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IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
WORKCOVER DIVISION No E 11699171
BETWEEN:
MICHELLE KEOGH Plaintiff
-and-
QANTAS AIRWAYS LIMITED Defendant
MAGISTRATE: GINNANE
WHERE HEARD: MELBOURNE
DATE OF DECISION: 17 JULY 2015
CASE MAY BE CITED AS: MICHELLE KEOGH v QANTAS AIRWAYS LIMITED
REASONS FOR DECISION
Catchwords: Accident Compensation Act 1985 –plantar fasciitis whether plaintiff suffered compensable work injury – initial unilateral onset at work in one foot- later onset in left foot following cessation of employment – causation
APPEARANCES: Counsel Solicitor
For the Plaintiff Mr Ajzensztat Maurice Blackburn
For the Defendant Mr McKenzie Thomson Geer
HIS HONOUR:
Introduction and background
1. The plaintiff Michelle Keogh claims that on or about 8 January
2013, in the course of her employment with Qantas, the general
2
nature and physical and mental stress and strain of which, and in
particular, the requirement that she perform her work on a
production line in a standing position for the majority of her
shifts, caused the production, aggravation, acceleration and/or
recurrence of the injury of right plantar fasciitis, left plantar
fasciitis and also psychological/psychiatric injury.
2. The plaintiff said she completed an incident report with the
assistance of her Supervisor dated 25 January 2013 and then
lodged on her employer a claim form dated 30 January 2013
seeking compensation for right sided plantar fasciitis. She
identified the date of injury as 8 January 2013 at 1.00pm. The claim
was accepted by the defendant. The defendant paid the plaintiff’s
weekly payments of compensation in accordance with the
requirements of the Accident Compensation Act 1985 (the Act).
3. On 2 December 2013 the defendant gave notice of its intention to
terminate the plaintiff’s payments of weekly and medical and like
expenses with effect from 30 December 2013.
4. The plaintiff’s last day of work was 30 December 2013. She has not
worked since her employment with Qantas ceased.
5. On or about 15 July 2014 the plaintiff submitted a further claim for
compensation and medical and like expenses upon Qantas for left
foot plantar fasciitis. By notice dated 19 August 2014 the
defendant rejected the plaintiff’s further claim for compensation
pursuant to s 109 of the Act.
6. The plaintiff claims that her incapacity for work resulted from or
was materially contributed to by her employment with Qantas.
7. The defendant says that the plaintiff’s condition is unrelated to
her employment. It says that the plaintiff suffers from a medical
3
condition that was neither caused by her employment nor
aggravated by it. It says that because of the plaintiff’s age and her
weight she was liable to develop the onset of the condition of
plantar fasciitis irrespective of her employment.
Causation
8. The question that that I am required to determine is essentially
one of causation. I have heard evidence of disparate medical
opinions from the respective parties together with the evidence of
the plaintiff. In regard to causation the common law applies. In
March v Stramare Pty Ltd (1991) 171 CLR 506 the High Court said
that although causation is a question of fact "the question of whether
conduct is a cause of injury remains to be determined by a value
judgment including ordinary notions of language and common sense."
(see, Deane J at p.524) and also Zlateska v Consolidated Cleaning
[2006] VSCA 141 at para. 82.
9. The defendant accepts that the plaintiff suffers from bilateral
plantar fasciitis. The plaintiff’s receipt of weekly payments was
terminated within the period of 130 weeks. The defendant also
accepts that the plaintiff meets the statutory threshold of a worker
who does not have a capacity for pre injury duties.
The plaintiff’s evidence
10. Michelle Keogh is 52 years of age having been born on 27
November 1963. She completed year 11 schooling. She was
employed for eight years at the Royal Women’s Hospital working
in the kitchen and she also undertook agency work in picking and
packing.
11. The plaintiff commenced employment with Qantas Catering on 17
August 2000 initially as a casual employee and after
approximately 2 ½ years she moved to a full-time position in the
4
kitchen. She was an Airline Services Operator Level 2. She worked
from the Melbourne Airport complex.
12. The plaintiff said that prior to her injury she was working full
time on a fixed shift Monday to Friday. Shifts are usually from 7
am to 3:30 pm with a 10 minute break between 9 am and 9:30 am,
a 20 minute lunch break between 11 am and 11:30 am and a
further 10 minute break at 1:30 pm. She believed that she averaged
two hours overtime per week. She spent approximately 40 to 43
hours per week standing. Her employment with Qantas spanned
in excess of 13 years.
13. She described the mechanism of her work with Qantas. She spoke
of how she went about her work in the kitchen whilst standing at
her work bench on a “thin rubber mat”. She said that she was
always standing. She said that the extent of any walking in the
course of her duties would be perhaps only once or twice in the
course of a work day and then only to go to the refrigerator that
was close by so as to retrieve a specific item.
14. Apparently the system of work involved two operators standing
at a workstation. The first operator placed food items and a cup of
drink on a meal tray and then pushed the tray along rollers to the
second operator. The second operator in turn added other items,
such as cutlery to the tray and then placed the tray on a cart lifter.
When the cart lifter was full the second operator pushed it a few
feet away to another worker who then distributed it for loading
onto the relevant aeroplane. Sometimes the first operator would
also collect a box of orange juice from the refrigerator and
transport it to the workstation on a trolley. Duties were rotated
approximately every two hours between the two operators.
15. The plaintiff said that she currently weighed 100 kg but her
weight fluctuated from 100 to 115 kg whilst employed at Qantas.
5
December 2012 – new shoes and new anti fatigue mat introduced
16. The plaintiff testified that in December 2012 new safety footwear
was introduced by Qantas which was required to be worn by staff.
She said that she did not like the shoes. She described them as
lightweight. She said she only managed to wear the new footwear
for approximately a month because they were uncomfortable. She
said that the end of a shift her feet were swollen. She returned to
wearing her previous Qantas issued shoes. She said the new shoe
was tighter and narrower than her previous footwear.
17. On or about 5 December 2012a new anti fatigue mat was
introduced.
8 January 2013 and the onset of pain in the right foot and heel and
subsequently the left foot
18. The plaintiff said that on 8 January 2013 she experienced the onset
of pain in her right heel. She had been standing at the roller
belt/work bench and had gone for a break. She was seated. She
stood up and felt the pain in the heel of her right foot. The pain
was of a sudden onset. She described the sensation as akin to that
of stepping on a pin. This was the first time she experienced pain
of such a nature. She went back to her work and she completed
her shift. She complained to the first aid/security officer that her
right foot was hurting and she could not put it down. She said
that at the end of her shift her foot was very swollen. She tried to
obtain a doctor’s appointment but was unable to do so until the
next day.
19. On 9 January 2013 she saw Dr Lim at the Coolaroo Clinic. He was
her treating local practitioner. She complained to him of right heel
pain. He said he suspected plantar fasciitis. He arranged for x-ray
6
and ultrasound. The plaintiff did not attend work the following
day and she received a general medical certificate dated 9 January
2013 to account for her absence.
20. The plaintiff was certified fit for modified duties by Dr Lim from 9
to 11 January 2013. She did not however return to work the
following week because she had arranged annual leave for the
period 14 January 2013 to 29 January 2013 with the intention of
attending the Tamworth Music Festival but she was unable to do
so. Instead and during her period of annual leave she continued to
be troubled by her foot pain. On 10 January 2013 she had an x-ray
that identified a prominent calcaneal spur. On 14 January 2013 an
ultrasound was performed. The ultrasound report identified
abnormal thickening of the calcaneal attachment. Dr Lim
suggested a cortisone injection into the right foot. The plaintiff
received the injection on 31 January 2013 but although giving
momentary relief it failed to settle her symptoms.
21. On 30 January 2013 Dr Lim issued the plaintiff with a WorkCover
certificate of capacity. The certificate was backdated from 9
January 2013 to 23 January 2013 and a further certificate from then
until 6 February 2013 was issued and thereafter the plaintiff was
certified as fit for modified duties by Dr Lim.
