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

Case No. CI-20-03896

FARID KHAEIZ	Plaintiff	
		
v		
		
KOALA & TREE PTY LTD
(ABN 54 142 365 160)	Defendant	

---

JUDGE:	HER HONOUR JUDGE K L BOURKE	
WHERE HELD:	Melbourne	
DATE OF HEARING:	18 May 2021	
DATE OF JUDGMENT:	22 June 2021	
CASE MAY BE CITED AS:	Khaeiz v Koala & Tree Pty Ltd	
MEDIUM NEUTRAL CITATION:	[2021] VCC 823		

REASONS FOR JUDGMENT
---

Subject:	ACCIDENT COMPENSATION
Catchwords: 	Serious injury application – impairment of the right foot – pain and suffering only – range
Legislation Cited:	Workplace Injury Rehabilitation and Compensation Act 2013, s335
Cases Cited:	Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Dressing v Porter & Anor [2006] VSCA 215; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292
Judgment:	Application dismissed.

---

APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Ms J Zhu	Margalit Lawyers	
			
For the Defendant	Ms F Ryan	Thomson Geer	

HER HONOUR:

Preliminary
1	This is an application for leave to bring proceedings pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the defendant on 9 October 2018 (“the said date”).
2	The plaintiff seeks leave to bring proceedings for damages for pain and suffering only.
3	The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s325(1) of the Act.  There, “serious injury” is defined relevantly as meaning:
“(a)	permanent serious impairment or loss of a body function.”
4	The body function said to be impaired is the right foot.
5	The impairment of the body function must be permanent.
6	Subsection 325(2)(h) of the Act provides that consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
7	The plaintiff bears an overall burden of proof upon the balances of probabilities.
8	By s325(2)(b) of the Act, the impairment must have consequences in relation to pain and suffering which:
“… when judged by comparison with other cases in the range of possible impairments or losses of a body function or disfigurement … as the case may be, fairly described [as at the date of the hearing] as being more than significant or marked, and as being at least very considerable.” 
9	I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
10	I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak, Haden Engineering Pty Ltd v McKinnon and Peak Engineering & Anor v McKenzie in reaching my conclusions.
11	The plaintiff swore two affidavits.  He was cross-examined.  Also in evidence were medical reports and other material.  I have read all the tendered material.
The Plaintiff’s evidence
12	The plaintiff is presently aged forty-four, having been born in Iran in October 1976. He is a single parent, living with his seventeen-year-old son. 
13	After finishing high school in Iran, the plaintiff was in the Army before working as a chef.  In around 2013, he arrived in Australia as a refugee.
14	He plaintiff’s first job in Australia was with the defendant in August 2016 as a warehouse assistant, full time.  On his days off or outside work hours, he also worked as an Uber driver.
15	The plaintiff agreed, as his general practitioner, Dr Jaworowski recorded in October 2017, he then had four months of lower back pain on the left side, occasionally radiating into his buttocks, “working very heavy work with furniture removal”.  It was the start of the pain – “It’s a kind of pain that is always there, just my lower back is always sore.”  It got aggravated on the said date.
16	Dr Jaworowski had advised the plaintiff his back pain was due to his heavy physical work and that he had better change his job.  The pain at that time was not that bad or annoying that it stopped him, or caused him to follow up with the doctor. The pain would sometimes come; sometimes it would go; get better; get worse; it was very minor.  He could not remember any changes to his work that then had to be made because of his back pain.  He did not think he was taking painkillers before the said date.
17	A lumbar x-ray was organised by Dr Jaworowski on that attendance.
The incident
18	On the said date, when at work, a co-worker, Joe, unintentionally drove a forklift over the plaintiff’s right foot (“the incident”).  An ambulance was called and took the plaintiff to Sunshine Hospital, where he had an x-ray and CT scan of his right foot.
19	On about 15 October 2018, the plaintiff saw his general practitioner at Elsternwick Medical Centre (“Elsternwick”).  He was referred for a further CT scan of his right foot, which he had the next day.
20	The plaintiff was seen as an outpatient at Sunshine Hospital.  His foot was put in a backslab, and once the swelling was reduced, he wore a plaster cast for about six weeks.  He was then transferred to the care of The Alfred, where he was in a moonboot for four weeks.  There, he had ongoing reviews and a repeat x-ray and ultrasound scan because he had some calf pain.  
21	During that time, the plaintiff also developed some back pain, which he understood may be because he had time off sitting for protracted periods when he could not put too much pressure on his foot, and due to walking differently after having his foot injury.
22	The Alfred recommended physiotherapy for the plaintiff’s lower back pain and on 20 December 2018, he had this treatment at Malvern Physiotherapy Clinic with Peter Growse.  The plaintiff then had trouble putting weight on his right foot and had pain in his lower back when walking.
23	He had about six months off work.  On his return, he initially did a few hours of light work, including cleaning and light maintenance.  He gradually built up his hours and duties until, in early 2020, he returned to his pre-injury level as a warehouse assistant, doing some forklift driving and other duties on foot.
24	As at May 2020, he continued to see his general practitioner at Elsternwick every month or so.  He took meloxicam (Mobic) and “Theldan” [scil. Feldene], one daily for his back.  These tablets were for back and foot pain.
25	He had been attending physiotherapy every one to two weeks; however, due to COVID, treatment had stopped and he continued doing home exercises his physiotherapist had taught him.  
26	The plaintiff struggled to run and if he walked a lot, he experienced right ankle pain.  The pain and symptoms were worse in cold weather.  He wore socks, even around the house, to try and keep his right foot and leg warm.  His foot and ankle were quite stiff in the mornings and it took a little while walking around gently to get it going.  He struggled cooking for long periods and had to sit to make food.  He did not get much sleep.
27	He was then taking one Temazepam before bed to help with sleep, but even so, that did not help much and he only had about four or five hours sleep and woke up tired.  He tended to have naps in the afternoon and on the weekend.  
