1. Ms Biljana Stojanovic (the applicant) is a 58-year-old woman who was employed by ISS Property Services Pty Limited (the respondent), as a cleaner at a public school (the school).
2. In the Application to Resolve a Dispute (ARD) filed in this matter, the applicant alleged that from 17 June 2016 to 20 January 2023 she suffered severe injuries due to the extremely heavy nature and conditions of her employment including cleaning toilets, 12 classrooms, a long corridor over two levels over eight hours a day including sweeping, mopping, vacuuming and manually opening and closing a heavy and defective gate at the school. She alleged that she injured her right lower limb, right ankle, right hindfoot, sustained fractures to three middle toes, suffered an injury to the lower back and lumbar spine with radiculopathy and a consequential injury to the lumbar spine due to altered gait and wearing a moon boot, injury to the middle back and lower thoracic spine, a consequential sleep disorder, consequential sleep apnoea, anxiety and depression.
3. On 18 April 2023, the applicant submitted a worker's injury claim form seeking benefits under the Workers Compensation Act 1987 (the 1987 Act).[1]
4. On 29 May 2023, the respondent issued a dispute notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) denying injury to the right foot within the meaning of ss 4 and 9A of the 1987 Act; denying an entitlement to weekly benefits compensation; and denying an entitlement to reasonably necessary medical and related treatment expenses as a result of injury within the meaning of s 60 of the 1987 Act. The respondent also alleged that the applicant is prevented from claiming compensation for failing to give notice of injury within the time prescribed by s 254 of the 1998 Act and for failing to make a claim for compensation within the time prescribed by s 261 of the 1998 Act.[2]
5. On 5 July 2024, Dr Alice Chang emailed the respondent a surgery request and quotation seeking approval for the applicant to undergo a right second and third tarsometatarsal joint arthrodesis with calcaneal autograft, fourth tarsometatarsal joint excision of osteophytes and endoscopic plantar fascia release.[3]
6. On 30 July 2024, the applicant, through her lawyers, requested the respondent to review its failure to determine Dr Chang's request for approval of the applicant's proposed surgery.[4]
7. On a date which is not discernible from the email from the respondent to Dr Chang, the respondent advised that it would not be approving the proposed surgery.[5]
8. The applicant, through her lawyers, lodged an ARD dated 5 August 2025 in the Workers Compensation Division of the Personal Injury Commission (Commission) seeking a determination that the right second and third tarsometatarsal joint arthrodesis with calcaneal autograft, fourth tarsometatarsal joint excision of osteophytes and endoscopic plantar fascia release surgery proposed by Dr Alice Chang is reasonably necessary treatment as a result of the alleged injury to the right foot sustained by the applicant within the meaning of s 60 of the 1987 Act.

1. The parties agree that the following issues remain in dispute:

(a) whether the applicant suffered an injury to her right foot deemed to have occurred on 20 January 2023 as a result of the nature and conditions of her employment with the respondent as alleged, within the meaning of s 4(b)(ii) of the 1987 Act, and

(b) whether the right second and third tarsometatarsal joint arthrodesis with calcaneal autograft, fourth tarsometatarsal joint excision of osteophytes and endoscopic plantar fascia release surgery proposed by Dr Alice Chang is reasonably necessary treatment as a result of the alleged injury to the right foot sustained by the applicant deemed to have occurred on 20 January 2023 within the meaning of s 60 of the 1987 Act.

1. The issues in dispute were notified in the dispute notice referred to above and the respondent's email referred to in [7] above.

1. The parties participated in a conciliation conference and arbitration hearing in person in the Commission's Darlinghurst premises on 5 November 2025. Mr Luke Morgan of counsel appeared for the applicant, instructed by Mr Martin Bell, solicitor. Mr David Saul of counsel appeared for the respondent, instructed by Mr Thomas Murray, solicitor. A Serbian interpreter, Mr Bratislav Stankovic, was present to assist the applicant, if required.
2. At the commencement of the arbitration hearing, the applicant sought leave to amend the ARD to delete the date 1 November 2021 under the heading "Injury Details" thereby leaving the only relevant date of injury as 20 January 2023, being a deemed date. The respondent advised that it could meet such an amendment. Accordingly, the applicant was granted leave to amend the ARD.
3. During the arbitration hearing, I was informed that the respondent had not had the opportunity to review the documents produced by Dr Kris Tomka in response to a Direction for Production prior to the commencement of the hearing. Accordingly, at the conclusion of the hearing, directions were issued for the respondent to lodge and serve written submissions in respect of Dr Tomka's documents by 12 November 2025 and the applicant lodge and serve written submissions in reply by 19 November 2025.
4. The respondent did not lodge any submissions in respect of the documents produced by Dr Tomka and neither party sought to have the documents admitted into evidence.
5. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

1. The following documents were in evidence before the Commission and considered in making this determination:

(a) ARD dated 5 August 2025 and attached documents;

(b) Reply to ARD (Reply) dated 20 August 2025 and attached documents, and

(c) Application to Lodge Additional Documents dated 29 October 2025 and attached documents (ALAD) lodged by the respondent.

1. Neither party sought leave to adduce oral evidence from or to cross-examine any witness.

1. The applicant's evidence is set out in a written statement dated 11 July 2025. Relevant parts of that statement are referred to below.
2. The applicant provided a brief personal history leading up to the commencement of her employment with the respondent.[6]
3. The applicant stated that, prior to commencing work with the respondent, she had no problems with her right foot. She used to tend to her garden for extended periods and go for walks each day with her neighbour, Ms Gordana Kolarevic.
4. The applicant stated that, on 17 June 2016, she commenced employment with the respondent as a cleaner at the school. She worked from 4.45am to 8.45am and 2.00pm to 6.00pm, Monday to Friday.
5. The applicant described the nature of her work at the school as follows:

"13. It was high pressure cleaning work. I was required to clean the toilets for the boys and the girls and 12 classrooms and corridors. The morning was spent cleaning the toilets and the afternoon was spent cleaning the classrooms and corridors.

1. My job at [the school] also required me to open and close a gate at the beginning of the day and at the end of the day. It was a defective gate and prior to me raising concerns in late 2021, there had been complaints made with respect to the gate. We, the cleaners, were told someone would come to repair it. It was never repaired and remained extremely difficult to open. One of the gate doors folded once and the other side folded four times. The action of opening the gate was extremely difficult and required great force and I would need to use my arms to get it moving with the help of my right foot.
2. My job for [the respondent] was a particularly demanding and reasonably

high-pressure cleaning job. I was required to clean the toilets for the boys and the girls. I did that in the morning and in the afternoon, I would clean the classrooms. There was a passageway of approximately 40 meters that had to be swept or vacuumed and then mopped. I would fill the bucket up on the level that I was working on and move it as I proceeded along the 40m corridor. I was required to carry the vacuum up the stairs and along the corridor from classroom to classroom and complete all of that work in the allocated time. This was a lot of work for one person to get done and required me to work very fast and there was a lot of pressure. 3. It was a two storey building and I would be going up and down the stairs carrying rubbish, mops, buckets and the vacuum cleaner."[7] 4. The applicant provided her medical history from 1 December 2020 to 29 October 2021.[8] 5. In respect of the development of pain in her right foot, the applicant stated:

"29. On 1 November 2021 I saw Dr Jelena Vranjes about my right foot pain which had been developing overtime and was particularly bad that day and was associated with the heavy work I was doing at the school and opening and closing the gate using my foot. I felt the most intense pain as I was closing the gate. The pain in my foot had been building up over time but was very bad this day. She certified me unfit for work for 1 and 2 November 2021.

1. I had worked from 2016 to this point (November 2021) doing the same demanding role and I had developed increasing pain and discomfort in the right foot. I found it was really stirred up when opening and closing the gate and while I was rushing around to get the toilets, corridors and classrooms cleaned in the limited time allocated to me."[9]
2. The applicant stated that it was in about November 2021, that she stopped going for her daily walks with Ms Kolarevic because it was too uncomfortable for her to walk. However, she continued carrying out her duties with the respondent until January 2023.
3. The applicant provided a history of the medical treatment she received from November 2021 to 22 June 2023.[10]
4. The applicant stated that, on 22 June 2023, Dr Predrag Tomasevic, general practitioner, referred her to Dr Alice Chang, orthopaedic surgeon.
5. The applicant stated that, on 27 June 2023, she consulted Dr Chang, who recommended an ultrasound-guided corticosteroid injection into her mid right foot. The doctor also recommended that she consult a podiatrist for supportive orthotics.
6. The applicant stated that, on 12 December 2023, she consulted Dr Chang advising that the ultrasound-guided corticosteroid injection provided relief for a couple of days. They discussed operative treatment. Dr Chang recommended she undergo a second and third tarsometatarsal joint arthrodesis. The applicant advised Dr Chang that she would consider surgery and report back to the doctor.
7. The applicant stated that, on 25 May 2024, Dr Kris Tomka, general practitioner, referred her to Dr Geoffrey Rosenberg, orthopaedic surgeon.
8. The applicant stated that, on 25 June 2024, she consulted Dr Chang and explained the nature of her work with the respondent to the doctor. She also advised the doctor that she was keen to undergo the recommended surgery to her right foot. Dr Chang advised that she would seek approval to proceed with the surgery from the insurer.
9. The applicant stated that, in July 2024, she chased up the insurer for the approval of the surgery proposed by Dr Chang. The insurer advised that it would not consider the surgery because her claim had been denied.
10. The applicant stated that, on 9 August 2024, she consulted Dr Christopher Reitz, orthopaedic surgeon, for a second opinion in respect of the proposed surgery to her right foot. Dr Reitz recommended a cortisone injection into her right foot and suggested she return in a couple of months to discuss potential surgery.
11. The applicant stated that, on 2 September 2024, she consulted Dr Todd Gothelf, orthopaedic surgeon, for a third opinion in respect of the proposed surgery to her right foot.
12. The applicant concluded her statement by saying that she was "very eager to have the fusion surgery as proposed by Dr Chang".[11]

1. In evidence, there is a document referred to in the respondent's index as "Incident Report" dated 27 March 2023.[12]
2. The description of the incident was recorded as follows:

"Biljana's daughter called and reported that she has injured herself at work. She got injured back on November 2021 at work. Biljana's daughter advised that she got injured while working as her tissues got damage as she was carrying heavy things in past. Biljana's daughter advised she went to see experts after experts to know what is going on with her foot and now the doctors have come to conclusion advising she cannot work for the time being."[13]

1. The document recorded Ms Tatjana Djuric as the applicant's supervisor and the person responsible for the incident investigation.
2. The document recorded the date of the occurrence has 1 November 2021 at 7.00am. The recordable injury/illness was noted as undetermined.

1. In evidence, there is a document referred to in the respondent's index as "Initial Contact Form" dated 28 March 2023.[14]
2. The description of the mechanism of injury sustained was recorded as follows:

"Biljana advised that the incident occurred on November 2021, and that the injury has been ongoing since then. Biljana advised that quite a few of the doctors/specialists that she has seen have come to the same conclusion that carrying heavy objects and putting pressure on the right foot has caused the stress fracture in the foot. Biljana also advised that there was a gate at the school that was always dificult [sic] to open so she would use her foot sometimes to open in [sic; it]. Biljana has been told that the fracture hasn't been able to heal because she has continued working. Biljana states that she reported her injury to Tatjana in November 2021 however did not advise Tatjana that it was a work injury. Biljana noted that she did not suspect that it was a work injury at the time."[15]

1. The document recorded the injury as a right foot fracture. Current symptoms were recorded as right foot pain. It was noted that the applicant was currently in a moon boot. It was further noted:

"Has been seeing Dr Tomasevic for approximately 3 years, has also seen Jelena [Dr Vranjes] at the same medical practice however she does not to [sic: do] workers compensation claim [sic: claims] which is why she is now seeing Dr Tomasevic."[16]

1. The document also recorded "No light duties"[17] in response to firstly, what aspects of

pre-injury work tasks could currently be performed and secondly, what other duties could be performed by the applicant.

1. In evidence, there is a document entitled worker's injury claim form signed by the applicant dated 16 May 2023.[18]
2. The claim form nominated the date of injury as 1 November 2021 at 7.00am.
3. The claim form described the tasks the applicant was performing when injured as follows:

"Opening the school gates as I used my foot to assist me in opening them as they were difficult to open and close. My daily duties may have also contributed to the injury as I performed them on the same day. I mopped and cleaned toilets before and after opening the gates."[19]

1. As to the nature of the applicant's injury, the claim form relevantly recorded a stress fracture in the right foot.
2. As to what happened and how the applicant was injured, the claim form recorded the following:

"I used my foot to assist me in opening the school gates. I was mopping and cleaning toilets before and after. Shortly after my foot started to hurt and swell so I went to see a doctor."[20]

1. The claim form noted that the applicant and a colleague had reported the school gate as being difficult to open and close but that the school took no steps to repair it.
2. The claim form noted that the applicant reported the injury to Ms Djuric on 1 November 2021 and told the latter that she was going to see a doctor for foot pain but reported it as an injury on 20 January 2023 because her doctor advised her not to work.
3. The claim form noted that the applicant stopped work on 20 January 2023 at 1.00pm.
4. The claim form noted that current pain was preventing the applicant from returning to work and that the doctor had advised her not to walk or put or put pressure on her foot.

