Vercoe v Hammond Care

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Vercoe v Hammond Care [2022] NSWPIC 15
APPLICANT:	Megan Vercoe
RESPONDENT:	Hammond Care
MEMBER:	Paul Sweeney
DATE OF DECISION:	10 January 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly compensation and medical expenses in respect of bilateral sesamoiditis and consequential psychological and weight loss/gastrointestinal conditions; worker asserts that her work as an assistant in nursing 27 hours a week caused or materially aggravated her sesamoiditis; conflicting lay and medical evidence; acceptance of the opinion of treating orthopaedic surgeon; Held - finding that the work aggravated or exacerbated bilateral sesamoiditis and this injury aggravated a pre-existing psychological condition; finding that the worker had not established that her weight loss resulted from injury; award for the worker pursuant to sections 36, 37 and 60 of the Workers Compensation Act 1987.
DETERMINATIONS MADE:	1. During 2020, the applicant suffered injury arising out of and in the course of her employment namely an exacerbation and aggravation of the disease of sesamoiditis. 2. The deemed date of injury for the purposes of section 16 of the 1987 Act is 27 June 2020. 3. The applicant’s employment in 2020 was the main contributing factor to the aggravation of the disease of sesamoiditis. 4. As a result of that injury the applicant has suffered a consequential psychological condition namely a major depressive disorder. 5. The applicant has not established on the balance of probabilities that her weight loss/superior mesenteric artery syndrome results from the injury. 6. As a result of the injury the applicant has been totally incapacitated for work since 27 June 2020. 7. That at all material times the applicant’s preinjury average weekly earnings (PIAWE) was $873.21. 8. The respondent to pay the applicant weekly payments of compensation from 27 June 2020 to date and continuing on the basis of a PIAWE of $873.21 pursuant to ss 36 and 37 of the Workers Compensation Act 1987. 9. Strike out the claim for future medical treatment. 10. Order the respondent to pay the applicant’s hospital and medical expenses in respect of treatment of sesamoiditis and the consequential major depressive disorder, and 11. liberty to apply in respect of calculations et cetera.

STATEMENT OF REASONS

INTRODUCTION

Megan Vercoe (the applicant) was employed at a dementia facility operated by Hammond Care (the respondent) at Cardiff as an assistant in nursing. She worked a permanent part-time roster. In 2020, the applicant developed bilateral foot pain which was diagnosed by her treating doctors as medial sesamoiditis. Subsequently, she developed a depressive illness and significant weight loss.
The applicant alleges that the condition of her feet and her consequential depressive illness and weight loss result from her employment with the respondent. Specifically, she alleges that her transfer from Elberta Cottage to Hopkins Cottage on 3 June 2020 required her to spend more of her work time on her feet. This precipitated her medial sesamoiditis.
The respondent disputes that the applicant’s foot pain relates to her employment. The respondent also denies that the applicant’s weight loss relates to her foot pain or the medication taken for that condition.

PROCEDURE BEFORE THE COMMISSION

By these proceedings, the applicant claims weekly compensation and an indemnity in respect of her medical treatment for sesamoiditis, psychological injury, and weight loss.
When the matter came on for conciliation and arbitration on 2 November 2021, Ms Warren, of counsel, represented the applicant and Mr Grant, of counsel, represented the respondent. The conciliation conference and arbitration hearing were conducted over the telephone.
Unfortunately, the conciliation proved to be unsuccessful. I was informed by the parties that they were unable to reach a mutually satisfactory resolution of the threshold issues of causation in respect of the condition of the applicant’s feet and her weight loss. I am satisfied that the parties, who were represented by experienced counsel, had ample opportunity to reach a settlement of the matter during the conciliation conference.
Unfortunately, the time allocated for conciliation/arbitration did not permit counsel to complete oral submissions. Mr Grant completed his submissions on behalf of the respondent. I directed that the applicant serve and lodge written submissions. That direction provided for the employer to serve written submissions in reply. For reasons that are unexplained the respondent’s submissions in reply were not received until 22 December 2021.

EVIDENCE

The documents before the Commission are as follows:
(a)    the Application to Resolve a Dispute (the Application) and the documents attached;
(b)    the Reply and the documents attached;
(c)    Applications to Admit Late Documents dated 26 October 2021, 27 October 2021 and 9 November 2021, and
(d)    the documents forwarded to the Commission by the applicant’s solicitors during the arbitration hearing.
There was no objection to any of the material referred to above. There was no application to adduce further written or oral evidence in the matter. By a direction dated 3 November 2021 I ordered that each party was to lodge with the Commission under a cover of an Application to Admit Late Documents the documents forwarded to me during the arbitration hearing. As far as I can ascertain, the applicant has complied with that direction but the respondent has failed to comply.