28	He then tended to only drive locally using his left foot, otherwise pushing with his right foot was very painful and difficult.  He was not used to driving that way.  It felt different.  He mostly drove to and from work and otherwise limited his driving.  
29	Pre-injury, the plaintiff did Uber driving on the weekends, or when not at work with  the defendant.  He did about four hours of driving, sometimes up to ten hours a day.  Post-accident, he did not do as much driving, maybe only up to an hour or two a day.
30	His right foot became swollen and his shoes felt tighter on the right side.  The scar on his foot was tender.  He had a tightness pain and a clicking in his ankle, and if he stood for too long, his calf also became sore.  
31	The plaintiff had then given up soccer.  He used to play soccer with his son, and had earlier played in a team in Iran.  He used to play twice a week, but basically did not play anymore. 
32	He enjoyed wrestling in Iran.  He was part of a local team and wrestled about three times a week, mostly for the exercise.  He did not tend to do that anymore.
33	Soccer and wrestling activities were social only and the plaintiff has not done/played either competitively in Australia.  Even if he did not have foot discomfort, he agreed he would be playing soccer less because of his back pain.
34	With his limitations, he was restricted in how he could interact with his son and spend time with him socially and in physical activities.  That situation upset the plaintiff.
35	If he sat for too long, he tended to get back pain.  In the past, he had had some mild back pain, but did not recall seeing doctors or taking medication for it.
36	At work, if he walked around a lot, his feet would swell.  He was required to wear safety shoes at work which were quite heavy and hard on his feet.
37	Driving the forklift required pressing down with his right foot, which also increased his foot pain.  After a while, his foot became swollen and sore and he had to take his shoes off for fifteen to twenty minutes to relieve the pain.  If he needed to push something heavy, he had to ask for help, otherwise he experienced foot pain.  If he did a lot of tasks at work, then he experienced foot pain.
38	In his second affidavit sworn 11 May 2021, the plaintiff mentioned that since his injuries he had developed high blood pressure, reflux and chest pain, which he could not recall having previously.  He took medication, pantoprazole, to control his reflux.  His chest pains were still being investigated.
39	In about 7 January 2020, he had an x-ray of his right foot and the following month had an ultrasound of his right foot and leg.
40	In March 2020, he saw Mr Growse.  His back movements were then limited, and he had reduced sensation, strength and movement of his foot and ankle.
41	The left foot pain had recently increased quite a bit and his general practitioner requested further physiotherapy, which he told him may help with the pain.  Mr Growse works on both areas – the lower back as well as the foot.   
42	The plaintiff was booked in to see an orthopaedic surgeon in May this year but is still waiting on funding approval.
43	As part of his job, the plaintiff has to push, pull and lift objects, but generally objects are not too heavy.  He tries to ask for help because otherwise he would get a lot of pain in his lower back, but sometimes there is no one around to help, so he just tries to move items slowly and carefully.  If he pushes himself too much at work, it feels like there is a needle going into his foot.  He generally takes medication when working.
44	At times, as part of his job he has to drive a forklift.  Doing so increases his pain. His work tasks cause him pain but he has to earn a living, so he just tries to get through as best he can.  When he gets home from work his pain can be quite bad and only improves after sitting down for a while.  
45	He drives to work in Laverton every day, which is a forty-minute drive.  He spends most of the day on the forklift and two hours or so walking around.  He is able to operate the forklift with his right foot but it is very difficult.  His foot is always sore, always in pain.  The sole of his foot always has to be on the forklift pedal and it is always sore.  Previously, driving the forklift, there was only back pain, which was manageable “by moving and stuff,” but now it is the foot pain that is really annoying.  
46	If he has to move anything around or lift “stuff”, he always asks for help, especially if it is not within his capacity.  His colleagues are sick and tired of him.  While he pretty much does the same job as he did before he hurt his foot, the difference is he now does it with pain.
47	He takes breaks at work for foot pain, as well as back pain.  The breaks have increased since the incident.  He has a pause for a minute to do a little bit of a stretch.  Prior to the incident, there were times he easily could work non-stop for three to four hours without having any breaks.  
Uber
48	The plaintiff still drives an Uber; his hours of driving fluctuate week to week.  He drives outside of work hours when he feels up to it. 
49	Uber driving normally coincides with the start of the working day.  “Maybe” he does two hours on a Saturday and on a normal week, “maybe” eight to nine hours in total during his actual workday to and from work.
50	When he drives the Uber, his right foot is always uncomfortable and sore, so he has tried using his left and now pretty much all the time he has practised to drive with his left foot.  There are certainly times when he uses his right foot to operate the pedal.  
Current pain 
51	The plaintiff’s pain used to be worse at the end of the day but now, as soon as he puts on his shoes, it is quite painful.  It feels as if someone is pushing his feet and it is very uncomfortable.  He has constant pain which feels like a toothache.  
52	He could feel the ache while sitting in the witness box.  “It feels different to the other leg – It’s not a very uncomfortable pain or annoying pain, but it’s a pain that is always with me.”  
53	He gets pins and needles and numbness on the sole of his right foot.  It can become really hot.  At other times, it can become very cold and he has to wear something to keep it warm.  The ball of his foot becomes painful, especially if he is stepping on uneven ground.  The pain goes into his ankle and it hurts and clicks all the time.  His ankle does not bend much, and travelling up and down stairs and hills is difficult.
54	Limping is not something he has noticed much, but the majority of friends notice it and tell him, when they are walking behind him, they see he is limping.  He notices he uses the other leg, so there is a bit of a limp.  
55	He has not tried to run at all recently.  Maybe he could jog across the road if he had to.  He agreed he could walk in an unrestricted manner at work or in his daily life.  If he walks for a long period of time, his foot starts to hurt.  