1. The applicant relies on the statement of Ms Gordana Kolarevic dated 11 July 2025.[21]
2. Ms Kolarevic stated that she lived down the street from the applicant and had known her for about 15 years. She regarded the applicant as a friend. They enjoyed going for almost daily walks together until late 2021.
3. Ms Kolarevic stated that, prior to 2021, the applicant told her about the difficulties she was experiencing at work. The applicant told her that the work was very demanding with a heavy workload but that she was able to cope. She told her about the difficulties opening and closing the gate and that she had developed foot pain over time doing this.
4. Ms Kolarevic recalled the applicant telling her that, in about November 2021, her right foot pain had become particularly bad and that it was sometime after that, the applicant ceased going on regular walks with her.
5. Ms Kolarevic recalled the applicant wearing a special boot on her right foot in around December 2022.

1. The respondent relied on the statement by Ms Tatjana Jurek dated 5 June 2023.[22]
2. Ms Djuric stated that she commenced employment with the respondent on 1 July 2011. Her duties included rostering, payroll, client liaison, staff management, checking cleaners' work and other duties. She confirmed that the applicant had been employed by the respondent as a full-time school cleaner since 2016, performing a morning and afternoon shift per day.
3. Ms Djuric stated that the applicant did not have a written position description for her duties but worked according to a work schedule that showed her duties and the time frame within which to perform those duties. Sometime in 2021, the applicant commenced reporting to her.
4. Ms Djuric stated that the applicant mainly cleaned bathrooms, mopped, vacuumed, emptied rubbish bins and dusted. Externally, the claimant mainly used a hand blower and emptied rubbish.
5. Ms Djuric stated that she understood that the school gates were heavy to open. The gates did not have to be lifted. They were on hinges. They were not easy to open. She did not know the process the applicant used to close the school gates. She instructed the cleaners not to close the gates if they were unable to do so. The school was aware of her instructions to the cleaners, and she understood that Ms Marica Todoroska, client service supervisor, and Mr John Rebeiro, key account manager, dealt with the school in that regard.
6. Ms Djuric stated that Ms Mileni Juresic, cleaner, also worked with the applicant. The applicant was not generally supervised in the performance of her duties and generally, worked on her own.
7. Ms Djuric stated that she considered the applicant's duties as physical in nature.
8. Ms Djuric stated that the applicant had not been under performance management whilst employed by the respondent and that she was a very good cleaner.
9. Ms Djuric stated that the applicant had not told her how her injury had occurred but did tell her that she did not know the reason for her injury. The applicant told her that she had pain in her right leg, and the doctor did not know what caused it. The applicant had never told her that she had sustained an injury from closing the school gates.
10. In respect of the applicant's notification of injury, Ms Djuric stated:

"45. The Claimant [applicant] complained some time ago, approximately two years ago after receiving the COVID-19 vaccine that something was happening with her legs. Then she thought it was a blood clot. She did not refer to it being work related. She did not refer to any injury again until early 2023.

1. The Claimant's [applicant's] medical certificate, dated 8 January 2023 states that her injury occurred on 1 November 2021 and that she was unfit for work. It was non descriptive. I received another medical certificate on 23 January 2023, which stated that she was unfit for work. It was non descriptive.
2. I received another medical certificate stating that she was unfit for work due to right foot pain from 8 to 22 February 2023. She provided a further medical certificate valid from 22 February to 8 March 2023.
3. The Claimant's [applicant's] medical certificate, dated 7 March 2023 states that she has pain in her right foot. I do not know what caused her broken bones.
4. The Claimant [applicant] provided her first Certificate of Capacity on 23 March 2023. That was the first time I was aware that the Claimant's [applicant's] injury was work related. It stated that she was infit [sic: unfit] for work due to a stress fracture and soft tissue damage in her right foot."[23]
5. Ms Djuric stated that the applicant told her in early 2023 that she had undergone X-rays and that no one could identify the reason for the pain in her legs. The applicant told her that she was sent "for nuclear medicine and it was found that she had broken bones"[24] on 8 January 2023.
6. Ms Djuric stated that the applicant's last day at work for the respondent was on 23 January 2023.

1. In evidence, are the applicant's Health Check Family Medical Practice clinical records.[25] The first entry in the clinical records is dated 21 October 2000 and the last entry is dated 23 March 2023. However, there is a significant gap in the clinical records between the applicant's consultation with Dr Tomasevic on 6 February 2002 and her consultation with Dr Vranjes on 27 October 2020. Dr Vranjes referred to the applicant as being a new patient of the clinic and noted that she was working as a full-time cleaner in a school.
2. On 1 December 2020, Dr Vranjes recorded the applicant's weight as 112kg; height as 171cm; and calculated a body mass index (BMI) of 38.30.
3. There were no references in the applicant's Health Check Family Medical Practice clinical records to symptoms in the right foot prior to 1 November 2021.
4. On 1 November 2021, the applicant consulted Dr Vranjes after having received her second COVID-19 vaccination on 30 October 2021. The applicant reported, initially, suffering from a fever that lasted for one day and musculoskeletal pain in her back, upper limbs, lower limbs and intermittent headaches. She was issued with a medical certificate certifying her unfit for her usual occupation for the period 1 November 2021 to 2 November 2021 inclusive.[26] There was no reference to any specific right foot symptoms in the applicant's consultation with Dr Vranjes on 1 November 2021.[27]

1. On 3 December 2021, the applicant consulted Dr Vranjes complaining of, amongst other things, left foot pain over the past few weeks, no recent history of injury and similar pain in the past. Dr Vranjes recorded the applicant's weight as 117kg; height as 171cm; and calculated a BMI of 40.01. The doctor referred the applicant for physiotherapy and an ultrasound of her left foot.[28]
2. On 7 December 2021, the applicant underwent an ultrasound of her left ankle and left foot that revealed partial tears of the left plantar fascia and left plantar fasciitis.[29]
3. On 3 February 2022, the applicant consulted Dr Vranjes after having tested positive for COVID-19 on 21 January 2022 and having come out of isolation on 31 January 2022. The doctor completed a COVID-19 vaccine exemption for the applicant. Dr Vranjes referred the applicant for a right leg Doppler venous ultrasound to rule out deep vein thrombosis and recorded the following relevant complaints:

"pain right lower leg oer [sic: over] the past few weeks associated with

1. On 7 February 2022, the applicant consulted Dr Vranjes who informed her that the right leg Doppler venous ultrasound demonstrated no evidence of a right lower limb deep vein thrombosis. The doctor noted complaints of ongoing right foot pain over the past few weeks without any recent injury or fall. On examination of the right foot, Dr Vranjes observed no deformity and observed tenderness over the first and second metatarsal with pain on movement. The doctor referred the applicant for a right foot CT scan. This was the first consultation in which specific right foot symptoms were recorded in the clinical records and there was no reference in the entry relating the symptoms to the applicant's work.[31]
2. On 12 February 2022, the applicant underwent a right foot CT scan that revealed no specific cause for her pain over the first metatarsal. Degenerative changes were noted at the first tarsometatarsal joint and at the first metatarsophalangeal joint. There was no fracture of the first metatarsal.[32]
3. On 3 March 2022, the applicant consulted Mr Mark Nashid, podiatrist, on the referral of Dr Vranjes for a biomechanical assessment. Mr Nashid fitted the applicant with prefabricated orthotics and referred her for an ultrasound to confirm or exclude Morton's neuroma. He also suggested that the applicant may require an ultrasound guided corticosteroid injection.[33]
4. On 11 March 2022, the applicant underwent an ultrasound of her right foot. The ultrasound demonstrated changes in the third and fourth tarsometatarsal joints and the third metatarsophalangeal joint with reactive synovitis. There were tendon sheath ganglia associated with the tibialis anterior and fourth toe flexor digitorum longus tendons. There was no specific evidence of Morton's neuroma or intermetatarsal bursitis.[34]
5. On 11 April 2022, the applicant consulted Dr Vranjes in respect of a few medical issues, including her right foot. The doctor recommended that, if the right foot pain was ongoing, the applicant should consult an orthopaedic surgeon. Dr Vranjes prescribed the applicant one Celebrex 100mg capsule per day for four to five days.[35]
6. On 14 July 2022, the applicant consulted Dr Tomasevic in respect of a few medical issues, including her right foot. The doctor noted that the applicant had experienced pain in her right foot since November 2021 and that she had sustained no injuries to either foot. He noted that the CT scan of the right foot on 12 February 2022 and the ultrasound on 11 March 2022 disclosed osteoarthritis. The doctor also noted that the applicant was reluctant to undergo a steroid injection in her right foot and referred her to Dr Rajat Mittal, orthopaedic surgeon.[36]
7. On 3 August 2022, the applicant consulted Dr Mittal, who noted that she presented eight months post right foot pain (November 2021). The doctor noted that there was no obvious injury or change in her activities and that the pain was worse with walking and dorsiflexion/plantarflexion of the foot. The pain improved with rest, it slowed her down, but she continued to work. The orthotics provided by a podiatrist did not help. She had not tried any physiotherapy or steroid injections. The doctor recommended she obtain some rocker bottom shoes and that he would review her following an X-ray and MRI scan. Dr Mittal made no reference to the right foot symptoms being work-related.[37]
8. On 5 August 2022, the applicant underwent a right foot MRI scan. The scan revealed no fracture or stress response. There was moderate osteoarthritis in relation to the tarsometatarsal and intermetatarsal articulations affecting the second to fourth tarsometatarsal/ intermetatarsal joints. There was associated reactive degenerative marrow oedema, a subchondral cyst and periarticular soft tissue oedema. There was no intermetatarsal perineal fibrosis or Morton's neuroma. There was no significant synovitis, effusion or periarticular oedema/osteoarthrosis of the metatarsophalangeal joints. There was no large plantar plate tear.[38]
9. On 17 August 2022, the applicant consulted Dr Mittal, who discussed the recent right foot

X-rays and MRI scan results. The doctor opined that there was no obvious bony cause for the applicant's pain in the locations complained of. He suspected that she had neuropathic pain. Dr Mittal noted that the applicant preferred to follow-up with her local doctor for further pain management and he did not book a further appointment with her. Dr Mittal made no reference to the right foot symptoms being work-related.[39] 10. On 19 August 2022, the applicant consulted Dr Vranjes, who prescribed her one 25mg Endep tablet nightly.[40] 11. On 12 October 2022, the applicant consulted Dr Vranjes, who referred her to Aspire Physiotherapy and Dr Harry Patapanian, consultant rheumatologist and physician for an opinion and management of her right foot pain. 12. On 2 November 2022, the applicant consulted Dr Patapanian, who noted that she had painful swelling and difficulty with her right foot for about 12 months without a history of injury. On examination, the doctor noted that the applicant weighed 117kg and that the right foot was mildly swollen with marked tenderness over the midtarsal region. Dr Patapanian opined that, whilst inflammatory osteoarthritis remained the most likely diagnosis, he had undertaken some investigations to ascertain the presence of a primary inflammatory arthritis and arranged for medical imaging and a battery of blood and serological tests. He also opined that the applicant must lose weight and keep it off. The doctor prescribed her slow release Naprosyn. Dr Patapanian made no reference to the right foot symptoms being work-related.[41] 13. On 14 November 2022, the applicant underwent a regional bone scan which came to the following conclusion:

"The intense focal activity best localised to the right second and third metatarsal bases is most in keeping with active fractures. The location is suspicious for possible LisFranc fracture although a stress fracture with associated TMT arthritis could also be considered. Correlation with further dedicated imaging may be of benefit to distinguish LisFranc fracture. The appearances are not suggestive of active synovitis or dactylitis. No other fracture or significant focal bony abnormality was demonstrated in the right foot.

Active left planner [sic] fasciitis and arthritic changes in the left foot as described possibly due to altered weight-bearing."[42]

1. On 6 December 2022, the applicant consulted Dr Vranjes in respect of the ongoing pain in her right foot and Dr Patapanian's recommendation that she lose weight. The doctor discussed the applicant's obesity and noted that a trial diet had not helped. The applicant wanted to try a Saxenda injection. Dr Vranjes recorded the applicant's weight as 117kg; height as 171cm; and calculated a BMI of 40.01.[43]
2. On 23 January 2023, the applicant consulted Dr Patapanian, who discussed the results of the recent bone scan. The doctor opined that it was very unusual to have such painful osteoarthritis in the absence of any other significant abnormalities on imaging. He arranged for a repeat MRI scan of the right foot and a plain X-ray. He recommended that the applicant continue wearing her air cast full contact boot. Dr Patapanian made no reference to the right foot symptoms being work-related. However, he recommended to Dr Vranjes that she discuss with the applicant alternative work as he believed it somewhat unreasonable that she be expected to continue with her usual job as a school cleaner.[44]
3. On 6 February 2023, the applicant underwent a right midfoot MRI scan. The conclusions were recorded as follows:

"Moderate OA change 3rd TMT joint, with moderately extensive full-thickness chondral wear at the base of the 3rd metatarsal dorsally and moderately extensive subchondral bone marrow oedema and mild sclerosis, without subchondral fracture. Mild degenerative synovitis dorsal recess of the joint.

