phone’ time is allowed.
Prior to her work at Medibank Private, Ms Turner worked in a call centre at Telstra for five years, as customer service operator in a financial institution for one year, and as telemarketer at the Community Newspaper Group for eight years.
Mechanism of Alleged Injury/Sequence of Events:
She stated that on 24 January 2003, as she walked to work in William Street, she rolled her right foot on an uneven pavement slab. She was wearing an open toe, flat platform shoe at the time. She stated that she lost balance but didn’t fall. She experienced immediate lateral right foot pain, but managed to hobble to work. She stated that she reported it immediately. She gradually developed more intense pain and she elevated the foot at work. She reported difficulty walking within an hour.
Initial/Early Treatment Received:
She was taken to the local medical centre, where a medical practitioner arranged an X-ray. This revealed an undisplaced fracture at the base of the fifth metatarsal. Ms Turner’s foot was strapped and she was signed off work. She obtained crutches and analgesia.
Subsequent Progress/Specialist Management:
She then attended her own general practitioner, Dr Buttsworth, who signed her off work for six weeks. She stated that she elevated her leg during this period. She was referred to physiotherapy to mobilise the ankle. She stated that three months of this therapy, including stretches and exercise, eased her lateral foot symptoms.
She underwent a graded return to work. She stated that she managed by elevating the leg on an archive box under her desk. A workplace assessment was performed, and she was issued with a foot stool.
She stated that, approximately six to eight months after the original injury, she developed a dorsal right foot ache. It was worse on weight bearing and after sitting for long periods.
She was referred to Orthopaedic Surgeon, Dr Soo Tee Lim. A bone scan showed increased uptake in the second tarsometatarsal joint. She was placed on Naproxen and Voltaren gel. She continues with a programme of home stretches, Theraband and wobble board exercises. She reports little change in dorsal right foot pain since then.
Current Status:
She reports a constant, dull ache in the dorsum of the right mid foot. She rates it at 4–5/10 in severity. She reports intermittent swelling of the right foot.
She reports aggravation by sitting longer than one hour, but she sometimes experiences discomfort within 20 minutes. She reports a walking tolerance of 10 minutes and standing tolerance of 15 minutes. She reports difficulty going down stairs, especially in the morning. She states that wearing high heels aggravates the pain and she has therefore stopped wearing these.
She stated the pain eases with Voltaren Emulgel, applying a hot pack, rest and elevation.
Current Work Status:
She currently works 32 hours per week. She has remained at this level for the past eight months. She works four 7½-hour days and two hours on Wednesdays. She feels that she needs this mid-week break to rest the foot. She stated that she had previously attempted an increase in hours, but reported aggravation of pain by the end of the week.
She stated that she relies on five-minute breaks each hour to get up, mobilise and stretch her foot. She reports aggravation when sitting for longer periods, which results in stiffness and pain on walking. She feels unable to perform foot exercises whilst talking to customers on the phone.
She uses a foot stool and an archive box to elevate the foot under her desk.
She stated that she has considered moving to a part-time work arrangement, as she feels unable to increase beyond 32 hours per week.
…
SUMMARY AND ASSESSMENT:
Ms Turner is a 54 year old customer service adviser who has recovered from a right fifth metatarsal fracture and has persisting right mid-foot pain with imaging evidence of degenerative changes. She reports little change in the nature of right foot pain over the past year. She remains limited in certain activities of daily living. She feels unable to upgrade beyond 32 hours per week at work, despite the sedentary nature of her role.
I now turn to your specific questions:
1.Please provide your opinion on Ms Turner’s current diagnosis and prognosis.
The diagnosis appears to be right mid foot degeneration leading to chronic foot pain. Given that this process is unlikely to improve in the future, the prognosis would appear to be one of persisting foot pain in the long term.
2.In relation to 5 minute breaks, please provide your opinion on the appropriateness of this restriction, and on the Work Solutions’ report.
I agree that this condition will benefit from regular postural variety, and from this point of view a 5-minute break each hour is beneficial. I note that Ms Turner has requested this and she is supported by her treating doctor in this regard. I also note in your referral that Medibank Private are unable to accommodate this restriction in the long term, given the highly planned, process driven and monitored environment in the call centre.
Ms Turner stated that she does not have access to breaks other than the two 15-minute and one half-hour break each day. I note however, that employees are allowed 22 minutes of discretionary ‘off-phone’ time each day. I would suggest that this should be sufficient to allow Ms Turner to change posture from time to time and perform her short routine of stretches. I agree that some of these stretches cannot be performed effectively while she is engaged in a telephone conversation, but simple ankle rotations, dorsiflexion and plantar flexion exercises should be possible during call time.
