Wardle and Comcare (Compensation)

[2016] AATA 181

Wardle and Comcare (Compensation) [2016] AATA 181 (24 March 2016)

Division

GENERAL DIVISION

File Number(s)

2014/5429

2014/5430

Re

Adrianna Wardle

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal	Senior Member J F Toohey Dr William Isles, Member
Date	24 March 2016
Place	Sydney

(i)       The decision that Ms Wardle did not presently suffer the effects of her compensable injury is set aside and in its place the Tribunal substitutes the decision that she continues to suffer the effects of her injury;

(ii)      The decision that the respondent is not liable to compensate Ms Wardle for Achilles tendonitis is set aside and in its place the Tribunal substitutes the decision that her employment contributed to a significant degree to her injury and the respondent is liable to compensate her for it;

(iii)     The decision that the respondent is not liable to compensate Ms Wardle for secondary hip pain is affirmed.

............................[sgd]............................................

Senior Member J F Toohey

CATCHWORDS

COMPENSATION -–  whether respondent presently liable to compensate applicant  -–  thrombophlebitis -– whether employment contributed to a significant degree to Achilles tendonitis  -–  liability accepted -– whether respondent presently liable  -–  whether respondent liable for hip condition  -–  decision under review concerning continuing effects of thrombophlebitis set aside  -–  decision concerning Achilles tendonitis set aside- decision concerning right hip pain affirmed

LEGISLATION  

Safety Rehabilitation and Compensation Act 1988

REASONS FOR DECISION

Senior Member J F Toohey
Dr William Isles, Member

24 March 2016

BACKGROUND

1. On 29 April 2011, Adrianna Wardle was a Customs Officer employed by the Australian Customs and Border Protection Service at Sydney International airport and was processing incoming passengers.  After a period of prolonged sitting during which she had only one short break, she felt sharp pain on the inside of her right ankle when she stood, and she had difficulty walking. 

2. On 16 May 2011, Ms Wardle claimed compensation under the Safety Rehabilitation and Compensation Act 1988 (the Act) for superficial thrombophlebitis affecting her right ankle.  Comcare accepted liability for her injury.

3. By a reviewable decision dated 9 October 2014, Comcare affirmed a determination dated 6 June 2014 that, as of that date, Ms Wardle did not presently suffer the effects of her compensable injury and was not entitled to compensation for incapacity or medical expenses.  Comcare also affirmed a determination that it was not liable to compensate Ms Wardle for Achilles tendonitis or right hip pain because her employment did not contribute, to a significant degree, to either condition. 

4. Ms Wardle seeks review of Comcare’s decisions.  She contends that she continues to suffer the effects of the injury on 29 April 2011.  Further, that she suffers secondary injuries of Achilles tendonitis in her right ankle and right hip pain.

   LEGISLATION

5. By s 14 of the Act, Comcare is liable to compensate an employee for an injury suffered by the employee if the injury results in death, incapacity for work or impairment.

6. Section 5A(1) provides that injury means:

   (a)a disease suffered by an employee; or

   (b)an injury (other than a disease) suffered by an employee, that is 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), that is an aggravation that arose out of, or in the course of, that employment.

7. By s 5B(1), disease is defined to include an ailment suffered by an employee, or an aggravation of such an ailment, “that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth”.  Save for whether her employment contributed to the required degree, it is common ground that Ms Wardle’s conditions are diseases for the purposes of the Act.

8. Significant degree means a degree that is substantially more than material: s 5B(3).  

9. In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment, matters that may be taken into account include: the duration of the employment; the nature of, and particular tasks involved in, the employment; any predisposition of the employee to the ailment or aggravation; any activities of the employee not related to the employment; and any other matters affecting the employee's health: s 5B(2).

   Ms Wardle’s evidence

10. Ms Wardle is aged 53.  She has been employed by the (now-named) Department of Immigration and Border Protection since May 2006.  She has a history of varicose veins and “venous insufficiency”.  She had two episodes of thrombophlebitis before the injury on 29 April 2011.  Shortly after her son was born in 1995, she developed deep vein thrombosis for which she was hospitalised for several days.  A full blood screen showed no abnormalities of note and her symptoms resolved after several months with treatment. 

11. In December 2009, Ms Wardle flew to London.  She had clexane injections immediately before and after the flight but developed pain on the inner side of her right foot.  She was diagnosed in London as suffering from superficial thrombophlebitis which was treated with pressure stockings and anti-inflammatory medication.  Her symptoms settled but flared up again on the return flight.  Back home she was given a further injection; her symptoms resolved and she suffered no further symptoms. 

