Winzar and Australian Postal Corporation (Compensation)
[2016] AATA 238
•14 April 2016
Winzar and Australian Postal Corporation (Compensation) [2016] AATA 238 (14 April 2016)
Division
GENERAL DIVISION
File Number
2014/4792
Re
Kaye Winzar
APPLICANT
And
Australian Postal Corporation
RESPONDENT
DECISION
Tribunal Miss E A Shanahan, Member
Date 14 April 2016 Place Melbourne The Tribunal affirms the decision under review.
.................................[sgd].......................................
Miss E A Shanahan, Member
COMPENSATION – Workers’ Compensation – claim for left foot plantar spur – evolving diagnosis – left plantar fasciitis – surgery following reviewable decision resulting in deep vein thrombosis and chronic pain syndrome – resulting incapacity due to surgical treatment – decision affirmed.
Legislation
Safety, Rehabilitation and Compensation Act 1988
Cases
Abrahams v Comcare (2006) 93 ALD 147
Australian Postal Corporation v Bessey (2001) 32 AAR 508
Commonwealth v Beattie (1981) 35 ALR 369
Comcare v Lofts (2013) 137 ALD 522
Federal Broom Company Pty Ltd v Semlitch 110 CLR 626Hannaford v Telstra Corporation Limited (2005) 88 ALD 702
Tippett v Australian Postal Corporation (1998) 27 AAR 40
REASONS FOR DECISION
Miss E A Shanahan, Member
14 April 2016
Ms Winzar lodged a claim for Workers’ Compensation on 18 September 2013 for the condition of plantar spur of left foot. Ms Winzar attributed the condition to prolonged standing while sorting mail and parcels in the course of her permanent part time employment with Australia Post.
The parties agree that the correct diagnosis of Ms Winzar’s medical condition is left plantar fasciitis and that this is a disease as defined in s 5B of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act).
By determination dated 7 March 2014 Australia Post denied liability for this disease as being significantly contributed to by employment, based on the opinion of Mr Ian Jones, a specialist orthopaedic surgeon.
Ms Winzar requested reconsideration of the determination by an undated letter received by Australia Post on 23 July 2014. Following further consideration of all medical reports, the determination was affirmed. Ms Winzar was advised of this decision on 28 July 2014. This decision is the reviewable decision.
On 16 September 2014, Ms Winzar lodged an application for review with the Administrative Appeals Tribunal.
At the hearing Ms Winzar was represented by Mr Mark Carey of counsel, instructed by Maurice Blackburn Lawyers. The respondent was represented by Mr Roy Seit of counsel, instructed by Australia Post investigation officer Ms Carmel Sassani. The Tribunal was provided with the T-documents lodged by the respondent in accordance with s 37 of the Administration Appeals Tribunal Act 1975. Both parties tendered further documentary evidence, a list of which is appended to this decision. Ms Winzar, Mr Ian Jones and Mr M A Khan gave evidence before the Tribunal.
At the commencement of the hearing, both members of counsel made submissions regarding the jurisdiction of the Tribunal as attracted by the reviewable decision of 28 July 2014. It was agreed that the only issue to be determined was the liability, if any, of Australia Post under s 14 of the SRC Act. This Act provides for compensation for injuries arising from or in the course of employment if the injury results in the employee’s death, incapacity for work or impairment. It was also agreed that the correct diagnosis of left plantar fasciitis was a disease within the meaning of s 5B and as such attracts the standard of proof that the contribution to the disease by the employment must be of a significant degree.
Significant degree is defined as substantially more than material. Based on authority, it was determined that the Tribunal’s jurisdiction was limited to the initial injury as the surgical treatment was not undertaken until November 2014, months after the reviewable decision was made (Abrahams v Comcare (2006) 93 ALD 147).