Other self-management measures that may improve her comfort at work include the use of simple analgesia such as Paracetamol and the application of a Tubigrip or compression bandage.
3.In relation to reduced working hours on Wednesdays, please provide your opinion on the appropriateness of this restriction.
Ms Turner indicated that she feels unable to increase her hours on Wednesdays, as she relies on a mid week break to ease her symptoms. This is a question of subjective comfort and is difficult to determine objectively. I can only add that, from a medical point of view, there is no risk of accelerating the degenerative process, or aggravating any structural lesion in the foot, as a result of performing full-time sedentary duties.
Ms Turner has indicated that she is considering a permanent, part time arrangement, should this be feasible. I would suggest that discussions take place directly between Ms Turner and her management to look at this option. The only alternative would be for her to gradually increase her hours to full-time.
4.Ms Turner’s pre-injury duties involve constant sitting, occasional standing and walking short distances during breaks, customer service and computer/phone based work for 37.5 hours per week.
In your opinion, will Ms Turner be able to return to her pre-injury duties, and if so, over what approximately (sic) timeframe?
Again, this is an issue of subjective discomfort, and Ms Turner has felt unable to increase to pre-injury duties as a result of pain. From the medical point of view, there is no contraindication to full-time, sedentary duties for a person suffering from foot arthritis, as long as regular postural breaks are allowed, as outlined in Question 2, and other self management strategies are allowed. These include compression or Tubigrip bandage, the use of analgesia, and regular foot elevation.
5.What restrictions would you currently place on Ms Turner’s duties, and over what timeframe?
I would recommend that she change posture regularly, at least hourly. Using the 22 minutes of discretionary ‘off phone’ time should allow for this. If needed, Ms Turner may be able to change posture briefly in between calls, or as a last resort try to stand up whilst engaged in conversation. Given that her condition is unlikely to improve significantly in the long term, these restrictions are recommended permanently.
…
Further comments on Mr Beaver’s report:
Point (c)It is always difficult to attribute causation in a case of degenerative change. I do point out that, on the bone scan of 13 January 2004, increased tracer uptake was noted in the tarsus of the left foot as well as the right. It therefore appears that Ms Turner has degenerative changes affecting both feet, which cannot be solely attributed to the work incident. It is possible that she had pre-existing mid-tarsal changes, combined with hallux valgus and first toe degeneration that was subsequently aggravated by the twisting injury of 24 January 2003. On the balance of probabilities, I would consider that the pre-existing degenerative process is a more significant contributing factor to her current symtomatology than the injury sustained at work.
…
Point (g)I believe that, as long as postural variety is allowed and other self management strategies are put into place, Ms Turner should be able to increase to full time hours. However, she expresses subjective discomfort and I point to my answer to Question 2 for further discussion of this issue.
…” (original emphasis)
31. In his oral evidence Dr Overmeire adhered to the opinions expressed in his abovementioned report.
Dr John Bell
32. Dr Bell, Consultant Orthopaedic Surgeon, examined the applicant, at the request of the respondent, on 10 November 2005 and he prepared a report dated 17 November 2005 (T147). Dr Bell’s report states as follows:
“…
Mechanism of Alleged Injury/Sequence of Events:
She confirmed that she never had any problems with her right leg or foot prior to January 2003.
Injury – 24 January 2003:
She confirmed that on 24 January 2003 she injured her right ankle whilst she was walking to work. She caught her foot on some uneven pavement and rolled the right ankle. She managed to catch herself and didn’t actually fall. There was a lot of bruising.
She managed to hobble on to work and reported the incident and saw a nearby general practitioner.
She had to use crutches for some weeks and strap the right ankle and there was never any plaster or (sic) Paris applied.
Treatment Received:
Treatment has been with stretching and strengthening exercises. Physiotherapy has helped. Orthotics in her shoes have helped. Voltaren cream has helped. She has been taking medications Naprosyn 500mg twice a day over recent months.
Current Status:
Ongoing aches in the right foot continue. She states that the pain on the outer side of the foot at the site of the fracture did improve over the months and pain seemed to settle on the top of the foot.
It gets sore after just ten minutes of walking. She has to be very slow on stairs and inclines and it is difficult to do stairs and inclines. She generally has to be slow and cautious whenever she walks. Her ankle clicks when she goes up and down stairs.
