Adler v Integra Coal Operations Pty Limited

[2015] NSWDC 337

District Court

New South Wales

Medium Neutral Citation:

Adler v Integra Coal Operations Pty Limited [2015] NSWDC 337

Hearing dates:

10 – 11 November 2015

Date of orders:

11 November 2015

Decision date:

11 November 2015

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

Award for the plaintiff for $17,144.20 for 13.5% impairment of the neck

 

Award for the plaintiff for $10,716.30 for 13.5% impairment of the back

 

Award for the plaintiff for $13,240 pursuant to s 67

 

Defendant to pay the plaintiff's hospital, medical and like expenses pursuant to s 60

 Defendant pay the plaintiff's costs

Catchwords:

WORKERS COMPENSATION – Coal miners – Claim for weekly payments for deemed total incapacity –Whether mutuality exists – Claim for lump sum compensation

Legislation Cited:

Workers Compensation Act 1926
Workers Compensation Act 1987

Category:

Principal judgment

Parties:

David Adler (Plaintiff)
Integra Coal Operations Pty Limited (Defendant)

Representation:

Counsel:
Mr D Benson (Plaintiff)
Mr M Newton (Defendant)

  Solicitors:
Slater & Gordon (Plaintiff)
Hicksons Lawyers (Defendant)

File Number(s):

RJ572/14

Publication restriction:

No

1. HIS HONOUR: The plaintiff, David John Adler, claims weekly payments of compensation from 22 August 2014 to-date and continuing pursuant to s 11(2) of the Workers Compensation Act 1926 or, in the alternative, under s 11(1) of that Act as preserved in Schedule 6 Pt 18 of the Workers Compensation Act 1987. He also claims lump sum compensation under s 66 of the Workers Compensation Act 1987 for 27.5% impairment of his neck, 40% impairment of his back and 15% loss of his use of his right leg at or above the knee and a consequential lump sum pursuant to s 67 for pain and suffering, anxiety and distress resulting from those impairments and that loss.

2. Pleaded in the statement of claim are 36 frank injuries and the nature and conditions of the plaintiff's employment which it is alleged caused, aggravated, exacerbated and/or accelerated the plaintiff's injuries and medical conditions relied upon, in essence alleging a disease of gradual onset or the aggravation, acceleration, exacerbation or deterioration of a disease of gradual onset. Of the 36 frank injuries pleaded in the statement of claim, there is documentary evidence of 35. The only injury relied upon in the statement of claim which is not supported by an incident/accident report form is an event on 11 March 1995. In any event, no submission has been put to me that the plaintiff does not suffer from some form of work induced industrial malady.

3. The plaintiff was born on 7 July 1959. He is currently 56 years old. He is a single man. He no longer has any child dependent upon him for support. He attended Singleton High School, which he left at the age of 14 whilst in year 10. He did not obtain a School Certificate. One week later he commenced working essentially as a shop assistant, or perhaps one might say “shop boy”, at the Singleton Cooperative Store in Singleton. He worked there until 1979 when he took a job at the Liddell Power Station as a cleaner. He worked fulltime at the Liddell Power Station until 1985 as a cleaner.

4. He was then offered a job at the Drayton Colliery where he worked from 1985 until 1991. The first two years of that employment he worked as a cleaner but then became a driller. He was then offered a job and took it at the Camberwell Open Colliery at Singleton. He took that job because it was closer to his home town of Singleton than was the Drayton Colliery. Mr Adler worked at the Camberwell Colliery until it closed down on 22 August 2014, which is the date on which his claim for compensation commences.

5. At the Camberwell Colliery the plaintiff was an operator. He was multi-skilled. In essence, he was the driver of vehicles used in the Colliery, many of which were very large pieces of plant. He drove excavators, he drove bulldozers, he drove loaders, he drove graders. He also drove water carts and fuel carts at times and he also drove "trucks" which were probably of the very large variety not seen on the public highways of this State. Towards the end of his working life in the Colliery he was driving mainly bulldozers and excavators. He worked shifts of eight and a half hours per day and he often worked overtime. One history tells me that he worked two four hour overtime shifts each week.

6. A feature of driving heavy machinery in an open cut colliery is jarring, which affects both the low back and the neck. It affects the whole spine.

7. The first piece of medical evidence before me is a plain X-ray and CT scan of the lumbar spine reported by Dr Phil Janke on 13 May 1988. Both those investigations are reported as showing no abnormality. It was made at the time that the plaintiff was working at the Drayton Colliery, but there is no history of any injury of any event injurious to the plaintiff's health at the Drayton Colliery. It may be that in the distant past there was some minor complaint which was investigated and no abnormality was shown.