BACKGROUND TO THE APPLICATION
Ms Winzar commenced working for Australia Post on a casual basis in 2003 and became a permanent part time employee in February 2005. She initially worked five hours per shift, five days a week. This increased to six hours per shift at an unknown date. During certain times of the year, in particular around Christmas, she sometimes worked full time hours for three to four weeks.
In September 2005, Ms Winzar suffered a right ankle injury at work and, after two days off work, resumed with light duties. These light duties involved rotating her tasks so that approximately half of each shift would be conducted seated and the other half would require her to stand. Investigations of the right ankle, including radiological imaging and CT scanning, failed to reveal any abnormality. Ms Winzar was provided with special boots and ankle support. A Workers’ Compensation claim was filed at the time of this injury.
On 8 July 2008, Ms Winzar was diagnosed as having right plantar fasciitis, following complaints of pain in the sole of her foot. This was treated with moderate analgesics in the form of Panadeine-Forte. Ms Winzar’s general practitioner Dr E Botros’ notes contain entries relating to the progress of Ms Winzar’s right plantar fasciitis, which appears to have resolved completely by 27 May 2009.
While Ms Winzar remained on restricted duties with respect to her right ankle she continued to work her normal hours with restricted standing times. On occasions when there was a staff shortage, these restrictions were not strictly followed.
On 13 March 2013, Ms Winzar complained to Dr Botros about pain in her left heel and a diagnosis of left plantar fasciitis was made. A Victorian WorkCover Certificate was completed by Dr Botros limiting Ms Winzar to modified duties from 13 March to 26 March 2013. These modified duties were: no standing for more than an hour at a time with at least 30 minutes sitting down in between. The respondent denied receiving this certificate in March 2013.
Ms Winzar continued to work and did not report any new injuries until 12 July 2013, when an incident report form was completed stating the date of onset of left heel pain as 12 July 2013 and as having resulted from what was described as a heel spur unrelated to any previous incidents. On 22 July 2013, the facility nominated doctor, Dr Mohamad Ali, certified Ms Winzar as fit only to perform her mail sorting tasks while sitting. The diagnosis he provided was that of a plantar spur of the left foot. The restrictions were changed on 9 September 2013; the only restriction being that Ms Winzar was not to work on the sorting machines or processing parcels.
Throughout 2013, 2014 and 2015 Ms Winzar has attended four general practice groups in Bendigo. The entries in all clinics relating to her left plantar fasciitis between 2013 and November 2014 are few in number and relate primarily to investigations with ultrasound and provision of cortisone injections into the plantar fascia under ultrasound control with some benefit.
Ms Winzar was referred by Dr Ali to Mr Keith McCullough, an orthopaedic surgeon, who first saw Ms Winzar on 13 November 2013. Mr McCullogh confirmed the diagnosis of left plantar fasciitis with a small calcaneal spur and recommended conservative treatment with cortisone injections into the plantar fascia. In late October 2014, as the pain persisted, Mr McCullough recommended surgical intervention in the form of surgical release of the plantar fascia from the calcaneum. This procedure was undertaken on 5 November 2014, eight months after the primary determination and some three and a half months after the reviewable decision.
Following the surgical procedure, Ms Winzar developed left peroneal and posterior tibial deep venous thromboses with swelling and discomfort in the left lower limb and the development of a chronic regional pain syndrome. Both of these conditions have required further treatment and have resulted in Ms Winzar being incapacitated for any form of work. She last worked on 4 November 2014, the day before her surgical procedure.
EVIDENCE BEFORE THE TRIBUNAL
Ms Kaye Winzar
Ms Winzar provided a statement dated 2 December 2015 outlining the development of her left plantar fasciitis, its treatment and the complications that occurred following her surgery on 5 November 2014. She also made reference to her right ankle injury, resulting from a direct blow to the lateral aspect of her ankle at work, on 11 September 2005 and her return to work after two days to a light duties program. Ms Winzar acknowledged that her medical records had shown she had been diagnosed with right plantar fasciitis in July 2008, but has stated that her right foot and calf pain had all resolved by early 2009 and that in 2010 she was able to resume full normal duties. She agreed that she had first reported pain in her left foot, subsequently diagnosed as left plantar fasciitis, in March 2013.