Moderate OA change 2-3 and 3-4 basal intermetatarsal articulations.

Minor OA change 2nd TMT joint and 4-5 TMT joint complex.

Minimal degenerative changes at the lateral intercuneiform articulation and at the calcaneo-cuboid joint.

Mild subchondral bone marrow oedema 3rd metatarsal head, compatible low-grade bone stress injury, without fracture. Reactive 3rd MTP joint effusion, without articular cartilage abnormality."[45]

1. On 7 February 2023, the applicant underwent a right foot X-ray. The X-ray revealed a relatively high plantar arch. There was suspected moderately advanced osteoarthritic change at the second and third tarsometatarsal joints. There was no widening of the Lisfranc interval. There was no periostitis or fracture. There was a large heel spur. There were prominent bony spurs, a superficial margin Achilles insertion and mild clawing of the lesser toes.[46]
2. On 22 February 2023, Dr Vranjes issued the applicant with a medical certificate certifying her unfit for her usual occupation from 22 February 2023 to 8 March 2023 inclusive due to a right foot metatarsal fracture.[47]
3. On 27 February 2023, the applicant consulted Dr Andrew Higgs, orthopaedic surgeon, on the referral of Dr Vranjes. Dr Higgs took the following history:

"[The applicant] presents for review of her right foot. In October 2021 around the same time as she received her vaccine, she noticed pain in the right foot. She also reports increased activity at work in her role as a cleaner at a school. Her pain is centred in the middle of the foot and is aggravated by activity and relieved by rest. She has taken simple analgesia in the past. Apart from this she takes medications for hypertension and is otherwise quite well. For the last 12 weeks she has been wearing a moon boot. She has seen a rheumatologist and her GP as well as an orthopaedic surgeon."[48]

1. Dr Higgs noted that imaging indicated midfoot osteoarthritis and that a bone scan suggested fractures that should be ruled out following a repeat MRI scan. Dr Higgs recorded the applicant's weight as 115kg and height as 176cm. The doctor opined that once fractures have been excluded, the applicant should undergo an ultrasound guided steroid injection into the tarsometatarsal complex of the right foot. Dr Higgs made no reference to the right foot symptoms being work-related.
2. On 1 March 2023, the applicant consulted Dr Higgs to discuss the outcome of the recent right foot MRI scan. The doctor opined that the applicant was suffering from a chronic condition with osteoarthritis and that, in the vast majority of cases, management is non-operative. Dr Higgs made no reference to the right foot symptoms being work-related. He recommended footwear advice, orthotics and the involvement of a podiatrist. Physiotherapy would also be useful in terms of a general fitness program. He also opined that an ultrasound guided steroid and cortisone injection directed into the midfoot tarsometatarsal complex could be beneficial. In respect of surgical intervention, Dr Higgs opined:

"Surgery for this condition is very risky and does have a long rehabilitation phase. This involves a midfoot fusion with resultant reduced motion at the midfoot. I would not recommend it at this stage though should she fail nonoperative measures this could become applicable."[49]

1. On 3 March 2023, the applicant consulted Dr Tomasevic complaining of ongoing right foot pain. The doctor noted that the applicant was employed as a cleaner in a primary school and on her feet during the entire shift. He also noted that the applicant had not been working since 21 January 2023 due to right foot pain and had been wearing a right foot controlled ankle motion boot (CAM boot/moon boot) since December 2022. This was the first occasion that a correlation was made between the applicant's right foot pain and her work in the Health Check Family Medical Practice clinical records.
2. On 1 May 2023, Dr Tomasevic issued the applicant with a certificate of capacity. The certificate identified the date of injury as being 1 November 2021 and provided a diagnosis of work-related injury as stress fracture of the right foot and soft tissue injuries to the right foot. In respect of the injury's relationship to work, the certificate stated that the applicant was on her feet for long periods at work as a cleaner and sustained a stress fracture of the right foot. No pre-existing factors were identified. The applicant was certified as having no current work capacity for any employment from 2 May 2023 to 16 May 2023.[50]
3. On 23 May 2023, the applicant consulted Dr Rosenberg, who took a history that she worked as a cleaner at a school and initially, injured her right foot. She was pushing the gate open when she developed significant discomfort and dysaesthesia in that foot. Eventually, investigation confirmed either the presence of fractures or more likely, significant tarsometatarsal arthritis. The doctor noted that she was somewhat overweight. Bone scan suggested stress fractures into all her metatarsals, but an MRI scan was more suggestive of arthritis at the tarsometatarsal joint.[51]
4. On 27 June 2023, the applicant consulted Dr Chang, who noted that she had been referred for management of a right stress fracture from November 2021. The doctor took a history that the applicant first noticed dorsal midfoot pain soon after her COVID-19 vaccination. Dr Chang opined that the applicant had right midfoot arthritis with stress reaction of the third metatarsal base. She discussed the non-operative treatment options including, shoe modification, orthotics, activity modifications and topical analgesia. The doctor recommended an ultrasound-guided corticosteroid injection into the midfoot to see if that helped with the arthritic pain. She recommended that the applicant consult a podiatrist for supportive orthotics. Dr Chang made no reference to the right foot symptoms being work-related.[52]
5. On 31 August 2023, the applicant consulted Dr Patapanian, who stated that he fully supported Dr Chang's advice about a steroid injection into the second and third tarsometatarsal joints as a therapeutic trial. The doctor noted that the applicant had stopped work as a cleaner and expressed the view that doing so would be quite useful long-term. He stated that Dr Chang would decide whether to proceed to fusion. He opined that the applicant had generalised osteoarthritis. Dr Patapanian noted that the applicant was in excellent hands with Dr Chang and advised that he had made no arrangements to review her.[53]
6. On 6 September 2023, the applicant underwent a right foot ultrasound-guided steroid injection in both the second and third tarsometatarsal joints.[54]
7. On 4 June 2024, the applicant consulted Dr Rosenberg complaining that her right foot was still sore and that her treating surgeon (Dr Chang) wanted to fuse it. She had undergone an injection to the foot, but it only gave her short-term relief. Dr Rosenberg stated that he would continue to push hard for the applicant to lose weight.[55]
8. On 25 June 2024, the applicant consulted Dr Chang who updated the history as follows:

"Her condition is now under a work cover claim. She stated that she started experiencing the midfoot pain after having to repeatedly open and close heavy doors at work using her right foot. She also started experiencing plantar foot pain whilst at work. She finds it worse standing up to walk after a period of rest. The corticosteroid injection gave her a couple days of relief of her midfoot symptoms. She is keen to proceed with surgery."[56]

1. Dr Chang opined that the applicant had persistent right second and third tarsometatarsal joint arthritis and impingement in the fourth tarsometatarsal joint as well as plantar fasciitis. She discussed those findings and the operative and non-operative treatment options with the applicant. The doctor recommended that the applicant undergo a right second and third tarsometatarsal joint athrodesis with a calcaneal autograft, fourth tarsometatarsal joint excision of osteophytes and endoscopic plantar fascia release. Once the surgery was approved, she would consult with the applicant again to discuss the proposed surgery through an interpreter.
2. On 5 July 2024, Dr Chang wrote to the respondent providing an estimate of the costs of the proposed surgery and seeking approval of the same.[57]
3. On 9 August 2024, the applicant consulted Dr Reitz, who noted that she had been diagnosed with arthritis in the right foot, insertional tendinopathy of the Achilles tendon and potential inflammation between the second and third toe. The doctor also noted that surgery in the midfoot area was being considered due to arthritis but that non-surgical options were being explored first. He suggested specialised exercises and physiotherapy for her heel pain with surgery as a potential future option, if conservative treatment failed. In addition to the cortisone injection into the forefoot and physiotherapy for the heel pain, he advised the applicant to lose weight to alleviate stress on the lower legs and foot and to use orthotics and appropriate footwear to manage her symptoms.[58]
4. On 2 September 2024, the applicant consulted Dr Gothelf, who took a history that the applicant was at work and pushed a heavy gate with her hand and had right foot pain. Since then, the pain in her foot got worse with walking. She had undergone physiotherapy and injections which helped for a few days. The doctor conducted a physical examination and noted that the right foot was mostly tender over the second and third tarsometatarsal joints with a positive piano key sign. There was no other pain around the foot. He reviewed the medical imaging. Dr Gothelf opined that the applicant had right foot second and third tarsometatarsal arthritis that was made worse by an injury at work. Non-operatively, he thought that she could be helped by getting a rigid arch support orthotic and that pain could be temporarily relieved by ultrasound-guided cortisone injections into the joints. In respect of a surgical option, Dr Gothelf expressed the following opinion:

"Surgically, I would consider a 2, 3 TMT joint fusion. Surgery involves six weeks

non-weight bearing, four weeks further in a boot and has an 80% chance of success. Fusing these joints does not change the function of the foot as these joints are

non-essential for motion. Patients will be able to do all their previous activities including running and jumping.

I have explained that all surgery is accompanied by possible risks and complications and that patients can be made worse by the surgery. The complications of surgery include, but are not limited to anaesthetic problems, infection, bleeding, blood clots, damage to nerve vessel or tendon, incomplete relief of symptoms, recurrence of symptoms and recurrence of deformity. Any of these complications may require further surgery."[59]

1. In response to a request by the applicant's lawyers, Dr Gothelf prepared a report dated 11 November 2024.[60] Dr Gothelf reported that he had reviewed the letter from Dr Chang dated 25 June 2024 and stated that he agreed with her proposal of treatment for the second and third tarsometatarsal arthritis. He further stated:

"With regards to whether the injury itself, specifically the aggravation of underlying arthritis is causally related to the surgery, I would say yes with specific regards to the 2, 3 TMT arthritis but not to other aspects of the surgery, specifically plantar fascia release."[61]

1. On 28 April 2023, the applicant consulted Dr David Wilcox, consultant surgeon, at the request of the respondent. In evidence, there is a report by Dr Wilcox dated 8 May 2023.[62] Relevant parts of that report are referred to below.
2. Dr Wilcox took a detailed history from the applicant with the assistance of an interpreter.
3. The applicant's history as taken by Dr Wilcox may be summarised as follows:

(a) the applicant first felt pain in her right foot on 1 November 2021;

(b) the applicant consulted her general practitioner who ordered an ultrasound of the right foot because she might have a blockage in the blood vessels on the top of her foot;

(c) the applicant denied having any investigations of the left foot or heel, except for a callus under the front of the left foot for which she had undergone surgery some six years ago;

(d) the applicant had several consultations with specialists in respect of her right foot pain;

(e) the pain is a sharp stabbing pain associated with swelling from the top of the right ankle over the top of the foot and around the whole of the first, second and third toe;

(f) 12 months after the onset of the right foot pain, the applicant was diagnosed as having stress fractures;

(g) the right foot pain has remained the same as it was in November 2021;

(h) the applicant underwent physiotherapy for two sessions per week for two weeks and then one session per week for seven weeks;

(i) the applicant consulted a podiatrist and was provided with insoles that were of no use;

(j) the applicant wore a moon boot for 14 weeks, which improved her symptoms a little, and

(k) the applicant had worn special shoes which made no difference.