12. Ms Wardle gave evidence that, prior her injury in April 2011, her duties frequently involved walking long distances at the airport and climbing steps or ladders into aircraft to inspect them.  She described her duties as “ninety percent … active”.  We do not understand there to be any challenge to her account of her duties. 

13. Ms Wardle also gave evidence that she swam competitively as a young person and, more recently, attended a gym; in July 2008, she completed the 11 kilometres “Sutherland to Surf” walk; in June 2009, she applied to join the NSW Fire Brigade as a rural officer and undertook training that involved climbing ladders, crawling in confined spaces and running up to 200 metres carrying a heavy hose to a hydrant. 

14. We accept Ms Wardle’s evidence that she had no difficulty performing her work duties or any other activities before the recurrence of thrombophlebitis which is the subject of these proceedings.  She gave evidence that she has felt pain in her ankle since, which she counteracts by walking on the outside of her foot to relieve the pressure. 

15. On 4 May 2011, Ms Wardle saw her then general practitioner, Dr Delaney.  Since 9 May 2011, she has seen Dr Somnuk Phonesouk.  A venous duplex scan on 17 June 2011 showed “acute superficial thrombophlebitis in the great saphenous vein in the ankle associated with varicosities”.

16. On 20 December 2011, Ms Wardle underwent bilateral endovenous laser therapy which she says relieved the pain for about three weeks, but it returned.  In February 2012, Dr Phonesouk reported that the procedure seemed not to have improved her condition. 

17. On 22 March 2012, Dr John Crozier, vascular and endovascular surgeon, reported to Dr Phonesouk that Ms Wardle had a recurrence of pain in her right ankle.  On 8 June 2012, he reported that she had a “dramatic reduction of discomfort in her right ankle since he has recommenced a regular habit of three times weekly water aerobic activity”.  He recommended she continue with water therapy, and continue losing weight.  When she saw him on 28 September 2012, Dr Crozier reported that Ms Wardle was still “slightly tender over a thrombosed vein coursing across the medial aspect of a right ankle joint”.

18. Around March 2013, Ms Wardle developed pain in her right groin and Achilles tendonitis in her right foot.  An ultrasound showed Achilles tendonitis and “thickened synovium in the right hip”.  On 26 April 2013, Ms Wardle saw Dr Crozier who recorded that she woke six weeks earlier with pain on the medial aspect of the right groin which was exacerbated by any movement, and she had experienced “moderate discomfort over the right tendo Achilles distally”.  She continued to have physiotherapy and undertake exercises.

19. On 7 June 2013, Ms Wardle saw podiatrist, Vanessa Hadchiti, whose clinical notes record that, two months previously, she had developed right Achilles insertional pain; she had been limping as a result of pain and was now developing right hip pain.  On 11 July 2013, Ms Hadchiti reported to Dr Phonesouk that she had assessed Ms Wardle’s gait and she had “right Achilles tendinosis due to chronic repetitive Achilles strain secondary to her over-pronated right foot and compensatory gait from the thrombophlebitis pain”.  Since her Achilles tendon was not strained, she was using her right hip joint eternal rotator muscles to support her foot and reduce the pronation, leading to muscular and hip joint strain.  On 10 September 2013, Ms Hadchiti reported that Ms Wardle had “significant reduction” in pain since using orthotics.  Ms Wardle continues to see Ms Hadchiti.

20. Between January and March 2014, Ms Wardle had three cortisone injections into her right ankle, with diminishing periods of relief after each.  In August 2014, she underwent surgery to her right Achilles tendon.

21. Ms Wardle has undertaken a rehabilitation program comprising physiotherapy, podiatry, water aerobics, swimming, walking and “gait re-education”.  She has had relief from the pain at times but her ankle has remained stiff and painful, and she walks with a noticeable limp.  She has met the cost of physiotherapy which she now has approximately monthly, and podiatry, since Comcare declined to do so.

22. Ms Wardle gave evidence that her right ankle remains stiff and painful.  When she demonstrated her walk at the hearing, her limp was obvious.  She places the outside of her right heel on the ground first and her big toe only strikes the floor as she lifts her foot. 

