IN THE MAGISTRATES COURT OF VICTORIA

AT melbourne

WORKCOVER DIVISION

Case No.B13368319

BRETT STRAY / Plaintiff
v
METRO PRINTING VICTORIA PTY LTD / Defendant

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MAGISTRATE: / S GARNETT
WHERE HELD: / MELBOURNE
DATE OF HEARING: / 3, 4 & 5 OCTOBER 2012
DATE OF DECISION: / 17 OCTOBER 2012
CASE MAY BE CITED AS: / STRAY v METRO PRINTING

REASONS FOR DECISION

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Catchwords: S 109 Rejection – initial injury to right ankle accepted – further injury sustained to right ankle on way to work – claim rejected – relationship between first injury and second injury – capacity for pre-injury employment – reasonableness of surgery as recommended by treating Orthopaedic Surgeon.

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APPEARANCES: / Counsel / Solicitors
For the Plaintiff / Mr Valiotis / Slater & Gordon
For the Defendant / Mr Chamings / Minter Ellison
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HIS HONOUR:

1  Mr Stray is 25 years of age and was employed by the defendant as a Printer from 2007 until 13 May 2011. He sustained injuries to his right ankle which arose out of or in the course of his employment on 29 March 2010 when he “rolled his ankle” when he was lowering himself from one pallet to another. He lodged a workcover claim for which liability was accepted by Allianz and was incapacitated for work for a period of 5 weeks and then returned to work initially on reduced hours and duties until he returned to full duties on 19 May 2010.

2  On 13 May 2011, Mr Stray sustained further injury to his ankle at 7.45 a.m. on his way to work when he tripped in a hole on a nature strip outside his house. He lodged a further claim for compensation which was rejected by Allianz pursuant to S 109 on the grounds that the injury did not arise out of or in the course of his employment. Mr Stray has remained off work since that date and claims weekly payments of compensation and reasonable medical treatment expenses. As a result of medical evidence given during the hearing, the defendant, quite properly, abandoned its position that there was no relationship between the first and second injuries. The issues left to be determined were whether Mr Stray had a capacity/incapacity for pre-injury duties from 13 May 2011 and the reasonableness of the need for surgical treatment as recommended by his treating Orthopaedic Surgeon, Mr Beischer.

3  Mr Stray gave evidence that his job as a printer involved him in operating a printing machine, binding, stapling, folding and performing delivery work. He told the court that when operating the machine he was required to stand for long periods of time and it also involved lifting of paper and cardboard onto the machine and on occasions he was required to use a trolley jack to bring pallets of paper/cardboard to the printing machine. He said that after he sustained the first injury to his ankle he received physiotherapy treatment and took painkilling medication and continued to see his doctor and physiotherapist intermittently over the next 12 months. He gave evidence that despite returning to full time normal duties, he continued to experience aching and soreness in his ankle and that it was not stable. He said that he also took panamax medication (a codeine based paracetamol) when required.

4  Mr Stray gave evidence that he tendered his resignation on 11 May 2011 to be effective from 27 May because he wanted to explore other employment opportunities. He told the court that on 13 May he left his premises on his way to work and tripped in a ditch on the front nature strip, fell to his knees and twisted his right ankle. He told the court that he consulted Dr O’Gorman, General Practitioner, who referred him to Mr Beischer, Orthopaedic Surgeon, who recommended he undergo operative treatment. He said that as liability for his claim has been denied he has not had surgery and has received treatment in the form of 4-5 physiotherapy treatments and he takes 12-14 panamax tablets per week on a needs basis because of the “shooting pains” in his ankle.

5  In cross examination, Mr Stray told the court that he is in receipt of a New Start allowance and that he has not looked for work since 13 May 2011, because he is waiting for surgery to occur. He conceded that if suitable work was available, he could perform it. He agreed that the floor/surface of the printing machine is flat but told the court there are 2 steps at either end and on the opposite side of it that you need to use to get onto the platform of the machine. He also agreed that his main role when operating the printing machine was to check the quality of the printing which is a standing job but said that he is also required to lift bundles/boxes of paper and cardboard onto the machine which weighed approximately 11kg. Mr Stray gave evidence that his symptoms are the same now as when he ceased work and conceded that he could return to work as a printer. He told the court that he is not working because his ankle is not stable and that he tried a lace up brace to stabilise it but it was too uncomfortable to wear. In re-examination, he gave evidence that he has never been pain free since the initial injury and has not received ongoing treatment because he has been told there is nothing further the doctors or physiotherapist can do for him until he has the operation as recommended by Mr Beischer.