8. The third investigation before me is a report of Dr Richards Lees, a radiologist. It is a CT scan of the cervical spine. The radiological report suggests that there had been an injury in July 1994 to the plaintiff's neck. Exhibit A tells me that on 29 July 1994 the plaintiff was driving a vehicle when he hit a pot hole, causing the seat to bottom out, causing the plaintiff an injury. The radiological report indicates that the plaintiff gave a history of persistent pain since that event and it was thought the pain was in the right C5 zygo apophyseal joint. The only abnormality shown was a congenital fusion of the seventh cervical and first thoracic vertebra, which was not thought to be of any clinical significance. Every medical practitioner in this case who has looked at the radiological images tells me that the C7-T1 congenital fusion has nothing to do with the plaintiff's condition and is not a condition which would cause pain. Other than that irregularity, nothing is shown by the CT scan of 20 July 1998.

9. The second radiological investigations are plain X-rays of both the cervical, thoracic and lumbar spines made on 19 August 1994. These are reported by Dr Janke again. In the cervical spine the only abnormality shown was the congenital fusion between C7 and T1. In the thoracic spine there was thought to be a shallow scoliosis which may well be merely a congenital variant. No abnormality was detected in the lumbar spine. There is then the CT scan of 20 July 1998 to which I have earlier referred.

10. On 30 March 2006 the plaintiff was seen in Newcastle by Dr David Millons for the defendant's insurer. Dr Millons took a history of the plaintiff's commencing at the Camberwell Open Cut in 1991 and of his driving all manner of plant there, of the plaintiff’s working rotating shifts, each shift being of eight and a half hours, and of working two four hour overtime shifts each week. At that time the plaintiff was performing his "normal duties". Dr Millons reported the plaintiff was having problems with his back and neck and a number of events are then referred to. The plaintiff believed that his problems began sometime in the early 1990s when he was driving a truck which was hit by a shovel bucket in the back, throwing the plaintiff around the cab of his truck, causing neck and back problems. Surprisingly, this event was one that was never actually recorded, but it still stays in the plaintiff's mind. Dr Millons took a history of the plaintiff's symptoms fluctuating but generally becoming slowly progressively worse, causing the plaintiff to need more physiotherapy each year than in the preceding year. Therefore, as the years progressed, the symptoms progressed and the need for physiotherapy increased. By the time the plaintiff saw Dr Millons on 30 March 2006 he was having physiotherapy about every three weeks. The plaintiff told the doctor of having some pins and needles in his right leg from time to time, but not of the radiation of any pain. Unfortunately Dr Millons did not have available to him any of the radiological investigations that had been made up until this time. Dr Millons was of the opinion the plaintiff probably had some constitutionally based attritional changes in his neck and back. One might refer to such attritional changes as degenerative changes, but by describing them as "attritional" the doctor means a wear and tear process, so that although the condition may be constitutionally based, it can certainly be caused or made worse by the wear and tear process. At the top of p 5 of his report Dr Millons said this:

"I would see his back problems as really being more a condition of gradual onset, perhaps occasioned by the incident in the early 1990s but certainly being aggravated and probably accelerated by the nature and conditions of his work on the plant. He drives all manner of plant and does a couple of overtime shifts per week."

Dr Millons thought the same consideration applied to the plaintiff's neck problems, although not to the extent that it applied to his back problems. Dr Millons went on to record that so far the plaintiff had not lost any time from work. That remained the position until 2013. Dr Millons then said this: "It is to his credit that he soldiers on in the face of intermittent discomfort." Dr Millons was of the view that the symptoms would continue because such was the nature of "attritional change". It is noteworthy that he did not say that such is the nature of "degenerative change".

11. On 7 June 2007 the plaintiff had pain X-rays of his cervical and lumbar spines. Both of them were reported by Dr Stuart Slater as essentially showing no abnormality. On 20 September 2007 a work site assessment report was made by Ms Jennifer de Ville, an occupational therapist who was supervised by Ms Christine Ills, a rehabilitation team leader, both of Coal Services Health. According to the report itself its purpose was:

"(1) to obtain a detailed account of the physical demands of the position of an underground mining technician;

(2) to identify appropriate suitable duties and make appropriate recommendations as to job redesign and/or changes in Mr Adler's work techniques to facilitate injury prevention."