22. When the plaintiff returned to work with the defendant on or
about 7 February 2013 she was on modified duties with work
restrictions including restrictions relating to being on her right
foot for more than 30 minutes, not carrying weights greater than 5
kg and no climbing of stairs together with the periods of rest as
required. She undertook plating duties, standing for between 15 to
20 minutes then sitting down and performing her work in a seated
position. The plaintiff gave evidence about the manner in which
she carried out her duties once her employment was modified.
7
She said that she was told she could sit as required. This she did.
She said her chair was far from ergonomic and was not the right
height. She said her foot remained painful during the period of
her modified duties. The plaintiff’s duties did not alter but rather
conformed to the identified restrictions.
23. Dr Lim subsequently amended the plaintiff’s certificate of capacity
from 23 March 2013 to include standing up to 2 hours and stairs as
is tolerated1.
24. In June 2013 the plaintiff was referred to a psychiatrist whom she
saw but once. He apparently suggested an increase in her dosage
of Zoloft something that the plaintiff though it better to decline.
25. The plaintiff had been cleared to return to her normal duties in
April 2013 but her capacity for duties was subsequently reduced.
By letter dated 19 July 2013 Qantas wrote to the plaintiff’s General
Practitioner. The correspondence made mention that the plaintiff
had been supplied with a moon boot and it also referred to
discussions that had occurred in connection with the plaintiff
performing modified hours and duties of work from 22 July 2013.
It was suggested the plaintiff work 4 hours per day by 3 days per
week for a period of 2 weeks after which she would be reviewed.
The restrictions contemplated included a limit on walking, the
performance of work duties while seated, no lifting over 3 kg,
breaks as required and limiting steps and stairs. The suggested
duties that it was envisaged the plaintiff would undertake
included compliance training, condiment cleaning and filling,
napkin folding and filling small drawers with tea, coffee or first
aid items.
1 All references to stairs is irrelevant to the plaintiff’s employment
8
26. The plaintiff remained on modified duties from about August
2013 until 30 December 2013 when they were withdrawn by her
employer and she was terminated. She has not worked since.
During the period from August 2013 the plaintiff worked 4 hours
a day x 3 days a week. She worked seated and she was dealing
with the business class meal preparation. The plaintiff said that
despite the modifications she had been woken at night with pain.
She said she was on occasions required to make use of a pillow to
elevate her.
27. The plaintiff underwent a further ultrasound guided injection into
the right foot in October 2013 but this failed to alleviate her
symptoms. By now she had come under the care of Mr Doig,
Orthopaedic Surgeon. He recommended that the plaintiff undergo
a right plantar fascial release. This has not occurred.
28. The plaintiff said that she attends on her General Practitioner once
per month, a psychologist Ms Deboo once a month and on Mr
Doig at his rooms at the Alfred Hospital. The plaintiff takes
Panadol Forte and Zoloft. She also takes blood pressure
medication.
Onset of Left Foot Plantar Fasciitis
29. There was an evidentiary dispute about when the plaintiff
experienced left foot plantar fasciitis. The plaintiff said in her
evidence in chief that it was in mid 2013 or about August 2013 that
she began to experience pain in the left foot of the same type as
the right foot. She said the pain was in heel and the side of the left
foot. This date of onset is the subject of a factual contest. It was not
until July 2014 that the plaintiff lodged a further claim for
compensation for left sided plantar fasciitis. She nominated 8
January 2013 as the date of injury and also claimed that the injury
arose as a result of working on the production line.
9
30. Mr McKenzie of counsel for the defendant directed the plaintiff to
certain documentary evidence in an effort to suggest that in
January 2013 she was experiencing pain but that it was limited to
her right foot and heel. Mr McKenzie relied upon the plaintiff’s
WorkCover claim dated 30 January 20132, her handwritten
statement dated 1 February 20133 and a typed “Witness
Statement” dated 19 February 20134 as well as the clinical notes of
treatment of the plaintiff by Dr Lim.5 None of this material refers
to left foot pain. The plaintiff said that prior to 8 January 2013 she
had experienced swelling in both feet at the end of her shifts with
the defendant and the onset of the swelling occurred in the first
two weeks or so after the introduction of the new shoes on 5
December 2012. She agreed however that the stabbing pain that
she experienced on 8 January 2013 was limited to the right heel.
31. I am satisfied that the pain the plaintiff experienced on 8 January
2013 was of a very different order to the swelling of the plaintiff’s
feet that she attributed to new shoes. The discomfort she
experienced was described by her as similar to the sensation felt
when a shoe rubbed against a heels and “the arch on the inside of the
shoe was hurting the inside of my foot”. I am satisfied that the pain in
the right heel was consistent with the condition of unilateral
plantar fasciitis but not however that the swelling in both feet was
plantar fasciitis. The plaintiff said that she had experienced
swollen feet prior to 5 December 2012 and whenever she changed
into new shoes or on hot days.
2 Ex P4 the document bears two dates: 30 January 2013 and 1 February 2013. The different dates was not explained in evidence but the plaintiff’s evidence was that she wrote the date of 30 January 2013 and this is the date I shall adopt in these reasons 3 Ex P5 4 Ex D3 5 Part Ex D14
10
32. In any event, the plaintiff persevered with the new shoes for only
a month. There is no evidence to sensibly connect such a limited
period of use to the onset of the condition of plantar fasciitis.
33. In response to the plaintiff’s effort to attribute the onset of her
condition to the work environment of prolonged standing the
plaintiff agreed with Mr McKenzie that she had told Ms Deboo
that she had not experienced any problem with her feet until the
introduction of the new shoes in December 2012.
34. In further support of the defendant’s contention that the plaintiff
did not experience the onset of left foot plantar fasciitis until 2014
the defendant referred to the plaintiff’s attendance on Mr Raffle,
podiatrist who operated from the same clinic as Dr Lim. The
report of Mr Raffle dated 14 January 20136 fails to disclose any
reference by the plaintiff to her left foot and the absence of any
reference prevailed throughout the period of his treatment of her
which lasted up to June 2013. Within that period of treatment Mr
Raffle undertook examination and movement of the plaintiff’s left
foot but there is no record of any problem associated with it. The
plaintiff maintained under cross-examination that it was
otherwise and said that, “I would have told him it was troubling me
but nothing like the right”. Mr Raffle did not testify.
35. The plaintiff’s claim in addition to an alleged association with
shoes also made complaint about floor mats. The defendant
provided anti fatigue floor matting. The evidence did not identify
when matting was first introduced into the workplace but it was
accepted that they had been in place in one guise or another for a
number of the years. The plaintiff said that the mat she stood on
prior to 5 December 2012 was a good deal flatter than its
replacement. She said that when the floor mat and her shoes
6
11
changed her problems commenced. The plaintiff made a
connection in her own thinking between cause and effect.
36. In regard to the mat it became apparent in the course of the
plaintiff’s cross-examination that she had no complaint about the
new mat and indeed was complimentary about it and instead her
complaint centred on the old style mat. The plaintiff said it was so
thin as to offer her no protection and she likened it to standing
directly on the concrete floor. The old mat was not in evidence
and the plaintiff led no evidence about it or the supposed
connection of it to the onset of the condition of plantar fasciitis.
Such evidence as was presented was directed to the new mat, and
about it, there was a uniformity of opinion that it was more than
appropriate to the work environment. I note also that the
plaintiff’s handwritten statement and her typed statement and her
WorkCover claim are all silent in relation to the mat.
37. The plaintiff said that in about June or August 2013 she
experienced pain in the left foot. She said the pain was of the same
type as she had experienced in her right foot, that is to say, she
experienced the pain in the heel and the right side of the left foot.
On this occasion as well, there was no discrete precipitating event.
38. Following the conclusion of her employment with the defendant
the plaintiff said that she experienced various symptoms however
she said that lying down is not as bad as it had been. In regard to
her right foot she said she experiences pain in the heel and that it
feels cold from the ankle down. She gets pins and needles and is
in constant pain. She surmised that her left foot had become worse
because she was favouring it over her right foot.
39. On 24 September 2013 the plaintiff saw Mr Doig. She was again
seen by Mr Doig on 22 October 2013 and she also attended on him
on 8 April 2014. The plaintiff said that she told Mr Doig about the
12
discomfort in her left foot although she explained to him that the
pain felt nothing like the right foot and that he responded with
words to the effect, “let’s deal with one foot at a time”. The plaintiff
remained adamant that she “would have told him about the left foot
somewhere along the way”. The plaintiff said that Mr Doig was only
concerned with the purpose for which she had been sent to him,
which was her right foot.