She uses a footstool at work to stop the swelling. Sitting for too long aggravates the problem.
The aches are (sic) in the foot are present all the time and there is a sharp pain to the top of the foot once a fortnight. It is a stabbing pain with a long slow stab and the pain seemed to move to the top of the foot about a year after the injury. It is uncomfortable when she has her foot on an angle.
The aches have been much the same over the last year with no improvement.
Current Work Status:
She continues to work at Medibank Private on a full time basis with ongoing discomfort in the right foot.
…
SUMMARY AND ASSESSMENT:
In summary, Ms Turner did injure her right ankle when she rolled the ankle walking to work on 24 January 2003. The injury has healed and approximately one year after the injury she started developing aches in the nearby mid foot joints and these aches are giving her ongoing symptoms.
Assessment of Health Problems:
1.Right foot problems. Injury in January 2003 with fracture of the base of the right 5th metatarsal which appears to have healed reasonably well. Dorsal right mid foot aches likely to be degenerative in nature at the tarsometatarsal joints.
…”
Dr Bell addressed the issue of the degree of impairment resulting from the January 2003 injury and/or from the degenerative process as follows:
“There does appear to be an ongoing degenerative condition associated with an arthropathy in the mid foot joints. It is difficult to relate this to the injury, although I note that some health practitioners have done so. Her injury did appear to result in a definite fracture at the base of the 5th metatarsal. Indeed, she would be likely to have had a lot of heat, swelling and discomfort around that area for some three months and possibly, six months and quite possibly walking awkwardly on the foot did stir up other joint problems. However, her ongoing problems at present relate to degenerative changes in the tarsometatarsal joints and I find it difficult to find any strength of relationship in that problem to her January 2003 foot injury.”
Finally, Dr Bell answered questions asked of him by the respondent as follows:
1. What condition is the claimant currently suffering?
She is suffering degenerative problems in the right mid foot region and I do assess the extent of her problem to be of mild grade.
2.How is this current condition related to the claimant’s injury sustained on 24 January 2003?
It is difficult to find any great strength in the relationship of her injury at work on 24 January 2003 and the ongoing right mid foot problems.
…”
33. In his oral evidence Dr Bell adhered to the opinions expressed in his abovementioned report. He confirmed that, on physical examination of the applicant, he did not find any congenital problems with her feet. As regards the cause of the degenerative changes in her right foot, Dr Bell attributed these to such factors as her lifestyle and her increasing weight, and he opined that the incident of 24 January 2003 was not the cause of, or a material contributing factor to, her ongoing foot pain. Dr Bell also opined that her foot pain symptoms would not preclude her from doing sedentary office work on a full-time basis.
Mr Robert McWilliam
34. Mr McWilliam, Consultant Orthopaedic Surgeon, examined the applicant, at the request of the respondent, on 13 December 2004 and he prepared a report dated 16 December 2004 (T106). Mr McWilliam’s report states as follows:
“…
Mechanism of Alleged Injury/Sequence of Events:
On 24 January 2003, Ms Turner was on her way to work when she rolled her right ankle possibly due to an uneven pavement or a stone. She caught herself on a wall to prevent falling down.
She hobbled on to work and reported the incident. She was sent to the duty medical officer in the nearby Murray (sic) Street Medical Centre.
Initial/Early Treatment Received:
An X-ray taken the same day showed an undisplaced fine horizontal crack fracture at the base of the fifth metatarsal. No other abnormality was shown.
She was initially recommended to continue at work but reported the whole foot and ankle was painful and consulted her local general practitioner, Dr Buttsworth. Dr Buttsworth recommended some time off work and crutches and then a graduated return to work. She was totally incapacitated for work from 24 January 2003 until 4 March 2003, according to the file provided. She has commenced a graduated return to work, but so far has been unable to achieve full-time hours.
She underwent a second radiological appointment on 6 May 2003 and I note the report indicated no bone or joint abnormality as being shown.
Subsequent Progress/Specialist Management:
When her right foot was still not comfortable, mainly over the top of the foot 12 months after the incident, she was referred to Dr Soo Tee Lim, Orthopaedic Surgeon.
Dr Lim arranged a bone scan, which I have seen. This showed increased uptake in both mid-foot areas right and left.
