IN THE COUNTY COURT OF VICTORIA
AT Melbourne
COMMON LAW DIVISION	Revised
Not Restricted
Suitable for Publication	
Serious Injury List

Case No. CI-22-03628

CATHY O’CONNOR	Plaintiff	
		
v		
		
TAHA MANAGEMENT PTY LTD	Defendant	

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JUDGE:	HER HONOUR JUDGE MAGEE	
WHERE HELD:	Melbourne	
DATE OF HEARING:	30 May 2023	
DATE OF JUDGMENT:	4 August 2023	
CASE MAY BE CITED AS:	O’Connor v Taha Management Pty Ltd	
MEDIUM NEUTRAL CITATION:	[2023] VCC 1276		

REASONS FOR JUDGMENT
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Subject:	ACCIDENT COMPENSATION
Catchwords:	Serious Injury application – left lower limb injury – right hip injury – pain and suffering consequences
Legislation Cited:	Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:	Peak Engineering v McKenzie [2014] VSCA 67; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Petkovski v Galletti [1994] 1 VR 436
Judgment:	Application granted. 

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Ms M Pilipasidis SC with
Ms K Karadimas	Slater & Gordon	
			
For the Defendant	Ms G-J Cooper	Wisewould Mahony	

HER HONOUR
Introduction
1	This is a serious injury application made by Ms O’Connor in respect of an injury sustained by her in an incident on 6 September 2019 (“the incident”) whilst working for the defendant, Taha Management Pty Ltd.
2	At the hearing of this matter, Ms Pilipasidis SC and Ms Karadimas appeared on behalf of Ms O’Connor, and Ms Cooper appeared on behalf of the defendant.
3	Ms O’Connor claims to have suffered a “serious injury” within the meaning of s325(1)(a) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) and seeks leave of the Court to commence a common law proceeding for pain and suffering damages.
4	The impairments claimed are to the following body functions:
(a)	the left lower limb; and/or
(b)	an aggravation of a pre‑existing bursitis condition of the right hip.
5	Ms O’Connor put her case in relation to the right hip in two ways:
(a)	there was an aggravation injury sustained in the incident; or
(b)	there was an aggravation injury which was a consequence of the injury to the left lower limb, and the impairment consequences of that aggravation injury should be included in the assessment of the consequences of the left lower limb injury.
6	The legal principles were not in dispute in this case.
7	In order to succeed, the Court must be satisfied that the pain and suffering consequences of the impairment of Ms O’Connor’s left lower limb and/or right hip are “at least very considerable”, having regard to the consequences to Ms O’Connor.
What are the issues in dispute?
8	At the commencement of the hearing, Ms Cooper informed the Court that the defendant identified three issues:
(1)	disentanglement of the consequences of any compensable injuries and non-compensable injuries (in the Peak Engineering sense);
(2)	disentanglement to determine the physical consequences of any work-related injuries as opposed to any psychological consequences (in the Meadows v Lichmore sense); and
(3)	whether Ms O’Connor’s pain and suffering consequences fall within the “range”.
Background
9	Ms O’Connor is now aged fifty-three.  She is a divorced woman who has three adult sons.  Two of her sons live with her, and one lives close by.
10	In terms of educational background, Ms O’Connor completed Year 10.
11	After leaving school, she worked in various jobs including supermarket checkout, and office administration work.
12	She worked part time when her children were young and at one stage, ran her own business.
13	There was a period of unspecified marital disharmony which resulted in Ms O’Connor working as a cleaner/housekeeper on the Mornington Peninsula.  It is not clear on the evidence when this occurred.
14	At an unspecified time, Ms O’Connor returned to Melbourne and worked at a dog boarding kennel where, she alleges, she was sexually harassed.  She left that job in about November 2018.
15	It is not clear on the evidence whether or where Ms O’Connor worked between November 2018 and May 2019.
16	Ms O’Connor commenced employment with the defendant in May 2019 as a personal assistant.
17	It was not disputed that in the incident, Ms O’Connor slipped on a mat located at the bottom of some stairs at her workplace.  She rolled her left foot, sustaining an injury to her left ankle.
18	On the day of the incident, Ms O’Connor drove herself home.  Later that day, one of her sons drove her to the Austin Hospital where she had an x-ray and was discharged home.
19	Ms O’Connor returned to the Austin Hospital the next day and underwent further imaging.  She was put into a CAM boot and discharged home.