1. In respect of the applicant's work history, Dr Wilcox noted that she had been employed by the respondent as a full-time school cleaner on two daily shifts, 4.45am to 8.45am and 2.00pm to 6.00pm. She carried out her normal duties with the respondent until she ceased work on 20 January 2023. She did not work thereafter. Between 1 November 2021 and 20 January 2023, she carried out her normal full-time duties except for COVID-19 related sick leave and for six weeks when she was overseas. She did mopping, sweeping and vacuuming but did not do buffing and polishing. She dusted, wiped and cleaned toilets and wet areas. She did minimal external cleaning, such as sweeping leaves on a carpeted area and emptying plastic bins into a skip.
2. On examination, Dr Wilcox observed that the applicant measured 176cm in height and weighed 115kg (BMI 37). There was mild swelling in the right ankle. Tenderness was elicited to joint pressure over the right first metatarsophalangeal joint and second, third, fourth and fifth tarsometatarsal joints. The right heel exhibited slight tenderness. Despite the advanced arthritic change in the right midfoot, she was able to walk on both tiptoe and heel. She was a little hesitant when walking in the office but there was no overt limp. The doctor recorded the active movements of the bilateral ankle and subtalar joints.
3. Dr Wilcox listed and commented on the investigations provided to him.
4. Dr Wilcox reviewed the applicant's general practitioner clinical records and opined that the history provided by the applicant was not compatible with those clinical records.
5. Dr Wilcox observed that on 30 October 2021, the applicant had a COVID-19 vaccine and on 1 November 2021, she had a Telehealth consultation to check if she had had any side effects from the COVID-19 vaccine. There was no mention of symptoms in either foot in the clinical records on those dates. The entry in the clinical records on 3 December 2021 referred to left foot pain over the last few weeks and subsequent imaging revealed left foot plantar fasciitis. The entry in the clinical records on 7 February 2022 noted a complaint of right foot pain over the last few weeks and a subsequent right foot CT scan reported the findings referred to in [79] above. Over the following three months, there was no mention of the applicant's feet in the clinical records until 14 July 2022.
6. Despite the observations made above, Dr Wilcox was in no doubt that the applicant had developed pain in the right mid-tarsal joint area as a result of long-standing arthritic change.
7. Dr Wilcox made the following observation and conclusion about the applicant's work:

"Although of necessity, she would have been on her feet for most of the time she was working, she did the duties in two shifts. Most school cleaners are able to take a rest as they are not closely supervised and many do not see any of their managers during the course of a day's work. This, would therefore not seem to be a reasonable substantial contributing factor."[63]

1. Dr Wilcox provided no explanation for or the source of the above observation in reaching his conclusion.
2. Dr Wilcox noted that throughout the applicant's general practitioner clinical records, her weight had been found to be 112kg or above. The doctor then referred to some studies on the significance of obesity and concluded that such research emphasised that obesity is a potent cause of foot pain. He noted from the clinical records, prior to the onset of her right foot pain, the applicant's doctor had recognised that her obesity was a health hazard for her.
3. Dr Wilcox noted that the applicant categorically denied having any injury to the right foot, which eliminated the possibility of having suffered a Lisfranc fracture as such fracture always follows a definite injury to the midfoot.
4. Dr Wilcox noted the applicant's unusual statement that taking two Panadol Osteo gave her relief within 15 to 20 minutes. It was unusual because this medication is slow release

long-acting paracetamol and is used for the prevention of pain rather than for relief of it. 5. Dr Wilcox referred to another inconsistency as follows:

"One peculiar aspect of her history, is that she said that her level of pain in the right foot has remained the same since November 2021. If so, it is remarkable that she was able to do her full normal duties for over 12 months. Even more remarkably she says that she can now do almost no housework and can only walk a short distance. She would not have been able to do her normal duties if she was this disabled. This does not make medical or other sense."[64]

1. Dr Wilcox opined that any attempt to treat the applicant's right foot surgically would probably fail unless her weight is drastically reduced by, at least, 30kg. If her weight could be reduced over the next few months, based on his clinical examination, her right foot pain would decrease, and she might be managed by cushioned footwear with arch support. He agreed with Dr Higgs' treatment options and noted that Dr Higgs warned against early surgical intervention due to its possible poor outcome because of the applicant's obesity. Dr Wilcox conceded that there may be need for surgical intervention in the future if the disease process became more advanced and increasingly symptomatic.
2. Dr Wilcox's diagnosis was one of chronic right midfoot advanced osteoarthritis which was a disease of gradual onset and that the main contributing factor is the applicant's long-term obesity.
3. Dr Wilcox opined that it would be sensible to accept that the applicant is not fit for work as a cleaner because of the advanced nature of the midfoot osteoarthritis.

1. On 29 July 2025, the applicant consulted Dr Jason Chow, orthopaedic surgeon, at the request of her lawyers. In evidence, there is a report by Dr Chow dated 29 July 2025.[65] Relevant parts of that report are referred to below.
2. The consultation took place with the assistance of an interpreter.
3. Dr Chow reported that he had reviewed the documentation provided that included radiological reports; treating medical and specialist reports; hospital and physiotherapy reports; and rehabilitation and allied health correspondence. He did not say that he had reviewed the applicant's general practitioner clinical records.
4. Dr Chow took the following history from the applicant:

"[The applicant] is a 57-year-old woman who was employed as a cleaner at a public school. She reported the onset of right foot pain in November 2021, which she attributed to operating a large defective gate that required considerable physical effort at the point of the daily duties. Despite ongoing pain she continued to work in full capacity.

Over time, she felt when she was moving the door she had an impact on the foot which aggravated her pain but she continued to work for a further year at that point.

On 21 March 2022 she sustained a [sic] further symptoms to her left foot when she was twisting it while walking on uneven ground at her workplace. She reported immediate pain and swelling. Her symptoms persisted and progressively worsened resulting in reduced mobility and ongoing functional limitation.

Subsequent investigations including MRI had features of tenosynovitis, joint effusion and bone marrow oedema involving the left foot and ankle. She was managed conservatively with orthotics, rocker bottom shoes, analgesics, cortisone injections and physiotherapy with multiple surgeons.

No intervention has been undertaken to date. Over time, her pain has been increasing in the foot which her treating practitioners do attribute to compensatory overuse to her gait and continual inflammation in her foot.

She is also being treated with multidisciplinary input including rheumatologists, sleep physicians and podiatrists and current interventions include amitriptyline,

anti-inflammatories, CAM boots and corticosteroid injections, however despite this she is still having continual pain in her foot walking on uneven ground and she has not returned back to work."[66]

1. Dr Chow's reference to the event on 22 March 2022 involving the left foot did not appear in any of the evidence before me. The history taken following the above-mentioned event is unclear as Dr Chow refers to "the foot" and did not make it clear whether he was referring to the left foot or the right foot.
2. Assuming Dr Chow was referring to the applicant's right foot, he records no history in respect of the nature of the applicant's duties as a cleaner. The doctor's interpretation of the history was focused on the operation of the large defective gate that required considerable physical effort.
3. On examination, Dr Chow observed gross swelling in the dorsal aspect of the foot; tenderness in the area of the midfoot at the tarsometatarsal joints; tenderness distally in the foot; mild antalgia in her gait; an inability to single heel rise; and reduced range of motion on the right side in dorsi flexion and plantar flexion.
4. Dr Chow noted that the most recent MRI scan in 2023 demonstrated gross degenerative changes in the area of the second and third tarsometatarsal joints and also at the base of the fourth tarsometatarsal joint.
5. Dr Chow opined that the applicant had extensive midfoot arthritis affecting her ability to mobilise and return to work and also causing lumbar spine problems.
6. Dr Chow noted that the applicant had failed all non-operative measures, including, multiple cortisone injections and offloading orthotics. He opined that operative intervention was necessary to help relieve the applicant's pain.
7. Dr Chow opined that it was very reasonable for the applicant to undergo a midfoot fusion with a bone graft which would relieve her pain and allow her to return to normal activities. Without surgical intervention, the applicant would not return to pre-injury levels of functioning.
8. In respect of causation, Dr Chow opined "that the causation from the history obtained is directly attributed to the pain that she has at this stage."[67]
9. Dr Chow further opined that there was a direct correlation with the injury exacerbating and accelerating the arthritis in the applicant's foot, as well as the further instability caused by the rolling incident further exacerbating and accelerating the pain in her foot. It should be noted here that Dr Chow appears to have implicated the 22 March 2022 incident, of which there is no evidence, in reaching his conclusion as to causation. Further, he referred to "the injury" as exacerbating and accelerating the arthritis in the applicant's foot without clarifying what "the injury" was. Was it operating the large defective gate or the 22 March 2022 incident or a combination of both?
10. In respect of a diagnosis, Dr Chow opined as follows:

"She did not have any reported symptoms in her foot prior and was able to work freely, however since her injury going forward she has not been able to work and I feel that the subsequent injuries that she attained at work were directly attributed to the exacerbation and acceleration of the condition and were the main contributing factors to the disease process."[68]

1. Again, Dr Chow failed to specifically identify "the injury" he was referring to. Further, he failed to identify "the subsequent injuries that she attained at work."
2. In respect of work capacity, Dr Chow opined that, following the proposed surgery, the applicant would be off work for three months and thereafter, able to return to her pre-injury levels of functioning.

1. On 18 September 2025, the applicant again consulted Dr David Wilcox, consultant surgeon, at the request of the respondent. In evidence, there is a report by Dr Wilcox dated 24 September 2025.[69] Relevant parts of that report are referred to below.
2. The consultation took place with the assistance of an interpreter.
3. Dr Wilcox read out to the applicant, through the interpreter, the history given by her at the previous consultation on 28 April 2023. The applicant was invited to make any observations or comments. The additional information provided by the applicant may be summarised as follows:

(a) the school gates caused the applicant no actual injury;

(b) the school gates were heavy;

(c) the school gates were a folding gate with four steel struts;

(d) the applicant had to pull and push the folding gate with her hands;

(e) the applicant had to always open the school gates at about 6.30am and close them at about 6.00pm;

(f) the applicant had complained to her supervisor, Michael, about pushing and pulling the heavy school gate;

(g) more recently, the callus under the front of the applicant's left sole had ceased increasing but had remained about the same for the past two years;

(h) the pain the applicant experiences when she has to stand or walk for a long time can go back towards the heel, and

(i) treatment by the podiatrist had been of no help.

1. In respect of the applicant's recent history, Dr Wilcox reported as follows:

"She said that the pain she experiences in her right foot has not changed in severity since 28 April 2023. This is in spite of having treatment including cortisone injection but although this did give her some relief, it was only for one day. She has had no recent physiotherapy but did have some sort of pulsed treatment by the physiotherapist but without benefit. She continues to do exercises at home but without any improvement. She mentioned that she has right foot fractures on 2 or 3 occasions.

She said she takes Panadol two four times a day and applies Voltaren cream to the painful area. She has been told that she should have surgery. She knows that there is considerable risk with this operation but said that she is willing to take it because she has been in pain for four years. She has not been on any weight reducing diet and has not used a walking aid."[70]

1. On examination, Dr Wilcox observed that the applicant measured 168cm in height (in bare feet) and weighed 118kg (BMI 42). She walked in the room with a mild antalgic limp favouring the right foot. She stood and walked on her heels easily and with no discernible limp. The feet were in good alignment with no visible swelling. She showed that she could stand independently on the left foot for nine seconds and on the right for four seconds. She then demonstrated that she could easily squat to just beyond half the normal level. She climbed onto the couch without needing any assistance.
2. Dr Wilcox recorded the active movements of the bilateral ankle and subtalar joints. Tenderness was elicited over the right mid-tarsal joint in line with the second and third metatarsals. There was no other specific area of tenderness including the origin of the plantar fascia and over the Achilles tendon or the calf. The applicant did not react with pressure over her reported area of constant pain, a little proximal to the heads of the second and third metatarsals.
3. Dr Wilcox again referred to the delay, based on the general practitioner clinical records, in the applicant's complaint of right foot pain and made the following observation:

"Even when she complained of calf and ankle pain on 3 February 2021 [should read 2022] and she was sent for an ultrasound to eliminate a DVT, there was still no mention of the right foot. It was not until 7 February 2021 [should read 2022] that she came in for the result of the ultrasound did she made [sic: make] her first complain [sic] of having right foot pain 'for the past few weeks'.

The implication of this delay, was that the right foot pain was not very severe. As she continues to insist that there has been no significant change in the level of her symptoms affecting the right foot since it was first noticed in the weeks before 7 February 2021 [should read 2022], her stated level of pain would appear to be mild or moderate rather than severe."[71]

1. Dr Wilcox opined that he would not expect the folded school gate to put any great strain on the applicant's feet because the pulling and pushing would be done through the upper limbs and therefore, most of the force would be taken by the shoulders and upper back. Further, there would be no reason to push it with her foot. He observed that photographs of the gate together with a description of how it was opened and closed would have been helpful.
2. Dr Wilcox again opined that the main causative factor of the applicant's osteoarthritic foot was her obesity. He again referred to his observations, unsupported by any evidence, that a cleaner does not have to be constantly standing and walking for the whole shift because they could take rest breaks at work and between the morning and afternoon shifts. He opined that the applicants cleaning duties should not be classified as heavy.
3. Dr Wilcox noted that the applicant was obese and had been so for many years. In this regard, he made the following observations:

"The joints of the foot have to take the body's weight whenever a person is standing, walking, going up and down stairs, jumping or running. Being obese subjects these joints to an increased probability of developing osteoarthritis. There is considerable knowledge that weight bearing joints are at increased risk of pain because of obesity. This has been shown by evidence-based medicine, the details of which were set out in the previous report.