Current treatment 
56	The plaintiff continues to see his general practitioner once or twice a month.  He has been referred to a specialist for his foot and is waiting to hear from CGU.  He does not know what is going on.
57	He currently takes one Panadol a day, a painkiller for his lower back, the name of which he cannot recall; hemihydrate, one tablet a day, and meloxicam (Mobic), 15 milligrams a day. 
58	Because the painkillers were causing him reflux and stomach issues, his doctor advised him to take one of them, rather than three every day, so he generally took Tramadol.  He was no longer taking Temazepam because he did not want to get into the habit of using it; however, his sleep was now even more interrupted, and he often ended up waking up at night.
59	He had been prescribed three different painkillers, not for a particular part of his body, for the pain, and he could use either of those for the pain.  He agreed he took Tramadol for lower back pain and that helped more than any other painkiller.  He generally took it for the pain, but for both his foot and back.  Mostly he takes it for the pain and when he takes it, it decreases the pain in his lower back and foot.
60	He really could not answer what he meant in his affidavit when he said he took one painkiller for his back, the name of which he could not remember.  The doctor gave him three medications.  He thought the other one was called Mobic; he was not too sure. Presently, he takes Tramadol and when the pain is too much, sometimes he takes the other medication, the name of which he cannot recall.
61	While he deposed the unnamed painkiller was for his back, it was generally for his foot pain and lower back pain.  He then agreed he takes Tramadol, but he takes something else as well for his back.  While he did not mention in his affidavit that he also took this other medication for his foot, the doctor gave medication, all the painkillers for pain.  His affidavit was not wrong.  He takes two different types of painkillers for his back as well as his foot, for both of them, for the pain.
62	At the start of the day, he takes the Tramadol so he is able to work and when the pain increases, he takes the other medication.  
63	He was asked, hypothetically, if he had no worries with his foot, would he still take tablets, because his back is so bad.  He answered:
“Not to that extent.  The lower back doesn’t stop me from anything.  I do a little bit of a stretch and I can continue working.  With the foot, if I don’t take that Tramadol, I won’t be able to carry on.  The foot pain gets too bad.  I take the Tramadol to be able to work.”
64	The plaintiff continues to do home exercises for about twenty minutes a day.
65	Bending makes his back pain worse.  At work, he had learned to manage his movement so as to put less pressure on his right foot.  At home, washing his feet can be quite difficult, as it causes him back pain, as does doing up his shoelaces, so he generally sits down to do that.  He generally has his laces already done up so he does not have to constantly do them up or undo them.  His work boots have zippers, so they are more manageable.
66	His son generally does most of the heavy housework, including moving furniture when needed.
67	The plaintiff used to enjoy going on nature hikes, but due to his foot and back pain, he has not really been able to do so since the incident.  It is difficult to walk comfortably on uneven ground.  He used to go to different places, like the Dandenongs, with the boys, about once a month.  It was a lot of fun going up the steps, but he would now struggle with his ankle injury. 
68	He agreed the back has caused him an increasing problem in the last year or so and his back pain worsens when he has to bend.  He needs to shift his position, even when driving.
69	His back was aggravated by the incident.  He was not too sure whether it was because of heavy work or – what he noticed was, sitting at home for six months, now getting back to work, doing physical work, his lower back is really sore.  
70	He is still doing the same physical work and still getting back pain.  He agreed he has to sometimes sit down at work and take a break because of his back pain. These breaks, on the job, are pretty much every day.  He was not too sure that it was his back pain that was more of a problem now than his foot, because his foot is really, really sore at the moment.  
71	When taken to Mr Slattery’s history on examination in August last year that while the foot was swelling up in his boot and causing discomfort, it did not particularly restrict his activity at work, the plaintiff explained that he can work, but he is always uncomfortable because his foot swells and he feels the pain, and he has to undo the zipper on his boot.  It does not stop him from doing anything at work.  He can work, but he always has pain.  
72	He could not recall telling Mr Slattery that his back problem was worse than his foot pain and discomfort.  He always has this lower back pain, but he did not think he told Mr Slattery that his lower back is worse.  
73	The plaintiff agreed he always had back pain, worse when sitting on a forklift for a long period.  It causes him to wake at night and he takes Tramadol for it.  He was not too sure if his back, not his foot, caused problems with sleep but agreed that he wakes at night with lower back pain, and he would wake at night regardless of any foot problem because of his back pain.  
74	His lower back pain does not stop him from walking, but he does so with pain.  He agreed touching his feet is difficult because of his back pain, that he constantly has to shift position when seated because of his back pain, as he told Mr Slattery, and also that back pain was aggravated by prolonged sitting, driving a forklift, driving a vehicle or bending repetitively.  He agreed he told Mr Slattery he woke at night rolling over due to back pain.  When it was suggested it was not the case his back did not stop him from doing anything, he said he did feel pain on the lower back on the left side.
75	Since the incident, back pain and the episodes thereof have increased.  He has to be careful with his movements when he is picking up something, or making a movement, he has to be cautious, otherwise it could aggravate his pain.
Treaters
76	The Western Hospital Emergency Report set out the presenting problem on 9 October 2018 was:
“INJURY – LEG (ANKLE AND FOOT) RIGHT SIDE WHILE AT WORK.”
77	On examination, the plaintiff’s right foot was obviously swollen.  There was a horizontal abrasion to the dorsum of the foot; otherwise it looked perfused.  It felt tender to palpate over the area of swelling.  The plan was a backslab.
78	The results of the CT scan were noted, and non-operative management suggested.  Medication was prescribed and the plaintiff was to attend the fracture clinic in a week.
79	The Outpatient progress note dated 17 December 2018 signed by the orthopaedic registrar at Alfred Health set out:
“Farid is 6/2 post 2nd metatarsal fracture & foot dorsum wound.  We are happy for him to return to work when his pain allows.  His latest … [x-ray] shows good bony healing but not yet is it fully united.”