SUBMISSIONS

As the submissions of the parties are recorded or in writing, I do not propose to reiterate each of the arguments of counsel in these short reasons. The primary thrust of Mr Grant’s submissions related to the circumstances of the onset of the applicant’s foot pain. He submitted that the applicant had not established a causal nexus between the condition of her feet and her employment or, if it was necessary, established that employment was the main contributing factor to the onset or aggravation of a disease.
Mr Grant submitted that the evidence did not prove that the applicant was required to walk and stand for longer periods after her transfer to Hopkins Cottage on 3 June 2020. The evidence of the lay witnesses who worked with her was to the contrary. He submitted that the onset of the applicant’s foot pain within days of her transfer to the new facility was inconsistent with an employment relationship. It was highly improbable that being on her feet during such a short period could be causative of her pain.
Ms Warren in her written submissions submitted that a diagnosis of medial sesamoiditis had been accepted by each of the applicant’s treating medical practitioners and by Dr Bodel. At the time of onset the applicant was not engaged in any significant physical activity which would require her to be on her feet other than employment. It was, therefore, likely that the condition was caused by her work and, in the absence of any other contributory factor, that employment was the main contributing factor to the onset of the condition.
Both counsel addressed on their respective medical cases. Dr Miniter, an orthopaedic surgeon, and Dr Reiter, a rheumatologist, qualified by the respondent expressed doubt as to whether the applicant’s symptom complex could be explained by a diagnosis of medial sesamoiditis. While the applicant’s treating medical practitioners, and Dr Bodel, who was qualified to give evidence in her case, accept that it may not explain the entirety of the applicant’s symptom complex, they appear to diagnose the condition with a high degree of confidence.
By its submissions in reply the respondent submitted that, in accordance with the pleadings, the applicant’s case should be confined to the development of foot pain during the few days that she worked at Hopkin’s cottage. That was the history given to, and assumed by, both the applicant’s and the respondent’s doctors as a basis for their opinion.
It will be necessary to return to the submissions of counsel in resolving the dispute between the parties. It is first necessary to set out the applicant’s evidence and the evidence of the respondent’s lay witnesses relating to the nature of the applicant’s employment. What follows is not intended to be a comprehensive survey of the evidence. Rather, I set out the salient points of the evidence so that the parties can understand the way in which the Commission has resolved the dispute.