It is reasonable to conclude that the main factor for the causation of [the applicant's] osteoarthritic foot is her obesity. If working as a school cleaner was the main factor, then surely, women of her age doing this work for many more years than she has done and doing heavier duties, would be experiencing chronic painful feet. In fact, this is quite rare."[72]

1. The contents of the last two sentences quoted above are unsupported by any evidence.
2. Dr Wilcox observed that there were indications that the applicant was, to some extent, embellishing and possibly exaggerating her symptoms. He provided reasons for coming to this conclusion.
3. In respect of the proposed surgical treatment, Dr Wilcox opined as follows:

"It would be normal practice, after a claimed complete failure of all forms of conservative treatment, to go ahead with a surgical procedure. With this history of having no response to improvement with all forms of conservative treatment, and with her considerable excess weight, the possibility of her having a good result from any surgery is remote if done in the near future.

Conversely, if she was prepared to lose at least 30 to 40kg of weight, she probably would respond to conservative treatment and this would greatly diminish the need for surgery. It is quite surprising that there is little or no mention within the opinions that have been expressed over the years of her need to lose weight. This is the main reason that has prevented her gaining any improvement to all the treatment that she has had over the years."[73]

1. Dr Wilcox concluded that the proposed surgery was not reasonably necessary treatment.
2. In respect of the applicant's work capacity, Dr Wilcox opined that she was not fit to resume work as a school cleaner at this time as, due to her obesity and arthritic feet, she may be at a greater risk of injury than a person in normal good health.
3. Dr Wilcox opined that the applicant had symptomatic, quite advanced osteoarthritis of the right foot mid-tarsal joints. The applicant's osteoarthritic pathology affecting her feet (particularly, the right foot) had reached a stage whereby the disease pathology was going to become symptomatic without sustaining any injury. There was no reason to believe that employment was the main contributing factor to any aggravation, acceleration, exacerbation or deterioration of her right foot pathology for the reasons already stated in his report.
4. Dr Wilcox disagreed with Dr Chow's opinion in respect of causation.

1. The parties made oral submissions at the arbitration hearing which were sound recorded. The sound recording is available to the parties. Outlines of the parties' submissions are provided below.

1. The first issue is whether the applicant sustained injury in the course of her employment with the respondent and if so, whether it was the main contributing factor. The applicant does not rely on a frank injury.
2. The worker's injury claim form described the applicant's date of injury as 1 November 2021 at 7.00am and recorded that she stopped work on 23 January 2023. The injury description related to the right foot.
3. The first contact ever made by the applicant to the respondent in respect of the alleged work-related injury was on 28 March 2023 at 10.30am and was recorded in the initial contact form. This was confirmed in Ms Djuric's statement.
4. At [29] of the applicant's statement, she referred to a consultation about her right foot pain that had developed over time with Dr Vranjes on 1 November 2021 and the opening and closing of the school gate using her foot.
5. One should go to any contemporaneous accounts in respect of the claimed injury. The applicant's Health Check Family Medical Practice clinical records are instructive as to what was going on at the time rather than something that came much later.
6. A complicating factor in this case was COVID-19. There was evidence that the applicant and some doctors seemed to attribute some of her physical injuries to a form of COVID-19 reaction.
7. The entry in the clinical records on 1 November 2021, being the date the applicant said she was moving the gate at the school, noted that, following her second Pfizer vaccination, the applicant experienced musculoskeletal pain, pain in the back and intermittent headaches. That was the only entry on that date.
8. The entry in the clinical records on 3 December 2021, noted left foot pain over the past few weeks, no recent injury, similar pain in the past and left sided back pain. Contrary to the applicant's evidence, the consultation did not take place on 1 November 2021 and further, the clincal notes referred to left foot pain, not right foot pain.
9. The entry in the clinical records on 14 December 2021, dealt with the applicant's left foot symptoms only.
10. The entry in the clinical records on 3 February 2022, noted pain in the right leg over the past few weeks associated with intermittent swelling around the ankle. The entry also noted that there had been no recent injury.
11. The entry in the clinical records on 24 February 2022, noted a few weeks history of right foot pain. The entry also noted that there had been no recent injury. The doctor's impression was that there was no specific cause for the applicant's pain over the first metatarsal; degenerative changes at the first metatarsal joint and the first metatarsophalangeal joint; and no fracture of the first metatarsal.
12. Critically, the entries referred to above contained no mention of anything to do with the applicant's work. The above is the applicant's initial history as recorded in the clinical records.
13. Then, there is the entry in the clinical records on 12 October 2022, which noted that since November 2021, the applicant had pain in the right foot, mostly midfoot radiating to the base of the first/second tarsometatarsal joint and metatarsophalangeal joints of the big toe. The doctor also noted that there were no injuries to the left foot or the right foot. The history given by the applicant and recorded in this entry was inconsistent with the earlier contemporaneous clinical records referred to above.
14. The applicant's allegation that the extremely heavy nature and conditions of her employment as a cleaner aggravated the condition in her right foot is a recent invention.
15. MRI scans of the applicant's right foot revealed osteoarthritis in the second and third tarsometatarsal joints and some arthritis in the first metatarsal joint.
16. The entry in the clinical records on 6 December 2022, noted obesity as the reason for the consultation. The doctor noted that the applicant had tried a diet, but it did not help and that she wanted to try a Saxenda injection. The applicant's obesity is very relevant to the issue of main contributing factor. Dr Wilcox dealt with the applicant's obesity.
17. The entry in the clinical records on 2 March 2023, noted no specific cause for the applicant's pain over the first metatarsal; degenerative changes at the first tarsometatarsal joint and at the first metatarsophalangeal joint; and no fracture of the first metatarsal. Again, there was no suggestion that work either caused or aggravated this condition.
18. The entry in the clinical records on 3 March 2023, noted that the applicant had experienced pain in her right foot since November 2021 and that there were no specific injuries to her feet. The doctor also noted that she was employed as a cleaner in a primary school where she was on her feet during the entire shift and he further noted that she had not worked since 21 January 2023 due to right foot pain.
19. None of the evidence from the applicant's treating doctors deal with the issue of causation. Some reports say that she was doing certain work. However, no opinion was expressed as to its relationship to the diagnosis.
20. Dr Chang's early reports made no reference to a work injury claim until her report dated 25 June 2024 when she stated that the applicant's condition was now under a "work cover claim." Dr Chang reported that the applicant stated that she started experiencing midfoot pain after having to repeatedly open and close heavy doors at work using her right foot and that she started experiencing plantar foot pain whilst at work. No such history was given in the earlier reports. Dr Chang did not provide any opinion as to whether that history had any relevance in terms of it being a "work cover" claim.
21. Dr Chow did not appear to have been provided with any of the applicant's clinical records. The history taken by the doctor was woeful and he seemed to be mouthing the applicant's statement of 11 July 2025. There have been earlier proceedings in this matter. This statement was given only in these proceedings. The doctor then provided a history in respect of a twisting incident involving the applicant's left foot at work on 21 March 2022. The history taken by Dr Chow is unreliable. No injury on 21 March 2022 has ever been pleaded. Dr Chow's diagnosis means nothing. The injury he is referring to in his diagnosis is unclear. Dr Chow did not explain how it is that there are stress fractures in the foot. Were they caused over a period of time or caused by a frank incident? Dr Chow did not take a proper history and has insufficient knowledge of the history to form an opinion in a fair climate.
22. In a referral letter from Dr Vranjes to Dr Kuo dated 24 February 2022, Dr Vranjes referred to the applicant as having had a few weeks history of right foot pain and that there had been no recent injury. There is no report from Dr Kuo in evidence.
23. In a referral letter from Dr Tomasevic to Dr Mittal dated 14 July 2022, Dr Tomasevic referred to the applicant has having had pain in the right foot since November 2021 and having had no injuries to her feet.
24. On 3 August 2022, Dr Mittal reported that the applicant presented with pain in the right foot that started in about November 2021. He noted no obvious injury or change in her activities. The applicant's alleged altered gait is not mentioned.
25. On 17 August 2022, Dr Mittal reported that there was no obvious cause for the applicant's pain. He suspected that the applicant had a neuropathic pain.
26. On 2 November 2022, Dr Patapanian reported that the applicant had painful swelling and difficulty relating to her right foot for about 12 months. There was no history of injury. On examination, the applicant weighed 117kg. The most likely diagnosis was inflammatory osteoarthritis. He opined that the applicant must lose weight. In none of Dr Patapanian's reports was there any mention of any frank work injury or injury due to the nature and conditions of employment.
27. On 27 February 2023, Dr Higgs reported that the applicant presented for review of her right foot. He noted that, in October 2021, at about the same time she received her vaccine, she noticed pain in the right foot. He also noted that she reported increased activity at work in her role as a cleaner at school. On 1 March 2023, Dr Higgs reported that the recent MRI scan demonstrated significant osteoarthritis in the midfoot. Neither of these reports of Dr Higgs provide an opinion in respect of causation.
28. On 23 May 2023, Dr Rosenberg noted that a bone scan suggested stress fractures in two of the applicant's metatarsals. However, he opined that the MRI scan was more suggestive of arthritis at the tarsometatarsal joint. Dr Rosenberg did not provide an opinion in respect of causation.
29. On 2 September 2024, Dr Gothelf reported that the applicant stated that, whilst at work, she pushed a heavy gate with her hand and had right foot pain that had continued thereafter and became worse with walking.
30. The respondent relied on two reports from Dr Wilcox. Dr Wilcox, unlike Dr Chow, took a detailed history from the applicant and had access to the applicant's clinical records. Dr Wilcox opined that obesity is a potent cause of foot pain and noted that the applicant's general practitioner had, before the onset of her right foot pain, recognised that her obesity was a health hazard.
31. The Commission would not be satisfied on the evidence that injury has occurred at all in the course of employment.
32. Whether the claimed injury is one caused over a period of time or whether it was aggravated, the same test must apply. The Commission must be satisfied that work is the main contributing factor. In respect of 'main contributing factor', the respondent referred to the observations of Snell DP in AB v AW[74] at [78].
33. Dr Chow made no reference to the applicant's obesity or to Dr Wilcox's opinion on this issue. Dr Wilcox opined that there is a non-work-related cause to the applicant's condition, namely, her obesity. He opined that obesity was the main cause and that she needed to lose weight.
34. The applicant has failed to discharge her onus that employment was the main contributing factor to contracting the disease injury or its aggravation, acceleration, exacerbation or deterioration in the course of employment.
35. Dr Wilcox opined that if the applicant were prepared to lose, at least, 30kg to 40kg in weight, she would probably respond to conservative treatment and greatly diminish the need for surgery. On that basis, the proposed surgery is not reasonably necessary. Even if injury is established, it has not been established that it materially contributed to the proposed surgery.

1. In respect of the early references to the left foot in the clinical records, the Court of Appeal in Mason v Demasi[75] cautioned against putting too much store in what is contained in a busy medical practitioner's records. The applicant has a limited command of the English language.
2. Dr Wilcox accepts that the applicant has a very serious problem affecting the front of her right foot that needs treatment. He accepts that she has an arthritic condition in that foot. He says she cannot go back to doing work as a cleaner. However, he formed the view that employment was not the main contributing factor. Dr Wilcox based much of his opinion on what he saw in the medical records and the lack of reporting of injury.
3. The applicant presented to doctors in 2021 with some serious pathology in the front of her right foot. She had an arthritic problem that was aggravated by work. It was an insidious problem that came on over a period of time. The applicant is not a sophisticated individual. She was not someone who had medical knowledge that would allow her to put it all together and try to come up with an explanation as to why her foot was sore. It was on seeing doctors that it was brought to her attention that there was a work cause and that was when she reported the injury.
4. The respondent's initial contact form dated 28 March 2023 provided details of the mechanism of the injury sustained by the applicant. The details contained in that part of the form is the applicant's case. The form also noted that there were no light duties available for the applicant.
5. Ms Djuric confirmed that the applicant's work was heavy, involved doing a lot of cleaning, and that the school gates were heavy and not easy to open.
6. The applicant's work activities were unchallenged.
7. This was not a recent invention by the applicant. The facts show that the applicant had problems with her right foot since 2021 and now, an accepted arthritic condition affecting the right foot which needs to be treated. The applicant told the respondent at the first available opportunity of the reasons she had problems with her right foot and what the doctors were telling her the cause was. This was followed by a conservative regime of treatment and then, the need for surgery arose.
8. The applicant's statement has not been contradicted. There was no factual challenge that the work the applicant described was anything other than that which she performed on a day to day basis. The Commission would accept her evidence in this regard. Ms Kolarevic's evidence provides some support.
9. The description of the applicant's injury provided by the applicant's daughter is found in the respondent's incident report and it is consistent with the reports of the various treating specialists.
10. On 3 March 2022, Mr Nashid fitted the applicant with prefabricated orthotics.
11. In his referral letter to Dr Mittal dated 14 July 2022, Dr Tomasevic took a history of right foot pain since November 2021. On 3 August 2022, Dr Mittal noted right foot pain for eight months. He noted that the applicant worked as a cleaner at a school. He reported no obvious injury and no change in the applicant's activities, which is accepted by the applicant because she was doing her usual job at the time. Dr Mittal did not appear to have the assistance of an interpreter during consultations.
12. In her referral letter to Dr Patapanian dated 14 July 2022, Dr Vranjes clearly referenced the applicant's right foot when referring to pain since November 2021.
13. On 22 November 2022, consistent with the applicant's evidence, Dr Patapanian noted difficulties with and swelling in her right foot for approximately 12 months. He noted no history of injury and suspected that osteoarthritis might be the problem.
14. On 23 January 2023, Dr Patapanian reported that there was evidence of a fracture at the bases of the second and third metatarsals.
15. On 27 January 2023, Dr Higgs noted that the applicant noticed pain in her right foot around the time that she received a vaccine. When one looks at the whole of the evidence and the ultimate diagnosis, the vaccine was of no consequence. Dr Higgs opined that the applicant suffered from a chronic condition with osteoarthritis.
16. Consistent with that which the respondent recorded in its incident report, the referral letter dated 3 March 2023 from Dr Tomasevic to Dr Patapanian noted that the applicant had no specific injuries to her feet and that she was employed as a cleaner in a primary school where she was on her feet for the whole shift.
17. On 23 May 2023, Dr Rosenberg recorded a history that the applicant worked as a cleaner at a school and a history that she was pushing a gate. He noted either fractures in two of her metatarsals or more likely, tarsometatarsal arthritis. He recommended ongoing treatment but ultimately, the applicant was referred to Dr Chang.
18. On 27 June 2023, Dr Chang noted that the applicant first noticed midfoot pain soon after her COVID-19 vaccination, which the evidence establishes was towards the end of 2021. So, the timing is consistent with the applicant's evidence. The doctor identified right midfoot arthritis with a stress reaction of the third metatarsal base. Dr Chang recommended that