80	Physiotherapist, Peter Growse, from Melbourne Physiotherapy Clinic, has provided a number of reports since June 2019, having first seen the plaintiff on 20 December 2018 for management of his foot and lower back pain.  The plaintiff was last seen on 16 March 2020.
81	Mr Growse thought, in regard to future treatment options, the plaintiff may benefit from a pain management program as well continued exercise.
82	When last seen, the plaintiff still experienced pain in his foot with prolonged standing and walking.  Mr Growse thought this was likely to restrict his ability to participate fully in a range of social, domestic, recreational and employment activities.  The plaintiff was going to need to restrict the time he was on his feet during social and domestic activity.
83	The plaintiff had reported that he returned to full duties and hours.  Unfortunately, he also reported he was still having to manage his pain with some adjustment, such as limited forklift driving, removing heavy safety boots for foot relief and getting assistance with heavy pushing.
84	On 16 March 2020, the plaintiff reported tenderness across his lumbar spine, and all active lumbar movements reproduced his pain.  There was tenderness on palpation noted between L3 and L5, more on the right.
85	On that attendance, the plaintiff had slightly reduced ankle dorsiflexion, pain on squat, reduced strength and a clicking sensation during a right-sided calf raise, and tenderness over his scar line and anterior ankle.
86	Physiotherapy management initially consisted of developing an exercise program, education, manual therapy and gait re-education.  During that time, the plaintiff showed improvement in his objective measures and outcome measures.  They then progressed his treatment to involve more active rehabilitation, with supervised exercises and progression of his home exercise program.  He was able to gradually increase his work hours and reduce his restrictions.  Unfortunately, his progression appeared to have plateaued, which was evident on a Lower Extremity Functional Scale taken in October 2019.  
87	Mr Growse thought the plaintiff’s presentation fitted with the diagnosis of fractured right second, third and fourth metatarsals, subsequent right ankle anterior impingement and tendinopathy, and likely lumbar disc pathology due to altered gait.  
88	The plaintiff had recently reported pain, medial and lateral to the ankle and foot, tightness, pain and clicking in the anterior joint line of the ankle, sustained limitation of calf strength and lumbar pain with sustained postures.
89	Mr Growse noted the plaintiff had not formally been referred to any specialists; however, since his improvement plateaued, they had regularly spoken about the importance of contacting The Alfred Orthopaedic Clinic, where he had been seen previously, which may provide an opportunity to further investigate his foot.  He also suggested podiatric assessment to see if specific footwear may be beneficial in the plaintiff’s management.
90	Dr Zalman Rosenblum from Elsternwick reported on September 2019. 
91	The plaintiff presented on 15 October 2018 following an incident at work some six days earlier, when a colleague drove over his right foot on a forklift.  He was seen at Western Hospital, where x-rays confirmed fractures of the second to fourth metatarsals and a backslab was applied.  
92	Dr Rosenblum thought the injury was consistent with the stated cause.
93	The plaintiff next presented on 19 December 2018 with a letter from The Alfred recommending physiotherapy.  He was given further time off work.
94	In his July 2020 report, Dr Rosenblum noted that the plaintiff was not able to work for six months after the incident and gradually returned for several hours a week.  About six months earlier, he returned to his pre-injury hours but struggled to perform pre-injury duties.  He had ongoing pain and swelling in his foot, resulting in him having to remove his safety shoes, rest and elevate his foot.  
95	The plaintiff’s pre-injury duties included working as a warehouse assistant and Uber driver.  His pain and foot swelling resulted in him struggling to walk or stand for long periods, as well as difficulty using his right foot when driving.  He was therefore limited to driving one to two hours a day. 
96	X-rays performed on 7 January 2020 and an ultrasound on 26 February 2020 were essentially unremarkable and failed to explain the plaintiff’s ongoing symptoms.
97	Dr Rosenblum thought the injury had been the underlying and causative factor of the plaintiff’s current symptoms.  Although he returned to full-time duties, he struggled to perform them adequately.  The impact on his family and social life had been even more adversely affected, as he could no longer play soccer, perform any domestic duties, as well as impacting on his ability to perform activities with his teenage son.
98	It appeared that initially the plaintiff sustained fractures which appeared to have healed but the soft tissue component persisted.  Unfortunately, the longer his symptoms persisted, the worse was the long-term prognosis.
99	Dr Rosenblum thought there did not appear to be any surgical role in the plaintiff’s long-term management, but he would require ongoing physiotherapy and analgesics.  He was concerned that over time, the plaintiff may require duties to be restricted in the use of his foot, as well as limited hours.  
100	In his April 2021 report, Dr Rosenblum noted the plaintiff last presented on 25 March 2021.
101	Since his July 2020 report, the plaintiff’s symptoms and clinical findings had remained relatively unchanged and were consistent with the stated cause, namely laceration and crush injury of the foot affecting his gait and consistent with his current ongoing back symptoms.  
102	Dr Rosenblum thought the long-term prognosis was looking extremely guarded as the soft tissue injury healing tends to occur principally in the initial weeks and months following an injury.  The longer the symptoms persist, the less hopeful is the long-term prognosis.  He noted the plaintiff was currently coping with his duties in furniture delivery, but tended to suffer pain at the end of the day.  
103	The plaintiff was distressed that he found it difficult to play soccer with his son and was frustrated by his inability to perform anything more than light domestic duties.  
104	Dr Rosenblum advised that he was also concerned the plaintiff appeared to be displaying symptoms of depression, which was a consequence of his ongoing chronic pain. This may further exacerbate his chronic symptoms requiring counselling in the future.
105	Dr Rosenblum did not see any future surgical role but thought the plaintiff would require ongoing conservative management.
106	Dr Rosenblum referred the plaintiff to orthopaedic surgeon, Mr Tim Schneider, on 25 March 2021; however, there is no note in his clinical records or his most recent report indicating the reason for that referral. 