Applicant

The applicant’s evidence is contained in an initial statement dated 27 July 2021 and a series of supplementary statements. By her initial statement, the applicant records that while she had depression following the birth of her son in 2010, she had no subsequent problems with her mental health. She recounts that she experienced pain in her right foot from an ingrown toenail in May 2020, which was treated by her general practitioner and a podiatrist.
The applicant states that she lived adjacent to the respondent’s facility at Cardiff and her journey to work “would be no more than 200 metres”.
The applicant states that she commenced employment with the respondent in September 2019. From March 2020, as a result of the COVID lockdown, she was not engaged in any activities outside her working hours. She states that she initially worked in Elberta Cottage, an eight bed cottage with eight residents. She continues:
“On 3 June 2020 I was transferred to the Hopkins Cottage, which is a much larger cottage, with fifteen (15) residents to care for. The 15 residents in this cottage required two (2) staff members to provide care and assistance for all residents. This cottage was significantly larger in size and therefore the requirements of walking and standing for prolonged periods of time was greatly increased in comparison to the Elberta Cottage I was previously working in.”
The applicant states that the majority of residents in the Hopkins Cottage were bed-bound. Her work included physically assisting and caring for the residents in bed, cleaning their rooms, cleaning the cottage and meal preparation as well as medication rounds. She expressed the opinion that the work involved at the cottage “was excessive” given the number of residents and that the time that she was “constantly on my feet and lifting and attending to each resident” led to her developing painful feet.
The applicant also says that she has lost 27kg since June 2020. She says that she has never previously experienced an eating disorder and that she understands that the weight loss “is related to the severe stress I am in because of my situation”. She states that her treating gastroenterologist, Dr Talley has diagnosed her with “SMA syndrome”. The applicant says that she is unfit to perform any type of employment because of her foot pain.
The applicant states that before June 2020 she was able to engage in socialising with friends and family, perform regular exercise, and take her son to his sporting activities on weekends. She is no longer able to perform any of these activities.
By a supplementary statement, the applicant addresses an email from Deborah Walsh the workers compensation manager of the respondent. She states that:
“My ingrown toenail issue is separate and has nothing to do with my medial sesamoiditis, as per the opinion of the medical professionals who are treating me.”
The applicant also says that Ms Walsh’s assertion that she worked at Elberta Cottage up until 14 June 2020 is incorrect. She confirms that she commenced at that cottage on 3 June 2020 and attaches a roster confirming this fact.
The applicant also states that she disagrees with Ms Walsh’s assertion that Elberta Cottage is only “a little smaller” that Hopkins Cottage. She states:
“I disagree with this; the Hopkins Cottage is at least twice as large as the Elberta Cottage and is therefore more physically demanding for workers.”
She attaches satellite photographs of the two cottages which she states confirms that “Hopkins Cottage is much larger in size than Elberta Cottage”.
By a further supplementary statement, the applicant says that she believes that the employees of the respondent, who provided statements, were “minimising the duties that were required of me whilst I was at Hopkins Cottage”. She reiterates that the residents of the cottage were immobile and required a high level of assistance. She reiterates that the cottage was “much larger”. She also sets out the activities that she was required to perform on her feet at the Hopkins Cottage which required her to walk or stand. She states that:
“Performing those duties for eleven (11) residents took up almost all the time in a shift. It was a lot of work, and we were constantly required to be moving and on our feet.”
In a fourth supplementary statement, dated 26 October 2021, the applicant returns to the nature of her employment at Elberta Cottage. She says that her shifts were usually from 2.30pm to 9.15pm and she would work six days per week. She says that she was able to sit down for long periods because residents were all mobile and could move around the facility unaided by the staff. Accordingly, she only spent “50% to 60% of my time on my feet performing work”. She reiterates that she did not experience pain in her feet whilst performing this work.
The applicant says that from the end of her first shift at Hopkins Cottage, on 3 June 2020, she noticed pain in the bottom of her feet. The applicant reiterates that all of the patients were immobile and most had cognitive difficulties. She continues:
“Because the residents were immobile, we were required to use a sling lifter to mobilise the residents for essentially anything they needed to do, including, getting out of bed, going to the toilet, dressing them, bathing them, taking them to get fed, etc.”
The applicant states that she was required to push the sling lifter, which was required to perform these tasks, to the resident’s bed on each occasion that they needed to be transferred for any of the essential activities of daily living including toileting, dressing, bathing etc.
The applicant says that at Hopkins Cottage she estimates that she spent “80% to 90% of my time on my feet”. Two staff were rostered on at Hopkins during each shift and a “floater”, who was allocated to work at both cottages and would assist the staff in each cottage once or twice a shift.
The applicant says that after the onset of pain on 3 June 2020, she experienced increasing pain in the bottom of her feet on the following days. She informed Sue Daniels of this on 5 June 2020.
The applicant says that the statement evidence of Dee Shire, Susan Best and Sue Daniels, employees of the respondent was provided with a view “to minimise the duties I was performing in the Hopkins Cottage”. She states that Sue Daniels’ evidence that she did not inform her that she was experiencing foot pain is untrue.
In respect of the condition of superior mesenteric artery syndrome (SMA) the applicant says that she has been told by her doctors that it can be attributed to extreme stress. She has been hospitalised on four occasions with the condition. She continues to consult with Dr Talley, Dr Chacko a nephrologist and Dr Oakley a rheumatologist.
Contrary to her previous evidence, the applicant concedes that she consulted Dr Lyndall Savage on three occasions between 2012 and 2015 for “anxiety and stress”. She also saw Dr Beverly Brookes on 10 June 2019 when she was experiencing anxiety and depression as a result of a child access issue and was prescribed Lexapro. She says that she was able to come off this medication in August 2019 and did not experience issues with her mental health until her workplace injury.
By a supplementary statement of 29 October 2021, the applicant further elaborates on her work at Hopkins Cottage. She reiterates that the cottage was understaffed given the number of residents and says that she was constantly required to be moving and on her feet. She also attaches a photograph of her backyard fence depicting the gate to the respondent’s premises.

Karen Best

Karen Best is a residential care manager for the respondent. She commenced employment on 20 July 2020. She states that the applicant was involved in the general care of residents. She continues:
“The nature of her duties are constant. They involve some lifting, bending, pushing and pulling and other physical movements. They can be at times, mentally stressful.”
Ms Best states that Elberta Cottage was a “9 bed cottage that has high care residents”. She continues:
“The walking in this cottage would be the same as in the Elberta Cottage if not a little less due to the design and amount of beds of each corridor.”
Ms Best describes the nature of the process involved in feeding a patient and states that there is “no need to stand when feeding as this would be less personal and less interactive”. Contrary to the applicant’s evidence, she says that residents were more likely to wander around at Elberta Cottage where the residents were more ambulant. She states that both cottages had the same type of duties involved. She says that she has not had other staff complain of foot soreness or similar injuries. She states that when she commenced in July 2020 Hopkins was newly opened and only had around 11 residents at the time.

Dee Shire

Dee Shire is the team leader support coordinator for the respondent’s Cardiff facility. During the time that the applicant was working in Hopkins Cottage she did not work closely with her “but oversaw her as a team leader”. She states that there were only eight residents in the cottage in May 2020. She describes the staffing ratio and the system of care employed within the cottage. She continues:
“There is a main dining area in the unit which from there the furthest you would walk would be up to 30-40 metres to the end of one corridor and there is a corridor on either side of the dining room.
Staff would be on their feet for most of each shift. They would have a chance to sit when doing notes, feeding residents at the dining room or in bed and other times with doing other tasks with residents and interacting with them.
The duties performed by Megan were common work duties that are often associated with aged care. There was nothing out of the ordinary that she would do.”
Ms Shire also states that at the time that she was team leader Megan took substantial sick leave with blisters on her feet, ingrown toenails and general sore feet. She states that she was at one stage wearing slippers to work “which she was spoken to about and she went home and ceased work at that time”. She thought that the applicant’s performance was very “lackluster” .