non-operative measures be pursued at that time. It did not appear that the doctor had the benefit of an interpreter at that consultation. 19. On 31 August 2023, Dr Patapanian agreed with the conservative approach Dr Chang initially adopted. He supported Dr Chang's recommendations and advice. Dr Patapanian made it clear that there was no suggestion that the applicant had rheumatoid arthritis but does have generalised osteoarthritis. He recommended that the applicant be guided by Dr Chang's advice. 20. On 12 December 2023, Dr Chang reported that the applicant had undergone corticosteroid injections to the second and third tarsometatarsal joints with some relief for two days only. The doctor recommended a right second and third tarsometatarsal joint arthrodesis. 21. On 25 June 2024, Dr Chang noted a temporality of the development of pain associated with the work the applicant was doing. The doctor recommended a right second and third tarsometatarsal joint arthrodesis with calcaneal autograft, fourth tarsometatarsal joint excision of osteophytes and an endoscopic plantar fascia release. 22. The applicant sought a further opinion from Dr Reitz, who noted on 9 August 2024, that

non-surgical methods were being explored. 23. On 2 September 2024, Dr Gothelf recorded a somewhat confused history but otherwise, recorded a consistent presentation from a medical point of view to all other doctors. He opined that the applicant had right foot second and third tarsometatarsal arthritis which was made worse by an injury at work. The doctor identified the non-operative treatment and the surgical option and noted that the applicant wished to proceed with surgery. 24. On 11 November 2024. Dr Gothelf made a specific observation relevant to causation, namely, that the aggravation of underlying arthritis was causally related to the surgery in respect of the second and third tarsometatarsal arthritis but not to other aspects of the surgery, specifically, plantar fascia release. The Commission should prefer the opinion of the treating orthopaedic surgeon, Dr Chang and not exclude the plantar fascia release from the proposed surgery. 25. In respect of the observations of Snell DP in AB v AW,[76] the Commission would not necessarily have to have regard to independent medical examiner opinion evidence in a case like this. Whilst there is such opinion evidence, there is enough available in the factual material and the reports of the treating medical practitioners for the Commission to be comfortably satisfied that the relevant causal nexus, as per the definition in the 1987 Act, exists having regard to the whole of the evidence. In addition, there is Dr Chow's opinion which the applicant adopts. 26. The applicant has sought treatment for an obviously uncomfortable right foot. She has had injections and worn a moon boot for extended periods of time. She has had to buy special footwear and had orthotics made up for her to specifically address the issue. Things have reached the point four years after the event where her condition needs to be treated surgically. The applicant has opted to take the opinion of two orthopaedic surgeons whose opinions are supported by Dr Patapanian. 27. Dr Wilcox is not an orthopaedic surgeon. He is a general surgeon who provides

medico-legal opinions. 28. Dr Wilcox first saw the applicant in May 2023 and took a history that was consistent with the applicant's evidence. Dr Wilcox did not doubt that the applicant had issues that need to be treated. There was no suggestion that there had been a manufacturing of complaints or exaggeration on the part of the applicant. Dr Wilcox grudgingly accepted in his report that there may be the need for surgical intervention in the future if the disease process becomes more advanced. 29. After stating that the history from the medical records was very different from that given by the applicant, Dr Wilcox added that there was no doubt that she had developed pain in the right mid-tarsal joint area from long-standing arthritic change. The doctor acknowledged that the applicant would have been on her feet for most of the time she was working but stated that her duties were done in two shifts and that most school cleaners are able to take a rest because they are not closely supervised during the course of a day's work. There was no evidence to support the doctor's observations. Dr Wilcox concluded that, based on the above observations, employment was not a reasonable substantial contributing factor. The applicant submitted that such conclusion had a flimsy basis. 30. In his second report dated 24 September 2025, Dr Wilcox similarly launched into his role as an advocate for the respondent in the expression of his opinion. The doctor opined that the school gate would not be expected to put any great strain on the feet because pushing and pulling would be done through the upper limbs with most of the force taken through the shoulders and upper back. He further opined that there would be no reason to push such a gate with her foot. Dr Wilcox stated that photographs of the gate together with a description of how it was opened and closed would definitely be helpful. However, the respondent did not attend to that. What is known is that Ms Djuric's evidence was that the gate was heavy and hard to close. 31. Dr Wilcox's opinion that the applicant's work should not be classified as heavy is contradicted by the respondent. The doctor opined that, if working as a school cleaner was the main factor, then surely, women of her age doing this work for many more years than she has done and doing heavier duties, would be experiencing chronic painful feet, which would be quite rare. How Dr Wilcox came to that opinion is not revealed. Such an opinion colours the overall acceptance or otherwise of the doctor's opinions. 32. In respect of the reasonableness of the proposed surgery, Dr Wilcox stated that it would be normal practice to go ahead with a surgical procedure after a claimed complete failure of all forms of conservative treatment. In this case, the applicant has consulted numerous doctors and has undergone the treatment referred to above. Dr Chang and Dr Gothelf have recommended surgery and Dr Patapanian supported Dr Chang. Dr Wilcox opines that the proposed surgery is unlikely to succeed. He is a general surgeon. The Commission should prefer the views of the treating doctors and that of Dr Chow. 33. In respect of Dr Wilcox's theory about the applicant's obesity, the applicant was doing the heavy work described in her statement. She was working without restriction until she developed these problems in her right foot. There was no suggestion in the medical evidence that there was any change in the level of her weight over this period. There was no suggestion that the applicant was anything other than a good worker. Dr Wilcox thinks the applicant's weight is relevant. If it was relevant, Dr Wilcox did not explain why the applicant's work did not affect her left foot.

1. In March 2023, there is a new history which is consistent with what the applicant is now saying. There is no report from the applicant's general practitioner that pulls all this together. If there was any doubt about the matters raised in the general practitioner clinical records, it should have been raised with the general practitioner. Where there is no such report, the Commission cannot simply dismiss what is in the clinical records as being anything other than accurate. They are computer records that seem to be very detailed. The applicant did not challenge the alleged errors in the clinical records in her statement. If there is a report from the general practitioner, where is it? If there is a report, then the Commission can draw an inference that the report would not assist the applicant's case.
2. There is no report from a treating doctor that provides an opinion in respect of causation.
3. The applicant did not make any submissions about Dr Chow's report because Dr Chow does not say anything. Dr Chow does not provide an opinion in a fair climate about causation.
4. The respondent referred to Mannie v Bauer Media Pty Ltd[77](Mannie). It is not a matter of finding that this type of work is capable of causing this type of injury. One needs to look at what was going on at the time to ascertain whether the applicant was injured in the course of employment or whether it arose out of employment. There is no compellable evidence to support the applicant's case.
5. It is not correct to say that Dr Patapanian supported the need for the proposed surgery. In his report dated 31 August 2023, Dr Patapanian said he fully supported Dr Chang's advice about a steroid injection into the second and third tarsometatarsal joints as a therapeutic trial. The doctor provided no opinion in respect of the proposed surgery.
6. The applicant bears the onus of proof and if there is any doubt that histories given to doctors are incorrect or in some material way defective because of language, that is a matter the applicant should address in evidence.
7. There is no evidence of the general nature of the applicant's cleaning duties causing any kind of injury by way of aggravation of osteoarthritis or plantar fasciitis.
8. The applicant's COVID-19 vaccination was somehow and, in some way, a contributing factor. However, this issue has not been addressed from a medical viewpoint. Without such medical evidence, the Commission is left with the unenviable task of having to decide the issue of main contributing factor without any expert opinion in the applicant's case, particularly where there is opinion on the respondent's side.

1. Section 9 of the 1987 Act provides that a worker who has received an 'injury' shall receive compensation from the worker's employer in accordance with the Act.
2. The term 'injury' is defined in s 4 of the 1987 Act as follows:

(a) means personal injury arising out of or in the course of employment,

(b) includes a disease injury, which means:

(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and

(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease,"

1. The applicant conducted her case based on s 4(b)(ii) of the 1987 Act.
2. As to the meaning of disease, in Commissioner for Railways v Bain[78] Windeyer J stated:

"The word 'disease' seems to me apt to describe any abnormal physical or mental condition that is not purely transient ..."[79]

1. In Federal Broom Co Pty Ltd v Semlitch[80] (Semlitch), Kitto J said:

"There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism".[81]

"The question that each [aggravation; acceleration; exacerbation; deterioration] poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient."[82]

1. In Semlitch, Windeyer J also posed the following questions:

"Was the applicant suffering from a disease? If so, was there an aggravation, acceleration, exacerbation or deterioration of it? If so, was her (or his) employment a contributing factor? If so, did a total or partial incapacity for work result from such aggravation, acceleration, exacerbation or deterioration?"[83]

1. Discussing whether there was "aggravation, acceleration, exacerbation or deterioration" Windeyer J said in Semlitch:

"... the answer depends upon whether for the sufferer the consequences of his affliction have become more serious".[84]

1. Burke CCJ, applying Semlitch in Cant v Catholic Schools Office[85] (Cant) said:

"The thrust of these comments is that irrespective of whether the pathology has been accelerated there is a relevant aggravation or exacerbation of the disease if the symptoms and restrictions emanating from it have increased and become more serious to the injured worker."[86]

1. The proper test is whether the aggravation impacted the individual concerned. It is not necessary for the particular disease to be made worse: Cabramatta Motor Body Repairers (NSW) Pty Ltd v Raymond[87] (Raymond) applying Semlitch and Cant. In Raymond, Roche ADP (as he then was) was satisfied that, on the whole of the evidence, it was open to the Arbitrator to conclude that the worker suffered an aggravation of his occupational asthma, in the sense that the symptoms increased and became more serious while employed.[88]
2. Roche DP in Kelly v Western Institute NSW TAFE Commission[89] (Kelly), citing Semlitch, said:

"An aggravation or exacerbation of a disease occurs where the experience of the disease by the applicant is increased or intensified by an increase or intensifying of symptoms."[90]

1. Section 4(b)(ii) of the 1987 Act requires that the employment must be the main contributing factor to the injury, namely, the aggravation, acceleration, exacerbation or deterioration of the disease condition.[91] The word "main" in the phrase "main contributing factor" means "chief" or "principal".[92] Therefore, "main contributing factor" test involves consideration of whether there were competing causal factors (both work and non-work-related) of the aggravation, acceleration, exacerbation or deterioration of the disease condition and whether, on a consideration of relevant causal factors, employment represented the main contributing factor.
2. Roche DP in State Transit Authority v El-Achi[93] (El-Achi) said:

"That a doctor does not address the ultimate legal question to be decided is not fatal. In the Commission, an Arbitrator must determine, having regard to the whole of the evidence, the issue of injury, and whether employment is the main contributing factor to the injury. That involves an evaluative process."[94]

1. In AB v AW,[95] Snell DP agreed with the above quoted passage in El-Achi and observed that the following could be taken from the relevant cases:

"(a) The test of 'main contributing factor' in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one 'main contributing factor' to an alleged aggravation injury.

(b) The test of 'main contributing factor' is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of 'main contributing factor' is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.