40. Mr Doig’s recollection when he was cross-examined did not
accord with the plaintiff’s evidence on this aspect. There is no
reference in Mr Doig’s report of the sate of the plaintiff’s left foot.
To the suggestion that she had made no complaint to Mr Doig of
left foot pain, the plaintiff would have none of it, and maintained
that she had made such a complaint to him.
41. The plaintiff saw Dr Slesenger on 23 June 2014. He had taken over
the care of the plaintiff from Dr Lim. His note of clinical record of
23 June 2014 is of left heel pain, “recenly onset”. The plaintiff
thought that the pain had come on a day or two earlier than and
just as suddenly as it had with the right.
42. Although Dr Slesenger had been treating the plaintiff since about
January 2014 his notes up until the entry on 23 June 2014 make no
reference to the left foot. The plaintiff agreed that she had not
mentioned left heel pain to Dr Slesenger before then but she had
told Dr Lim about the left heel pain although she acknowledged
the absence of any reference in Dr Lim’s records.
43. The most that I am prepared to conclude from the evidence is that
the plaintiff might have commented on some swelling to the left
foot. This is consistent with the plaintiff’s concession that if she
made any complaint to Mr Raffle about her left foot it was of a
very different nature than to the right as it was far less a troubling
aspect to her than the right foot.
13
44. I am not satisfied by the plaintiff’s evidence that in addition to the
complaint of the onset of right foot plantar fasciitis she made a
complaint of left foot pain in 2013. The plaintiff’s recollection is
not supported by the objective written evidence or other oral
evidence. I am satisfied that the plaintiff experienced the onset of
left foot pain in the form of plantar fasciitis not before at least June
2014.
The plaintiff is sedentary
45. The plaintiff was asked questions about her daily activities in the
period following the termination of her employment with Qantas.
On the basis of an onset of left sided plantar fasciitis the plaintiff
was asked how she occupied her days from 30 December 2013
when her employment ended to 23 June 2014 when Dr Slesenger
recorded left foot pain. She said that in the main she had spent her
days playing computer games or watching television. She said she
tried to stay off her feet as much as possible. She agreed with
McKenzie that during this period she was not standing for
anything approximating the amount of time that she had been
standing during her employment with Qantas.
Dr Slesenger testifies
46. I have mentioned Dr Slesenger. He is the plaintiff’s treating
practitioner and an Occupational Physician. He took over the care
of the plaintiff from Dr Lim. He furnished 3 reports in relation to
the plaintiff, dated 28 January 2014, 7 June 2014 and 1 December
20147. The reports embraced a great number of matters including
the vexed issues of the plaintiff’s work shoes and the anti fatigue
mat.
7 Ex P8
14
47. Dr Slesinger’s report dated 28 January 2014 stated:
“The plaintiff was provided with safety shoes.
The plaintiff was issued with shoes at the commencement of her
employment and they were reviewed every 1-2 years.
Most recently these shoes were replaced in December 2012. She noticed
immediately that the shoes were high arched and began to cause pain”.
48. Dr Slesenger diagnosed the plaintiff with right plantar fasciitis. Dr
Slesenger also recorded a history of presentation by the plaintiff
including radiology and x-ray. Dr Slesenger had been asked for
his opinion about the relationship of plantar fasciitis to the
plaintiff’s employment. He wrote that:
“Michelle has been required to stand for prolonged periods of time
wearing inappropriate footwear. This has caused her symptoms and
has continued to aggravate it throughout the initial period. She
remained on standing duties until about August 2013 which further
contributed to her symptoms.
49. Dr Slesenger’s opinion that the plaintiff’s shoes were
“inappropriate” is contested as is the extent to which if at all there is
a concluded body of opinion that prolonged standing can cause or
contribute to or aggravate plantar fasciitis. On the facts of this case
both matters warrant separate consideration.
50. In his further report dated 7 June 2014 Dr Slesenger wrote that the
plaintiff’s current function was a limited and that she was “unable
to stand for even short periods of time”. He went on to report that she
suffers from pain in both heels but the pain is worse on the right
heel. He said that the plaintiff “continued to see the podiatrist, who
records that the main pain was around the posterior and inferior aspect
15
of the right heel and by July 2013, the records show that she was also
complaining of pain in the left foot.” The report of Mr Raffle is in fact
silent as to the left foot. Mr Raffle wrote in his report dated 6 June
2014 that he had not seen the plaintiff for treatment since 23 July
2013.
51. Dr Slesenger reported that the plaintiff’s work required her to
wear safety boots that were not specifically moulded to her
requirements and that were “heavy and uncomfortable. They were
poorly padded”. Dr Slesenger concluded with the opinion that he
was satisfied that there is a “plausible work exposure that could be the
cause of her impairment”. Moreover, he stated that “there is a
temporal association between the onset of her symptoms and her work
activities. I am therefore satisfied that her impairment is work-related.” I
observe that Mr Doig, whose evidence I will address shortly, also
placed considerable weight on the temporal connection of the
plaintiff having been at work when the sudden onset of right foot
pain occurred in order to arrive at a causative relationship
between work and the claimed injury.
52. Dr Slesenger’s report dated 1 December 2014 recorded that the
plaintiff had developed “bilateral heel pain, the right being worse than
the left”. This comparative assessment of the plaintiff’s pain is
consistent with her own evidence.
53. Dr Slesenger was cross examined. He said he commenced treating
the plaintiff in December 2013, that is to say, almost a year after
the sudden onset of the condition. He agreed that his clinical note
dated 23 June 2014 that recorded “L heel recently onset – now work
related” is his first entry relating to left foot pain.
54. Dr Slesenger was asked a series of questions directed to
comparing and contrasting the plaintiff’s activities and the extent
to which she was required to stand whilst employed with her
16
activities after she ceased employment with Qantas. He confessed
to being unaware that since the plaintiff’s employment ended she
spent her days largely engaged in sedentary activities such as
watching television and playing computer games.
55. Although Dr Slesenger’s report made mention that the plaintiff’s
shoes were “heavy” he was directed to the plaintiff’s statement8
that the “shoes are good and light however I have flat feet and the shoes
do not offer much support for flat feet”. Dr Slesenger was only able to
say that the plaintiff had told him that the shoes felt heavy.
56. Dr Slesenger was shown a pair of shoes of the type worn by the
plaintiff9. He examined footwear in the witness box. He said they
lacked an insole and, in his opinion, they are “flat”. He said they
do not have an arch support and that although he thought they
were firm at the base they were “not particularly moulded”.
57. Dr Slesenger was asked whether the wearing of tight fitting shoes
was a know cause plantar fasciitis. He said that plantar fasciitis is
a “multifactorial condition” and this included the plaintiff’s middle
age, being overweight but also, “standing on hard surfaces”. He said
that the plaintiff presented with each of these personal and work
characteristics. He said that there is some evidence in the relevant
literature and studies to suggest that all risk factors have a
compound effect in terms of the aetiology of the condition.
Nonetheless elsewhere in cross-examination he said that he
“placed little weight on the fact of shoes as a risk factor” for plantar
fasciitis.
58. Dr Slesenger agreed with Mr McKenzie that the pinpoint like pain
in the heel of the foot and the sudden onset of it in the manner
described by the plaintiff is a classic indicator for diagnosis of
8 Ex D3 9 Ex D10 It was agreed between the parties that the exhibit replicated the type of shoe worn
17
plantar fasciitis. Dr Slesenger said that the plaintiff’s presentation
was not atypical for plantar fasciitis because in his experience it is
more common to observe a gradual onset of symptoms as
opposed to the immediate presentation of pain.
59. Mr McKenzie asked Dr Slesenger for his opinion of the report of
Mr Polke that weight bearing and prolonged standing do not
amount to known factors in the onset of plantar fasciitis and that
the aetiology of heel pain is controversial. Dr Slesenger
acknowledged that the aetiology of heel pain is controversial and
that the quality of the empirical evidence that endeavours to make
a causal link between weight bearing and prolonged standing in
the onset or development of plantar fasciitis “was not great”.