107	On 27 January 2021, Dr Rosenblum referred the plaintiff for further physiotherapy on his right foot.  On 25 March 2021, he also wrote to Malvern Sports and Physio Centre thanking them for seeing the plaintiff for opinion and management of his right foot.  
Investigations
108	An x-ray of the right foot on 9 October 2018 showed nondisplaced fractures of the second and third metatarsal bases, no definite fracture of the first metatarsal base, or widening of the Lisfranc interval.  A CT scan was recommended.  There was no hindfoot or midfoot fracture.  
109	A CT scan of the plaintiff’s right foot was carried out that day.  It was reported there was a minimally displaced fracture through the base of the second and third metatarsals of the right foot and no widening of the Lisfranc interval.
110	On 18 October 2018, there was an x-ray of the right foot, with plaster backslab in situ obscuring the fine bony detail.  The fractures of the second to fourth metatarsals maintained alignment.
111	An x-ray of the right foot performed on 19 November 2018 showed the undisplaced fracture through the base of the second metatarsal was still visible.  The base of the third fracture was not visible.  There was normal tarsometatarsal joint alignment and no collapse of the plantar arch.
112	Following a right foot x-ray in December 2018, it was reported unchanged position and alignment of the transverse fractures through the proximal shafts of the right second and third metatarsals.  There had been some interval healing response with sclerosis of the fracture margins; however, faint lucent fracture lines remained visible.  There was normal alignment of the tarsometatarsal joints.
113	On 4 February 2019, there was a further x-ray of the right foot.  It was reported there was mild transverse sclerosis at the base of the second, third and fourth metatarsals, compatible with a uniting undisplaced fractures.  There was normal tarsometatarsal joint alignment.
114	The Elsternwick Clinic organised a right foot x-ray on 7 January 2020 at The Alfred. It was reported there was an old united base of second to fourth metatarsal fractures and no new findings.
115	The plaintiff had an ultrasound of his right leg in February 2020 to investigate the right foot swelling following an old injury.  It was reported there was no sonographic abnormality to account for the plaintiff’s lateral forefoot pain.
Medico-legal evidence
116	Mr David Slattery, orthopaedic surgeon, first saw the plaintiff in a Telehealth consultation on 11 August 2020.
117	The plaintiff told him he was then taking Feldene (piroxicam), temazepam, 10 milligrams at night for sleep, and telmisartan for blood pressure.
118	The plaintiff described pain on the sole of his foot, which was worse when he was pushing on it, such as using a pedal to drive a car.  The pain was annoying, but not excruciating.  He also described clicking and catching in his foot and ankle.  He was able to wear normal shoes but was required to wear loosely fitting shoes as his feet swell.  He reported his foot was constantly swollen, which was exacerbated by walking.
119	The plaintiff also reported pain when walking on uneven ground and descending and ascending stairs.  He was able to walk, but the pain in his foot was worse when wearing safety shoes.  He tried insoles, but stopped using them, as he found them ineffective.  He limped when his foot became tired.
120	The plaintiff also experienced pain in his lumbosacral region, which he said was due to the sitting he had to do when resting his foot.  The pain was localised to the left lateral paraspinal lumbosacral region and he stated there was swelling associated with this back pain.  The pain did not radiate up or down the leg and there was no numbness or tingling in the left foot.  The back pain was worse with bending, twisting and lifting, and he found it difficult to sit still for long periods.  
121	The plaintiff reported no problem with getting dressed or putting on his shoes, or needing any assistance with personal activities of daily living.
122	The plaintiff reported he could cook independently but required help with lifting heavy pots and pans.  He could use a vacuum and mop, however, doing so caused him pain in his foot and back.  He was able to clean the bathroom and shower but obtained help from his son as it was difficult for him.  He was unable to run or kneel.  He was able to drive an unrestricted distance.
123	Mr Slattery diagnosed minimally displaced fractures of the second to fourth metatarsals of the right foot, right foot soft tissue injury and musculoligamentous lower back strain.
124	In his opinion, no further investigations were indicated.  Ongoing intensive rehabilitation physiotherapy was currently indicated and ongoing use of analgesia indicated to address pain.   
125	The plaintiff reported he was able to do his pre-injury role full time, drive a forklift and perform manual handling duties.  He reported he experienced pain in his back with repetitive bending, pushing, pulling and lifting activities, but was able to lift 20 kilograms.  He reported his foot swelled up in his boot and caused discomfort, but that did not particularly restrict his work activity.  He reported back pain, which was more of a problem at work than his foot pain and discomfort, and he had to take breaks due to this.  
126	Mr Slattery thought the prognosis was guarded, with ongoing symptoms of foot pain, swelling and dysfunction almost two years after the injury and it was likely the plaintiff would have ongoing symptoms for the foreseeable future.  He was also reporting lower back pain, which was likely secondary to the altered gait.  Mr Slattery hoped that, with a period of intensive physiotherapy and rehabilitation, this should improve and not cause the plaintiff long-term problems.
127	On re-examination in February 2021, the plaintiff described pain diffusely around the ankle, midfoot and forefoot, which was reported as a tightness alleviated by the removal of his shoes and socks.  The pain was normally 5 to 6 out of 10 but was exacerbated by carrying heavy items and using a brake, pedal or accelerator.  The foot was reportedly swollen after a long day at work when he took his shoes off.
128	The plaintiff experienced pins and needles as though the foot was being squashed.  He reported a limp at times, which was noted by his colleagues.  He did not report instability symptoms affecting the right foot or ankle.  He routinely used an orthotic for foot support when walking at work.  He said his right ankle was weaker than the left.
129	The plaintiff experienced back pain in his lower lumbar spine and flank.  It was difficult to sit and he constantly had to shift position.  
130	The plaintiff reported difficulty showering, stepping over the bathtub.  Bending over to wash his feet generated lower back pain.  It was difficult for him to bend over and do his shoelaces, so he wore slip-on shoes.  He also wore loosely done up shoes.