On 31 July 2013, Ms Winzar underwent x-rays of both feet and was advised that these showed a plantar calcaneal spur on the left heel. Following this, she underwent ultrasound guided injections with varying benefit and continued to work her normal shifts. Ms Winzar estimated that during her six hour shifts she would spend three and a half to four and a quarter hours each night on her feet. On Friday nights, she estimated she would usually spend the entire six hours on her feet. Ms Winzar described the floor on which she worked as being concrete but covered in some parts with what is called anti-fatigue matting. She said most of the anti-fatigue matting was well worn and had not been replaced for at least 10 years.
In her evidence to the Tribunal, Ms Winzar confirmed that she had ceased work on 4 November 2014, had undergone the surgery as previously described and, in the post-operative phase, developed a deep vein thrombosis with marked swelling of her ankle and foot and associated severe pain in the foot and calf. These symptoms have persisted and the pain levels have increased, interfering with her sleep. The pain is more severe when she stands and she is now unable to put her foot to the ground. She uses elbow height crutches or a wheelchair to mobilise.
Ms Winzar noted an improvement in the left plantar fasciitis in July 2013 when she had annual leave.
In cross-examination, Ms Winzar agreed that most of her working life had involved standing for long periods of time, she having worked in her late teens in a supermarket, then at Coles from 1993 to 1994 as a checkout operator. After the birth of her children she had done a variety of jobs on a part time basis, much of which was conducted from home. She confirmed that she became a permanent employee of the respondent in February 2005, but was unable to provide a date as to when her shifts increased from five hours to six hours per day.
Ms Winzar currently restricts her activities to supermarket shopping once or twice per week. She does nothing in the way of cleaning the house or much of the laundry as her husband and daughters assist in this respect. She had played netball as a child and prior to hurting her right ankle she had umpired and coached netball for a period of approximately two years.
On re-examination, Ms Winzar was taken to the list of duties entitled Long Term Suitable Duties Schedule dated 3 September 2007, constructed by the rehabilitation company RECOVRE. This outlined a list of suitable duties, nine in all. Ms Winzar was asked to advise which of these required her to stand and identified seven, including feeding letters into and off trays, originating and terminating ordinary articles using various machines, attaching plastic labels, checking Express Post labels and ticketing in other areas.
The Tribunal noted that Ms Winzar had been receiving medical certificates regarding her daughters, for whom she was receiving carer allowances. She was asked to explain the certificates and informed the Tribunal that she was receiving payments for two of her daughters who suffer from asthma but that at the time of the hearing the elder daughter, who is now in her twenties, no longer qualified for assistance.
Mr M A Khan, Orthopaedic Surgeon
Mr Khan saw Ms Winzar on 17 February 2015 and reported to her solicitors on 10 April 2015. In his written opinion, he confirmed the diagnosis of left plantar fasciitis occurring during the course of her employment with Australia Post. In Mr Khan’s opinion, Ms Winzar’s employment significantly contributed to the condition, having given rise to repetitive strains or micro-tears of the plantar fascia as a result of prolonged standing while sorting mail.
Mr Khan noted the surgical procedure, which was followed by the development of a deep vein thrombosis but no radiological evidence of any bony changes or local oedema. At the time of consultation, Mr Khan detected some residual tenderness in Ms Winzar’s left heel and noted reluctance to weight bear on her left foot. When she did weight bear she placed all her weight on the forefoot and not the heel. All movements of the ankle were reduced in range and the left foot was swollen, with mottling of the skin and an area of numbness around the heel. Ms Winzar’s right foot was normal on examination.