20	Ms O’Connor then attended her General Practitioner (“GP”) on 9 September 2019 and was, in due course, referred to Mr Tay, orthopaedic surgeon, and later, to Mr Roshan, orthopaedic surgeon, for a second opinion.
21	Ms O’Connor had an ultrasound-guided cortisone injection into the left ankle on 18 November 2019.
22	Ms O’Connor attended physiotherapy between September 2020 and April 2021.
23	Ms O’Connor had ultrasound-guided cortisone injections into the right hip on 21 July 2020, 12 April 2021 and 10 May 2023.
24	In mid-2021, Ms O’Connor commenced a multi-disciplinary pain management program but ceased after eight weeks due to a psychiatric reaction to treatment.
25	Her current medication regime consists of Norgesic – a full dose of two tablets at night, five to six times a week, and a half dose of one tablet during the day, three times a week.
26	Ms O’Connor also takes magnesium, uses an ankle brace intermittently and wears supportive shoes.
27	As at the date of hearing, Ms O’Connor was not undergoing any active therapy for her ankle and was having conservative treatment for her right hip.
The hearing
28	The hearing proceeded in the ‘usual way’, in that Ms O’Connor tendered affidavit material, medical reports and radiology reports.
29	Ms O’Connor relied on four affidavits.  Two affidavits were affirmed by her on 28 April 2022 and 17 May 2023.
30	Ms O’Connor also tendered affidavits from two of her sons: Jason, affirmed 18 May 2023, and Brockie, affirmed 19 May 2023.
31	The defendant tendered medical reports, one radiology report and extracts from the Lakes Boulevard Medical Centre clinical notes.
32	Ms O’Connor was the only witness to give viva voce evidence and be cross-examined.
33	I have considered all the tendered evidence, Ms O’Connor’s viva voce evidence, and the oral and written submissions of Counsel but I shall only refer to the materials to the extent necessary in these reasons.
34	It was conceded by Senior Counsel for Ms O’Connor that if the Court accepted there was no organic basis for the left ankle injury, then the claim failed for the left ankle injury alone.  This was an appropriate concession in this case as Ms O’Connor’s case was that her left ankle pain symptoms were organically based.
35	Having considered all the evidence, I find that Ms O’Connor has not established that there is a continuing substantial organic basis for the pain in her left ankle and the evidence does not permit disentangling.
36	In relation to the right hip, I make the following findings:
•	Ms O’Connor’s right hip was not injured in the incident;
•	Ms O’Connor’s right hip was aggravated as a consequence of wearing a CAM boot which was part of the initial treatment for the left ankle injury; and
•	The claimed impairment consequences of the hip aggravation do meet the test of “more than significant or marked” and as being “at least very considerable”.
37	The application in relation to the left lower limb, taking into account the impairment consequences of the consequential right hip aggravation, succeeds.
Ms O’Connor as a witness
38	Credit and reliability were not in issue in this case.
39	I found Ms O’Connor to be a refreshingly honest witness who was prepared to make appropriate admissions against her own interests.
40	Accordingly, I accept with some confidence what Ms O’Connor says to doctors and to the Court about her ongoing consequences and restrictions.
41	Ms O’Connor is not workshy.  She has undertaken a number of jobs and further study since the incident.
42	She is currently working 50 hours per fortnight as a disability support worker whilst studying for a Certificate IV in disability work.  She works with two clients who have brain injuries, providing them with support and companionship.  She takes them to medical appointments and on outings.  There is little physical work involved.  She finds this work rewarding.
Pain and suffering consequences relating to the left ankle
43	In her first affidavit sworn on 28 April 2022, Ms O’Connor deposed to the following impairment consequences relating to her left ankle:
“61.	My left ankle hurts at rest but gets much worse when I walk.  The temperature affects the pain in my left ankle.  Rain and humidity are the worst.
62.	I don’t have much movement in the ankle.
63.	My ankle is still very wobbly, and I find it difficult to walk on uneven ground or grass.  I have had falls, which causes me pain elsewhere, and affects my confidence.  One time, I fell at home after rolling my ankle and fell into some ornaments.  Even up and down driveways or small slopes can be difficult.
64.	Even doing things like crossing a road I’m less confident.  I know that I couldn’t run out of the way if a car came.  Things are more stressful with the loss of mobility.
65.	It often swells up.   Now produced and shown to me and marked with the letters ‘COC1’ are a bundle of photographs of my swollen ankle taken in the last six months.
66.	When the ankle is particularly bad, I will just sit or lay down.
67.	I used to love dancing around the house and that was my stress relief. I am not able to do that anymore without pain.