131	The plaintiff’s issues with household duties continued.
132	The plaintiff reported he was able to walk for about 200 metres at a time and then experienced significant foot and back pain.  Uneven surfaces were particularly difficult for him, as were stairs and hills.
133	The plaintiff was due to be seen by a physiotherapist and had been treated with medication, including tramadol, telmisartan for blood pressure and meloxicam.
134	On examination, there was tenderness to palpation over the dorsal midfoot region around the region of the scar and metatarsal bases.
135	Mr Slattery noted a Probe Investigation report and film of 10 August 2020, showing the plaintiff attending work and removing furniture.  The video demonstrated him moving the furniture in plastic and getting items from a car boot.  It did not demonstrate him doing any heavy lifting.
136	Mr Slattery again diagnosed right foot laceration and soft tissue injury, fractures of the second to fourth metatarsal of the right foot, and musculoligamentous lower back pain due to gait disturbance.  
137	He thought the plaintiff had made a moderate recovery, although he experienced ongoing symptoms of pain affecting his lumbar spine and foot, in addition to limping and gait disturbance. 
138	The prognosis was guarded, and the plaintiff was likely to continue to experience pain and functional limitation for the foreseeable future.  No further investigations were indicated to evaluate his condition.  Ongoing physiotherapy was currently indicated, as was ongoing use of analgesia.  Further, surgical treatment was not likely to be required.
139	Mr Slattery thought the plaintiff should avoid prolonged standing to avoid aggravating his right foot condition at work, and in the long term, he recommended the plaintiff not engage in significant heavy lifting or repetitive pushing, bending, pulling or twisting, to avoid aggravating and stressing his lumbar spine.  He considered the conditions were now stable.
The Defendant’s medico-legal evidence
140	Dr David Elder, occupational physician, examined the plaintiff in March 2020.  
141	The plaintiff then said his shoes felt tighter on the right and indeed, the foot actually measured a centimetre greater than the unaffected side.  He reported that his foot would click in dorsiflexion.  The scar was tender.  He described mild occasional mechanical lower back pain which did not interfere with activity.
142	The plaintiff had returned to the same job doing five days of seven hours, not quite back to eight hours a day, and was working a few hours a week as an Uber driver.
143	On examination, the plaintiff’s gait was completely normal.  He could stand on his toes, but standing on his heels was slightly limited.  Movements were limited to dorsiflexion and eversion of 5 degrees, but toe movements were normal.  There was a full range of lumbar movement and no evidence of guarding or muscle spasm.
144	In summary, the plaintiff had a foot and ankle injury leaving residual right lower extremity dysfunction.  Dr Elder could find no evidence of any abnormality of peripheral vascular functioning and no evidence of any injury to the lower back.  He advised liability should be accepted for the foot/ankle condition.  He thought the impairment had stabilised.
145	Mr Rodney Simm, orthopaedic surgeon, examined the plaintiff in January 2021.
146	The plaintiff was then performing his normal duties with the defendant.  He was able to ask for help if heavy lifting was required.  At the time of his injury, he was also working as an Uber driver for thirty hours a week.  He was now very limited with this occupation because of his right foot injury, and was only driving for one or two hours a week.
147	Before the incident, the plaintiff was employed to pick orders of furniture.  He moved items of packed furniture using a forklift or a hand trolley, and at times had to manually lift and move heavy items.  The work was physically demanding.
148	The plaintiff advised, while he was non-weight bearing and using crutches, he developed a recurrent left-sided lumbar back pain, which had persisted, and had remained problematic ever since.  He had had physiotherapy treatment for his back pain, which was in the lumbar region to the left of the midline.  His back pain made it difficult for him to sit and drive for extended periods.
149	The plaintiff’s main symptoms were ongoing and, at times severe, right ankle and foot pain, which occurred in the sole of the foot around the ball of the foot and extended into the ankle joint.  He was tender to pressure over the dorsum of his foot.  He had been told he walked with a limp.
150	The right foot pain was so severe the plaintiff struggled to hold the foot on the pedal to drive the forklift and was now driving his car with this left.  He could walk twenty to thirty minutes, but could not run.  When he woke up, his right ankle and foot felt fine, but as he became more active during the day on his feet, the symptoms steadily deteriorated, and by the time he went to bed, the pain was usually quite severe.  He had limited ability to sit and drive for long periods because of back pain.  His foot pain may also be present when he was non weight bearing and sitting.  He could carry up to 20 kilograms for a short distance.
151	On examination, the plaintiff showed a minimal right-sided gait abnormality, but was able to walk on his toes with no further deterioration in his gait.  He could balance on his heels, adopt a half squat position and rise without difficulty, and could stand on each leg.
152	There was no significant deformity or swelling of the foot or ankle and the plaintiff had a good range of ankle and hindfoot movement.  He was tender to pressure under the ball of the foot and over the dorsum of the foot in the region of the scar.
153	Thoracolumbar movements were essentially normal but were associated with discomfort.
154	Mr Simm thought the plaintiff had persistent painful dysfunction of the right foot following a crush injury which caused an irregular abrasion over the dorsum of the foot and minimally displaced fractures at the bases of the second, third and possibly fourth metatarsals. The injury would have involved substantial crushing of the tissues of the foot, noting this type of injury is frequently associated with protracted pain.
155	While using crutches to limit weight bearing, the plaintiff developed recurrent left-sided lumbar back pain which had persisted.  Initially, that may have related to abnormal gait and a need for crutches.  Mr Simm thought it was difficult to explain why the pain had persisted now that the plaintiff had essentially a normal gait.  The diagnosis of his back pain had not been established and there were no investigation reports.  He thought the pain was suggestive of discogenic pain with radiation to the buttock and there were no symptoms to suggest radiculopathy.
156	The plaintiff had established symptoms which he said were getting worse and Mr Simm thought improvement in the foreseeable future was unlikely.