Sue Daniels

Sue Daniels is employed as a registered nurse by the respondent. However at the time of the applicant’s cessation of employment she was employed as a team leader. Relevantly, she states:
“At one stage whilst working in the Elberta Cottage, Megan did complain to me about having new shoes and she had a blister on her foot. It appeared it was caused by the new shoes she was wearing.
When she spoke to me about this, she was wearing runner type shoes, she was crying at the time and this was on a Sunday shift. I explained to her that if she had a blister and was unable to walk, she was not fit to work. I subsequently sent her home due to the blister and also due to her being in an emotional state.”
Ms Daniel states that at the time the applicant commenced work at Hopkins Cottage there were “only four residents in there then”. She states that as the residents at Hopkins were not as ambulant as those at Elberta Cottage there were more resident transfers. She continues:
“At no time when Megan worked in the Hopkins Cottage was it full. To my recollection there was no more than 4-5 residents in the facility at that time. We had two staff on and the normal employee/resident ratio is 1:5 but we worked as a resident needs ratio so in saying this, there was always at least two staff on duty.”

Jessica Mosbey

By an email dated 28 October 2021 Ms Mosbey, who is a team leader at Elberta and Quintral Cottages but has also worked at Hopkins Cottage, states that she disagrees with the applicant’s account of the necessity to walk during her working hours at the Elberta and Hopkins Cottages. She states:
“Elberta Cottage is a high behaviour cottage and the behaviour of the residents means staff are constantly redirecting residents. There is no way that staff can sit down for any length of time.
I also disagree with paragraph 6 of the statement. The residents in Elberta Cottage do not have the attention span to sit and play board games, they are constantly pacing, getting into each other’s rooms and spaces. Activities do not last any longer than a few minutes because the residents lose interest quickly.
In relation to paragraph 17, most of the residents in Hopkins Cottage were immobile and the workload there was less than at Elberta Cottage. There is more time on your feet in Elberta Cottage than Hopkins Cottage as the residents at Elberta Cottage are mobile and high behaviour whereas most of the residents at Hopkins Cottage are immobile.”
By an email dated 28 October 2011, Ms Shire says that she has reviewed the applicant’s statement of 26 October. She notes that the duties at Elberta and Hopkins Cottages was the same however:
“The workload at Elberta Cottage was and is much higher as it is a behaviour cottage and the residents are more mobile. Residents in Elberta are high behaviour and very ambulant, they require constant supervision and additional interaction from staff as they wander often with intrusive behaviour into other residents’ rooms and/or personal space …”
By contrast the residents of Hopkins are high care and the majority are non-ambulant and require less interaction. She reports it would take approximately 20 to 30 minutes to complete a shower from commencement to re-slinging them into their comfort chair.
By an email dated 28 October 2021, Sue Daniels also says that she disagrees with the applicant’s account of the added standing and walking involved at Hopkins Cottage. She states:
“I also thoroughly disagree with paragraph 17, in particular I totally disagree that staff were on our feet 8-90% (sic) of the time at Hopkins Cottage. In Hopkins Cottage a number of the residents are non-mobile. Feeding residents takes a good 30 minutes in Hopkins and you are sitting with them.”
She also states that the roster at Hopkins Cottage was five days per week on week 1 and four days per week on week 2. She states that Megan initially worked a nine day fortnight but dropped to an eight day fortnight.