60. Whilst Dr Slesenger’s evidence and acknowledgements were that
the plaintiff came to plantar fasciitis with a series of non-work
related factors such as age and obesity, both of which are
commonly associated on presentation with a diagnosis of the
condition, nonetheless, he was not prepared to adopt Dr Polke’s
opinion that the plaintiff would have suffered the onset of plantar
fasciitis because of the presence of those factors regardless of her
employment with the defendant and the nature of it. Dr Slesenger
testified about the multiplier effect of risk factors and that when a
risk factor has a multiple greater than increasing the risk of
association by a figure of 2, it will be regarded as a cause on the
balance of probabilities. He said that the available evidence was
that standing on hard surfaces increased the association of the
condition by “somewhere between one and two” and that research is
not yet at the stage at which those in his field can equate it to “the
balance of probabilities”. Whilst the adoption of a medical “ready
reckoner” may assist those tasked with the correlation of symptoms
to diagnosis in a medico-legal sense, the question of the
sufficiency of proof is a legal concept and although a medical
18
opinion derived from a mathematical equation may assist that
task, it cannot displace an assessment of facts in a given case
whether a plaintiff has discharged her or his burden of proof.
61. As regards the onset of pain in the plaintiff’s left heel, Dr
Slesenger said the development is explicable in part by reason of
the aetiology of plantar fasciitis which most often presents
unilaterally with the result that a sufferer will compensate by the
overuse of and hence the additional weight bearing on the
previously unaffected foot.
62. The nature of this explanation by Dr Slesenger to account for the
sudden onset of plantar fasciitis in the previously unaffected left
foot is also controversial and was a theory about which I heard
conflicting opinions. It is not for instance an opinion shared by Mr
Polke who testified for the defendant or of Mr Doig who gave
evidence for the plaintiff. On balance and for the reasons
expressed later in this decision I am not persuaded to accept it.
63. Dr Slesenger was asked questions concerning the anti fatigue
matting. The mat caused him no concern. He said that it appeared
to be of a type similar to those he had seen at workplaces probably
over about the last 6 years. He said that their purpose is to “create
a barrier so as to dampen the impact of walking”. He said there is a
paucity of research to suggest they served much value where the
activity is confined to standing but that the “hope is that the use of
such a mat will obviate the risk” of the development of the condition.
He fairly volunteered that he had no knowledge of the type of mat
used by Qantas prior to December 2012 or how long they had
been in use.
64. As regards the plaintiff’s prognosis, Dr Slesinger reported that she
may improve with weight reduction, and that this may be
facilitated by her referral to a bariatric surgeon. He reported that
19
obesity is an independent risk factor for the development of
plantar fasciitis in some 70% of patients presenting with it.
Thomas Kossmann
65. Mr Kossmann is an Orthopaedic Surgeon. He testified on behalf of
the plaintiff. He furnished a report dated 26 November 201410
following on the plaintiff having been referred to him for medical
assessment.
66. Mr Kossmann said he deals with the condition of plantar fasciitis
approximately 5 times a year. In his opinion inflammation occurs
as a result of “micro traumas”. He characterised these micro
traumas as small almost undetectable assaults or tears that may
often go unnoticed but build up over time and contribute to the
development of inflammation weakening the tissue of the fascia
muscle causing the acute onset of the condition.
67. Mr Kossmann noted that the plaintiff reported the sudden onset
of right sided heel pain and that in “July or August 2013 Ms. Keogh
claimed to have developed similar symptoms in her left heel while at
work…On 25 June 2014 a left heel ultrasound reported findings
consistent with plantar fasciitis”. When cross-examined Mr
Kossmann was asked about the diagnosis of left foot plantar
fasciitis in July or August 2013 on the basis that such a date was
inconsistent with the time frame for reporting of left heel pain and
left sided plantar fasciitis by Dr Slesenger. Whilst Dr Kossmann
did not say that the reference to 2013 was a mistake in his
recording of the plaintiff’s history, I am satisfied it is a mistake,
and my finding is reinforced by the reference to the 25 June 2014
left heel ultrasound that was performed on the plaintiff
subsequent to her attendance on Dr Slesenger on 23 June 2014,
10 Ex P9
20
which in turn accords with Dr Slesenger’s entry of recent onset of
left foot pain.
68. Mr Kossmann reported that on physical examination the
plaintiff’s weight was 125 kg, her height at 154 cm and she had a
BMI11 of 52.7. He said that the plaintiff walked with an antalgic
gait and that she had bilateral pes-planovalgus. He said she was
tender to palpation over the medial aspect of her right and left
calcaneum and over the calcaneal tuberosity bilaterally. She was
able to single toe raise on both sides but she was unable to single
or double foot heel raise. She was non-tender to palpation around
the subtalar joint. She had unrestricted ankle range of motion. He
too diagnosed bilateral plantar fasciitis.
69. Mr Kossmann went on to note that in accordance with the
reference made by Dr Bloom to the American Medical College of
Occupational and Environmental Practice Guidelines, a BMI
greater than 30 amounted to a an association for the condition and
so he wrote:
“Ms Keogh’s Body Mass Index is 52.7. Therefore, in Ms Keogh’s case,
there is an association between the amount of time standing, her
weight and plantar fasciitis.”
70. Mr Kossmann was aware of the plaintiff’s prolonged work history
of standing prior to the sudden onset of pain. Mr Kossmann said
that the matter of the plaintiff’s shoes had not been mentioned to
him at all and none had been furnished to him for his examination
or opinion. He also said that he had been unaware of the
provision and use made of anti fatigue mats in the workplace. He
was shown and touched the mat that was adopted in December
2012. He agreed that it was “quite cushy” and he said it would not
11 Body Mass Index
21
cause him any concern. He was shown the type of shoes worn by
the plaintiff between December 2012 and January 2013. He said
the shoe is cushioned. Mr Kossmann was asked if he shared Mr
Polke’s opinion that there is an absence of empirical evidence to
support a view that plantar fasciitis can be brought on by the
wearing of footwear. Mr Kossmann said he would not say so
“unquestionably” although the reason for his hesitation was not
developed. Mr McKenzie asked then whether he agreed that by
reference to a far more limited time frame of December 2012 to
January 2103 the wearing of inadequate footwear would cause the
condition and he agreed with Mr Polke that it would not.
71. Mr Kossmann also agreed with Mr Polke on the more limited
basis that the onset of the condition is “multifactorial”. He said that
in his opinion the plaintiff must have suffered “micro traumas”
prior to the sudden onset of pain. He said that the micro traumas
could include the many years of standing and that her wearing of
the contentious footwear for the short period of time could have
resulted in a micro-trauma and hence be regarded as amounting
to a cause.
72. Mr Kossmann agreed with the opinion of Mr Polke’s expressed in
his report dated 11 October 2014 that the aetiology of heel pain is
controversial. However, he did not agree with Mr Polke’s opinion
that the onset of the plantar fasciitis could have happened in any
event to a person such as the plaintiff with her particular
characteristics. Mr Kossmann said that in his opinion plantar
fasciitis is not a condition but an injury occasioned by micro
traumas causing inflammation that manifests in acute pain.
73. Furthermore Mr Kossmann disagreed with an approach to the
matter of arriving at a diagnostic cause that on the one hand
would include the plaintiff’s non-work related risk factors but on
22
the other hand exclude her many years of prolonged standing on
hard surfaces because, as he put it, to do so is to ignore the
existence of the many people who are overweight to the same if
not a greater extent that the plaintiff and who are of the plaintiff’s
same age range but do not suffer from plantar fasciitis.
74. Mr Kossmann was directed to the opinion expressed in reports by
Mr Bloom that there is insufficient evidence that standing and
weight bearing are factors that cause the onset of the plantar
fasciitis. Mr Kossmann said that he did not “necessarily agree with
this literature” on the matter and that “I have my own theories” by
which I understood Mr. Kossmann to be referring to the
prevalence of “micro traumas”.