68.	I am a real car person.  I have driven a manual car my whole life.  Just before I had this injury, my middle son and I did drifting lessons where we would go into a full skid.  I still have the manual car which I love but I find it quite painful to use.  I really don’t want to give up and go auto but it is becoming very difficult for me.
69.	Walking causes pain.  With the housework it happens very slowly or it doesn’t happen at all.  I find that the angle I need to get my foot on to do the floors with the vacuum cleaner seems to cause me a lot of pain.  I bought a robot vacuum cleaner which seems to help, and the boys help as well.
70.	I wasn’t able to do the garden.  For a while I was approved for some gardening assistance.
71.	The ankle pain causes me difficulty at night.  I sleep on my stomach, and I have to wiggle down the bed so my ankle is off it.  Otherwise it is painful and I can’t get comfortable.”
44	In her second affidavit, sworn 17 May 2023, she said:
“19.	However, my physical condition has not improved.  The condition plateaued for a long time, and if anything, I think it has gotten worse since I have returned to work.
20.	I continue to experience the pain and consequences in my left ankle, hip and back as set out in paragraphs 61 to 72 of my first affidavit.
21.	I have limited movement in my ankle.  I have ongoing pain.  It is always there but gets worse when I am on my feet for long periods of time, for example after a day at work if I am up and about.  The pain can be very severe and distracting at times.  It affects my sleep every night.  I wake up at night with pain in both my hip and my left ankle.
22.	I have pain in my back and down my right buttock and leg.  I get flare ups of pain in my lower back.  I believe this is due to the uneven way that I walk.
23.	I wear supportive shoes, but I don’t wear the ankle brace all the time.  I have some days when I wear it and some days I don’t.  It is a hassle getting it on and off.  Mostly, it gives me a sense of confidence for the sense of instability I still have.  I haven’t fallen properly for a while, but I do stumble, and my confidence is affected.  I am terrified I will break it again.
24.	When the pain in my ankle is bad, I start to limp which makes the hip and back pain worse.  I find that my shoes wear unevenly.
25.	I continue to drive a manual car which causes me pain using my left ankle.  I am currently saving money to buy an automatic car to make this easier.
26.	I rely on my sons for housework.  They are now 20 and 22.  The 28 year old lives around the corner.  I am concerned about what I will do when they move out.”
Pain and suffering consequences relating to the right hip
45	In her first affidavit, sworn on 28 April 2022, Ms O’Connor deposed to the following relating to her right hip:
“40.	On 12 March 2021 I saw orthopaedic surgeon Mr Grant Pang for my right hip.  I explained how I previously had hip issues which had resolved with the cortisone injection, but that had flared up and not got better since wearing the moon boot and the changes to how I walked after the left ankle injury.  Mr Pang said that the ongoing pain was probably due to an overuse injury.  He recommended physiotherapy and another injection.
...
72.	Because of walking in the CAM boot I started getting pain in my hip.  I’d had the pain before, but I hadn’t experienced it for years.  Now it aches all of the time.  It feels like the volume can tum up or down.  Unlike the ankle, it is unclear to me what aggravates the hip.  It just seems to get worse sometimes.  The hip hurts when I’m bending, walking or sitting for long periods of time.  It makes personal care difficult like putting shoes and socks on, getting on and off the toilet, putting on pants and shaving legs in the shower.” 
(Emphasis added)
46	In her second affidavit, sworn 17 May 2023, the ongoing right hip consequences were described as follows:
“24.	When the pain in my ankle is bad, I start to limp which makes the hip and back pain worse. ... .”
Lay evidence
47	Two of Ms O’Connor’s sons corroborated that she relies on them to help around the home, and recorded their observations of their mother’s restrictions particularly when walking.
48	Their evidence is uncontested, and I accept it.
Medical material
Radiology of left ankle
49	Ms O’Connor has had numerous x-rays, CT scans and MRI scans of her left ankle and left foot which initially raised a suspicion of a small avulsion fracture fragment and an avulsion fracture of the cuboid.
50	Later investigations revealed some abnormal bone marrow oedema and some soft-tissue swelling with no other signs of substantial joint derangement, bone injury or ligament injury and two tiny ganglion cysts in the midfoot.  The radiologist considered the findings were of uncertain clinical significance.
Radiology of right hip
51	Ms O’Connor has also had ultrasounds, x-rays and MRI scans of her right hip which showed a small intrasubstance tear of the gluteus minimus muscle tendon and some trochanteric bursal thickening consistent with trochanteric bursitis.