(c) In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole."[96]

1. I now turn to the application of the relevant legislation and the legal principles referred to above and to a consideration of the evidence overall in this matter, bearing in mind that the applicant bears the onus of establishing her case on the balance of probabilities, that is, that employment was the main contributing factor to any aggravation, acceleration, exacerbation or deterioration of the right midfoot osteoarthritic disease condition by adopting an evaluative process. Whether the employment was capable of causing injury is not to the point: Mannie.[97]
2. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited[98] (Nguyen) McDougall J stated at [44]:

"A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour's statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712."

1. The applicant's ability to discharge her onus is made difficult in this case, in part, due to variations in the accounts provided to and/or recorded by the medical practitioners as to the circumstances in which the injury occurred as well as the medical evidence on which the applicant relies to support her case. I refer to those matters below.
2. The applicant claims that she suffered injury to her right foot, amongst other body systems that are not relevant in these proceedings, due to the extremely heavy nature and conditions of her employment as a school cleaner with the respondent including cleaning toilets, 12 classrooms, a long corridor over two levels including sweeping, mopping, vacuuming over two four hour shifts per day and manually opening and closing a heavy and defective gate at the school between 17 June 2016 (being the date of the commencement of her employment with the respondent) and 20 January 2023 (being the date she last worked).
3. The applicant's evidence about the hours and nature of her duties at the school was unchallenged. Ms Djuric, to whom the applicant reported, corroborated the applicant's evidence regarding the nature of her duties at the school. Ms Djuric also confirmed that she understood the school gates were heavy to open and that she instructed the cleaners not to close the gates if they were unable to do so. Ms Djuric considered the applicant's duties as physical in nature.
4. The applicant's evidence was that, on 1 November 2021, she consulted Dr Vranjes about her right foot pain that had been developing overtime and had been particularly bad on that day. She stated that her right foot pain was associated with the heavy work she was performing at the school as well as the opening and closing of the school gate using her right foot. She felt the most intense pain when closing the gate. The applicant did not explain how she used her right foot to open and close the gate. However, there was no reference to any specific right foot symptoms, work-related or otherwise, in the applicant's consultation with Dr Vranjes in the entry in the clinical records on 1 November 2021. Such inconsistency was not dealt with in the applicant's evidence.
5. The consultation with Dr Vranjes on 1 November 2021 focussed on the applicant's symptoms in her back, upper limbs, lower limbs and intermittent headaches following her second COVID-19 vaccination. As a result, Dr Vranjes certified the applicant unfit for work from 1 November 2021 to 2 November 2021 inclusive. This was inconsistent with the applicant's evidence, in that, she stated that she was certified unfit for work because of her right foot symptoms. Such inconsistency was not dealt with in the applicant's evidence.
6. On 3 December 2021, the applicant consulted Dr Vranjes complaining of, amongst other things, left foot pain over the past few weeks, no recent history of injury and similar pain in the past. There was no reference to any specific right foot symptoms, work-related or otherwise, in the applicant's consultation with Dr Vranjes in the entry in the clinical records on 3 December 2021. The applicant submitted that, in respect of the early references in the general practitioner records of left foot symptoms, caution should be had against putting too much store in a busy medical practitioner's records. However, on 7 December 2021, the applicant underwent a left foot ultrasound on the referral of Dr Vranjes that revealed partial tears of the left plantar fascia and left plantar fasciitis. These left foot symptoms and ultrasound findings were not consistent with the applicant's evidence or the submission that suggested that the reference to the left foot in the clinical records was made in error and related to the applicant's limited command of the English language. Further, when Dr Wilcox raised the entry in the general practitioner clinical records on 7 December 2021, the applicant insisted that she had no problems with her left lower limb except for a callus under the front of her left foot.
7. After having recovered from a bout of COVID-19, the applicant consulted Dr Vranjes on 3 February 2022 complaining of pain in the right lower leg over the past few weeks associated with intermittent swelling around the ankle. She was referred for a right leg Doppler venous ultrasound to rule out deep vein thrombosis. The ultrasound demonstrated no evidence of right deep vein thrombosis.
8. Ms Djuric's evidence was that, about two years prior to her statement dated 5 June 2023, the applicant complained to her that something was happening with her legs after having a COVID-19 vaccination. She stated that the applicant thought it was a blood clot, which was consistent with the applicant undergoing the Doppler venous ultrasound referred to above. The applicant did not refer to her symptoms being work-related and did not refer Ms Djuric to any injury again until early 2023.
9. On 7 February 2022, Dr Vranjes referred the applicant for a right foot CT scan due to her complaints of ongoing right foot pain over the past few weeks without any recent injury or fall. The doctor referred the applicant for a right foot CT scan. This was the first consultation in which specific right foot symptoms were recorded in the clinical records (apart from the right ankle swelling recorded on 3 February 2022). There was no reference in the entry in the doctor's clinical records relating the symptoms to the applicant's work.
10. The value of contemporaneous evidence has been repeatedly endorsed by the courts: Watson v Foxman[99] and Onassis v Vergottis.[100] In the latter case, Lord Pearce commented on what is often recollected and said by witnesses after an event, as opposed to what is contemporaneously recorded in documents at the time of the event, in the following terms:

"Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on the balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part."

1. Histories in medical records are often used to attack the credit of a worker. Reference is made either to a failure to mention relevant matters, or a description in a medical record which is different to what the worker now says in evidence. Care should be taken when considering such evidence, not to place too much weight on the clinical notes of treating doctors, given their primary concern with treatment. Experience demonstrates that busy doctors sometimes misunderstand, omit or incorrectly record histories of accidents or complaints by a patient, particularly in circumstances where their concern is with the treatment or impact of an obvious frank injury: Davis v Council of the City of Wagga Wagga;[101] and applied in King v Collins[102] and Mastronardi v State of New South Wales.[103] Inconsistencies between a party's evidence and medical histories in clinical records should be treated with caution: Mason v Demasi.[104]
2. The caution referred to above was confirmed by Roche DP in Winter v NSW Police Force[105] as follows:

"It is important to remember that clinical notes are rarely (if ever) a complete record of the exchange between a patient and a busy general practitioner. For this reason, they must be treated with some care (Nominal Defendant v Clancy [2007] NSWCA 349; Davis v Council of the City of Wagga Wagga [2004] NSWCA 34; King v Collins [2007] NSWCA 122 at [34-36])."[106]

1. The absence of contemporaneous evidence is not determinative on the issue of causation where there is other evidence: Owen v Motor Accidents Authority of NSW [107]and Bugat v Fox.[108] I acknowledge that caution must be taken when relying on clinical records. I have exercised caution in this regard in respect of the applicant's clinical records. I have considered the other evidence, lay and medical, relating to the disputed injury.
2. The applicant's Health Check Family Medical Practice clinical records contained reasonably detailed entries that directly contradicted the applicant's version of the consultation on 1 November 2021. The clinical records contradicted the applicant's denial of having had symptoms and investigations in respect of her left foot in February 2022. The clinical records record that the applicant's first complaints of right foot symptoms were made to Dr Vranjes on 7 February 2022. However, Dr Vranjes did note that the applicant had experienced ongoing right foot pain over the past few weeks without any recent injury or fall.
3. Whilst I have no reason to doubt the applicant's credibility, I have concerns about the reliability of her recollection of events as set out in her evidentiary statement. The applicant's statement was completed with the assistance of her lawyer on 11 July 2025, some 4.5 years after the onset of her alleged work-related right foot symptoms. The histories recorded by her treating doctors and the forensic medical experts have demonstrated some inconsistencies, which I will refer to below.
4. On 3 August 2022, the applicant consulted Dr Mittal, who noted that she presented eight months post right foot pain. The doctor noted that there was no obvious injury or change in her activities and that the pain was worse with walking and dorsiflexion/plantarflexion of the foot. The pain improved with rest, it slowed her down, but she continued to work. Dr Mittal made no reference to the right foot symptoms being work-related.
5. On 2 November 2022, the applicant consulted Dr Patapanian, who noted that she had painful swelling and difficulty with her right foot for about 12 months without a history of injury. Dr Patapanian made no reference to the right foot symptoms being work-related.
6. Ms Djuric's evidence was that the applicant provided her with a medical certificate dated 8 January 2023 certifying the applicant unfit for work as a result of an injury on 1 November 2021 but was otherwise, non-descriptive.
7. On 23 January 2023, the applicant consulted Dr Patapanian, who discussed the results of the recent bone scan. The doctor opined that it was very unusual to have such painful osteoarthritis in the absence of any other significant abnormalities on imaging. Dr Patapanian made no reference to the right foot symptoms being work-related. However, he recommended to Dr Vranjes that she discuss with the applicant alternative work as he believed it somewhat unreasonable that she be expected to continue with her usual job as a school cleaner.
8. Ms Djuric's evidence was that the applicant provided her with a medical certificate dated 23 January 2023 stating that she was unfit for work. She stated that she received another medical certificate certifying the applicant unfit for work from 8 February 2023 to 22 February 2023.
9. On 22 February 2023, Dr Vranjes issued the applicant with a medical certificate certifying her unfit for her usual occupation from 22 February 2023 to 8 March 2023 inclusive due to a right foot metatarsal fracture. The certificate did not refer to a work-related injury. Ms Djuric confirmed receipt of this medical certificate.
10. On 27 February 2023, the applicant consulted Dr Higgs who took a history that, in October 2021, around the same time as she received her COVID-19 vaccine, she noticed pain in the right foot and reported increased activity at work in her role as a cleaner at a school. Dr Higgs noted that imaging indicated midfoot osteoarthritis. Dr Higgs made no reference to the right foot symptoms being work-related.
11. On 1 March 2023, the applicant consulted Dr Higgs who opined that the applicant was suffering from a chronic condition with osteoarthritis and that, in the vast majority of cases, management is non-operative. Dr Higgs made no reference to the right foot symptoms being work-related.
12. On 3 March 2023, the applicant consulted Dr Tomasevic complaining of ongoing right foot pain. The doctor noted that the applicant was employed as a cleaner in a primary school and on her feet during the entire shift. He also noted that the applicant had not been working since 21 January 2023 due to right foot pain and had been wearing a right foot controlled ankle motion boot (CAM boot/moon boot) since December 2022. This was the first occasion that a correlation was made between the applicant's right foot pain and her work in the Health Check Family Medical Practice clinical records.
13. Ms Djuric's evidence was that the applicant provided her with a medical certificate dated 7 March 2023 stating that the applicant had pain in her right foot.
14. Ms Djuric's evidence was that the applicant first provided her with a Certificate of Capacity on 23 March 2023. That was the first time she was aware that the applicant's injury was