75. Mr Kossmann thought that his theory of micro-traumas in relation
to the pathology of the condition was consistent with but
expressed differently to the opinion of Mr Polke who on 11
October 2014 wrote that “it was considered that it probably represents
a degenerative attritional or fatigue interstitial tear of the plantar fascia
near the calcaneal insertion associated with chronic inflammation and
eventual fibrosis”. Mr Kossmann said that tears need not always be
symptomatic and that to some extent it would depend on the
resolve and make up of the individual about whether complaint of
pain was made. This could be the situation in a particular case but
in this proceeding the evidence from the plaintiff is all one way
and which was that that before December 2012 she had no
problem with her feet.
76. I am not persuaded that I could find the probability that the
plaintiff suffered unknown micro traumas that were
asymptomatic. Mr Kossmann used the example of athletes such as
soccer players as an example of persons who might experience
this type of a trauma. The plaintiff was not an athlete. I found Mr
23
Kossmann’s evidence and reference to many almost imperceptible
traumas apt to distract rather than illuminate one of the disputes I
am called on to decide which is whether the prolonged standing
at work on hard surfaces could be a mechanism and therefore a
cause of plantar fasciitis.
77. In regard to the later onset of left sided plantar fasciitis Mr
Kossmann’s explanation although consistent with Dr Slesenger
was inconsistent with Mr Polke and in particular Mr Doig.
Mr Doig’s evidence
78. Mr Doig gave evidence in chief on behalf of the plaintiff. His
reports dated 5 June 2014 and 7 November 2014 were received
into evidence12.
79. Mr Doig provided a report to the plaintiff’s solicitors dated 5 June
2014 in which he noted that the plaintiff had been referred to him
by Dr Lim. He first saw the plaintiff on 24 September 2013. On
examination he found the plaintiff’s pain and tenderness under
the heel consistent with plantar fasciitis. In addition he noted that
she had undergone an ultrasound which confirmed the diagnosis.
He referred to the provision of an injection of local anaesthetic and
steroid to try and settle the pain. He said he reviewed her on 22
October 2013. The plaintiff said that the injection had given some
relief but had worn off. Mr Doig considered a plantar fascial
release reasonable step. Mr Doig considered the mechanism of
injury was consistent with the plaintiff’s prolonged standing on
concrete floors.
80. By a further report dated 7 November 2014 (described as an
addendum to his report of 5 June 201) Mr Doig commented on the
report made by Dr Bloom dated 26 November 2013. He agreed
12 Ex P10
24
with the characterisation of the plaintiff as “morbidly obese” and
agreed with Mr Bloom’s diagnosis of plantar fasciitis. He said he
had read through “the AMA book on Disease Causation” and said in
regards to Mr Bloom’s use of the Guidelines that, “I agree that
according to the Guidelines that the date on prolonged standing at work
is a potential risk factor is inconclusive”. He also agreed with Mr
Bloom that effect of the Guidelines that prolonged standing at
work amounts to a potential risk factor “is inconclusive”. He said:
“There is not a hard scientific connection between prolonged standing
at work on the development of plantar fasciitis and in other words
people can develop plantar fasciitis without prolonged standing at
work. I agree that her condition of the plantar fasciitis was not
specifically caused by her work but in my report I said that the pain
that she developed in her heel came on whilst she was at work and she
found that the pain was aggravated while she was standing for
prolonged periods of time.”
81. Mr Doig reported as well that:
“In the Guidelines that you have kindly sent to me plantar fasciitis
mechanism of aetiology is either describes idiopathic which means that it
has come on spontaneously or from weight bearing on hard surfaces and
that is one of the reasons why I have assessed her as this as being work-
related.
…
In summary this patient has significant evidence that she has plantar
fasciitis. For the reasons outlined in my initial report and in this report
I consider that work was a contributing factor to her problem because
of the prolonged weight bearing. I fully accept that there are other
aetiological determinants here as well including morbid obesity but
from the history that she gave me she said that it came on at work and
25
has continued to cause her trouble since then. That is the reason that I
assessed her as being work-related...”
82. Mr Doig also referred to that part of Dr Bloom’s report that it was
“reasonable to accept that any situation that she is in that demands
prolonged weight bearing is likely to temporarily exacerbate the
symptoms and that is exactly what she found particularly at work.”
83. Although Mr Doig maintained in his 7 November 2014 report that
the plaintiff’s work had been a contributing factor to her
condition, the focus of this later report altered in emphasis and
focussed greater concentration on the plaintiff’s size. He wrote
that:
“I suspect that the major contributor to her situation is in fact the
morbid obesity but because she gave a history that the injury came on
at work and continued to be aggravated by her work I felt it was
reasonable to state that work has contributed to her situation”.
84. Mr Doig was an impressive witness. He was considered in the
manner of giving his evidence. He frankly acknowledged the
uncertainty in the medical community about plantar fasciitis. The
sum effect of his evidence was that it is difficult to do more than to
recognise that certain characteristics are more commonly
associated with plantar fasciitis than not. He did not assert that
the presence of any one or more factors amounted to a cause of it.
He said the condition is idiopathic.
85. Mr Doig was cross examined by Mr McKenzie. He said that he did
not hold any note of complaint that the plaintiff made to him
about her left foot. He said that had the left foot been mentioned
by her in passing he may not have made a note of it, however, had
it been raised as a matter of concern he thought he would have
26
made a note and this would also have been the case had he said to
her, “let’s deal with one foot at a time”.
86. Mr Doig was presented with certain facts distilled from the
evidence including that the plaintiff had not been at work
between the periods 30 December 2013 to 23 June 2014 and had
largely kept off her feet. Furthermore from the middle of 2013 the
plaintiff had been working modified duties and reduced days of
work and hours. As well Mr Doig was shown the footwear the
plaintiff had worn between 5 December 2012 and 8 January 2013.
87. Mr Doig acknowledged that his reports are silent as to a complaint
by the plaintiff about her work shoes. On examining the shoes in
the witness box Mr Doig said that they appeared unlikely to bring
on heel pain. Also Mr Doig said he was unaware of any empirical
studies that tight shoes caused plantar fasciitis. As to the fitness
for purpose of the footwear the plaintiff was provided he agreed
with Mr Polke that the shoes were spongy, soft and had some give
in the heel. He was asked about the arch of the shoe and said that
although it did not have much of a medial arch “most shoes don’t in
any event”. As to the complaint that the shoes had a high arch, he
did not think they did.
88. Mr Doig was shown the anti-fatigue mat introduced into the
workplace in December 2012, and after examining it, said that it
presented as “nice and spongy” and it appeared to him to be “okay”.
89. The sum effect of Mr Doig’s evidence was to exclude the shoes
worn by the plaintiff and the anti fatigue mat deployed at the
workplace as causes of plantar fasciitis.
90. Mr Doig was asked a series of questions about the aetiology of
plantar fasciitis. He was directed to the American College of
Occupational Medicine Practice Guidelines. Mr Doig said he had
27
had recourse to the AMA Disease Causation Guidelines and the
American College of Occupational Medicine Practice Guidelines.
He was asked about the 2 extracts from Disability Guidelines.13 He
said he had not had regard to them when assembling his reports
but that it appeared to him that there was nothing different in
them from that extracts contained in the report of Mr Bloom.
91. Mr Doig agreed with Mr Polke’s opinion regarding the aetiology
of plantar fasciitis and that age and a high body mass index “are
both significant risk factors” in the onset of the condition.
92. Mr Doig accepted that there was no evidence that the plaintiff
having experienced a precipitating traumatic event but that the
history the plaintiff had given to him in consultation was that the
“pain developed at work and came on as a result of standing on concrete
floors”.
93. Mr Doig was asked if he agreed with Mr Polke’s opinion that the
plaintiff would have suffered a similar condition without a history
of standing at work. He said that whilst the plaintiff might have
developed plantar fasciitis irrespective of standing at work he
could not exclude it on the balance of probabilities.
94. Mr Doig accepted Mr McKenzie’s proposition that he had placed
considerable reliance on the temporal connection between the
onset of left foot plantar fasciitis having occurred at work. This
being the case he was asked how he reconciled the onset of left
foot plantar fasciitis in about August 2014 against the backdrop of
the plaintiff not having worked since December 2013 and
furthermore having led a sedentary lifestyle since that time. Mr
Doig frankly acknowledged that it remained a conundrum.