23. Dr Lew Pierides, specialist occupational physician, who saw Ms Wardle for assessment, reported on 23 August 2013 that he watched her walk and noted that she “overly pronated her right foot” and was unable to put her right foot down normally on the ground due to experience of pain in the distal ankle area.

24. We accept Ms Wardle’s evidence that she continues to experience ankle pain and pain at the point where her right heel strikes the ground.  We accept her evidence that the pain is worse by the end of the day when she comes home, puts her foot up and puts ice on it.  She has difficulty doing housework now and her husband does the cleaning at home.

25. Ms Wardle impressed us a truthful and reliable witness, and someone motivated to recover from her injury, and get back to work, as best she could.  None of the doctors who saw her for treatment or assessment thought she was exaggerating her symptoms.  She was not always able to recall particular events or the sequence of events in detail but, given that some date back several years, we do not find that surprising.  Insofar as her memory failed her, it did not in our view, reflect on the credibility of her evidence. 

    CONTENTIONS

26. Ms Wardle contends that, as a result of the thrombophlebitis that developed on 29 April 2011, she walked on the outside of her foot to avoid ankle pain and, as a result, developed Achilles tendonitis and a labral tear in her hip.

27. Comcare contends that we cannot be satisfied as to how Ms Wardle walked before her injury, or that her gait changed following it.  In particular, Comcare submits that we cannot be satisfied that she did not “pronate naturally” before her injury.  Further, that we cannot be satisfied on the evidence that her Achilles tendonitis and the labral tear on her hip developed as a result of her accepted injury.

    Did Ms Wardle’s gait change from April 2011?

28. None of the doctors who gave evidence was able to say how Ms Wardle walked before her injury in April 2011, but all agree that she walks now with a limp.  We accept her evidence that she did not limp previously.  She led an active life at work and away from work and there is nothing to suggest she walked with any difficulty or had any ongoing pain.

29. Comcare submits that we cannot be satisfied that Ms Wardle did not “over-pronate”, or walk on the outside of her feet, previously and refers to evidence that her shoes show wear on the outer side of each heel.  There is no expert opinion available to us about this but her shoes appear to show minor wear of the kind commonly seen on many people’s shoes, and the fact that the wear appears equal bilaterally appears at odds with her pronounced pronation now and her limp on the right side only.  

30. Ms Wardle gave evidence that, prior to her injury, she had seen a podiatrist for routine monitoring because of her diabetes.  We accept her evidence that it was a precaution only.  There is nothing to suggest that prosthetics or any other form of treatment were prescribed.  Dr Evan Dryson, an occupational physician who saw Ms Wardle for assessment, thought it “implausible” that she could reach the age of 53 with a pronated gait without developing symptoms, and she would have developed symptoms 20 or so years before she did.

31. Ms Wardle gave evidence that she did not realise, until she used orthotics, how much her gait had changed.  That does not suggest to us she had always walked on the outside of her right foot, only that her gait had changed after the injury in April 2011 and she did not realise the extent of the change until using orthotics.

32. Dr Phonesouk gave evidence that Ms Wardle has limped persistently throughout the five years she has been seeing him.  His clinical notes suggest that, at least on some occasions, that was not so.  For example, on 15 July 2011, he recorded “walking better”.  On 7 September 2011, he recorded “legs feel great”.  On 7 December 2011, he recorded “still sore and limping” but made no further mention of limping until June 2013.  On 9 January 2012, he recorded “Right ankle is excellent, scan again next week.  Also right ankle stiff and sore” (a note that he acknowledged made no sense).  On 17 December 2012, he recorded “Went for a walk, 7 km on the weekend.  Nil pain or swelling”. 

33. When asked about these comments, Ms Wardle acknowledged that her symptoms have fluctuated from time to time but maintained that she has continually walked on the outside of her right foot to avoid pain.  She agrees she has walked for several kilometres on occasions but says she does so with pain. 

34. Dr Phonesouk gave evidence that his notes reflect the fact that Ms Wardle’s condition tends to fluctuate and said she is highly motivated to improve.  It is fair to say that he was an enthusiastic advocate on Ms Wardle’s behalf to the point that he said he would “hope that all advocate for their patients”.  That said, he has treated Ms Wardle regularly for five years and believes she is entirely genuine.  We accept his evidence that her limp has persisted.