work-related. It stated that she was unfit for work due to a stress fracture and soft tissue damage in her right foot. 15. The respondent's incident report dated 27 March 2023 recorded the report made by the applicant's daughter. It recorded an injury at work on 1 November 2021 at 7.00am as a result of carrying heavy things in the past and having consulted experts about her foot, who concluded that she could not work for the time being. 16. The initial contact form dated 28 March 2023 recorded the applicant's description of the mechanism of injury as quoted in [42] above. Consistent with Ms Djuric's evidence, it was recorded that the applicant reported her injury to Ms Djuric in November 2021 but did not advise that it was a work injury. The reason given was that she did not suspect it was a work injury at the time. 17. On 1 May 2023, Dr Tomasevic issued the applicant with a certificate of capacity. The certificate identified the date of injury as being 1 November 2021 and provided a diagnosis of work-related injury as a stress fracture of the right foot and soft tissue injuries to the right foot. In respect of the injury's relationship to work, the certificate stated that the applicant was on her feet for long periods at work as a cleaner and sustained a stress fracture of the right foot. There was no reference to the opening or closing of school gates. No pre-existing factors were identified. The applicant was certified as having no current work capacity for any employment from 2 May 2023 to 16 May 2023. 18. The worker's injury claim form dated 16 May 2023 nominated the date of injury as 1 November 2021 at 7.00am. The claim form described the tasks the applicant was performing when injured as quoted in [47] above. The opening of the school gates was the task described and then added that her daily duties may [my emphasis] also have contributed to the injury as she had mopped and cleaned toilets before and after opening the gates. The applicant stated that she used her foot to assist her in opening the gates. The claim form also noted that the applicant stopped work on 20 January 2023 at 1.00pm. 19. On 23 May 2023, the applicant consulted Dr Rosenberg, who took a history that she worked as a cleaner at a school and initially, injured her right foot. She was pushing the gate open when she developed significant discomfort and dysaesthesia in that foot. There was no reference to the applicant's other daily duties at work. 20. On 27 June 2023, the applicant consulted Dr Chang, who noted that she had been referred for management of a right foot stress fracture from November 2021. The doctor took a history that the applicant first noticed dorsal midfoot pain soon after her COVID-19 vaccination. Dr Chang opined that the applicant had right midfoot arthritis with stress reaction of the third metatarsal base. Dr Chang made no reference to the right foot symptoms being work-related. 21. On 25 June 2024, the applicant consulted Dr Chang who noted that the applicant's condition was now "a work cover claim".[109] The doctor took a history that the applicant started experiencing midfoot pain after having to repeatedly open and close heavy doors at work using her right foot. She also started experiencing plantar foot pain whilst at work. Dr Chang did not refer to the nature of the tasks the applicant performed at work, nor did she explain how work could have caused the symptoms complained of by the applicant. On the available evidence, the doctor simply accepted that the applicant's symptoms were work-related. 22. On 9 August 2024, the applicant consulted Dr Reitz, who noted that she had been diagnosed with arthritis in the right foot, insertional tendinopathy of the Achilles tendon and potential inflammation between the second and third toe. The doctor also noted that surgery in the midfoot area was being considered due to arthritis but that non-surgical options were being explored first. Dr Reitz made no reference to the right foot symptoms being work-related. 23. On 2 September 2024, the applicant consulted Dr Gothelf, who took a history that the applicant was at work and pushed a heavy gate with her hand and had right foot pain. Since then, the pain in her foot got worse with walking. There was no reference to the nature of any other of the tasks the applicant performed at work having caused the applicant's right foot symptoms. Dr Gothelf opined that the applicant had right foot second and third tarsometatarsal arthritis that was made worse by an injury at work (the pushing of a heavy gate) but did not explain his path of reasoning in this regard. 24. On 11 November 2024, in response to a request to the applicant's lawyers, Dr Gothelf stated that he had reviewed Dr Chang's report dated 25 June 2024 and agreed with her proposed surgery except for the plantar fascia release. He opined that the aggravation of the underlying arthritis was causally related to the need for surgery. However, he did not explain his path of reasoning in this regard. 25. It is not unusual for treating medical practitioners to refrain from providing opinions as to causation of injury and from explaining the actual path of reasoning by which they arrived at their opinion in this regard, unless specifically requested to do so. Their focus is on treating the patient's condition. 26. The forensic/expert medical evidence in this matter was provided by Dr Wilcox on behalf of the respondent and Dr Chow on behalf of the applicant. 27. The principles in relation to the acceptance of expert opinions in the Commission are well known. Rule 73(c) of the Personal Injury Commission Rules 2021 provides that "evidence based on speculation or unsubstantiated assumptions is unacceptable." Rule 73(d) of the Personal Injury Commission Rules 2021 provides that "unqualified opinions are unacceptable." The case law makes it clear that the Evidence Act 1995 does not apply to proceedings in the Commission. Hancock v East Coast Timbers Products Pty Ltd[110] (Hancock) is authority for the proposition that in a non-evidence-based jurisdiction such as the Commission, the question of acceptability of expert evidence will not be one of admissibility but one of weight. 28. Further, it is well established in the authorities such as Paric v John Holland (Constructions) Pty Ltd,[111] Makita (Australia) Pty Ltd v Sprowles[112] (Makita); South Western Sydney Area Health Service v Edmonds[113] (Edmonds); and Hancock; that there must be a "fair climate" on which a doctor can base an opinion. Exact correspondence between the history in a medical report and what is proved in evidence is not necessary for the validity of the medical opinion. All that is required both as a matter of principle and common sense is that there be real correspondence between the two. 29. The relevant principles from Makita and onward are a guide to the weight to be given to experts' reports. Makita set out that the requirement for the admissibility of an expert opinion is that it must be established on the facts on which the opinion is based on a proper foundation for the opinion. The opinion of an expert requires demonstration of the examination of the scientific or other intellectual basis of the conclusions reached. The expert's evidence must explain how the field of specialised knowledge in which the witness is expert by reason of training, study or experience and in which the opinion is wholly or substantially based, applies to the facts assumed or observed so as to produce the opinion propounded. Medical experts must explain the actual path of reasoning by which they arrived at their opinion. 30. I provided a detailed analysis of Dr Chow's report dated 29 July 2025 at [130]-[145] above. The history provided by Dr Chow differed from the applicant's evidentiary statement and the various histories recorded by her treating doctors and Dr Wilcox. His reference to an event on 22 March 2022 involving the left foot does not appear in any of the evidence before me. The history taken following the above-mentioned event is unclear as Dr Chow referred to "the foot" and did not make it clear whether he was referring to the left foot or the right foot. 31. Assuming Dr Chow was referring to the applicant's right foot, he recorded no history in respect of the nature of the applicant's duties as a cleaner. The doctor's interpretation of the history was focused on the operation of the large defective gate that required considerable physical effort. 32. In reaching his opinion on causation, Dr Chow appeared to have implicated the 22 March 2022 left foot incident, of which there was no evidence. 33. On the history reported by Dr Chow, there was no fair climate on which to base his opinions. Accordingly, I give Dr Chow's opinion no weight. 34. I provided a detailed analysis of Dr Wilcox's report dated 8 May 2023 at [112]-[129] above. Dr Wilcox took a detailed history from the applicant. However, the history did not include a reference to the school gates, but such reference was included in his later report. The doctor detailed the nature of the applicant's duties with the respondent. 35. Dr Wilcox observed that the history given by the applicant was not compatible with her general practitioner's clinical records and set out the same in his report. 36. Dr Wilcox observed that, before the onset of the applicant's right foot pain, her obesity was recognised by her general practitioner and recorded in the clinical records. He noted that, throughout the clinical records, the applicant's weight had been found to be 112kg or above. The doctor referred to some studies on the significance of obesity and concluded that such research emphasised that obesity is a potent cause of foot pain. 37. Dr Wilcox's diagnosis was one of chronic right midfoot advanced osteoarthritis which was a disease of gradual onset and that the main contributing factor is the applicant's long-term obesity. 38. I provided a detailed analysis of Dr Wilcox's report dated 24 September 2025 at [146]-[162] above. The doctor opined that he would not expect the folded school gate to put any great strain on the applicant's foot because the pulling and pushing would be done through the upper limbs and therefore, most of the force would be taken by the shoulders and upper back. Further, there would be no reason to push it with her foot. Dr Wilcox again opined that the main causative factor of the applicant's osteoarthritic foot was her obesity. 39. Dr Wilcox again referred to his observations, unsupported by any evidence, that a cleaner does not have to be constantly standing and walking for the whole shift because they could take rest breaks at work and between the morning and afternoon shifts. I give Dr Wilcox's unsupported observations in this regard no weight. I also give no weight to the doctor's unsupported conclusion that it is quite rare for other female school cleaners who perform heavier duties than the applicant of the same age to experience chronic painful feet. 40. Dr Wilcox opined that the applicant had symptomatic, quite advanced osteoarthritis of the right foot mid-tarsal joints. The applicant's osteoarthritic pathology affecting her feet (particularly, the right foot) had reached a stage whereby the disease pathology was going to become symptomatic without sustaining any injury. There was no reason to believe that employment was the main contributing factor to any aggravation, acceleration, exacerbation or deterioration of her right foot pathology. 41. I prefer the opinions of Dr Wilcox over those of Dr Chow (except for those I have given no weight to above) for the reasons already stated. 42. On 2 November 2022, Dr Patapanian noted that the applicant weighed 117kg and recommended that she lose weight and keep it off. 43. On 6 December 2022, Dr Vranjes discussed with the applicant Dr Patapanian's recommendation that she lose weight. The doctor discussed the applicant's obesity and noted that a trial diet had not helped. The applicant wanted to try a Saxenda injection. Dr Vranjes recorded the applicant's weight as 117kg. 44. On 9 August 2024, Dr Reitz advised the applicant to lose weight to alleviate stress on her lower legs and foot. 45. I find that the preponderance of the medical evidence is that the applicant had longstanding osteoarthritis in the right midfoot which has become chronic over time. 46. I am satisfied and find that the applicant first experienced the onset of right foot pain some time in late 2021/early 2022. On the basis of the contemporaneous general practitioner's clinical records, it is unlikely that the date on which the applicant first experienced the onset of right foot pain was 1 November 2021. However, it is the date that the applicant has referred to throughout and consequently, the date recorded by most of the medical practitioners. 47. I accept that, in the more than 12 month delay in lodging the incident report and initial contact form in late March 2023, that the applicant did not believe the condition of her right foot was work-related until she was advised by "a few medical practitioners" who came to "the same conclusion that carrying heavy objects and placing pressure on her right foot" at work caused a stress fracture. The applicant, to her credit, worked during most of this period, apart from leave due to COVID-19 and an overseas trip. However, for the reasons already stated, I find that the medical evidence on which the applicant relies unpersuasive. 48. Whilst certain early medical imaging indicated a possible right Lisfranc fracture, the preponderance of the medical evidence eliminated a fracture. A right foot MRI scan subsequently indicated a mild subchondral bone marrow oedema at the third metatarsal head and compatible low-grade bone stress injury, without fracture. 49. I am not satisfied that the applicant's reaction to the COVID-19 vaccination in October/November 2021 had any relevance to the symptoms she subsequently experienced in her right foot. The symptoms relating to her reaction to the vaccine were clearly unrelated. 50. I find that there was no persuasive evidence that the nature of the applicant's cleaning duties with the respondent caused any significant aggravation, acceleration, exacerbation or deterioration of the applicant's right midfoot osteoarthritic disease condition or plantar fasciitis. 51. I prefer the opinion of Dr Wilcox for the reasons already stated and find that the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the applicant's right midfoot osteoarthritic disease condition is the effect of the applicant's

long-term obesity on the advancing progression and increasing symptomatology of her underlying disease. 52. Therefore, it follows that any aggravation, acceleration, exacerbation or deterioration of the applicant's right midfoot osteoarthritic disease condition caused by the applicant's employment with the respondent was not the main contributing factor. 53. Having found that the applicant has failed to establish injury within the meaning of s 4(b)(ii) of the 1987 Act, it follows that it is unnecessary for me to consider the issue of whether the surgery proposed by Dr Chang is reasonably necessary treatment within the meaning of s 60 of the 1987 Act.

1. The applicant has failed to discharge her onus and there will be an award for the respondent.
2. My determination and orders are set out in the Certificate of Determination attached to this Statement of Reasons.

[74] AB v AW [2020] NSWWCCPD 9.

[75] Mason v Demasi [2009] NSWCA 227.

[76] AB v AW [2020] NSWWCCPD 9.

[77] Mannie v Bower Pty Ltd [2016] NSWWCCPD 47.

[78] Commissioner for Railways v Bain [1968] HCA 5; 112 CLR 246.

[79] Commissioner for Railways v Bain [1968] HCA 5; 112 CLR 246 at [272].

[80] Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626.

[81] Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626.

[82] Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 at [639].

[83] Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 at [638].

[84] Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 at [637].

[85] Cant v Catholic Schools Office [2000] NSWCC 37; (2000) 20 NSWCCR 88.

[86] Cant v Catholic Schools Office [2000] NSWCC 37; (2000) 20 NSWCCR 88 at [17].

[87] Cabramatta Motor Body Repairers (NSW) Pty Ltd v Raymond [2006] NSWWCCPD 132; (2006) 6 DDCR 79.

[88] Cabramatta Motor Body Repairers (NSW) Pty Ltd v Raymond [2006] NSWWCCPD 132; (2006) 6 DDCR 79 at [45-47].

[89] Kelly v Western Institute NSW TAFE Commission [2010] NSWWCCPD 71.

[90] Kelly v Western Institute NSW TAFE Commission [2010] NSWWCCPD 71 at [66].

[91] Ariton Mitic v Rail Corporation of NSW (Matter No 008497/2013: 8 April 2014).

[92] Meaney v Office of Environment and Heritage - National Parks and Wildlife Service [2014] NSWWCC 339 at [138]-[147] and Wayne Robinson v Pybar Mining Services Pty Ltd [2014] NSWWCC 248 at [78]-[88].

[93] State Transit Authority v El-Achi [2015] NSWWCCPD 71 (El-Achi).

[94] State Transit Authority v El-Achi [2015] NSWWCCPD 71 at [72].

[95] AB v AW [2020] NSWWCCPD 9.

[96] AB v AW [2020] NSWWCCPD 9 at [78].

[97] Mannie v Bower Pty Ltd [2016] NSWWCCPD 47 at [87].

[98] Nguyen v Cosmopolitan Homes (NSW) Pty Limited [2008] NSWCA 246.

[99] Watson v Foxman [1995] NSWCA 497; (1995) 49 NSWLR 315.

[100] Onassis v Vergottis (1968) 2 Lloyds Report 403.

[101] Davis v Council of the City of Wagga Wagga [2004] NSWCA 34.

[102] King v Collins [2007] NSWCA 122.

[103] Mastronardi v State of New South Wales [2009] NSWCA 270.

[104] Mason v Demasi [2009] NSWCA 227.

[105] Winter v NSW Police Force [2010] NSWCCPD 12.

[106] Winter v NSW Police Force [2010] NSWCCPD at [183].

[107] Owen v Motor Accidents Authority of NSW [2012] NSWSC 650 at [52].

[108] Bugat v Fox [2014] NSWSC 888 at [31], [32] and [34].

[110] Hancock v East Coast Timbers Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43.

[111] Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58.

[112] Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705.

[113] South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421.