In his oral evidence, Mr Khan said that the average incidence of plantar fasciitis was one in a thousand persons, that it was more common in females than males, occurring mainly in middle age and in those who were overweight. He believed that the condition is generally related to prolonged standing, and possibly to general fitness and types of footwear. According to Mr Khan, there is a very high incidence of this condition in India, in his opinion unrelated to standing and more related to poor shoes and poor dietary factors.
The changes in the underlying pathological process were described as being micro tears in the dense fibrous tissue of the plantar fascia, initiated by chemical changes produced in the inflammatory response to trauma. Mr Khan considered surgical intervention to be the last resort form of treatment.
Mr Ian Jones, Orthopaedic Surgeon
Mr Jones provided two reports, the first in February 2014 and the second on 4 August 2015. In his first report, Mr Jones noted that he had seen Ms Winzar in 2006 and 2009 in relation to her right ankle condition, which had since fully recovered. When he saw her in 2014, he recorded that she complained of left heel pain, most noticeably first thing in the morning when she got up from bed and put weight on to her left foot. Throughout the day this symptom recurred when arising from the sitting position.
At the time of the first report, Ms Winzar had not had any time off work since the onset of her symptoms and was performing restricted duties. These restricted duties required that she was to sit for periods up to one hour with intervening periods of standing for short times. Ms Winzar’s treatment to that date had been several cortisone injections into the sole of her left foot and simple analgesia. At the time, Ms Winzar said she was able to drive a car, manage her housework and was cooking for her family in addition to working her normal hours of permanent part time mail sorting six hours in the evening, five days a week. The only abnormal finding on physical examination was tenderness of Ms Winzar’s left heel and the sole of her left foot.
Mr Jones made a diagnosis of left plantar fasciitis, which he considered to be a constitutional degenerative condition associated with aging. The condition normally resolved within 12 to 18 months and, in his opinion, was unrelated to standing except that standing caused an exacerbation of symptoms. Mr Jones advised that surgical treatment results were unpredictable and recovery time from surgery could be 12 or more months. He considered that Ms Winzar was capable of undertaking mail sorting and lifting of weights up to 10 to 16 kilograms despite her left heel condition.
In his later report of 4 August 2015, Mr Jones recorded that Ms Winzar continued to have intermittent cortisone injections into her left heel in 2013 and 2014. He also noted that she continued to work her normal hours at Australia Post until 4 November 2014, finishing work on that day in order to undergo left plantar fascia release surgery. The remainder of Mr Jones’ report was devoted to the post-operative development of a deep vein thrombosis and subsequently a complex regional pain syndrome in the left lower limb, both of which were attributable directly to the surgical procedure. It was these conditions that had rendered Ms Winzar disabled and incapacitated for work. He recommended rehabilitative physiotherapy and pain clinic management.
In his oral evidence, Mr Jones reiterated his opinion that Ms Winzar’s incapacity for work arose from the post-surgical complications of her plantar fascia release and that the original condition of left plantar fasciitis was not causally related to her employment with Australia Post. The requirement that she stand to sort mail was not relevant, in what was a degenerative condition most commonly seen in persons in the 40 to 60 age group, affecting 10 per cent of the population and seen more commonly in women than men and those who were obese. Standing would exacerbate symptomatology, but would not aggravate or alter the underlying pathological process.
Mr Jones said that the condition was seen in people who did not stand to work and, in fact, in people who had never worked. In answer to a question from the Tribunal regarding ballet dancers, Mr Jones said they occasionally developed plantar fasciitis, but more spectacularly some developed a complete transverse tear of the plantar fascia.
DOCUMENTARY EVIDENCE
The reports from four different general practice clinics have been received by the Tribunal and are referred to under BACKGROUND TO THE APPLICATION. Prior to Ms Winzar’s surgery in November 2014 there were only occasional entries relating to her left plantar fasciitis, with the onset of this recorded as being in March 2013. The same diagnosis had been made in the right foot on 8 July 2008 and the condition had fully resolved in just under 12 months.