The interesting thing about those purposes is the plaintiff was not working as an underground mining technician. The report then provides a summary of a large number of injuries recorded between 28 July 1994 and 30 August 2007. Under the heading "Work duties background" the following is recorded:

"Mr Adler reported that his pre-injury duties as a Plant Operator at Integra Open Cut (formerly Camberwell Coal) are predominantly driving vehicles and also training people how to drive the Dozer and Excavator. This involves:

Completing 103's on all the vehicles used during the shift

Driving Manhaul (4WD) vehicles

Operating haul trucks, including refuelling

Operating water carts, including refuelling

Operating loaders

Operating graders

Operating dozers

Staff training at loader, dozers and excavators."

The document is quite lengthy, it contains 14 pages. The final two parts are a summary and recommendations. Those parts are these:

"Summary

Given the Workplace Assessment conducted on 5 September 2007 and the nature of Mr Adler's recurrent low back and neck condition, the following areas are of concern:

Mr Adler's job task requires prolonged sitting while driving over rough, uneven terrain. The postural and environmental impacts coupled with jarring and vibration would exacerbate symptoms over time. It is recommended that Mr Adler attend core strengthening, swimming and adhere to a home exercise program to ensure minimal recurrent injury risk.

It is also recommended that Mr Adler adjust his seat to enable good postural support throughout his shift.

Mr Adler reported due to the rotating nature of the shift and lifestyle impacts, that he did not always do exercises as planned. It is recommended that Mr Adler adheres to his home based exercise program.

On 11 September 2007, Mr Adler reported that he was attending the Forum Gym Program to assist with core strengthening.

Recommendations

The following recommendations are made to address the above areas of concern:

1. As planned by Coal Mines Insurance, Mr Adler reported that he recently commenced a core strengthening program through the Forum Gym.

2. It is recommended therefore that the Forum Program instils a home based exercise program to include swimming and is regularly reviewed to ensure ongoing exercise compliance.

3. Mr Adler to adjust his seat in all vehicles to enable good postural comfort and support.

4. Where possible between driving duties, Mr Adler to have regular stretching breaks and walking breaks to better manage low back condition."

12. That summary and those recommendations quite clearly tell the reader of the risk to which the plaintiff was exposed when carrying out his ordinary duties as a plant operator and point to the injurious nature of his work regime.

13. On 8 January 2008 the plaintiff is seen by Dr Alan Hopcroft, a general surgeon specialising in orthopaedics at the request of Coal Miners Insurance. Dr Hopcroft provided this diagnosis:

"The patient is suffering from the gradual development of very low grade cervical spondylitic and lumbar spondylitic changes and I believe the radicular symptoms of numbness in his right buttock and leg are of an intervertebral foraminal encroachment problem which does not require neurosurgical opinion for intervention."

Spondylitis is the inflammation of a vertebra. I believe that the doctor was really referring to spondylotic changes the result of either cervical or lumbar spondylosis, a degenerative condition of the vertebra resulting from degeneration of the disc. Dr Hopcroft thought that the case of the plaintiff's problems was the gradual development of accumulated "micro trauma" of the plaintiff's spine. The correct formulation ought to be that the plaintiff's medical infirmity is caused by microtraumata of the spine.

14. On 20 March 2008 the plaintiff had an MRI scan of both his cervical spine and his lumbar spine. They were requested by the plaintiff's then general practitioner, Dr Pauley of Singleton. Besides the congenital fusion of the C7-T1 inter-vertebral space, the MRI is reported as showing posterior osteophytes at C6-7 showing minimal protrusion within both foramina but especially on the left. In the lumbar spine there was said to be signs of minimal disc desiccation of the L5-S1 disc posteriorly with broad based bulging but without any protrusion of bulging disc or material onto any neurological structure. In other words, the MRI now showed signs of some degenerative changes at C6-7 and L5-S1.

15. On 9 June 2009 the plaintiff was reviewed by Dr John Graham, a specialist occupational physician, at the request of Coal Mines Insurance. Dr Graham took a history of a number of incidents over the years, requiring episodic attendances at a physiotherapist as well as other forms of treatment and investigation. Dr Graham also recorded this history:

"As a result he states that he is 'looked after' at work, having his obligations to carrying out ripping in the dozer minimised and being rotated regularly."

That is what the plaintiff told me. It is unlikely that in June 2009 he would anticipate that in November 2015 he would be giving evidence in Court about such matters. Furthermore, the statement that the plaintiff made to Dr Graham in this regard is consistent with the recommendations made in the work site assessment report of 20 September 2007. Under the heading "Current status" Dr Graham recorded this:

"Mr Adler reports chronic problems with neck pain (and secondary headache) and low back pain (with stiffness). He has no limb symptoms nor any bowel or bladder disturbance.

Treatment consists of a stretch exercise program. He is an irregular attender at a physiotherapist for passive interventions.