13 Ex D11 and D12
28
95. Mr Doig was not prepared to adopt the explanation advanced by
Dr Slesenger and Mr Kossmann that the subsequent onset of
plantar fasciitis to a previously unaffected foot may be brought on
by a greater load or pronation on the unaffected foot resulting in
traumas and when associated with other risk factors causing its
onset as a bilateral condition. Mr Doig refuted the explanation
attributed to the left foot because he said that weight is evenly
distributed when standing and this is almost impossible to
displace. Mr Doig said that it is not possible to contend that
weight bearing can be distributed from an affected foot to the
unaffected foot with the result that greater weight is borne by the
unaffected foot thereby acting as a cause of or a contributor to the
onset of plantar fasciitis in the previously unaffected foot.
Qantas witnesses
96. Mr George McConaghie is the Health Manager Coordinator
Catering for Qantas. He said his duties involve overseeing
WorkCover recipients and administering employees undertaking
alternative duties. He produced into evidence the anti fatigue mat
of the type purchased by Qantas and utilised by the plaintiff from
on or about 5 December 2012. He was not able to give any specific
evidence about the type of mat used prior to 5 December 2012
save to say that all mats “would have been complaint with Australian
Standards and would probably have been tested in the workplace”. He
said that “in all probability they would have been of similar thickness”.
He was unable to produce a mat of the type in place before 5
December 2012. It needs to be remembered that the plaintiff’s
complaint made in the course of her evidence was about the
effectiveness of the mat rolled out prior to 5 December 2012.
97. On the question of the footwear Mr McConaghie was unable to
give specific evidence or produce footwear of the type in place
before the shoes that the plaintiff wore in December 2012.
29
98. It was suggested to Mr McConaghie in cross-examination that
mats were introduced because of a concern that long periods of
standing may cause injury to a worker who was required to stand
for prolonged hours and in particular a risk of the onset of plantar
fasciitis. He said that Qantas did not have concerns about risk
exposure to specific injuries such as plantar fasciitis but that the
introduction of the matting was a preventive measure against the
risk of injury generally.
99. Mr McConaghie said that there was no protocol that dictated the
turnover of mats but rather that they were replaced on a needs
basis.
100. Mr Luke Arulaah is the Production Supervisor Food Division with
Qantas. He said he has been employed in the food department
and the catering division of Qantas for 25 years. He indicated that
the plaintiff reported to the leading hand who in turn reported to
him. He said he knew the plaintiff. He said there had been no
evidence of any complaint regarding the anti fatigue mat or the
work shoes. He said that he could not recall any discussion with
the plaintiff in relation to the mat or the shoes or in relation to her
standing in the performance and discharge of her employment.
He was unable to give evidence about the type of footwear worn
either before or after 5 December 2012. His evidence about the
point in time at which Qantas introduced matting was not
specific. He said at different points in his evidence that it might
have occurred “6 or 7 years ago” or “8, 9 or 10 years ago”. He was
unable to give any relevant evidence about the comparative
qualities of the matting used otherwise than to say that “they
would have passed OH & S”. He said as well that, “maybe this mat
was slightly thicker than the old mat”.
30
Dr Bloom’s evidence
101. I have already made reference to Dr Bloom in these reasons. He
testified on behalf of the defendant. He is an Occupational &
Environmental Physician. He prepared 4 reports dated 26
November 2013, 15 July 2014, 13 August 2014 and 11 February
2015. They were received into evidence14. One matter that arose in
connection with Dr Bloom’s evidence was the use he made of and
references to various guidelines other than those that the
defendant had provided to the plaintiff’s solicitors prior to the
hearing. At the end of the day the matter was dealt with in the
running of the case and I am satisfied that there was no prejudice
occasioned to the plaintiff as a result.
102. In final address counsel for the plaintiff submitted that I should
exercise a degree of caution in adopting the evidence of Dr Bloom.
He submitted that he was very uncertain about the contents of
some of the very material he relied upon to support his opinions
and expressed in his reports, and that he was apt to cavil with the
expressions that were adopted in the very same material where
they appeared to be at odds with his own opinions. I am not
prepared to adopt the extent of the criticisms levelled at Dr Bloom.
In some part at least I think the more likely explanation is that he
was unfamiliar with the recent change in formatting of
information contained in documents referred to by him as
opposed to being unfamiliar with the information itself. I am
satisfied that his opinion was in some aspects predicated on his
familiarity generally with information referred to in Guidelines
and I acknowledge that he could not say if his references to
findings distilled from the literature or studies referred to in his
reports was based on his general knowledge or were specifically
researched at the date of the preparation of the reports.
14 Ex D9
31
103. Dr Bloom was asked questions concerning the American College
of Occupational & Environmental Health Guidelines and that part
of them extracted as Exhibit D10 (pages 367 to 375). Page 375 of
contains a heading “Diagnostic Criteria”. Dr Bloom said that
because he did not regard the plaintiff’s diagnosis of plantar
fasciitis to be in question he did not believe that he specifically
looked to this part of the Guidelines, although he said, he was
otherwise familiar with the contents. He agreed that he made no
reference to the diagnostic criteria in his reports. He was directed
to Table 14.2 and asked about the connection acknowledged
between the condition of plantar fasciitis and the mechanism of it
that is described as “Prolonged weight bearing Degenerative changes
Idiopathic”. At first Dr Bloom argued contested that the Table
included weight bearing as a recognised mechanism of injury but
recanted from this argument when his attention was directed to
the narrative under Diagnostic Criteria at pg 367 that, “The criteria
presented in Table 14-2 follow the clinical thought process, from the
mechanism of illness or injury to unique symptoms and signs of
particular disorder and finally to test results, if any tests are needed to
make a correct diagnosis”. Dr Bloom then said that irrespective of
the same he was “not clear about that to be quite honest” by which I
understood his evidence to be that he was not willing to adopt the
statement expressed at p 368 in Table 14-2 that the mechanism of
injury for plantar fasciitis should include “Weight bearing on hard
surfaces”. When asked by Mr Mckenzie if close to 14 years
employment carried out by standing in a largely static position
could lead to plantar fasciitis, he said, that “I have not found good
evidence of that”.
104. Dr Bloom was also directed to the statement contained in the
Guidelines at pg 369 headed “Work-Relatedness” and that part of it
expressed as follows:
32
“Prolonged weight bearing may aggravate Morton’s neuroma,
metatarsalgia, hallux valgus, and plantar fasciitis, although the
strength of the association is not great”.
105. Dr Bloom initially responded by saying that the extract concerning
work relatedness was concerned with a “foot or ankle disorder”
whereas he was concerned more specifically with plantar fasciitis.
He subsequently accepted however that plantar fasciitis is indeed
a foot disorder. In any event, he said he was informed on the issue
of work relatedness by the ACOEM V.3 Guideline15 for work
relatedness and that this fortified his thinking.
106. Dr Bloom was asked to comment on the comity or lack thereof
between his report dated 26 November 2013 that plantar fasciitis
is an idiopathic condition and a opinion expressed by Mr Polke in
his report dated 11 October 2014, that:
“The etiolgy of heel pain is controversial and more often than not it
follows a self-limiting cause.
It occurs, typically in middle aged, often overweight people who are
usually not able to recall any precipitating event; it was considered
that it probably represents a degenerative attritional or fatigue
interstitial tear of the plantar fascia near the calcaneal insertion
associated with chronic inflammation and eventual fibrosis”.
107. Dr Bloom said he did not regard his opinion and the view
expressed by Mr Polke as inconsistent and that he regarded the
extract from Mr Polke as directed to the pathology of plantar
fasciitis and not its cause.
108. Dr Bloom was directed to his report dated 26 November 2013. He
was asked about his reference to the use he made of the American
15 Ex D11
33
College of Occupational and Environmental Medicine Practice
Guidelines and ‘other available literature’ and his opinion that
‘according to the Guidelines, data on prolonged standing as a potential
risk factor is inconclusive’. His report went on to say that:
‘Thus, taking into consideration all the available evidence and the
ACOEM Guidelines, plantar fasciitis is considered an idiopathic
condition or disease process that relates to personal biomechanical
factors and, in the absence of an acute traumatic event, is not
considered an injury’.
109. Dr Bloom said that the lack of work relatedness was supported by
the subsequent onset of left foot pain at a time when the plaintiff
was engaged in predominantly sedentary activities.