Current Status:
Ms Turner reports that she is improving slowly. Pain in the region of the fifth metatarsal bone has resolved. She is still aware of a residual anterior foot pain. This does not appear to be directly related to weight bearing and may occur during the night or after prolonged walking. She reported footwear does not affect the symptoms and the orthotics that have been provided have not proved significant help. She finds cold weather results in aching of her foot. She reports that sitting is fine and generally walking on flat surfaces is comfortable.
Current Work Status:
Ms Turner is currently working 35 hours per week out of the normal 37.5 hours.
…
PHYSICAL EXAMINATION:
…
Ankles and Feet:
She demonstrated a normal range of movement of dorsiflexion and plantar flexion and inversion and eversion of both feet. There was no evidence of any tenderness around the right fifth metatarsal.
There was some tenderness on the dorsum of the right foot, which was not localised just to the joint area but to the intermetatarsal area. There was no increase in swelling in the mid foot on the right compared with the left.
There was prominent hallux valgus in both feet and evidence of pes planus in both feet.
She was wearing orthotics, which seemed suitable for her with metatarsal domes. She did have evidence of callosities present under the second metatarsal heads of both feet.
The shoes she was wearing were lace-up shoes and quite new, but the wear pattern was equal on both sides.
INVESTIGATIONS:
Report of Bone Scan of the Ankles and Feet dated 13 January 2004 – reported by Dr A Van Der Schaaf:
Findings: The dynamic and tissue phase images of the feet show a focus of moderate hyperaemia in the dorsal aspect of the right mid foot. Delayed planar images of the ankles and feet show a focus of intensely increased tracer uptake in what is probably the second cuneiform or its articulation with the navicular on the right side. There is low grade increased tracer uptake in the base of the fifth metatarsal on the right side. There is mildly increased tracer uptake in the right and intensely increased tracer uptake in the left first metatarsophalangeal joint and there are foci of low grade tracer uptake in the tarsus of the left foot. Tracer uptake in the ankles is unremarkable.
Interpretation: The study suggests that the patient’s current symptoms are related to the second cuneiform or its articulation with the navicular and further anatomic imaging such as targeted CT of this area would be useful in characterising the abnormality further. Very low grade uptake in the base of the fifth metatarsal is in keeping with a healing fracture and the other changes are likely to be degenerative in aetiology.
SUMMARY AND ASSESSMENT:
Ms Christine Turner is a 52 year old customer service officer with Medibank Private, who rolled her right ankle on the way to work on 24 January 2003.
X-ray at the time suggested an undisplaced fracture of the fifth metatarsal base, which on subsequent X-ray has now shown full healing.
She has continuing symptoms in the right mid foot area anteriorly. This is most probably the result of osteoarthritis at the tarsal joints. This is supported by the recent bone scan of the ankles and feet dated 13 January 2004.
In reply to the specific questions posed in your covering letter:
1.What is the specific diagnosis of the condition(s) from which Ms Turner currently suffers?
Ms Turner currently suffers from symptomatic degenerative change of the right tarsus.
2.What is the relationship between Ms Turner’s current condition(s) and her accident in January 2003?
There is some temporal relationship between her current condition and the accident of January 2003, but I do not consider it is a causal relationship.
3.Did Ms Turner’s employment with Medibank contribute to the cause, aggravation or acceleration of the condition?
Ms Turner’s employment with Medibank did not contribute to the cause, aggravation or acceleration of the condition.
4. Do you consider the effects of the accident of January 2003 have ceased?
· If so, when do you consider the effects ceased?
Ms Turner still reports intermittent symptoms of anterior foot pain in the right foot. The undisplaced fracture of fifth metatarsal of the right foot is now fully clinically healed.
· If not, what effects are continuing and when do you consider they will resolve?
Ms Turner may have some residual symptoms as the result of the accident of January 2003, but I do not consider these are significant or affecting her in any material way. These degenerative changes are the result of malalignment of the foot as a result of pes planus and hallux valgus.
5.Is there an underlying or pre-existing condition? If so, in your opinion, is the condition diagnosed at question 3 above an aggravation, acceleration or recurrence of that pre-existing or underlying condition?
The pre-existing condition is degenerative change involving the tarsus of the right foot. I consider this is not materially related to the injury that occurred on 24 January 2003.
6.Has Ms Turner’s pre-existing condition been aggravated or worsened by any factors outside the scope of her employment? If so, please provide details.
Ms Turner’s ongoing symptoms in the right foot are more likely to be aggravated or worsened by factors outside the scope of her employment. She has evidence of a right hallux valgus and a pes planus, both of which lead to malalignment and the development of degenerative change in the right foot.
7.What is the nature of the aggravation?
