Plaintiff v Firstnamed Defendant Secondnamed Defendant Thirdnamed Defendant

Plaintiff v Firstnamed Defendant Secondnamed Defendant Thirdnamed Defendant - [2011] VSC 267 - VSC 2011 case summary — Zoe

[13]

"(a) the Medical Panel having found -

(i) that the Plaintiff was suffering from the residual affects of a Morton's Neuroma of the second web space of the left foot surgically treated;

(ii) that the Plaintiff had long standing constitutional spinal degenerative changes;

(iii) that there was no pre-existing symptomatology resulting from such long standing constitutional spinal degenerative changes;

(iv) that the Plaintiff had an altered gait at the time of development of left foot symptoms and in the post-operative period; and

(v) that the Plaintiff developed low back pain several months after the onset of his foot symptoms -

erred or acted unreasonably in concluding that the Plaintiff's left foot injury and its subsequent treatment had not and could not possibly have contributed to any aggravation, acceleration, exacerbation or deterioration of his pre-existing lumbo-sacral degenerative changes.

(b) The Medical Panel made a finding which was not open on the whole of the evidence, namely, that it was not possible for the Plaintiff's left foot injury to have contributed to any aggravation, acceleration, exacerbation or deterioration of his pre-existing lumbosacral degenerative changes and that it had not done so.

(c) The Medical Panel, in viewing as 'not possible' any causal link between the Plaintiff's left foot injury and the aggravation, acceleration, exacerbation of deterioration of his pre-existing lumbosacral degenerative changes or that there was no such link, failed to take into account relevant material to the contrary.

(d) The Medical Panel failed to state the symptoms, evidence or other material upon which it found that the Plaintiff's left foot injury and its subsequent treatment had not and could not possibly have contributed to any aggravation, acceleration, exacerbation or deterioration of his pre-existing lumbo-sacral degenerative changes.

(e) The Medical Panel failed to give any or any adequate reasons for concluding that the Plaintiff's left foot injury and its subsequent treatment had not and could not possibly have contributed to the aggravation, exacerbation or deterioration of degenerative changes in the Plaintiff's lumbo-sacral spine after:

(i) concluding the Plaintiff suffered residual affects of Morton's Neuroma of the second web space of the left foot which was treated surgically;

(ii) concluding the Plaintiff had long standing but asymptomatic degenerative changes of the lumbo-sacral spine;

(iii) accepting that the Plaintiff had an altered gait at the time of development of left foot symptoms and in the post-operative period; and

(iv) accepting that the Plaintiff developed low back pain several months after the onset of his left foot symptoms.

(f) The Medical Panel failed to explain in a rational way having made the findings referred to any alternate cause for the development of symptoms in the Plaintiff's lumbo-sacral spine at the time such symptoms did develop."

[37]

"The worker told the Panel that he had been employed as a painter for most of his working life. He said that he had worked at the Williamstown shipyard from March 2007 where his duties involved painting Anzac frigates during construction. He said that he had a previous period of employment in the same job for two or three years some ten year earlier.

He described to the Panel the tasks and manner of work involved in his job including the necessity to wear steel capped 'safety' boots and the need to repeatedly climb ladders and work from scaffolding. He said that his work boots were provided from the company store on site. There were two styles of boot and a variety of different sizes. He told the Panel that he had been able to select a comfortable pair of boots which fitted him appropriately. He said that he had not had any problems with the boots while at work.

He told the Panel that to his knowledge, he had not suffered injury to his back prior to 2007 and had never been involved in a motor vehicle accident.

The worker told the Panel that over time during 2007 he gradually developed pain in his left foot. He persisted at work but eventually attended his local doctor who arranged a plain X-ray, and he later attended an Occupational Medicine clinic where further investigations including CT scan, ultrasound and MRI were undertaken with an eventual diagnosis of Morton's neuroma being reached. He said that towards the end of 2007, he thought about November, he was put onto restricted duties which did not require prolonged periods on his feet or climbing ladders. By the end of 2007 he was only able to walk for some five or ten minutes before having to stop due to the severity of foot pain he suffered. Eventually in April 2008 he was told that there were no further restricted duties and ceased work. He underwent two cortisone injections into his foot with good albeit short term relief and on 6th October 2008 underwent an operation on his foot.

He told the Panel that following the operation he used elbow crutches for some two weeks. When weight bearing on the foot he suffered pain but he said that he attributed the pain to the fact that he 'had just had my foot cut open'. He later underwent a further four cortisone injections into the area, most recently in April 2010 but found that the last two of these had no beneficial effect. He told the Panel that he thought that his foot condition had been stable from about the second half of 2009.

The worker told the Panel that he started to develop pain in his low back from late 2007 although he was unsure exactly when it started. He was unaware of any specific incident which caused the pain, which slowly worsened over time. He said that he mentioned it to the occupation [sic] medicine clinic doctor and attended a physiotherapist for treatment of his back on some seventeen occasions. He told the Panel that once he stopped work his back settled significantly. The pain was present across the low back on both sides and spread into both buttocks and hips but not down either leg. Initially he did not take much notice of the back pain as he 'just thought it would get better'. He was not aware that use of crutches affected his back pain but commented that at this time he was taking Endone, a strong narcotic analgesic.

The worker told the Panel that at present he has intermittent back pain which occurs when particularly walking for more than ten minutes or driving a car for greater than half an hour. He said that he is working on a casual basis as a painter, employed by his brother and working a maximum of five hours a day and up to five days a week. He is unable to climb a ladder because of pain in the left foot but can manage stairs without suffering foot pain or developing low back pain. He takes Voltaren 50mg tablets once a day when he is working as this helps prevent or delay the onset of back pain. He has no other active treatments and does not undertake any exercise or other program for his back or foot condition."

[39]

"On physical examination the Panel noted that the worker was of large build. He told the Panel that he was 5'9" (175cm) and weighs about 128 kilograms (BMI>41). He had a normal gait with no limp and normal toe off. There were normal spinal curves and no tenderness on palpation over the spine or para-spinal muscles. There was no palpable para-spinal muscle spasm. There was a normal range of low back motion with flexion enabling the worker to touch the toes. Lateral flexion was to just proximal to the knee bilaterally with mild low back pain at the limit.

Neurological examination of the lower limbs revealed normal muscle power and reflexes with no sensory change consistent with radiculopathy. Straight leg raise was to 80° without the development of sciatic pain. The legs were of equal length when measured between the anterior superior iliac spine and the medial malleolus.

On examination of the left foot there was a three centimetre, flat, slightly pigmented surgical scar over the dorsum of the second web space centred at the level of the metatarso-phalangeal joint. The adjoining surfaces of the second and third toes were numb but there was no hyperalgesia and no other alteration of sensation in the foot. There was no excess callosity of the sole of the foot. The peripheral pulses around the foot and ankle were present and symmetrical bilaterally.

The Panel reviewed an x-ray of the left foot dated 5th September 2007 which showed a well corticated calcaneal spur but not other abnormality. A CT of the foot dated 24th September 2007 showed no significant abnormality. MRI of the lumbo-sacral spine dated 23rd May 2008 showed long standing multi-level degenerative changes with mild bulging of the intervertebral discs not compressing neurological structures and mild facet joint arthritis. The Panel noted the reports of ultrasound examinations of the left forefoot dated 22nd January 2008 and 20th January 2009 included in the medical report of Mr J. Kendall Francis dated 19th November 2009. The first of these examinations was reported to demonstrate inter-metatarsal fibromata in the second and third web spaces while the latter scan showed a fibroma in the second web space and mild bursitis in the third web space."

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