DISCUSSION AND FINDINGS

The respondent’s medical case casts doubt on whether the applicant suffers from bilateral medial sesamoiditis. Dr Loretta Reiter examined the applicant at the request of the respondent by telehealth and provided a report of 6 October 2021. After acknowledging the limitations of clinical examination by this medium, she recorded that the applicant had tenderness bilaterally of her first metatarsophalangeal joint. She considered the possibility of an underlying inflammatory condition but noted that this was not supported by the bone scan. She suggested that an ultrasound-guided cortisone injection into the area of her sesamoid bone and her flexor pollicis longus tendon would have diagnostic value. If she did not get pain relief with this anaesthetic, sesamoiditis was not the cause of her forefoot pain. Conversely, if she did obtain relief a surgical option might be considered.
Dr Reiter also cast doubt on the connection between sesamoiditis and the applicant’s employment. She noted that the condition normally occurs in distance runners and sportsmen and women. She continued:
“These are activities that have a much greater force through the forefoot, in particular the big toe, which is why sesamoiditis occurs in these activities. Simply an increase of walking twice the amount over a two day period in my opinion is highly unlikely to have caused sesamoiditis.”
Dr Miniter, an orthopaedic surgeon, acknowledged that the applicant’s radiological investigations suggested bilateral sesamoiditis. However, he expressed the opinion that the applicant’s complaints and his clinical examination were not indicative of that condition. The areas of pain on the applicant’s plantar foot were far too extensive to reflect sesamoiditis. He also observed that the applicant exhibited a very high level of pain from which she had made no recovery despite rest over the last 12 months. He continued:
“In summary, the dramatic nature of her presentation is cause for great concern. I have much experience with treating patients with medial sesamoiditis. They do not present in this fashion. Her behavioural patterns are, in my opinion, consistent with her psychiatric presentation. I stand by my opinion that while she may have medial sesamoiditis, it could not possibly be held responsible for the extensive nature of her pain management protocol. Indeed, the alleged workload could also not be held responsible for the development of medial sesamoiditis in and of itself.”
Dr Miniter also expressed the opinion that if one accepted the employer’s account of her work at Hopkins it would be “implausible to state that the work duties are responsible for the development of her pain.”
As Dr Miniter concedes, the radiological evidence suggests that the applicant has lesions in her feet consistent with sesamoiditis. Dr Pankaj Rao, an orthopaedic surgeon, who specialises in the foot and ankle and has treated the applicant, expresses the opinion in a report bearing date 13 January 2021 that the applicant is suffering from sesamoiditis in both of her great toes. He states that this “occurred over a 12 month period as she worked in an aged care facility at Cardiff”. He also expresses the opinion that the applicant’s employment with the respondent is the substantial contributing factor to her diagnosed workplace injury. He thought that she was totally unfit for work at that time and that the treatment may involve injection therapies and “assistance from a pain specialist and their expertise in medications and other forms of injections and treatment as well”.
By his initial report to Dr David Jones, the applicant’s general practitioner, Dr Rao said this:
“I have gone through Megan’s MRI scans today and can clearly see the medial sesamoiditis. It is unusual to have this bilaterally and simultaneously. Megan has tried multiple medications such as Mobic and Lyrica but unfortunately, they have not had the desired benefit. She is now starting to enter a chronic pain state which can be quite psychologically damaging.”
Dr Russo, a pain specialist, who saw the applicant at the request of Dr Rao on 28 October 2020, also expressed the opinion that the applicant had “both MRI and bone scan evidence of sesamoiditis which is consistent with her presentation”. However, he added that she had also “developed some depression and impaired cognitive and behavioural responses to the persistent pain”.
Dr Jones also supports a diagnosis of bilateral first MTP sesamoiditis with secondary depression. He asserts in a report dated 30 November 2020 that the condition “started following change in her work so I think her employment with Hammond Care is the substantial contributing factor to her workplace injury”.
On the basis of this brief review of the evidence, I intend to find on the balance of probabilities that the applicant suffers from bilateral medial sesamoiditis. It is true that there remain doubts as to the diagnosis given the applicant’s unusual presentation. However the unanimity of opinion in the applicant’s medical case, which Dr Reiter, perhaps with some reservations, appears to accept suggests that it is likely to be correct. Only Dr Miniter refutes the diagnosis. He suggests, of course, that the applicant’s pain is too widespread and too intractable to be explained solely on the basis of medial sesamoiditis.
While Dr Miniter’s reports are rarely of assistance, there may be some force in his opinion in this case. However, the applicant’s presentation may be partly explained by her intercurrent conditions. Both Dr Rao and Dr Russo suggest there are psychological factors that may be relevant to the applicant’s presentation.
Clearly, the applicant has also been severely affected by SMA syndrome. In March 2021, she presented at John Hunter Hospital primarily in respect of her significant weight loss over the previous six months. The triage nurse noted that she stated that she spends up to 16 hours a day in bed only going outside once per day to meet her son from school and that she struggles to get upstairs/walk to end of driveway due to weakness rather than pain. It was noted that the applicant was “significantly deconditioned”.
Thus, while the applicant’s presentation may be unusual, I doubt that fact undermines the conclusion that she suffers from medial sesamoiditis. It also must be borne in mind that while Dr Miniter was unable to localise the applicant’s symptoms to her medial sesamoid bones on examination, each of the treating medical practitioners were able to do so on clinical examination. While Dr Bodel noted some peculiar symptoms in her lower limbs, he also recorded that the applicant complained of “severe pain in both feet, principally on the medial side of the foot under the first and second metatarsal heads.”