Ms Turner’s symptom of pain in the right foot may be the result of aggravation of degenerative change in the mid foot area.
a.a worsening of the diagnostic indicators?
There is no evidence of change on the plain X-rays reported in May 2003. However, the localised tenderness of the right mid foot would suggest aggravation of degenerative change.
b.a worsening of Ms Turner’s experience of the symptoms?
Ms Turner denies any previous experience of pain in the right mid foot area.
c.continued experience of Ms Turner’s symptoms which would have been present in any event?
The development of pain in both the right and left mid foot areas is inevitable, taking into account her bilateral condition of hallux valgus and pes planus.
8.Do you consider that there is any permanent effect or permanent damage caused by Ms Turner’s condition(s)?
Ms Turner has symptoms consistent with degenerative change affecting the right mid-foot area. This predated the accident of 24 January 2003.
There is nearly always a predisposing cause, such as malalignment of the tarsal bones, as in flat foot or in hallux valgus.
The main symptom is pain, which may gradually increase over months or years and finally leads to a limp or impaired capacity for walking.
9.What restrictions, if any, are imposed on Ms Turner’s current capacity for employment due to her:
a. Physical condition/illnesses;
b. Any pre-existing condition.
Although Ms Turner is currently only working 35 hours instead of the normal 37.5 hour week, she does have a sedentary occupation and I expect she would be able to work 37.5 hours per week, despite her physical condition and any pre-existing condition.
10.In your opinion, would Ms Turner be capable of performing her nominal duties?
…
I consider Ms Turner is fit to perform her nominal duties, 37.5 hours per week.
…”
35. In his oral evidence Mr McWilliam adhered to the opinions expressed in his abovementioned report. As regards the report of the bone scan of the applicant’s ankles and feet, dated 13 January 2004, to which he referred in his report, Mr McWilliam agreed that, in respect of the mid-foot region, that bone scan found low grade tracer uptake in the left foot and intensely increased tracer uptake in the right foot. He also agreed that the finding in respect of the left mid-foot was unremarkable.
Mr Philip Hardcastle
36. Mr Hardcastle, Orthopaedic Surgeon, examined the applicant, at the request of the respondent’s solicitors, on 20 June 2007 and he prepared a report on that date (Exhibit R5). Mr Hardcastle’s report states as follows:
“…
HISTORY
She reports on the 24.1.03 on her way to work she’d just entered the building (sic) and the pavement was a little unsteady and she twisted her foot falling forwards but regained her balance on the wall and then hobbled to the lift.
The pain in the foot gradually increased and she saw the occupational health officer who referred her to a doctor who she saw in Hay Street. X-rays were taken and this was strapped by Dr Surman. She saw her own general practitioner Dr Buttsworth the following day and was put off work for 6 weeks and used crutches in this period.
She returned to work and started physiotherapy at that stage with some strengthening exercises for her ankle.
PROGRESS
She graduated her work back eventually getting to four days plus 2 hours on another day. Symptoms continued though they did improve and eventually they settled down. She started to notice pain in the mid foot region about 8 months after the fall (sic) and was referred to Mr Soo Tee Lim who arranged for some investigations and was evidently told there was some degeneration in the foot. Treatment was with Naprosyn and local Voltaren gel and she was advised to continue with this.
Work continued on a 4 days full time basis with 2 hours on the 5th day. There have been discussions evidently at her workplace and she’s been put on a 4 day program with Wednesdays off.
Symptoms have persisted and there’s been no change in the management continuing with the Naprosyn and Voltaren gel.
PRESENT SYMPTOMS
She complains of a mild constant pain in the mid foot region which increases in severity every 2-3 weeks. There doesn’t appear to be any specific reason for this aggravation which can last from a few hours to all day. The foot swells if she sits too long and gives way in the morning usually though she’s not fallen.
There does tend to be morning stiffness and more pain in the morning but she doesn’t wake at night.
She does have stairs at home and she manages these but she finds squatting difficult and kneeling itself doesn’t worry the symptoms. She avoids running but doesn’t think she’d be able to.
There are no neurologic complaints in the lower limb.
…
PHYSICAL EXAMINATION
She was a well looking woman with short dark curly hair who had a normal posture and gait. She was about 5ft 3” in height weighing 81kgs.