6  Mr Patterson, Managing Director of the defendant gave evidence. He confirmed the evidence given by Mr Stray that he was able to return to full time normal duties following the first injury after a limited period off work. He also confirmed that Mr Stray tendered his resignation on 11 May 2011 because he wanted to find work in other areas. He told the court that Mr Stray’s job involved him working on the printing machine, performing quality control duties, changing the plates and paper on the machine and using a trolley jack to take paper/cardboard to the machine. He also told the court that apart from having to negotiate steps leading to the platform of the machine he would have to, on rare occasions, use the stairs leading to the administration area, if he needed to speak to someone in that area, for example, concerning his pay. In cross examination, he agreed that Mr Stray’s job involved standing all day and estimated that the weights of boxes of paper that he would be required to lift were between 8 and 12 kg.

7  Mr O’Flaherty, General Manager of the defendant gave evidence that Mr Stray would be required to use a trolley jack to take paper or cardboard to the printing machine. He said that the weight of the paper/cardboard he was required to lift would depend on the type and amount lifted but estimated it would vary between 5 and 6 kg. He also agreed with the evidence of Mr Patterson that on rare occasions, Mr Stray may be required to use the stairs to access the administration area. In cross examination, he agreed that in his job as a printer Mr Stray was required to be on his feet whilst operating the machine and he was required to walk up and down the machine to check the quality of the printing which would necessarily involve ascending and descending the steps of the machine.

8  Dr O’Gorman, General Practitioner, gave evidence and his clinical notes and a medical report dated 14 December 2011 were tendered. He diagnosed that Mr Stray sustained a right ankle lateral ligamentous complex tear that has been managed with anti inflammatory therapy, pain relief medication, taping and physiotherapy and he is awaiting surgery. He noted that without surgery, Mr Stray is prone to his ankle giving way and that he is unfit for any work but expects he will be able to return to full duties following stabilisation after surgery. In cross examination, he agreed that Mr Stray could work in his pre injury job if he was working on a flat surface with the aid of a lace up ankle support brace but did not believe he could do it for a prolonged period. He also agreed that Mr Stray would be fit for seated duties or duties not involving prolonged standing. He disagreed that the most appropriate form of treatment is a structured physiotherapy program as suggested by Mr Dooley, Orthopaedic Surgeon, who examined Mr Stray for the defendant on 7 May 2012.

9  Mr Beischer, Orthopaedic Surgeon, specialising in ankle surgery, gave evidence and his report together with x ray, ultra sound and MRI scans were tendered. In his medical report, Mr Beischer noted that he first saw Mr Stray on 26 May 2011. On clinical examination he noted significant laxity of the anterior talofibular ligament complex of his right ankle. He also noted that an ultra sound report which was suggestive of an anterior talofibular ligament injury. Mr Beischer reported that he referred Mr Stray for an MRI scan which demonstrated a significant injury to the ligament complex with no obvious talar osteochondral injury. He advised Mr Stray to undergo an ankle arthroscopy and lateral ligament stabilisation. He also reported that Mr Stray was likely to have ongoing symptoms of instability without a reconstruction procedure. He considered that the incident on 29 March 2010 to be a significant contributing factor to the injury that occurred on 13 May 2011. Although unaware of the exact duties as a printer, Mr Beischer opined that Mr Stray would be able to walk on flat surfaces, particularly with a lace-up ankle support brace and would be capable of performing a seated job but would find walking on uneven surfaces or the use of ladders or stairs difficult.