35. One entry in the clinical notes from Dr Phonesouk’s practice is puzzling.  On 26 March 2012, the physiotherapist at the practice recorded “Yesterday jumped off the wall and landed awkward. Increased pain today. Calf tight++”.  Ms Wardle says she has no recollection of this incident.  Dr Phonesouk says she did not mention it when she saw him later the same morning, and she “would have mentioned it if it had been a major issue”.  Dr Evan Dyson, whose evidence is considered below, said such an incident “could certainly strain an Achilles tendon”. 

36. It is difficult to know what to make of this record but, given that we found Ms Wardle to be a credible witness, we give her the benefit of the doubt that it either did not occur at all or was not accurately recorded.  Even allowing for an incident like this, there is no medical evidence that it had any lasting effect.

37. Taking into account all of this evidence, we are satisfied that Ms Wardle’s gait altered as a result of her injury in April 2011 and that she has walked on the outside of her right foot since.

    Did Ms Wardle’s altered gait cause her Achilles tendonitis?

38. Around March 2013, Ms Wardle had an onset of pain in her heel region which worsened rapidly over the following months.  There is broad agreement among the doctors that she now suffers from Achilles tendonitis (also described as tendinosis).  She also has a Haglund’s deformity, a bony protrusion at the back of the heel near the insertion of the Achilles tendon.

39. On 20 January 2014, Dr George Pitsis performed an ultrasound guided cortisone injection into Ms Wardle’s right ankle.  It gave her “complete pain relief” until 24 February 2014 when the pain gradually returned, although it was still improved.  A further injection in March 2014 gave her “near complete pain relief”.  Ms Hadchiti recorded on 27 March 2014 that Ms Wardle had “some twinges in heel but overall feeling OK”.  In July 2014, she recorded “right Achilles pain returned” and Ms Wardle was to see Dr Lam the following day for consideration of surgery.

40. In August 2014, Ms Wardle underwent surgery on her right ankle to excise the bursa, strip the Achilles tendon, and debride the Haglund’s deformity in her right foot.  She gave evidence that she felt some benefit from the operation for a time but, in recent months, she feels her symptoms returning.

41. For Ms Wardle it is contended that her altered gait has put abnormal stresses on her right ankle, placing abnormal stress on the Achilles tendon, leading to tendonitis and bursitis, and in turn to the development of the Haglund’s deformity. 

42. Comcare contends that Haglund’s deformity is a constitutional condition which, along with Ms Wardle’s other predisposing factors such as her weight, age and type II diabetes (diagnosed in 2006), led to the development of the Achilles tendonitis.

43. Dr Dryson, an occupational physician, saw Ms Wardle for assessment on 9 February 2015.  He gave evidence that he has seen “hundreds” of cases of tendinopathies in feet and up to 20 cases of Haglund’s deformity.  He was firmly of the view that Haglund’s deformity it is not constitutional but results from Ms Wardle’s abnormal gait.  In his opinion, if it were constitutional, it would have caused symptoms well before the onset of her current symptoms.

44. Giving evidence, Dr Dryson agreed that diabetes can affect tendons and ligaments but said only in its type I form and, if a contributing factor, it would appear in both feet.  He thought it possible that type II diabetes could be associated with Achilles tendonitis but only if poorly controlled and if there had been high levels of blood sugar for some time whereas the evidence is that Ms Wardle’s type II diabetes is well-controlled.  Dr Dryson was not aware of any association of Achilles tendonitis with overweight or with middle-age.

45. Dr Alan Scott, a vascular surgeon who saw Ms Wardle on 16 February 2015, reported that “her thrombophlebitis was causing her to walk with an abnormal gait in order to minimise the discomfort.  This could in my view cause repetitive stress leading to swelling of her Achilles tendon and Achilles tendonitis”. 

46. Dr Lew Pierides, a specialist occupational physician, saw Ms Wardle for assessment in August 2013.  In a report dated 23 August 2013, he said that, once her thrombophlebitis settled, she had ongoing right ankle stiffness which “has progressed to include a diagnosis of an Achilles’ tendonitis which clinically appears a reasonable diagnosis”.  He thought it “possible she developed a right Achilles’ tendonitis in March of 2013 due to an altered walking gait”.  He thought that, if her stiff ankle was the result of her work injury, then her current symptoms related to that injury.

47. For reasons which are not clear (Dr Pierides was not called to give evidence), in a second report dated 7 March 2014, Dr Pierides said Ms Wardle had clinical evidence of a right Achilles tendonitis which was the result of “factors unrelated to her work”.  He thought it was “almost certainly as a result of age related degenerative change in the Achilles’ tendon and it may be that her diabetes condition is slowing her recovery”. 