…
b) Lower Limbs
She demonstrated some mild genu valgum with pes planus and halux valgus on both feet. There was tenderness in the mid forefoot and no tenderness over the base of the 5th metatarsal. Ankle and subtalar movements were of normal range compared to the left. Knee movements were of normal range. Circumferences of the knee, ankle and forefoot were equal to measurement…
…
DIAGNOSIS
Mid tarsal degenerative osteoarthrosis right foot.
…
WORK CAPACITY
Ms Turner retains the capacity to do her normal work duties. From the aspect of her metatarsal fracture she wouldn’t be prevented from doing full time work. The symptoms in the right foot due to the degeneration have caused her to reduce her hours but I’d still expect her to be able to work at least ½ a day on the present day off she’s having.
OPINION
The fall (sic) itself was relatively innocuous and the initial x-ray shows a possible fracture which is undisplaced and as described in the radiological report more like a crack which has healed though reviewing the subsequent investigations. The present situation is that she has a symptomatic degenerative problem in the mid foot…
It’s difficult to relate this degenerative disease to a simple trip as described. The development of symptoms a long time after the original injury also doesn’t support the degenerative problems being related to the injury as described.
…”
37. In his oral evidence Mr Hardcastle adhered to the opinions expressed in his abovementioned report. As regards his description of the incident of 24 January 2003 as “relatively innocuous”, however, he acknowledged that the injury sustained by the applicant in that incident was an avulsion-type injury including mild-moderate force. When it was put to him that the injury resulted in swelling over the whole foot area, he acknowledged that, if there was objective evidence of generalised swelling, that might suggest that the injury was more serious than he had been led to believe. As regards the applicant’s work capacity, Mr Hardcastle opined that, with appropriate breaks and working conditions, and with appropriate conservative treatment (for example, using innersoles and Nurofen, possibly together with injections), she would be able gradually to increase her work hours to 37.5 hours per week.
Additional Medical Evidence
38. Additional material which was tendered in evidence includes the following:
· extract of clinical notes of Mr Anthony Geddes, Orthopaedic Surgeon, relating to the applicant, dated 5 April 2006, in which it is recorded, in the course of reciting the applicant’s history from the right foot injury she sustained on 24 January 2003, that pain in the top of the foot “developed” after 4-5 months (Exhibit R3);
· report of Ms Jane Exton, Manipulative Physiotherapist, to Dr Kym Buttsworth, dated 9 July 2003, relating to the applicant as follows:
“Since writing to you on 08/06/2003 Christine has continued working on her rehabilitation program at home and using the elastic supportive ankle brace.
I reviewed her today and she stated that she feels she was doing very well and is painfree. She does report some sensitivity over the callous (sic) at the base of the fifth metatarsal but only when lying in bed at night with her feet crossed. She is able to wear all shoes comfortably.
Objectively she has minimal tenderness at the ATFL [anterior talofibula ligament]. Her balance is now better on the right than the left!, although still slightly less than normal. (Christine reports that she has never in her life considered herself to have good balance). She is able to walk on her toes, heel, hop and jog without difficulty or pain. She has full active range of movement.
I have discharged Christine from physiotherapy with recommendation to continue with some rehabilitation program but to treat her ankle normally and encourage general exercise.” (Exhibit R2)
Analysis
39. It is common ground that the applicant suffered an “injury” (for the purposes of the Act) to her right foot on 24 January 2003. The matter in dispute is whether that injury continues, or alternatively has ceased, to result in incapacity for work, or impairment, for the purposes of ss 14(1), 16 and 19 of the Act.
Does the applicant’s right foot injury, sustained on 24 January 2003, continue to result in impairment?
40. This question squarely raises an issue of causation. The applicant’s right foot injury, which she sustained on 24 January 2003, will continue to result in impairment, for the purposes of s 14(1) of the Act, if the causal chain has not been broken or has not terminated and that injury remains an effective or operative cause of impairment in the applicant’s case: Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1 at 6.
41. There is no dispute that the applicant, on and from 1 June 2006 (being the effective date of cessation of payment of compensation by the respondent to her under the Act), has suffered, and presently continues to suffer, pain symptoms in her right foot. The evidence before the Tribunal is unreservedly consistent with that proposition. Accordingly, the Tribunal finds that the applicant, on and from 1 June 2006, has suffered, and presently continues to suffer, “impairment”, for the purposes of s 14(1) of the Act, in respect of her right foot.
42. The question then arises as to whether that impairment results from (in the sense explained in paragraph 40 above) the right foot injury which the applicant sustained on 24 January 2003 (“the injury”).