157	Mr Simm noted there were minimal objective clinical findings and minimal restriction of the thoracolumbar movement, with discomfort with extremes of movement.  There was no significant deformity or swelling of the right foot and the plaintiff had good movement of the ankle and hindfoot.  There was a slight gait abnormality.  Despite the lack of abnormal clinical findings, Mr Simm considered the plaintiff presented as a genuine person who was suffering from ongoing pain.
158	Mr Simm thought future treatment will be confined to conservative symptomatic measures. The plaintiff may resume taking anti-inflammatory and analgesic medication after his reflux has been evaluated and treated.  He will need to maintain contact with his general practitioner.  Further physiotherapy was not likely to lead to any sustained benefit. 
159	The injury had not resolved.  The plaintiff has pain in his right foot and ankle due to the crushing component of the injury, and Mr Simm anticipated he had long-term possible permanent symptoms.
160	The plaintiff had already presented with left-sided lower back pain and the general practitioner’s notes implied it may be related to the heavy nature of work.  It was therefore possible, if he continued with heavy manual work, there would have been a further recurrence of his lower back pain which may have interfered with his work capacity.  A significant exacerbation of his lower back pain may have occurred in the future and interfered with more demanding activities of daily living.
161	Mr Simm noted the plaintiff was doing pre-injury duties and work without formal restrictions.  It was painful for him to drive the forklift for extended periods and remain on his feet for extended periods.  It was difficult for him to manually lift and manoeuvre heavy items, but he was working around those difficulties, although he claimed his foot pain was worsening. 
162	Mr Simm was not confident the plaintiff would continue with his current employment indefinitely.  He thought the plaintiff had a capacity to do some Uber driving, and resume that in a limited way, using his left foot and cruise control.  He was able to undertake activities of daily living without restriction.  He was no longer able to do recreational activities, such as kicking a ball with his son.  The injury to his foot and exacerbation of back pain precluded wrestling.
Overview
163	There is no dispute that the plaintiff suffered an injury to his right foot in the incident – a crush injury which caused an irregular abrasion over the dorsum of the foot and minimally displaced fractures at the bases of the second, third and possibly fourth metatarsals.  It has also been described as a soft tissue injury to the foot. 
164	The plaintiff’s claim for right ankle/foot injury was accepted and payments were made.
165	The issue in dispute is whether or not the consequences of any right foot impairment are “serious” as at the date of hearing, particularly in light of the plaintiff’s ongoing spinal issues.
Credit 
166	As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
167	No issues were raised as to the plaintiff’s credit in this matter.  He made appropriate concessions as to his ongoing back issues, although his viva voce evidence in relation to his medication regime differed somewhat to his affidavits.
Foot Pain
168	As Maxwell P said in Haden Engineering Pty Ltd v McKinnon: 
“The evidentiary basis of the pain assessment will ordinarily comprise the following:
 (a)	what the plaintiff says about the pain (both in court and to doctors);
… .”
169	The plaintiff deposed that he has constant foot pain that felt like a toothache, a description he confirmed in his viva voce evidence.  While he said he could feel the ache while sitting in the witness box and said it feels different to the other leg,– he then said:  “It’s not a very uncomfortable pain or annoying pain, but it’s a pain that is always with me.”  
170	The plaintiff has consistently reported his right shoe feeling tighter, alleviated by the removal of his footwear.  In August 2020, he told Mr Slattery of annoying but not excruciating pain.  At its highest, he told Mr Simm in February this year the pain was ongoing and at times severe, but also reported to Mr Slattery that month that he had pain diffusely around the ankle, midfoot and forefoot, 5 to 6 out of 10 like a tightness.   
171	While there is ongoing tightness and pain, the plaintiff does not suffer a continuous substantial level of foot pain.
172	On examination, medico-legal examiners have mostly found tenderness with little in the way of gait abnormality.  There has also been a good range of movement of the foot and ankle.
173	A recent x-ray in January 2020 showed old united fractures and no new findings. An ultrasound the following month was reported to show “no sonographic abnormality to account for the patient’s lateral forefoot pain”.
Back pain 
174	The plaintiff complained to Dr Jaworowski on 3 October 2017 of four months’ low back pain and an x-ray was then ordered.  Although the plaintiff did not return for back treatment pre incident, after this visit, the plaintiff’s general practitioner  suggested he change from his heavy job. 
175	While that was a one-off attendance and no medication was then prescribed, the plaintiff conceded that was “the start of the pain” – his back “got aggravated” in the incident – either as a result of sitting around for some months recuperating or as a result of his altered gait following the foot injury. 
176	In his more recent affidavit sworn 11 May this year, the plaintiff described problems with his back at work – lifting, pushing and pulling – issues with bending, washing his feet, doing up his shoelaces and problems going hiking due to both foot and back.  He has also told a number of examiners that he has a limited ability to sit and stand for long periods because of back pain.  His sleep is also affected by back pain.  
177	As the plaintiff admitted, since the incident, back pain and the episodes thereof have increased. He has to be “quite cautious” when engaging in a range of movements to prevent an increase in his pain.
Treatment 
178	Post incident, the plaintiff was conveyed by ambulance to Sunshine Hospital, where investigations were carried out.  Later, in Outpatients, a backslab was applied, and then plaster.  While under the care of The Alfred, the plaintiff wore a moon boot for four weeks.
179	He started physiotherapy on 20 December 2018 with Peter Growse, which continued to March 2020.  Treatment was for both foot and back pain.  There was a recent referral in March 2021 to Malvern Sports for further physiotherapy to the foot.  
180	In his first affidavit sworn May 2020, the plaintiff deposed that meloxicam and “theldan” [scil Feldene], daily were for his back but then added they were for his back and foot pain, and also Temaze to sleep. 
181	In May 2021, the plaintiff deposed his medication regime was Tramadol, a painkiller for his back, and Mobic. His viva voce evidence in this regard was confusing and he seemed to say all medication was taken for both his foot and back.  