Reports were received from the treating surgeon, Mr Keith McCullough. Mr McCullough had initially advised conservative treatment in November 2013, supported intra-plantar injections of steroids on several occasions and then, on 5 November 2014, performed a left plantar fascia release by detaching the plantar fascia from the calcaneum. Mr McCullough continued to see Ms Winzar throughout the period when she developed the deep vein thrombosis and the chronic regional pain syndrome. Mr McCullogh also arranged her referral to a pain management clinic.
Various radiological investigations have been performed and the results were provided to the Tribunal. It was the initial ultrasound finding of a plantar spur on the left foot which gave rise to the diagnosis initially made by the treating general practitioner Dr Ali that formed the basis of Ms Winzar’s claim for compensation. This was not corrected until after the report of Mr Ian Jones was received in February 2014.
RELEVANT LEGISLATION
It is agreed that Ms Winzar’s condition of left plantar fasciitis is a disease as defined in s 5B of the SRC Act, which states:
5B Definition of disease
(1)In this Act:
disease means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3)In this Act:
significant degree means a degree that is substantially more than material.
The SRC Act also provides for compensation to be paid in relation to the broader definition of injury, with s 14 providing:
14. Compensation 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.
(2)Compensation is not payable in respect of an injury that is intentionally self‑inflicted.
(3)Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self‑inflicted, unless the injury results in death, or serious and permanent impairment.
Section 14 applies to the Australian Postal Corporation, it being an authorised corporation under the SRC Act.
SUBMISSIONS
Ms Kaye Winzar, the Applicant
Mr Carey provided the Tribunal with written submissions to which he spoke. He first addressed the question of the diagnosis of the condition which, according to the reviewable decision and the claim form, had been identified as a plantar spur on left foot. As both parties and the Tribunal agreed this was an incorrect diagnosis and that the diagnosis had always been left plantar fasciitis, and in accordance with the decision in Abrahams v Comcare (2006) 93 ALD 147, it has been agreed that this was the proper identification of Ms Winzar’s ailment.
Mr Carey identified the issue before the Tribunal as being whether Ms Winzar’s employment with Australia Post made a significant contribution to the causation and/or aggravation of her left plantar fasciitis resulting in incapacity for work.
Mr Carey submitted that Mr Khan and Mr Jones were in agreement, in that they both understood the underlying histopathology to be degeneration of the plantar fascia due to micro-tears, secondary to some underlying but currently unknown chemical changes. They also agreed that the condition is common and is characterised by pain, particularly when arising from the sitting to standing position, is more common in women, more common in obese people, and most commonly affects 40 to 60 year olds.
Mr Khan also gave evidence that prolonged standing and weight bearing produced further underlying histopathological changes, that is, the process of micro-trauma and micro-tears was aggravated.
Mr Carey contended that Ms Winzar’s pre-Australia Post work history had not exposed her to standing for excessive periods of time, or contributed to the development of her plantar fasciitis.
Mr Carey, having identified the similarities of opinion of Mr Khan and Mr Jones, did acknowledge that Mr Jones believed that the incapacitating symptoms from which Ms Winzar now suffers were secondary to the surgical procedure undertaken in November 2014, this having been complicated by the development of a deep vein thrombosis and probable complex regional pain syndrome Type 1.
Mr Carey also contended that, while certain work restrictions had been put in place, both in 2007 in relation to Ms Winzar’s right ankle injury and again following her report relating to the left plantar fasciitis in July 2013, she had continued to stand for between three to five hours during her six hour work shifts up until 4 November 2014. He argued that the failure of her general practitioner’s notes to record left heel pain between April and July 2013 did not indicate that she did not have pain during that period.
On behalf of Ms Winzar, Mr Carey sought that the Tribunal set aside the decision and find that Ms Winzar’s left plantar fasciitis met the requirements of s 14 of the SRC Act and that she had been incapacitated for work from 12 July 2013 until the present date. It was requested that the matter then be remitted to the respondent to determine medical and related treatment expenses and weekly payments of compensation.