43. The evidence of the medical witnesses is not consistent as regards that issue. Dr Buttsworth, Mr Lim and Mr Beaver were clearly of the opinion that the applicant’s ongoing right foot pain symptoms were causally related to the injury, whereas Dr Bell, Mr McWilliam and Mr Hardcastle were of the opinion that the applicant’s ongoing right foot pain symptoms were entirely caused by factors other than the injury – in particular, the degenerative process. Dr Overmeire, however, expressed a less rigid opinion in that he accepted the possibility that the degenerative process in the applicant’s right foot pre-dated the injury and was aggravated by the injury, but he nevertheless considered, on balance, that the “pre-existing degenerative process [was] a more significant contributing factor” to the applicant’s ongoing right foot pain than the injury.
44. The Tribunal accepts the applicant’s evidence that her right foot was pain-free up until the time of the accident on 24 January 2003 in which she sustained the injury but that from the time of the injury until the present time she has experienced ongoing pain symptoms in her right foot – initially in the whole foot, accompanied by swelling of the whole foot, and subsequently, from late July 2003 onwards, at or across the top of the foot. The Tribunal also accepts the applicant’s evidence that, since the date of the injury, she has not been involved in any other accidents or incidents causing injury to her right foot.
45. As regards the abovementioned conflicting evidence of the medical witnesses, the Tribunal attaches the greatest weight to, and accepts the opinions expressed in, the evidence of Dr Buttsworth, Mr Lim and Mr Beaver.
46. Dr Buttsworth has treated the applicant in respect of her right foot from 25 January 2003 (the day after the injury occurred) to the present, and his clinical notes in respect of that treatment are in evidence (Exhibit A2). In the Tribunal’s opinion Dr Buttsworth is, for that reason, better placed than any of the other medical practitioners who have examined the applicant since the occurrence of the injury to assess the nature and extent of the symptomatic effects of the injury on the applicant. Dr Buttsworth’s evidence, and his clinical notes, paint a picture of ongoing pain in the right foot from the time of the injury, commencing with pain at the specific site of the injury (namely, the 5th metatarsal) accompanied by “generalised pain” and swelling of the whole foot, followed, as the initial generalised pain and swelling subsided, by ongoing pain at particular sites, namely, the ankle (from March to October 2003), the talus (in May 2003), and “across the top of the foot” (from July 2003 onwards). In the Tribunal’s opinion Dr Buttsworth’s evidence and clinical notes are consistent with, and supportive of, the proposition that the applicant’s ongoing foot pain results from the injury.
47. Mr Lim, who saw the applicant on approximately 6 occasions from January 2004 to March 2005, opined unequivocally, on the basis of:
· the applicant’s history (which the Tribunal accepts) that she had not suffered any foot pain prior to the injury;
· the history of the injury and its subsequent treatment;
· the x-ray report of 24 January 2003, the bone scan report of 13 January 2004 and the MRI report of 5 February 2004; and
· his examinations of the applicant;
that the right mid-foot pain, which she was experiencing during the period in which he saw her, was causally related to the injury. The Tribunal was impressed by the presentation and quality of Mr Lim’s evidence and it accepts his opinion.
48. The Tribunal likewise accepts the well-reasoned opinion of Mr Beaver, as set out in his report of 17 August 2006, which accords with that of Mr Lim, namely, that the applicant’s ongoing right mid-foot pain is directly related to a post-traumatic arthrosis resulting from the injury.
49. The Tribunal does not accept the opinions expressed by Dr Bell, Mr McWilliam and Mr Hardcastle. Each of those medical practitioners attributed the applicant’s ongoing right mid-foot pain to degenerative changes in the right mid-foot region and, while each of them opined that those degenerative changes were not related to the injury, their opinions regarding the cause of those degenerative changes were not consistent. Mr McWilliam attributed the degenerative changes to the applicant’s congenital conditions of hallux valgus and pes planus, whereas Dr Bell (who, unlike all of the other medical witnesses, did not find any congenital problems with the applicant’s feet) attributed them to her lifestyle and her weight. Mr Hardcastle did not express a clear opinion regarding the cause of the degenerative changes in the applicant’s right mid-foot region. None of them, however, was able to explain the finding in the bone scan report of 13 January 2004 which indicated substantially greater degenerative changes in the right mid-foot as compared with the left mid-foot; nor were they able to explain why the applicant’s right mid-foot was symptomatic and her left foot was entirely asymptomatic. Furthermore, Mr Hardcastle, who did not see the applicant until June 2007, appeared to acknowledge in his oral evidence that he may have underestimated the severity of the injury when he opined that the degenerative changes in the applicant’s right mid-foot were not causally related to the injury. As regards the opinion expressed by Dr Overmeire in his report of 19 October 2006, the Tribunal notes that, although he regarded the degenerative process as “a more significant contributing factor” to the applicant’s current symptomatology than the injury, he did not expressly exclude the injury as a factor contributing to that symptomatology. In any event, the Tribunal notes that Dr Overmeire’s report was not primarily concerned with the issue of causation, and it prefers the considered and well-reasoned opinions of Mr Lim and Mr Beaver to the opinion of Dr Overmeire in relation to that issue.