182	It is difficult to attach much weight to the recent referral by Dr Rosenblum to Mr Tim Schneider, foot and ankle surgeon.  The general practitioner’s most recent report, which post-dated the referral, was silent on any need to refer the plaintiff to a foot surgeon.  Further, Dr Rosenblum commented that the plaintiff’s symptoms remained relatively unchanged since he had last reported in July 2020 and that he  did not see any future surgical role.  This comment is somewhat at odds with the plaintiff’s evidence of a recent worsening in symptoms.
183	Further, Mr Slattery, who had seen the plaintiff most recently in February 2021, thought more surgery was not likely to be required.  Mr Simm considered further treatment confined to conservative symptomatic measures,  and the plaintiff was not likely to benefit from more physiotherapy.
Other consequences 
184	In Peak Engineering & Anor v McKenzie, Maxwell P described the difficulty faced when a separate injury is also producing pain and suffering consequences for the claimant, as well as the relevant injury.
185	In such circumstances:
“The Court must decide whether the consequences of the original injury are ‘more than significant or marked, and ... at least very considerable’.  For that purpose, it is necessary — so far as the evidence permits — to identify the consequences properly referable to the original injury, and to exclude the consequences referable to the subsequent injury.”
186	The President found that the judge was:
(a)	bound to identify, and exclude, the continuing consequences for the plaintiff of the non-compensable injury; and
(b)	when the consequences properly referable to the relevant injury were identified, identified them as “serious”.
187	Counsel for the defendant submitted the plaintiff’s case is “a mess in terms of the back and right foot and nowhere is more evident than the plaintiff’s most recent affidavit and his recent complaints to Mr Slattery.  Once the Peak analysis is done, what is left does not meet the statutory threshold.”
188	Counsel for the defendant submitted the consequences of any foot impairment  “do not get anywhere near that required threshold”.  
189	Counsel for the plaintiff submitted the right foot consequences deposed to in the first affidavit and those described by Mr Growse, Mr Slattery and Mr Simm met the serious threshold.
190	Further, to the extent there were any difficulties with his back pre incident, they did not prevent the plaintiff from working and he had no significant problem with day-to-day activities. 
191	In any event, it is possible to have a serious injury in relation to different injuries.  
192	As counsel for the plaintiff submitted, there are a number of activities which “common sense dictates are referable to the right foot, particularly involving weightbearing”.
193	I accept the plaintiff is limited to some extent in his ability to play freely with his son due to his foot injury.  He would have some difficulty playing soccer, although as he acknowledged, he would play less because of his back.  However, his only soccer involvement is playing with his son.  He has not played competitively since leaving Iran.  This is also the situation with his other sport of wrestling. 
194	As counsel for the defendant conceded, the plaintiff has some problems walking on uneven surfaces because of his right foot.  He would have difficulty at times walking up and down stairs and hills.  He cannot run.  He does not notice limping himself but says his friends do, although there were no significant examination findings of any issue with his gait.  
195	The plaintiff’s right foot feels cold and he has to wear socks, even around the house, to try to keep it warm.
196	However, the plaintiff’s problems with heavier household duties – bending and lifting – would seem to relate to his back condition rather than his foot.  In his second affidavit where this issue was raised for the first time, he simply deposed to difficulties with housework, not specifying the cause thereof. 
197	The plaintiff’s sleep is interrupted by low back pain, rolling onto his side, not by foot pain.  He has issues with his back when simply dressing himself.
198	The significance of what has been lost may be informed to an extent by what is retained.  
199	As counsel for the defendant conceded, there is no doubt the plaintiff suffered an injury to his foot and has been left with pain and discomfort, but his ability to work full time as a warehouse assistant which, on his own evidence, involves six hours on a forklift, which he operates with his right foot, and at least two hours walking around the factory floor, is inconsistent with a work consequence which can be described as “more than significant or marked”.
200	He has also described to medico-legal examiners, particularly Mr Slattery on both examinations, quite significant difficulties with his back at work.  While he denied he gave that history, Mr Slattery reported that the plaintiff told him difficulties at work related mainly to back pain and he took tramadol for this complaint.   
201	Counsel for the defendant submitted that it is surprising the plaintiff does any Uber driving whatsoever, in addition to his full-time role which involves so much driving, if he suffers the level of right foot pain he describes operating a pedal.
202	In response, counsel for the plaintiff submitted a return to full-time duties did not mean an impairment could not be “serious”.
203	The plaintiff is a relatively young man, forty-one at the time of injury, with no previous foot problems.  It was submitted a large part of his problems at work were related to his foot.  While he can work, he does so with difficulty.  He has to earn a living, it is the only job he has had since he has been in Australia, other than Uber driving, and he would have difficulty getting another job because of language issues.  
204	In my view, although the plaintiff is able to work full time without any formal restriction on, or change to, his warehouse duties, his major issue at work seems to be his back, as he described to Mr Slattery.  He has breaks for both back and foot pain.  He has difficulty with heavy lifting and other physical work and has to seek assistance.  He is still able to sit on the forklift using his right feet on the pedal for six hours a day – every day – although his foot is swollen at the end of the day when he takes off his shoes.  He is also able to be on his feet for the remaining two hours of the day to undertake his other duties.
205	In addition to this work, he continues to work as an Uber driver, albeit on a reduced basis, during his working day when Uber driving fits into his journey to and from work.
206	Taking into account all the evidence, and excluding the issues predominantly back related – problems with getting dressed; bending; sleeping; prolonged postures; heavy work; housework and the need for strong painkilling medication –  while the various consequences of his foot impairment described by the plaintiff are significant or marked, they are not “more than significant or marked” and certainly not “at least very considerable” as the statutory test requires.  
207	As the high statutory threshold of “seriousness” has not been met, the application is dismissed.
- - -