The Respondent
Mr Seit’s major submission was that Ms Winzar’s employment did not contribute to the condition to a significant degree. Mr Seit submitted that, in accordance with Mr Jones’ evidence, Ms Winzar’s work and, in particular, the hours she was standing were not a factor relating to the underlying pathology, but only resulted in a temporary exacerbation of symptoms. He relied on the decisions in Commonwealth v Beattie (1981) 35 ALR 369, Tippett v Australian Postal Corporation (1998) 27 AAR 40 and Australian Postal Corporation v Bessey (2001) 32 AAR 508, all of which dealt with exacerbation of symptoms without associated underlying pathological change.
Based on Ms Winzar’s evidence of her start up pain on arising from bed and weight bearing, Mr Seit argued that her symptomatology arose outside of work and every day, which in turn was demonstrative of an exacerbation and not an aggravation of the underlying condition as considered by Windeyer J, in paragraph 11 of Federal Broom Company Pty Ltd v Semlitch 110 CLR 626, and was thus not peculiar to her employment.
Mr Seit revisited the jurisdictional question and submitted that in order to attract s 14 liability, the employee needs to have suffered an incapacity for work, an impairment or death. While it was clear that Ms Winzar is now considerably impaired and unable to work, Mr Jones attributed this to the complications of the surgery undertaken in November 2014. Prior to ceasing work on 3 November 2014, Ms Winzar had worked her normal hours, albeit with restrictions of her standing time to three to five hours, five hours being only occasional.
In response, Mr Carey distinguished the High Court decision in Federal Broom Company Pty Ltd v Semlitch as it related to a psychiatric condition. Mr Carey reiterated his earlier contention that the Tribunal must look at Ms Winzar’s incapacity for work during the period under review.
TRIBUNAL’S DELIBERATIONS
The parties and the Tribunal agree that s 14 liability is the only matter under consideration and that the medical condition is and always has been left plantar fasciitis, not a left heel spur as described in Ms Winzar’s claim form (Hannaford v Telstra Corporation Limited (2005) 88 ALD 702).
Of foremost importance in this matter is the medical evidence. Ms Winzar had well documented right plantar fasciitis which persisted for a period of 11 months in 2008 and 2009, required predominantly analgesia. The right plantar fasciitis did not impact in any way on her capacity for work. This condition was diagnosed by her general practitioner Dr Botros. On 13 March 2013 Ms Winzar again presented to Dr Botros, this time with pain in her left heel. Dr Botros made a diagnosis of plantar fasciitis and provided a Victorian WorkCover certificate restricting Ms Winzar’s work activities for a period of two weeks. There are no further references to left heel pain in Dr Botros’ records until mid-September 2013, when Dr Botros records having a lengthy discussion with Ms Winzar regarding her left plantar fasciitis and recommended she attend a podiatrist.
Shortly after her incident report was filed with the employer on 12 July 2013, Ms Winzar was seen by Dr Ali of the Breen Street Clinic in Bendigo, he being the facility nominated doctor. In his initial certification of 22 July 2013, Dr Ali described her condition as being caused by standing on her feet at least six hours per day and instituted restrictions on her standing time.
Dr Ali also arranged for Ms Winzar to have imaging performed. On 26 August 2013, following the imaging, he provided another certificate in which the diagnosis was plantar spur left foot. The restrictions on this occasion were that she was not to work on sorting machines or with parcels. The same diagnosis was proffered in the report of 9 September 2013 and the restrictions remained unchanged.
The first mention of any heel problems given to doctors at the Tristar clinic in Epsom was the entry of 13 November 2013 and the Tribunal believes this is the first time Ms Winzar was seen in this clinic for her left plantar fasciitis. On that date she stated that she had undergone cortisone injections into her plantar fascia and required analgesia for which she was prescribed Panadeine Forte. The entry of 31 March 2014 states that Ms Winzar had further plantar cortisone injections. The entry of 29 April 2014 recorded that her last cortisone injection had resulted in pain, preventing her from working on 28 and 29 April 2014. She attended in order obtain a medical certificate.