INJURY

The central contest in the case is whether the applicant’s sesamoiditis was caused or materially aggravated by her employment with the respondent. There are a number of aspects to the respondent’s argument on this issue. First, the respondent submitted that the applicant was confined to argue a case based on the pleadings namely that her condition had been caused or materially aggravated in the relatively short time that she worked after 3 June 2020. Thus, she was unable to implicate the general nature and conditions of her work with the respondent as a factor contributing to injury.
Secondly, the respondent argued that the work at Hopkins was not materially different to the applicant’s earlier work. It would be slightly absurd to conclude that such a short period of employment could cause such long lasting pathology. To this must be added the opinion of the respondent’s doctors that only out of the ordinary physical activity might cause sesamoiditis.
I doubt that the applicant is confined to making a case strictly in accordance with the pleadings or, more accurately, with the second paragraph of the injury description in the Application. The Personal Injury Commission like its predecessors, the Workers Compensation Commission in its various iterations, and the Compensation Court of New South Wales, is not a tribunal of strict pleading. The case law makes that perfectly clear: see for example, State Rail Authority of New South Wales v Reodica [2000] NSWCA 37, 20 December 2000.
On reviewing the Personal Injury Commission Act 2021, I note the provisions from which it has been inferred in the past that the Commission or Court was not a tribunal of strict pleading has been reiterated in the legislation. The Commission is to hear and determine matters on the merits and justice of the case. That statutory command applies to both parties. One aspect of the command is to ensure that neither party can put a case that takes the other by surprise. However, that is not an issue in the present circumstances.
The applicant’s case is pleaded as a disease which was caused or materially aggravated by the employment. The first paragraph under the heading Injury Description is as follows:
“In the course of the Workers employment with Hammond care as an aged care assistant, the worker has suffered injury to her lower extremities left and right feet”.
In my opinion, the first and third paragraphs under this heading in the Application permit the applicant to present a case that is wider than one restricted to her work after 3 June 2020 when she was transferred to Hopkins cottage. As Mr Grant recognised, there is evidence which was not objected to from Dr Rao which attributed the applicant’s injury to her work over the previous 12 months with the respondent. The respondent did not suggest that it is prejudiced by that evidence. I doubt that it could maintain such an argument as it had the opportunity to refer that opinion for comment by its qualified doctors.
Certainly, the respondent’s lay evidence makes it difficult to accept that the applicant spent more time on her feet at Hopkins then whilst working at Elberta. The evidence is not completely uniform but there is no basis to reject it. Ms Best stated that the time spent on one’s feet in Hopkins was about the same or perhaps a little less than in Elberta. Ms Shire states that there were only eight residents at the cottage shortly before the applicant commenced work there on 3 June 2020. There is quite a deal of other evidence along similar lines. Nonetheless, Ms Best stated that the nature of the carer’s duties were “constant” and Ms Shire stated that they would be on their feet most of the time. Ms Shire’s later email evidence qualifies her earlier evidence. She states that the workload at Elberta is much higher as the residents are more mobile. It is unclear if she intends to qualify her statement that staff would be on their feet most of the time.
Thus, the evidence establishes that the applicant worked for the respondent for a period of nine months, probably averaging around 27 hours per week over nine shifts a fortnight. While she would have been on her feet most of the time during shifts it is not evident that she walked on hard surfaces. It is not evident that the larger size of Hopkins cottage necessitated more time on her feet. From the applicant’s perspective this is not a particularly promising start for an enquiry into the connection, if any, between her employment and her foot pain. Obviously, to the extent that the applicant’s medical case for the development of sesamoiditis is posited on an assumption of significantly increased standing or walking over the period after 3 June 2020 it is flawed.
Little attention was paid at the arbitration hearing to the articles on Sesamoiditis from the Cleveland Clinic and MyFootDR which were tendered in evidence by the applicant. Unfortunately, they were not addressed by medical practitioners on either side of the record. The articles suggest, as does much of the medicine in the case, that term sesamoiditis is an overuse injury. They also suggest that people who are engaged in the repetitive loading of the ball of the foot such as in dancing, sprinting or even walking are more likely to suffer from the condition. Both articles state, however, that “anyone” can develop the condition particularly those with abnormalities of the foot.
But little weight can be attached to Internet articles, when the issue for determination requires the consideration of competing medical opinion evidence.
In his supplementary report, Dr Bodel addressed the issue of causation and the nature of the injury thus:
“I do consider that this lady has bilateral medial sesamoiditis. That is to say that the medial sesamoid under the heads of each first metatarsal are acutely tender and causing the painful experience that she has. This clearly is a disease process of gradual onset. It is indeed a pathological process or illness which has come on gradually and is often associated with prolonged standing or walking on hard surfaces. In this circumstance it is non-transient although it may be idiopathic (cause unknown) as to the causal agent in this circumstance. Prolonged standing or walking on hard surfaces however is the most likely cause.”
Bearing in mind that the applicant has a modest carovarus deformity, which Dr Miniter states can cause susceptibility to sesamoiditis, it seems likely that the applicant’s condition is a result of this susceptibility in combination with her walking upright. Irrespective of whether they work, human beings spend part of each day on their feet. Plainly, this will vary with age, state of health, partiality for exercise and a host of other factors.
I have reached the conclusion that it is likely that the concentrated periods of being on her feet during working hours in her employment with the respondent aggravated or exacerbated an underlying condition of the applicant’s feet and precipitated the symptomatology that caused her to seek medical treatment in June 2020. Contrary to the applicant’s impression, I am unable to find that it relates to what walking, after her transfer to Hopkins cottage, in the days before she first experienced symptoms.
In reaching this conclusion, I prefer the evidence of the Dr Rao, who said this in his report to the applicant’s solicitors on 13 January 2021:
“As I outlined in my letter, the actual mechanism of injury is difficult to define for Megan. She is suffering from medial sesamoiditis in both of her great toes, and it has occurred over a 12-month period as she worked in an aged care facility at Cardiff.”
On reading the entirety of the doctor’s evidence, I do not believe that his use of the phrase “it is difficult to define” detracts from the strength of Dr Rao’s opinion that the applicant’s condition was materially aggravated by being on her feet. Rather, he is attempting to delineate the period of employment which might be responsible for a deterioration in the applicant’s condition sufficient to cause symptoms. Clearly, Dr Rao has seen the applicant on a number of occasions and is in the best position of all the medical practitioners to express an opinion on diagnosis and causation. I prefer his opinion to that of the Dr Miniter and, to the extent that it differs, the opinion of Dr Reiter.