1. Dr Roger Pillemer, an orthopaedic surgeon, saw Ms Wardle for assessment on 20 April 2015.  He provided a written report and a further report after being provided with reports of Dr James Bodel (who was not called to give evidence) and Dr Dryson.  Dr Pillemer gave evidence that he has seen numerous cases of Achilles tendonitis, none of which was caused by abnormal gait, and at least 200 cases of Haglund’s deformity.

2. There was some dispute between Ms Wardle and Dr Pillemer as to the length of her consultation with him.  According to his report, she telephoned to say she was delayed by traffic and rain.  She arrived nearly 20 minutes late which was later than he would normally see someone but he decided to see her because she was distressed.  He reported “A brief consultation was therefore carried out”.  Ms Wardle maintains the appointment took only 10 to 12 minutes.  Dr Pillemer strenuously denies this and says in any event he had sufficient time to carry out a proper examination.

3. Although Dr Pillemer disagreed with Dr Dryson about the development of Haglund’s deformity, at the end of a fairly difficulty exchange with Ms Wardle’s counsel, he agreed that walking on the outside of the foot “absolutely” can be associated with Achilles tendonitis, that over time it can cause pressure at the insertion of the Achilles into the heel which would cause inflammation of the bursa and make it symptomatic.

4. In our view, the concession made by Dr Pillemer, together with the evidence of Dr Dryson and Dr Scott supports the conclusion that Ms Wardle’s altered gait was the probable cause of her Achilles tendonitis.

   Does Ms Wardle have a secondary injury to her right hip?

5. Ms Wardle gave evidence that, over time, the pain in her right ankle began to radiate up into her right hip and groin; when her limp was worse, the pain in her hip would flare up.  Dr Phonesouk’s notes first record this pain on 11 March 2013. 

6. An ultrasound of Ms Wardle’s right groin on 19 March 2013 showed “Thickened synovium in the right hip”.  An MRI on 26 September 2013 showed a small degenerative labral tear.  A precise diagnosis of her condition is not clear from the information before us.

7. Ms Wardle gave evidence that her hip pain continued throughout 2013 and gradually worsened.  Physiotherapy and hydrotherapy gave little relief.  On 27 November 2013, she had an ultrasound guided cortisone injection into her right hip.  It helped for approximately seven weeks before the pain returned. She had a further injection on 3 February 2014 which she says gave her only 24 hours’ relief.

8. While Dr Phonesouk and Ms Hadchiti believe that Ms Wardle’s hip pain is caused by her altered gait putting strain on her hip joint, the weight of the evidence is against them.  Dr Pillemer gave evidence that approximately 30 per cent of asymptomatic people show a labral tear.  While Dr Dryson thought it plausible (by which he said he meant probable) that there was a connection with altered gait, he said labral tears are usually due to trauma or stresses such as sports people experience from twisting actions.

9. Given the lack of clear specialist opinion linking Ms Wardle’s altered gait to the development of her hip pain, we are not satisfied that it is secondary to her accepted injury.

   CONCLUSION

10. For these reasons, we are satisfied that Ms Wardle continues to suffer the effects of her accepted injury and that her employment contributed, to a significant degree, to the development of her Achilles tendonitis.  We are not satisfied that her employment contributed, to a significant degree, to her hip condition.

11. In respect of the reviewable decision dated 9 October 2014:

    (i)the decision that Ms Wardle did not presently suffer the effects of her compensable injury is set aside and in its place the Tribunal substitutes the decision that she continues to suffer the effects of her injury;

    (ii)the decision that the respondent is not liable to compensate Ms Wardle for Achilles tendonitis is set aside and in its place the Tribunal substitutes the decision that her employment contributed to a significant degree to her injury and the respondent is liable to compensate her for it;

    (iii)the decision that the respondent is not liable to compensate Ms Wardle for secondary hip pain is affirmed.

I certify that the preceding 58 (fifty -eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey

...........................[sgd].............................................

Associate

Dated 24 March 2016

Dates of hearing	4 and 5 February 2016
Counsel for the Applicant	Mr Ian Bradfield
Solicitors for the Applicant	Mr Michael Hyland, LHD Lawyers
Counsel for the Respondent	Mr Andrew Dillon
Solicitors for the Respondent	Ms Bianca Audsley, Australian Government Solicitor