It appears that Ms Winzar has attended the Bendigo Primary Care Medical Clinic since 22 December 2014. This was shortly after her surgical procedure of plantar fascia release and she provided information regarding the development of a deep vein thrombosis shortly after her operation, resulting in persistent swelling of the left foot. An ultrasound examination of the left foot on 31 December 2014 revealed the left plantar fascia to be intact. Apparently Ms Winzar had been prescribed Xarelto, an anticoagulant, 20 milligrams daily because of the deep vein thrombosis. She had stopped taking it after one week as she experienced bleeding.
Sequential Doppler studies of Ms Winzar’s left lower limb in February and March of 2015 revealed persisting venous thromboses in the peroneal and posterior tibial veins with only minor improvement in the Doppler study of 18 March 2015. In late March 2015 Ms Winzar was referred to Dr Andrei Cornoiu, an ankle and foot orthopaedic surgeon. Dr Cornoiu agreed with the diagnoses of persistent deep vein thromboses and complex reflex pain syndrome and recommended intensive physiotherapy, treatment of the persistent deep vein thrombosis and a referral to a pain management clinic with respect to the complex regional pain syndrome.
Mr McCullough, the treating surgeon, has outlined his treatment of Ms Winzar and the surgery undertaken which he described as a release of the plantar fascia along the medial border of the calcaneum. Later reports have not been supplied.
Mr Khan has described the underlying pathological process in plantar fasciitis as being a degenerative condition of multifactorial origin, characterised by what he terms micro-trauma in the form of microscopic tears in this thick layer of collagen, probably chemically mediated. The multifactorial causes have been outlined above, as has Mr Khan’s opinion that Ms Winzar’s employment, in particular spending up to five hours, five evenings per week standing sorting mail, had contributed to the histopathological change by aggravating the micro-trauma and tears in her left plantar fascia.
In contrast Mr Jones, while accepting the same underlying pathological process, is of the opinion that the condition of plantar fasciitis is unrelated to prolonged standing. Mr Jones considers it to be a purely degenerative process unrelated to prolonged standing, except that such activity may exacerbate the symptoms of pain on standing and weight bearing on the effected foot. He described the start-up pain which occurs, essentially, on arising from bed or assuming the standing from the sitting position as being the classical symptom.
Mr Khan opined that plantar fasciitis usually resolved in 12 to 24 months, whereas Mr Jones had put the figure at 12 to 18 months. Both surgeons considered surgical intervention as a last resort, in light of reported series which showed little benefit from surgery. There were mixed opinions regarding standing, the wearing of heavy steel tipped boots, the use of lighter weight boots and so called fatigue matting under foot. Based on this evidence, the Tribunal has concluded that none of these factors are of major importance, given that both surgeons related that the condition occurred in people who wore no shoes, protective shoes, did not stand for excessive periods of time or had never worked. Even ballet dancers, it would appear, do not have an excessive incidence of the disease and when they do, are likely to have a complete tear of the fascia.
MS WINZAR’S WORK CAPACITY UNTIL 4 NOVEMBER 2014
On the evidence provided to the Tribunal, Ms Winzar continued to work her normal hours from the time of the incident report until 4 November 2014, with only occasional days off work following plantar fascia steroid injections. Her hours of work were not changed, but restrictions were placed on her work in the form of not being involved in work on sorting machines and dealing with parcels.
The Tribunal acknowledges that these restrictions were not always strictly enforced and that Ms Winzar’s standing hours were usually three to four hours per session, occasionally rising to five hours per session. Despite this, she managed to work her normal hours and continued to receive a carer allowance for her two daughters who suffer from asthma. The Tribunal assumes she had passed the eligibility requirements for carer allowance, which usually entail the recipient providing several hours care to the child each day.