Plaintiff’s treating doctors’ reports
Dr Jaya Shanmugam, GP
52	Ms O’Connor tendered two reports from Dr Shanmugam.
53	In his initial report dated 20 February 2021, Dr Shanmugam confirmed that Ms O’Connor complained of pain over the lateral malleolus of her foot and intermittent swelling of the left ankle.  He recorded a pain score of “3-4/10 most times, and when severe 5-6/10”.  Pain woke Ms O’Connor at night, especially when rolling over to the other side.  The prognosis was “Uncertain at the moment.”
54	In relation to the right hip, he noted the following:
“	Was on (sic) moonboot for a few weeks
	Subsequently developed pain over the right hip
	Claims pain only started after coming out of the moon boot
	initial ultrasound only revealed right trochanteric bursitis
	had ultrasound guided cortisone injection which only gave her temporary relief for 1 week
	had similar symptoms more than 3 years ago, but relieved after cortisone injection
	been asymptomatic over the right hip until her work injury and coming out of her moon boot
	noted recent hip MRI revealed Right Trochanteric bursitis and Right gluteus minimus muscle tendon intrasubstance tear
...
	hip pain worsening now
...
	only able to drive and or be a passenger in car for a maximum of 30 minutes before aggravation of hip and ankle pain”.
55	In his subsequent report, dated 25 May 2023, Dr Shanmugam noted that Ms O’Connor continued to suffer from chronic left ankle and midfoot pain.
56	He stated that surgery was unlikely, but he stated that there had been referrals to an ankle and foot surgeon, a hip surgeon and a neurosurgeon.  However, no actual referrals have been made at all.
57	Dr Shanmugam considered that Ms O’Connor’s prognosis remained uncertain.  He did not provide any details of clinical examinations.
Mr Wei-Han Tay, orthopaedic surgeon
58	Ms O’Connor tendered letters from Mr Wei-Han Tay addressed to the GP dated 21 October 2019, 12 November 2019, 7 January 2020, 4 August 2020, and two letters dated 18 August 2020.
59	Ms O’Connor presented in October 2019 with an antalgic gait, mild swelling over her lateral hindfoot with diffuse tenderness, as well as stiffness and irritability but otherwise normal alignment of the left ankle.  Ms O’Connor reported her ankle and foot had improved but that it was still quite painful over her dorsolateral hindfoot and lateral ankle, with the pain being aggravated when weight bearing out of the CAM boot.
60	Mr Tay recommended further imaging and suggested that Ms O’Connor only use the CAM boot when walking and that she begin stretching to reduce stiffness of the ankle.
61	In his next letter, dated 12 November 2019, Mr Tay noted the weightbearing radiology on 7 November 2019 revealed the presence of oedema but did not reveal any functional diastasis.  Mr Tay recommended Ms O’Connor use the CAM boot less over the next two to four weeks as he was concerned that it would start to cause other problems with deconditioning and would affect her gait which could lead to compensatory knee/hip/lower back pain.  He referred her for a cortisone injection to assist with any persisting inflammation.
62	In a letter dated 7 January 2020 Mr Tay confirmed that Ms O’Connor had a cortisone injection which did not help.  She had stopped wearing the CAM boot one and a half months earlier.  On examination, her active range of motion in the ankle was stiff but not irritable.  No swelling was recorded.  She was still reporting pain.  Mr Tan considered that she had clinically improved.  He recommended ongoing physiotherapy and the use of an ankle brace for support.
63	Mr Tay’s letter dated 4 August 2020 related to an appointment which proceeded via Telehealth due to COVID-19 restrictions.  Mr Tay confirmed Ms O’Connor reported that she continued to experience pain over her anterior and lateral ankle associated with swelling.  He noted it was “unusual that Cathy should still have significant pain nearly 1 year since her injury”.  Mr Tay referred Ms O’Connor for a further MRI scan.
64	In his next letter, dated 18 August 2020, Mr Tay confirmed that he had reviewed Ms O’Connor again via Telehealth.  He considered that the imaging of 12 August 2020 revealed a mild joint effusion and two tiny ganglion cysts but no other appreciable structural abnormality to account for her ongoing pain.
65	Mr Tay said he was “unsure of the cause of her persistent pain.  Differential diagnoses include chronic synovitis and or occult lateral ligament instability.”