10  During evidence, Mr Beischer told the court that he performs between 10-20 ankle operations each week. He said the purpose of the proposed surgery is to restore stability to Mr Stray’s ankle. He told the court that he does not believe a structured physiotherapy program is likely to benefit him at this stage. He estimated that following successful surgery, Mr Stray would be fit for full time normal duties between 4-6 months but if there was significant swelling on the ankle it may take between 6-12 months. In cross examination, he gave evidence that he had read the report prepared by Mr Dooley and noted his opinion that a structured physiotherapy program is the preferred option for Mr Stray. He told the court that in his opinion that is appropriate after an initial injury but in this case, considering Mr Stray has a structural malalignment problem, that being; his right heel is slightly turned inwards, and he has ongoing pain, in addition to sustaining a second injury, that surgery is more appropriate. Mr Beischer told the court that in his opinion, Mr Stray could have returned to work following the second injury if his symptoms had resolved. He agreed that Mr Stray has not received intensive treatment following the second injury but noted that he was in “limbo land” in that his treating surgeon recommended surgery when he last saw him on 10 June 2011, and his mindset has been to wait for that surgery before returning to work. When questioned about the alleged severity of symptoms given Mr Stray’s failure to apply to be placed on the public waiting list so the surgery could be performed, Mr Beischer noted that if he was placed on the public waiting list he would have to wait 2 years to see a surgeon and 5 years for an operation to be performed.

11  Mr M Dooley, Orthopaedic Surgeon, gave evidence on behalf of the defendant and a medical report prepared by him and based on his examination of Mr Stray on 7 May 2012 was tendered. He reported that Mr Stray complained to him that he currently has ongoing aching pain in his right ankle with prolonged standing and walking. Mr Stray told him that he uses an ankle brace intermittently and at times he feels that his ankle may give way. Mr Dooley reported that the level of pain complained of was more than he would have expected. Mr Dooley noted that x rays indicated a small avulsion piece of bone from the talus consistent with an injury to the lateral ligament complex and an MRI scan dated 27 May 2011 was reported to show an acute injury of the anterior talofibular ligament, without any evidence of chondral damage. Mr Dooley is of the opinion that Mr Stray would benefit from a structured physiotherapy program to improve the proprioceptive function of the lateral ligament complex. He also considered it reasonable to consider an operation to repair or reconstruct the lateral ligament complex. He is also of the opinion that Mr Stray has the capacity to work as a printer and in a wide range of employment duties. In evidence, Mr Dooley maintained his opinion that conservative management should be persisted with and agreed with Mr Beischer’s opinion that Mr Stray is fit to work on a flat surface with the aid of a lace-up ankle support but would not be fit to work on uneven surfaces or where climbing of stairs or ladders is required. He estimated a recovery period following surgery to be 3 months with the avoidance of “tackling” activities for a period of 12 months.

12  In cross examination, Mr Dooley agreed that the suggested surgery as proposed by Mr Beischer was a valid and acceptable plan of treatment and that surgery would enhance the stability of his ankle. He also agreed that being required to go up and down steps would involve risk of injury to Mr Stray and that is why he would require an ankle brace for support. Mr Dooley gave evidence that if surgery had been performed 15 months ago, without any complications, Mr Stray would have been fit to return to work by now and if he has it now, he would be fit for unrestricted employment within 6 months.

Conclusion

13  The medical evidence presented to the court supports the relationship between the first injury sustained on 29 March 2010 and the second injury sustained on 13 May 2011. Mr Beischer and Mr Dooley are of the opinion the first injury resulted in Mr Stray being more susceptible to the occurrence of the second injury. On this basis, the defendant accepted that there is a causal nexus between the two incidents. I accept the evidence of Mr Stray that he experienced similar symptoms after the second injury as he did after the first injury. However, after the second injury he was not able to return to work as a printer because; he had no job to return to as he had resigned and he was advised that he required surgery to make his ankle stable. The evidence revealed that he may have been able to return to his pre-injury employment with use of an appropriate brace to stabilise his ankle, Unfortunately, the brace he obtained was too uncomfortable for him to use for prolonged periods. Without an appropriate brace, his ankle remained unstable and he was prone to suffering further injury if he performed work involving prolonged standing and ascending/descending steps or stairs.