110. Dr Bloom agreed with Mr Ajzensztat of counsel that standing may
well aggravate the symptoms associated with the condition but
not amount to a cause of the condition. He said the question
whether or not an exaggerated gait brought about as a result of
the onset of unilateral plantar fasciitis was not a matter he was
able to express an opinion upon without undertaking a study of
such relevant literature as might exist on the topic.
Mr Polke’s evidence
111. Mr Polke gave evidence. He is an Orthopaedic Surgeon and his
reports dated 11 October 2014, 11 November 2014 and 24 February
2015 were received into evidence16. His first report was made “on
the papers” not having examined the plaintiff.
112. Mr Polke noted in his report dated 11 November 2014 following
examination that the plaintiff was morbidly obese and that she
walked into examination with a waddling gait but had no need for
16 Ex D13
34
support but was unable to walk on her heels and she was tender
under both heels although there was minimal swelling and her
ankle and hind foot movements were near normal. He referred to
x-rays of 10 January 2013 evidencing a calcaneal spur and an
ultrasound of 25 June 2014 of the left foot reporting plantar
fasciitis previous ultrasound of the right foot having also reported
plantar fasciitis.
113. He confirmed the plaintiff suffered from bilateral plantar fasciitis.
He confirmed the content of his previous report that plantar
fasciitis has no relationship to the plaintiff’s employment as any
number of activities such as prolonged standing, sitting and even
lying in bed at night causes heel pain. Thus Mr Polke
acknowledged a central plank of the plaintiff’s claim as it related
to the association of the nature of the plaintiff’s work by way of
prolonged standing to the onset of the right sided plantar fasciitis.
114. Mr Polke said there was no particular incident in the plaintiff’s
employment which caused the heel pain and nothing the plaintiff
could recall that precipitated it. He repeated his comments about
the aetiology of plantar fasciitis and said:
“It occurs, typically in the middle-aged, often overweight were usually
not able to recall any precipitating traumatic event; it was considered
that it probably represents a degenerative attritional or fatigue
interstitial tear of the plantar fascial near the calcaneal insertion
associated with chronic inflammation and eventual fibrosis. The
significance of the “heel spur” in the main fact being a variant
unrelated to the heel pain itself.
Morbid obesity, which Ms Keogh suffers from, is said to be a
contraindication the surgery. Conversely, with these patients, weight
loss should be encouraged as a Conservative treatment measure.
35
I concur that plantar fasciitis is a disease process/condition are not an
injury. On the balance of probabilities she would have suffered a
similar condition with similar symptoms had she not worked in a job at
Qantas. In other words, she had sufficient causal factors that would
have contributed to her condition other than prolonged standing and
weight-bearing.
Had prolonged standing caused it, once she had left work, any work-
related exacerbation would have ceased.”
115. Mr Polke concluded his report by addressing the matter of the
effect if any of the new work shoes that were issued in December
2012 and, in particular, the plaintiff’s complaint that the footwear
was narrower than previous footwear and with a higher arch and
steel caps. There was also the complaint that the previous fatigue
mats were replaced with new amounts which were spongy. Mr
Polke noted the plaintiff’s complaint that the use of the new
footwear became stressful as they seem to restrict her movement
and weighted her down rather than assisting her with her height
differential to the work bench.
116. Mr Polke’s opinion was that he did not consider the high arch of
the footwear as a cause of her plantar fasciitis. In his view the shoe
was more likely to distribute the plaintiff’s weight away from her
heels and therefore tend to reduce the direct pressure placed on
her heels.
117. Mr Polke also expressed the opinion that the anti fatigue mat
introduced in December 2012 has a perforated spongy consistency
that would tend to relieve any direct pressure placed on the
plaintiff’s heel as opposed to aggravating the plaintiff’s pain.
118. Mr Polke provided a further report dated 24 February 2015. He
noted that he had been supplied with footwear of the contentious
36
type used by the plaintiff for the very short period of time and
that after examining the shoes, he formed the view that there was
nothing about the footwear that would make him believe they
were responsible for the production of the plantar fasciitis of the
right or left foot. He said that having examined the shoes in detail
he noted that there was “good, spongy, soft padding inside the shoes
under the heel as well is the rest of the foot.” He concluded his report
with the opinion that the footwear was not a significant
contributing factor to the aggravation, acceleration, exacerbation
or recurrence of the plaintiff’s left or right foot condition. He said
the footwear was not particularly high arched and was an
irrelevant consideration.
119. Mr Polke was directed under questioning to his second report
dated 11 November 2014 and, in particular, page 3. Mr McKenzie
asked him about the time difference between the reported onset of
left sided plantar fasciitis and the relatively sedentary lifestyle of
the plaintiff from July/August 2013 when she was on modified
duties and reduced work hours to 30 December 2013 and
thereafter when her evidence was that her activities were in the
main watching television and playing computer games. The
defendant’s purpose in highlighting this different lifestyle was to
suggest a fallacy of a supposed connection between prolonged
standing and the onset of the condition or the injury.
120. In re-examination Mr Polke said that did not believe that the
condition of plantar fasciitis can arise from weight bearing on
hard surfaces. He did not agree with the conclusion in the
literature that prolonged weight-bearing may aggravate the
condition.
121. Mr Polke said that degenerative tears could be asymptomatic for a
number of years before pain becomes acute. He agreed as well
37
that the condition is multi factorial and that age and height were
factors frequently attendant with a diagnosis of the condition but
he excluded weight bearing and standing as contributory factors.
He said, “I do not believe standing could aggravate symptoms of the
condition”. Whilst Mr Polke was very determined in his opinions,
his capacity to reconcile them with the data such as it exists and
was relied on by the plaintiff in order to make good a connection
between the injury and its mechanism was less so.
Legal Submissions
122. In terms of the relief sought by the plaintiff and the claim
adumbrated in the Amended Statement of Claim Mr Ajzensztat
submitted that the left foot condition, that is to say, the onset of
left sided plantar fasciitis is no more than the consequential effect
of the right foot plantar fasciitis injury sustained by the plaintiff as
a work injury. The left foot plantar fasciitis is put as a
consequential effect of the right foot plantar fasciitis but Mr
Ajzensztat submitted that if I was not satisfied on the balance of
probabilities of this then the left foot would not be compensable
but the right foot plantar fasciitis should be compensable. He also
submitted that there was no contest joined in the proceeding
regarding the asserted psychological/psychiatric injury arising
from either unilateral or bilateral plantar fasciitis. I agree with this
analysis.
Significant contributing factor
123. The words “contributing factor” recognises that an injury may be
caused by more than one factor. The inclusion of “significant”
means that where there is more than one factor involved and one
of them is the worker's employment then its importance needs to
be assessed in order to determine if it is a significant contributing
factor or not. There may be also more than one factor which is
38
significant and of course one factor may be more significant than
another but this does not diminish the question whether
employment is a significant contributing factor to the causation of
injury. It may be of lesser significance than another but
nonetheless satisfy the description of “significant.
124. In Meddis v. Victorian WorkCover Authority (County Court,
judgment 24 April 1996) Judge Rendit, said this:
“I consider a broad meaning can only be given to the words
'significant contributing factor' as the facts of each case must be looked
at in the light of its own circumstances and an assessment made
factually whether the employment was a significant contributing factor
to the happening of the injury. In this regard, I consider it means more
than de minimis but less than a major or dominant factor. Indeed, one
can have several significant contributing factors which are unrelated
but which play their part in the occurrence of the injury. I consider
that it is basically a question of fact”.
125. In Allman v. Major Finance and Engineering Pty Ltd17 Judge
Strong described ‘significant’ as meaning ‘of considerable amount of
effect’.