66	He did not recommend surgery.
67	Mr Tay referred Ms O’Connor to Mr Roshan for a further opinion.
68	Mr Tay did not record any complaints of right hip pain.
Mr Sasha Roshan, orthopaedic surgeon
69	Ms O’Connor attended Mr Sasha Roshan on referral from Dr Tay.  He examined her on 24 September 2020 and prepared a report dated 24 September 2020.
70	Mr Roshan’s findings on clinical examination included:
•	antalgic gait
•	reduced stance phase and push-off on the left side
•	a mild degree of persistent swelling over the lateral and anterolateral aspects of the left ankle
•	an early heel lift on the left side secondary to reduced dorsiflexion range at the left ankle
•	an inability to perform a single leg active calf raise on the left side
•	poor proprioception and inability to single leg balance on the left side
•	a dramatic reduction in ankle range of motion on the left side
•	reduced plantar flexion range
•	diffuse weakness of the tibialis posterior, peroneal and Achilles tendons
•	persistent exquisite focal tenderness over the ATFL component of the lateral ligament complex; and
•	a positive drawer test on the left side (albeit this was symmetrical at the contralateral ankle).
71	Despite those findings, Mr Roshan noted that imaging of the left ankle and foot failed to reveal any “major structural pathology at the left ankle” (sic).
72	Mr Roshan said Ms O’Connor:
“… may be experiencing a mild degree of residual functional lateral instability at the left ankle following her initial inversion injury.  However, I feel that the major functional deficit for Cathy at the moment is related to stiffness (with loss of both plantar flexion and dorsiflexion range), very poor proprioception and diffuse global weakness on the left side.”
73	He did not recommend surgery.
74	Mr Roshan did not record any complaint of hip pain.
Mr Rajmohan Subash, treating physiotherapist
75	Ms O’Connor tendered a questionnaire completed by Mr Subash, dated 14 December 2020.
76	From the physiotherapist’s perspective, there was no apparent reason why the plaintiff could not return to work.
Mr Grant Pang, orthopaedic surgeon
77	Ms O’Connor attended Mr Pang in March 2021 in relation to her hip.
78	No report was produced from Mr Pang and no explanation was provided regarding the absence of material from Mr Pang.
Plaintiff’s medico-legal reports
Mr Thomas Kossmann, orthopaedic surgeon
79	Ms O’Connor tendered a report from Mr Thomas Kossmann, orthopaedic surgeon, dated 1 February 2023 after he had examined her on the same day.
80	Clinical examination of the left ankle revealed restricted movement in the plaintiff’s left ankle and left subtalar joint.  Mr Kossmann did not observe any swelling of the left ankle.  He concluded Ms O’Connor had a poor prognosis with regard to the left ankle.  He considered she would require ongoing pain medication and anti-inflammatories and would benefit from physiotherapy and hydrotherapy.
81	Mr Kossmann was told by Ms O’Connor that after a previous fall, she had problems with the right hip and had been diagnosed with bursitis and had received a cortisone injection.  She said her right hip condition had resolved.
82	Clinical examination of the right hip revealed pain over the right iliosacral joint, positive FADIR (flexion, adduction, and internal rotation) signs and positive FABER (flexion, abduction, and external rotation) signs.
83	Mr Kossmann relevantly diagnosed:
•	traumatic injuries to the left ankle/foot with a small avulsion fracture at the anterior calcaneus and an avulsion fracture of the cuboid involving the dorsal-lateral cortical surface; and
•	aggravation of pre-existing trochanteric bursitis and/or insertional tendinitis of the gluteus medius tendon on the right side.
84	In respect of the left ankle, he said that Ms O’Connor was at risk of developing advancing osteoarthritis in her left ankle and subtalar joint and possibly in some of the joints of her feet.  She would need to use pain medication and anti-inflammatories.  Mr Kossmann said that in the long term, she may become a candidate for a platelet-rich plasma injection and a further corticosteroid injection.  If severe osteoarthritis were to develop in her ankle and subtalar joint, she may require surgical intervention, specifically a fusion or arthroplasty.
85	In relation to the hip, he recommended further investigation with an ultrasound examination of the trochanteric area.  Mr Kossmann’s view was that if the ultrasound was positive for inflammatory signs, Ms O’Connor should consider platelet-rich plasma injections.
86	Despite making the recommendation for a further ultrasound, Mr Kossmann was not asked to comment on the subsequent ultrasound of the right hip undertaken on 13 April 2023 which was reported to note features of trochanteric bursitis without inflammation.