According to Ms Winzar her domestic activities, involving caring for her three children and her husband and a small three bedroom house had not been demanding before or during the period of review. Since her surgery, Ms Winzar has required considerably more assistance from her family.
Having suffered an episode of right plantar fasciitis that resolved completely in 11 months, the Tribunal is somewhat surprised that Ms Winzar proceeded to surgical treatment of the left plantar fasciitis within the period of resolution associated with the condition according to Mr Khan.
The Tribunal accepts the opinion of Mr Jones in preference to that of Mr Khan, although Mr Khan did say that he had seen this condition in a great variety of patients wherein standing was not a feature of the presentation. It is clear from Mr Jones’ evidence that standing, rising from the sitting to the standing position and getting out of bed in the morning will precipitate and exacerbate the symptom of pain associated with this condition. Despite this, the Tribunal finds there is no evidence that it results in any contribution to the underlying pathophysiological changes in the plantar fascia. Mr Khan’s opinion as to the possibility that the plantar fasciitis is a chemically induced form of micro-trauma leading to micro-tears remains a hypothesis.
The Tribunal agrees with and adopts the statement of Windeyer J in Federal Broom Company Pty Ltd v Semlitch that the (then equivalent) Act is not satisfied by showing only that a worker suffering from some disease would or might have suffered less severely if he had not been employed at all.
It is clear that Ms Winzar is now incapacitated for work and moderately to severely impaired. These changes have occurred since the reviewable decision was made and have been attributed, definitely by Mr Jones and possibly by Mr Khan, to complications of the surgical procedure of 5 November 2014. The complications have been diagnosed as deep vein thromboses in the left calf veins and the subsequent development of a complex regional pain syndrome.
The Tribunal notes that Ms Winzar ceased taking her anticoagulants one week after the diagnosis of the deep vein thrombosis and the initiation of this treatment. It is not clear from the medical reports that any of her treating doctors recognised this until late December 2014, by which time the clots were firmly established. The general practitioner notes indicated that she ceased the drug because of abnormal bleeding. There is no evidence that she consulted any medical practitioner before taking this action.
In contrast to the post-surgical intervention evidence, there is little evidence between March 2013 and the date of the reviewable decision of 28 July 2014 that there was any impact on Ms Winzar’s capacity for work as a result of her left plantar fasciitis.
On the basis of the above, the Tribunal affirms the decision under review.
I certify that the preceding 72 (seventy-two) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member …………..............[sgd]............................
Associate
Dated 14 April 2016
Dates of hearing 22 and 23 February 2016 Counsel for the Applicant Mark Carey Advocate for the Applicant Saskia Deerson Solicitors for the Applicant Maurice Blackburn Counsel for the Respondent Roy Seit Advocate for the Respondent Carmel Sassani and Ruby Heffernan Solicitors for the Respondent Australian Postal Corporation,
Litigation SectionAPPENDIX - EXHIBITS
APPLICANT
A1Statement of Applicant, dated 2 December 2015
A2Report of Dr Michael Khan, dated 10 April 2015
RESPONDENT
R1 T-Documents
R2Catalyst Christmas Pre-employment Medical Employment, dated 12 November 2004
R3RECOVRE Long Term Return to Work Plan- Suitable Duties Schedule, dated 3 September 2007
R4Letter from Dr Hugh Williams to Dr Elia Botros, dated 24 May 2007
R5Certificate of Capacity by Dr Elia Botros, dated 13 March 2013
R6Clinical notes from Lowndes Street Clinic, as at 20 February 2015
R7Clinical notes of Bendigo Primary Care
R8Clinical notes of Tristar Medical Group, as at 23 February 2015
R9Records of treating surgeon Dr Keith McCullough
R10Report of Ian Jones, dated 4 August 2015
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