126. Ashley J (as he then was) has spoken about the area of overlap
between the statements of Judge Rendit and Judge Strong and he
observed in Popovski v Ericcson Australia Pty Ltd18 that there is
an apparent point of disagreement in that the minimum
requirement of the Meddis formulation is that the contribution of
employment to injury be “more than de minimis”, whereas the
“single requirement of the Allman formulation is that such contribution
be ‘of considerable amount or effect’’. His Honour considered that the
17 (County Court, judgment 14 March 1997) 18 [1998] VSC 61 at [61]
39
Allman formulation more accurately reflects what he called, the
“sense of the legislation”. As His Honour pointed out, the adjective
which parliament chose to insert was “significant” not “material”,
nor the phrase “to a recognisable degree” all of which as His Honour
noted owe their development to different legislative
arrangements. Further His Honour said it is an adjective which
implies a contribution of greater dimension than that conjured up
by such of these other formulations. His Honour stated that that it
is important to keep at the forefront of consideration that what
will amount to “considerable” in any particular case will, of course,
be a matter for determination on the facts and that at a practical,
as distinct from conceptual level, the distinction between an
employment contribution exceeding de minimis and an
employment contribution of considerable amount or effect may be
more apparent than real19.
The section 5 (1B) factors
127. In deciding whether “injury” within sub-paragraph (b) or (c) of
the Act has been caused to a worker, the duration of the worker’s
current employment, the nature of the work performed and the
particular tasks of the employment must be considered: (s.5 (1B)
(a), (b) and (c) of the Act). I am satisfied that the nature of the
plaintiff’s work was that she was required to stand, essentially in
one place, over the course of each day of her work which was in
excess of 13 years. The work she performed was essentially static
and required little movement by her as she placed designated
items on a tray and then swept the tray along rollers to a second
worker. Other than the plaintiff being required to occasionally
19 The reasoning applied was not disturbed on appeal in Ericsson Pty Ltd v Popovski (2000) 1 VR 260
40
walk some few paces to a refrigerator and back again her routine
was set in stone. The plaintiff would rotate within the course of
her working day to the extent that she might alter sides with her
co worker at the assembly bench. The tasks were limited. In the
period after the onset of injury and her return from a mixture of
annual leave and sick leave the duties were moderated in the
manner they were executed and the plaintiff was able to be seated
as required and from July/August 2013 her duties were altered
and she remained seated and her hours and days were reduced.
128. In considering whether employment is “a significant contributing
factor” to injury, paragraphs (d) (e), (f) and (g) of s.5 (1B) direct
attention to aspects of the worker or her lifestyle which, where
relevant, have contributed to a particular injury. Most relevantly
however from the defendant’s perspective is (d) because very
obviously the fact of the matter is that the plaintiff presented in
her employment with Qantas as significantly overweight and at
the onset of the pain in 2013 she was aged 52. All of the
practitioners agreed that the excessive weight and middle age are
conditions often associated with persons diagnosed with plantar
fasciitis. Of course, in terms of the plaintiff’s presentation, the
defendant takes the plaintiff as it finds her and it was not
suggested otherwise by the defendant. However a central
controversy concerned the extent to which, if at all, the existence
of such non work related conditions that the plaintiff presented
with are no more than mere association of such a condition but
not a cause of it or contributor to it.
129. The plaintiff submitted that each of the medical practitioners
whose evidence and opinions she relied on held to their opinion
that her employment in the sense of prolonged standing could be
41
regarded as a factor associated with the onset of plantar fasciitis
by way of cause. By comparison the plaintiff contended that the
defendant’s medical witnesses could not exclude prolonged
standing as factor contributing to the onset of that condition. I
agree.
130. In giving effect to s 5 of the Act, I think it would be wrong of me
to approach the matter on a construction that paragraphs (e) (f)
and (g) are relevant only where there is evidence relevant to them
so that such evidence may be put in the balance against the
worker. I regard the relevant law directs me to be aware that the
absence of facts falling within any of those aforementioned sub-
paragraphs as was very much the case here may itself tell in
favour of there having been significant employment contribution
to injury in a particular case. Findings of Fact
(i ) The plaintiff suffered a sudden onset of unilateral plantar
fasciitis on 8 January 2013;
(i i ) The onset occurred at work and hence there was a temporal
connection with the plaintiff’s employment;
(i i i) The plaintiff’s work consisted on regular ongoing periods of
lengthy standing in a substantially static position for a period
in excess of 13 years;
(iv) The Guidelines utilised by Dr Bloom and adopted by Mr
Polke identify that a recognised mechanism of injury for
plantar fasciitis is prolonged weight bearing on hard surfaces;
(v) The plaintiff was at the cusp of middle age when she
commenced employment with Qantas;
42
(vi) The plaintiff was overweight when she began with Qantas
and significantly overweight when she suffered the acute
onset of plantar fasciitis on 8 January 2012;
(vi i) The plaintiff’s presentation with non work related risk factors
for the development of plantar fasciitis is not a reason to
exclude a consideration of work relatedness to the onset of
the condition to the right foot;
(vi i i ) The plaintiff was required to stand on hard surfaces for a
period in excess of 13 years which on the evidence could have
accounted for almost half the period of time before the
introduction of anti fatigue mats which depending on the
evidence commenced anywhere between 6 to 10 years ago;
(ix) I am satisfied that the presentation by the plaintiff with non
work related risk factors or associations amounted to
“significant contributing factors” to the onset of right and left
sided plantar fasciitis but I am also satisfied that the nature of
the plaintiff’s work was a “a significant contributing factor” to
an injury of right sided plantar fasciitis;
(x) The plaintiff made no complaint about mats at any time
before the onset of the right sided plantar fasciitis on 5
December 2012;
(xi) The mats used by Qantas complied with applicable OH&S
Standards but I am also satisfied by the evidence of the
Qantas witnesses that there was no designated time allocated
for the changeover of mats and it appears to have occurred on
an ad hoc basis. I also accept the plaintiff’s evidence that prior
to December 2012 the cushioning effect was minimal and she
felt as if she was standing on concrete;
43
(xii ) The mats were liable to degradation from wear and tear over
time and hence susceptible over time to a reduction in their
cushioning effect;
(xii i ) The issue of the mats and the shoes are not however
determinative of the question of causation because I accept
the evidence of Dr Bloom that the provision of mats are more
purposeful in diffusing the weight bearing load of a worker
who is ambulant as opposed to a worker such as the plaintiff
who is predominantly in a static standing position
throughout their work day;
(xiv) There is no evidence on the balance of probabilities that the
shoes worn by the plaintiff caused or contributed to plantar
fasciitis;
(xv) As regards causation the plaintiff undertook her employment
for a prolonged period standing on hard surfaces and this is
one type of recognised mechanism of injury for the condition
of plantar fasciitis;
(xvi) The plaintiff’s plantar fasciitis presented in an unusual
manner in that it presented unilaterally and presented
suddenly and not by a gradual onset referrable to
symtomology;
(xvii ) The plaintiff suffered the onset of left sided plantar fasciitis
more than a year and a half after the temporal risk factor for
plantar fasciitis occasioned by the work relatedness of
prolonged standing on hard surfaces in the workplace had
dissipated and when she had been leading a sedentary
lifestyle but at a time nonetheless at which she remained
44
imbued with the personal characteristics that amount to
recognised associations or risks of a cause of its onset;
(xvii i) I am not satisfied that the plaintiff’s work amounted to “a
significant contributing factor” to the onset of left sided plantar
fasciitis. I am not satisfied that the plaintiff has discharged her
burden of proof on the balance of probabilities that the onset
of left sided plantar fasciitis was caused by her employment. I
am satisfied that on an application of common sense the
passage of time and the altered lifestyle the plaintiff was
leading at the time of the onset of left foot plantar fasciitis in
2014 renders the association of work relatedness something
less than “a significant contributing factor”.
Conclusion
131. The result of the evidence in this proceeding is that in accordance
with the principles of law in determining whether a plaintiff has
proved on the applicable standard of proof that her employment
amounts to “a significant contributing factor” to injury I am so
satisfied as regards the onset of right sided plantar fasciitis but not
for left sided plantar fasciitis.
132. I therefore order that the plaintiff is entitled to relief in the form
that the decision of the defendant to terminate the plaintiff’s
entitlement to weekly payments from 30 December 2013 is set
aside. I dismiss that part of the plaintiff’s application to set aside
the defendant’s notice of rejection dated 19 August 2014 for
compensation for left sided plantar fasciitis.
133. I will grant the parties a period of 7 days from the publication of
this decision to submit a minute of order to give effect to these
reasons or to have the matter brought on for mention if necessary.
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