Dr Joseph Slesenger, specialist occupational physician
87	Ms O’Connor tendered two reports of Dr Joseph Slesenger, dated 24 September 2020 and 10 July 2021.
88	Ms O’Connor attended Dr Slesenger via Telehealth on both occasions.  Dr Slesenger did not conduct a clinical examination on either occasion.
89	In his report dated 24 September 2020, Ms O’Connor reported residual pain and stiffness in the left ankle, aggravated by activity, cold weather and walking on uneven ground.  She said her ankle was prone to swelling.  Ms O’Connor was limited to 20 minutes of walking, standing and driving.  She described right hip pain, which was constant and severe.  She was unable to lie on her right side and had difficulty weight bearing on the right side.
90	Dr Slesenger recommended four more sessions of physiotherapy before transitioning to a self-managed home exercise program and further review by an orthopaedic surgeon, given her slow recovery from the injury.
91	In his subsequent report, dated 10 July 2021, Dr Slesenger noted Ms O’Connor was about to commence a pain management program.  He considered this was appropriate.  Ms O’Connor once more described right hip pain which was constant and severe and said that the right hip pain also caused her difficulty climbing up and down stairs.
92	Dr Slesenger initially opined that the plaintiff had suffered an eversion injury to her left ankle with chronic left ankle pain and a soft-tissue injury to the right hip with possible bursitis.  He noted that he had not seen any imaging of the hip.
93	Without explaining why, in his second report, Dr Slesenger subsequently amended his opinion regarding the right hip to a soft-tissue injury with chronic hip pain.
94	Dr Slesenger opined that the right hip injury was related to the work incident due to altered gait.
95	When examined on the second occasion, Ms O’Connor told Dr Slesenger that she had sustained a further injury to her ankle at home two to three weeks prior to the examination, which caused bruising and swelling.  Dr Slesenger considered that Ms O’Connor suffered a further evulsion injury to her ankle on that occasion.  This appears to be the event referred to in Ms O’Connor’s first affidavit.
Defendant’s medico-legal reports
Mr John Skelley, orthopaedic surgeon
96	The defendant tendered a report of Mr John Skelley, dated 14 June 2022.
97	Mr Skelley accepted that Ms O’Connor had sustained an inversion injury consistent with a soft-tissue injury which resulted in small avulsion fragments of bone on the lateral side of her left ankle which he would have expected to heal slowly over six months.
98	Ms O’Connor told Mr Skelley that she had fallen on occasion and had low-back pain as a result of a fall approximately twelve months prior to the examination.
99	Ms O’Connor complained of persistent “6/10” pain on the outside of her left ankle, stiffness, and instability.  She reported issues walking on uneven ground, variation in her pain, depending on the weather, and disrupted sleep.
100	Mr Skelley observed Ms O’Connor walked with a mild antalgic gait, favouring her left side.  She was able to walk on her heels and could stand on her toes but could not walk on her toes.
101	Mr Skelley did not observe any swelling, deformity or instability of the left ankle but noted some tenderness at the front and lateral side on palpation and mild reduction of subtalar joint movement.
102	On examination of the lower back, there was widespread light touch tenderness and axial pressure which increased lower back symptoms.
103	Mr Skelley examined the plaintiff’s right hip and recorded his clinical findings as negative Trendelenburg sign, tenderness over the greater trochanter, and normal movement, but he did not provide an opinion on Ms O’Connor’s right hip.
104	Mr Skelley considered that the physical injuries to the left ankle had either completely or almost completely resolved.  He opined that the clinical findings on physical examination were not severe enough to account for her reported restrictions and pain.
105	It was his opinion that there was a significant psychological component contributing to her condition, such as a pain syndrome or similar condition.
106	Mr Skelley based his opinion on the following:
•	Ms O’Connor’s pre-existing anxiety and depression which she said had worsened since the work injury
•	The lack of regular analgesic medication
•	The findings on clinical examination of widespread light touch tenderness and axial pressure increasing low back symptoms
•	The absence of swelling, deformity or instability of the left ankle and foot on clinical examination; and
•	The radiology of the left ankle and foot which showed intact ligaments and tendons.
Mr Ash Chehata, orthopaedic upper limb surgeon
107	The defendant tendered a report of Mr Ash Chehata dated 29 March 2023.  He examined Ms O’Connor on the same day.
108	Mr Chehata noted mild diffuse loss of range of movement of the left ankle, although the hindfoot was mobile and there was no severe scarring or neurological compromise.  Ms O’Connor could slowly heel and toe raise.  No swelling was recorded.