MAIN CONTRIBUTING FACTOR

The applicant states that during that years Covid 19 outbreak she did not engage in any activities outside the home other than walking 200m to and from work each day. There is no evidence to contradict her on this statement. It was not suggested that she was engaged in running, walking, dancing or wearing high heels during this period. She denied outdoor interests or activities when she saw Dr Bodel. I infer that in the months before the onset of her symptomatology her standing and walking at work was the most concentrated, and possibly the longest, period of being on her feet during the course of the day.
Accepting that the applicant’s symptomatic sesamoiditis results from repetitive strain, it is more probable than not that her employment is the main contributing factor to an aggravation of that condition in the months before June 2020 which precipitated her symptoms in her feet. I reach this conclusion on the assumption that the applicant had an abnormality of her feet which made her susceptible to injury from performing activities on her feet. Any concentrated activity of this kind may have produced this outcome. But on the evidence in this case it was her employment.
In reaching that conclusion I have considered the entirety of the evidence particularly that related to the applicant’s employment and non-employment activity and evaluated whether the employment activity can be said to be the main contributing factor to the aggravation of the disease: see State Transit Authority of New South Wales v El-Achie [2015] NSWCCPD 71

PSYCHOLOGICAL CONDITION

The respondent accepted that, if the applicant succeeded in proving injury, the applicant’s psychological condition was consequential on that injury. The only medical evidence tendered in the case relevant to the applicant’s psychological condition are the reports of Mr Screen, her retreating psychologist, and Dr Chow, a psychiatrist qualified by her solicitor. Both are supportive of a causal connection between sesamoiditis and the onset of psychological illness.
By a supplementary report dated 14 October 2001, Dr Chow reviewed the applicant’s history of treatment for depression and expressed the opinion that the applicant’s sesamoiditis had caused an aggravation of that condition. It is evident from the totality of the medical evidence that the applicant’s reaction to sesamoiditis cannot be explained on a physical basis and must be attributable to an idiosyncratic psychological response to the condition.

I find that as a result of injury the applicant suffered a consequential medical condition namely an aggravation of a pre-existing depressive illness.

WEIGHT LOSS/SMA SYNDROME

Dr Sethi, a gastroenterologist, saw the applicant at the request of the respondent on 11 September 2021 by telehealth. He expressed the opinion that the applicant’s superior mesenteric artery syndrome (SMA) had developed “independently of her employment and alleged work injury”. He attributed the SMA to the sudden weight loss and hypothesised that the applicant’s history of cigarette smoking may play a role in the development of her condition. Dr Sethi recorded a list of medications which had been prescribed for the applicant. However, as Ms Warren submitted, he did not specifically comment on a possible connection between prescribed medication and the development of SMA.
By a supplementary report dated 17 October 2021, Dr Sethi reviewed material from the John Hunter Hospital including reports of Dr Nicholas Talley, a gastroenterologist, Dr Sethi said
“Ms Vercoe has a past history of heavy and ongoing cigarette smoking, marijuana consumption, interstitial lung disease and bilateral sesamoiditis who developed profound weight loss. She was found to have SMA syndrome.
In my opinion, her weight loss was unrelated to her sesamoiditis and her employment. These did not play any causative role. It is far more probable and realistic that her weight loss is multifactorial and due to other factors.”
He once again expressed the opinion that smoking was implicated in the applicant’s weight loss. He also stated that her marijuana consumption was likely also depressing oral intake and contributing to her weight loss and poor appetite.