Finding
50. Having regard to the whole of the evidence before it, the Tribunal finds that the ongoing right foot pain which the applicant was suffering on 1 June 2006, and which she has continued to suffer from that date, is causally related to the injury. The Tribunal finds, therefore, that on and from 1 June 2006 to the present date, the injury has continued, and is presently continuing, to result in impairment, for the purposes of s 14(1) of the Act, in the applicant’s case.
Does the applicant’s right foot injury, sustained on 24 January 2003, continue to result in incapacity for work?
51. It is common ground that the injury resulted in “incapacity for work” (as defined in s 4(9) of the Act), in the applicant’s case, up until 1 June 2006. The matter in dispute is whether on and from 1 June 2006 the injury has continued, and is presently continuing, to result in incapacity for work, for the purposes of ss 14(1) and 19 of the Act, in the applicant’s case.
52. The whole of the medical evidence before the Tribunal, on balance, supports the proposition that the applicant, notwithstanding the ongoing pain symptoms in her right foot, is physically able to undertake her present employment duties on a full-time basis (namely, 37.5 hours per week). The only clear dissentient from that proposition is Dr Buttsworth who has continued to certify has as unfit for full-time work (see paras 18-24, 27 of the applicant’s statement of evidence set out in paragraph 11 above).
53. The Tribunal attaches the greatest weight, in relation to this issue, to the very comprehensive report and evidence of Dr Overmeire, Consultant Occupational Physician, and it accepts Dr Overmeire’s opinion that the applicant has the physical capacity to perform the work duties which she was performing immediately before the injury occurred provided that she adopts appropriate “self-management strategies” including the taking of hourly postural breaks (up to the allowed total of 22 minutes per day in addition to the allowed 30-minute lunch break and morning and afternoon tea breaks of 15 minutes each), the use of analgesia, the application of a Tubigrip or compression bandage, and regular foot elevation. The Tribunal notes that additional treatment strategies recommended by Dr Overmeire, and by Mr Hardcastle, include the administration of injections and the use of foot orthotics.
54. The Tribunal notes that Mr Lim, Mr Beaver, Dr Bell and Mr McWilliam also opined that the applicant was physically able to perform her normal sedentary work duties on a full-time basis (namely, 37.5 hours per week). Mr Hardcastle opined that, with appropriate conservative treatment, the applicant would be able gradually to increase her working hours from the 32 hours per week she presently works to full-time hours of 37.5 hours per week.
Finding
55. On the basis of the whole of the evidence before it, the Tribunal is satisfied, and finds, that the applicant presently has the capacity to perform, on a full-time basis, the work duties which she was performing immediately before the injury occurred, and that she has had that capacity on and from 1 June 2006 to the present time. Accordingly, the Tribunal finds that on and from 1 June 2006 to the present date, and as at the present date, the injury has not resulted in incapacity for work, for the purposes of ss 14(1) and 19 of the Act, in the applicant’s case.
Decision
56. For the above reasons the Tribunal sets aside the reviewable decision of the respondent dated 5 January 2007 and, in substitution therefor, decides that on and from 1 June 2006 to the present date, and as at the present date:
· the respondent has been, and continues to be, liable, under ss 14(1) and 16 of the Act, to pay compensation to the applicant in respect of the cost of reasonable medical treatment obtained by her in relation to the injury;
· the respondent has not been, and is not, liable, under ss 14(1) and 19 of the Act, to pay compensation to the applicant for incapacity for work.
I certify that the 56 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Dr P A Staer, Member.
Signed: [D Brodie] .....................................................................................
Associate
Dates of Hearing 12-15 May 2008
Date of Decision 14 July 2008
Counsel for the Applicant Mr T Offer
Solicitor for the Applicant Trewin Norman & Co
Counsel for the Respondent Mr B Ablong
Solicitor for the Respondent Dibbs Abbott Stillman
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