109	Mr Chehata concluded that there was a lack of correlation between the severity of Ms O’Connor’s symptoms and the minor avulsions.  He could not identify an organic basis for Ms O’Connor’s ongoing symptoms and considered that there was likely development of non-organic factors.  He opined that there was a psychological reaction which was more than likely to be the driving force behind the abnormal ongoing chronic issues.
110	Mr Chehata opined that a rolled ankle injury would have settled down over a three-to-four-month period even with small avulsion fractures.
111	In relation to the right hip, he accepted that the plaintiff developed “some greater trochanteric bursitis” as a result of wearing the CAM boot.  He did not say anything further about the right hip.
Is there a substantial organic basis for the Plaintiff’s left ankle pain?
112	In Meadows v Lichmore Pty Ltd, Maxwell ACJ approved a two-step approach to disentangle physical and psychological pain and suffering consequences.
113	The first step is to ask if there is a substantial organic basis for the pain and suffering consequences relied upon.
114	If that question cannot be answered affirmatively, the next step is to disentangle the physical and psychological components of the pain and suffering consequences.
115	The defendant submitted that the answer to the first question was “no”.
116	This was because the radiology did not reveal any cause for the plaintiff’s ongoing complaints, and Mr Skelley and Mr Chehata concluded she presented with non-organic features.
117	Senior Counsel for Ms O’Connor submitted that the answer to the first question was “yes”.
118	Senior Counsel for Ms O’Connor submitted that no challenge was made to the genuineness of Ms O’Connor’s pain.  Consequently, the Court ought to accept the evidence of Mr Kossmann and Dr Slesenger that there was a substantial organic basis for the ankle pain.
119	Senior Counsel for Ms O’Connor submitted that Mr Skelley and Mr Chehata’s opinions should be rejected for the following reasons:
•	they were “outliers”
•	any opinion regarding Ms O’Connor’s psychiatric condition was outside their areas of expertise and they were not appropriately qualified to give an opinion on Ms O’Connor’s psychiatric state; and
•	their reports lacked a clear path of reasoning.
Findings on substantial organic basis for the Plaintiff’s left ankle pain
120	I am not persuaded by Mr Kossmann’s analysis.  He did not identify a substantial organic basis for Ms O’Connor’s ankle pain.  He has not provided any explanation as to why an inversion injury with two small bony fragments would continue to cause pain and restrictions for over three years.
121	Further, Mr Kossmann provided a cascading list of unquantified and unconvincing possibilities in relation to potential future treatment.  He is the only practitioner to suggest that surgery might be a future option.
122	In relation to Dr Slesenger, I place little weight on his opinion given that he did not clinically examine Ms O’Connor.  I note that he did not specifically say there was a substantial organic basis for the chronic left ankle pain.
123	In 2020, Mr Tay and Mr Roshan were struggling to account for Ms O’Connor’s ongoing symptoms. They were unable to provide an explanation for Ms O’Connor’s ongoing ankle pain when they examined her in 2020.
124	In August 2020, Mr Tay provided a differential diagnosis of chronic synovitis or ligament instability (conditions with an organic basis).
125	I do not accept the differential diagnoses for the following reasons:
•	they were proffered in circumstances where Mr Tay had no other explanation for Ms O’Connor’s presentation
•	they have not been adopted by any other medical practitioner; and
•	no ligamentous injury was revealed on radiology.
126	The reports of Mr Tay and Mr Roshan offer little assistance to the Court in determining the current position, given they are now out of date and neither Mr Tay nor Mr Roshan were able to provide an explanation for Ms O’Connor’s ongoing ankle pain when they examined her in 2020.
127	Dr Shanmugam does not assist in determining whether there is an ongoing organic basis for Ms O’Connor’s left ankle pain, as he made it clear in his reports that he would defer to orthopaedic opinions.
128	Turning to Mr Skelley and Mr Chehata – I accept the submission that as far as they purport to express psychiatric opinions, such opinions are outside their areas of expertise.  Therefore, I do not accept those opinions.
129	However, such a finding does not detract from the orthopaedic opinions expressed by Mr Skelley and Mr Chehata.
130	I find that Mr Skelley is an experienced orthopaedic surgeon and has a special interest in foot and ankle surgery as well as hip and knee surgery.