Dr Geoffrey Tyler, a respiratory physician at the John Hunter Hospital, reported to Dr Jones on 19 February 2021. He expressed the preliminary opinion that:
“her weight loss, ongoing nausea, early satiety, and constipation are most likely due to the narcotics, which may also be aggravating her severe pain, with up regulation of pain systems throughout Central nervous system through chronic use.”
He also suggested a battery of tests to eliminate interstitial lung disease and peripheral neuropathy.
Dr Irani and Dr Talley, gastroenterologists, saw the applicant jointly at the John Hunter Hospital on a number of occasions in respect of her weight loss. They jointly wrote to Professor Chacko a nephrologist, on 26 May 2021. They suggested that the applicant’s gastrointestinal symptoms of gastroparesis may have been compounded by narcotic use. In respect of SMA syndrome, they noted that radiological evidence suggested an acute aorto-mesenteric angle of 18 and aorto-mesenteric diameter of 5mm, and proximal duodenal dilation. In that letter, they also state:
“Thank you for reviewing Megan who has come to us with a constellation of 30 Kg weight loss, vomiting and bilateral foot pain. There are features of interstitial lung disease which may be smoking related. She had been previously a well nursing assistant at an aged care facility. Some of her GI symptoms may be explained by opioids used to relief the foot pain. We ordered a urine albumin/creatinine ratio given that her serum albumin was 20 during a brief hospital admission, and this returned at about 1 gram. There are no obvious medication culprits including no NSAIDS or herbs. Her blood pressure prior to sedation on endoscopy day was 108/75 mm/Hg. We've started the workup for a glomerular pathology with urine looking for dysmorphic RBCs, urine protein and serum complements which are pending. Her ANA, ENA and ANCA are negative. There is no LFT derangement to suggest viral hepatitis.
We would appreciate your review of Megan”
Ms Warren suggested that the Commission should infer a connection between the applicant’s weight loss, SMA and the medication prescribed for the applicant’s bilateral medial sesamoiditis from the notes and reports of Dr Talley and Irani and Dr Tyler. However Dr Tyler’s opinion appears to have been overtaken by events. It is evident, in my opinion, that in writing to Dr Chacko neither of the gastroenterologists are confident of a diagnosis. They suggest the possibility of a connection between “some” of the applicant’s gastric symptoms and medication prescribed for her foot pain. It is not, however, an authoritative pronouncement. It was a suggestion made before the applicant underwent further testing. It is not clear to me that it explains the entirety of her weight loss/SMA condition. My impression is fortified by the heading of the referral letter to Prof Chacko which is as follows:
“Macroalbuminuria otherwise unexplained”
I infer that the gastroenterologists are still searching for an explanation of the applicant’s condition.
In my opinion, the applicant has not proven that her SMA and sudden weight loss results from her orthopaedic injuries either by way of a reaction to medication or induced by a psychological illness. Dr Sethi’s report highlights a number of potential causes of the condition in the applicant’s case that are unrelated to her employment to these factors. While Dr Tyler is confident the connection between weight loss and narcotics, it is not apparent that the applicants treating gastroenterologists have reached any firm conclusion on the issue of causation.

INCAPACITY

There is little doubt that the applicant has been totally incapacitated by her sesamoiditis and the consequential psychological illness. Only Dr Miniter expresses an opinion to the contrary. His opinion is at odds with the opinions of each of the medical practitioners who have treated the applicant and her qualified orthopaedic surgeon. Dr Reiter suggests that from a physical viewpoint that the applicant may be fit for very limited hours of sedentary work. It seems tolerably clear that but for her psychological symptoms the applicant could perform some work. However, her psychological illness is overwhelming.
The Application nominates 4 June 2020 as the notional date of injury. That does not appear to be correct. The evidence suggests that the applicant worked beyond that date and the claim for compensation does not commence until 27 June 2020. I, therefore, propose to find that the deemed date of injury for the purposes of s 16 of the 1987 Act is the same date. I propose to make the following findings:
(a)    during 2020, the applicant suffered injury arising out of and in the course of her employment namely an exacerbation and aggravation of the disease of sesamoiditis;
(b)    the deemed date of injury for the purposes of s 16 of the 1987 Act is 27 June 2020;
(c)    the applicant’s employment in 2020 was the main contributing factor to the aggravation of the disease of sesamoiditis;
(d)    as a result of that injury the applicant has suffered a consequential psychological condition namely a major depressive disorder;
(e)    the applicant has not established on the balance of probabilities that her weight loss/superior mesenteric artery syndrome results from the injury;
(f)    as a result of the injury the applicant has been totally incapacitated for work since 27 June 2020, and
(g)    that at all material times the applicant’s preinjury average weekly earnings (PIAWE) was $873.21.
I propose to make the following orders :
(a) respondent to pay the applicant to weekly payments of compensation from 27 June 2020 to date and continuing on the basis of a PIAWE of $873.21 pursuant to ss 36 and 37 of the 1987 Act;
(b) strike out the claim for future medical treatment, and
(c) order the respondent to pay the applicant’s hospital and medical expenses in respect of treatment of sesamoiditis and the consequential major depressive disorder.

[2022] NSWPIC 15

10 January 2022