131	Mr Skelley reviewed the relevant radiological imaging, performed a clinical examination of the left ankle, recorded Ms O’Connor’s reports of pain and restriction, and reviewed the radiology.  He considered all of this and concluded there was a disconnect between Ms O’Connor’s reports of pain and restriction and the objective medical evidence of the structure and stability of her left ankle.  The reasoning in his report appears coherent and clear to the Court and I accept it.
132	Mr Chehata described himself as an “orthopaedic upper limb surgeon”.  His clinical findings were similar to Mr Skelley’s.  I accept that his path of reasoning is consistent with Mr Skelley’s, even though it was not expressed as clearly.
133	Having considered all of the evidence, I find that Ms O’Connor has not discharged her onus and has not established that there is a substantial organic basis for her left ankle symptoms.
134	As previously discussed, Senior Counsel for Ms O’Connor conceded that if the Court accepted there was no organic basis for the left ankle injury, then the claim failed in relation to the left ankle injury alone.
135	The concession takes into account that there was no evidence before the Court to enable any disentangling of the physical and psychological components of the pain and suffering impairment consequences.
What about the right hip?
136	In this case, the right hip is claimed to be an aggravation.
137	As was said in Petkovski v Galletti:
“The accident did not cause the pre-existing condition; at this stage of the process the applicant must establish what injury was caused by the accident; where there is a pre-existing condition, it necessarily follows that an analysis must be made of the extent of impairment of a body function before and after the relevant injury.”
138	Ms O’Connor must establish what injury was caused by the accident.  The extent of impairment of a body function before and after the relevant injury must be analysed.  The additional impairment caused by the incident and its consequences must be “serious”.
Submissions of the Defendant
139	The defendant accepted that there was an ongoing organic basis for Ms O’Connor’s right hip problems and accepted that there was sufficient medical evidence to connect the aggravation of the right hip with the original organic left ankle injury.
140	It was submitted by the defendant that any right hip consequences were minimal, such as problems with being a passenger in a car for long distances, putting clothes in the washing machine, bending, and sitting for prolonged periods and difficulty putting on shoes and socks.
141	It was submitted that those consequences were not sufficient to meet the statutory test.
Submissions of Ms O’Connor
142	Senior Counsel for Ms O’Connor submitted that the right hip was quiescent prior to the aggravation and therefore all her current hip consequences were referrable to the work-related aggravation.
143	I accept this submission, even in the absence of a report from the treating orthopaedic hip surgeon, Mr Pang.
144	There is no medical evidence to suggest that Ms O’Connor had experienced any right hip problems in the years prior to the work incident.
145	Ms O’Connor said in her first affidavit that she had experienced right hip problems years before the incident and that the condition resolved entirely after one cortisone injection.
146	Since the aggravation arising out of the use of the CAM boot, Ms O’Connor has continued to have ongoing pain in her right hip and has had three cortisone injections into her right hip on 21 July 2020, 12 April 2021 and 10 May 2023 which provided only temporary relief.
Findings on right hip
147	I find that Ms O’Connor’s right hip was not injured in the incident.  There were no recorded complaints of right hip pain until Ms O’Connor was using the CAM boot.
148	Whilst Ms O’Connor had experienced previous problems with her right hip, I accept that her right hip had responded well to treatment and that she had not experienced any problems with her right hip for a number of years prior to the incident.
149	I find that Ms O’Connor’s right hip was aggravated as a consequence of wearing a CAM boot which was used as part of the initial treatment for the left ankle injury.
150	I further find that all her current right hip impairment consequences are related to that aggravation.
151	The impairment consequences of the right hip were not challenged and as previously stated, I found Ms O’Connor to be a refreshingly honest witness.
152	Accordingly, I accept with some confidence what Ms O’Connor says to doctors and to the Court about her ongoing right hip consequences and restrictions.
153	The impairment consequences of the right hip are set out above at paragraphs 45 and 46 and include constant aching, which is unpredictable in its intensity, interference with walking and sitting and undertaking basic activities of daily living such as dressing, toileting and showering.
154	Having considered the whole of the evidence, I consider that Ms O’Connor is left with pain and restrictions in her right hip which interfere with her daily life.
155	Given the level of constancy of the consequences, I do not accept the defendant’s description of such consequences as “minimal”.
156	There has been an increased need for ultrasound-guided cortisone injections into the right hip.  She now has injections annually whereas her last injection prior to the incident was in November 2010 – almost nine years prior.
157	The impairment consequences of the right hip meet the test of “more than significant or marked” and as being “at least very considerable” despite the fact that her hip is being managed conservatively.
Conclusion
158	The application is granted.
159	I will hear the parties on the question of costs.
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