At work he is on long term restricted duties. Although his certification is nominally for pre-injury duties, it contains restrictions which override this assertion. He is managing outside work without specific problems."

By "outside work" the doctor is clearly referring to work within the pit, not work outside the pit. Dr Graham diagnosed "non-specific" cervical and lumbar spinal pain. He thought that that had been caused by the nature and conditions of the plaintiff's employment in the coal mining industry generally. Dr Graham recommended against any further treatment by persons such as physiotherapists because the plaintiff after 20 years' experience ought to have learned how to manage his pain himself. The doctor went on to say this:

"Mr Adler is permanently partially incapacitated for work. His current certification is dishonest and internally contradictory the prescribed limitations (restrictions) are however appropriate and will be required indefinitely."

16. On 7 August 2010 the plaintiff was seen by a Professor Ghabrial at the request of his solicitors. No doubt the doctor was qualified because the plaintiff's solicitors were considering bringing a claim for lump sum compensation on behalf of the plaintiff. Professor Ghabrial made findings on examination which have not been made either beforehand or subsequently by anybody other than Professor Ghabrial. For example, on 7 August 2010 the doctor thought the plaintiff displayed muscle guarding when he was examining the cervical spine. He thought that there was a decreased postural lordosis in the low back, found moderate paraspinal lumbar spasm and a positive sciatic stretch test on the right and decreased sensation in the right S1 dermatome and that the ankle jerks were decreased. He thought that the radiological investigation suggested "C6-7 and L5-S1 minor disc protrusions". They only suggest, on my reading of them, degenerative change. Professor Ghabrial went on to assess a 20% impairment of the neck, a 27.5% impairment of the back and a 12.5% loss of efficient use of the right leg at or above the knee.

17. On 22 February 2012 the plaintiff underwent an MRI scan of the cervical spine. It is only reported as showing the congenital fusion of the C7-T1 vertebral space. It does not even comment on any degenerative change at C6-7. Importantly, it determined that there was a "normal capacious spinal canal" which gainsays Professor Ghabrial's C6-7 disc protrusion.

18. On 28 August 2013 the plaintiff filed this report:

"I was operating 332...it was in extremely bad condition because the dozer [tried] to keep it level with no ripper so 423 could only skim over it. I had to travel about 150 metres along bench to get to 208. I was travelling in first gear when I dropped into a hole with driver's side front wheel. I felt a bit of a jar but didn't think much of it. About one hour later I felt a bit tight in the neck and back and called up dispatch for a break and pulled into the crib hut and did my stretches and went for a walk up the paddock, after about half an hour went back to work. At the end of the shift I had a hot shower and didn't feel too bad. I went home and about 8pm I felt my back and neck tightening up so I took a couple of anti-inflammatories and went to bed. At about 3am I woke up in pain and took a couple more. I came to work at 6.30 and reported it straight away."

It is clear that the trouble that the plaintiff noted when he drove into a hole occurred on 27 August 2013. After lodging that report the plaintiff went to see his normal general practitioner, Dr Pauley. The practice of Dr Pauley is at Singleton. It appears that initially the plaintiff used to see Dr Maroney there and then Dr Pauley and more recently Dr Tanner. According to Dr Pauley's notes he saw the plaintiff shortly after 11am. The plaintiff gave Dr Pauley a history of injuring his neck and back at work on 27 August. The doctor also noted that the plaintiff had had some physiotherapy carried out at work, presumably on the morning of 28 August 2013. Dr Pauley issued a certificate certifying the plaintiff as unfit for his normal work from 28 August 2013 to 6 September 2013.

19. On 6 September the plaintiff returned to see Dr Pauley, who took a rather contradictory history. Recorded in the notes is this: "100% recovered. Still feeling a bit sore but okay to return to work." Dr Pauley gave the plaintiff a certificate. That certificate is dated 6 September 2013. A copy of it is exhibit P. It records a fitness for some type of employment from 7 September to 7 December 2013. It is a "light duties certificate". The plaintiff took it to work. The plaintiff's evidence is somewhat confusing about what then happened, but it may be that he was stood down from work but paid his normal salary.

20. He was referred to see Dr Meredith, a senior medical officer employed by Coal Services Health. The “recent history” recorded by Dr Meredith was this:

"Approximately two weeks ago he was driving a haul truck and traversed a particularly rough patch in the road. He stated this jarred his neck and lower back and became quite painful once he had cooled down following the shift. Mr Adler saw his treating doctor the next day to arrange for some physiotherapy and was also certified unfit for work for the following week. His symptoms settled rapidly and at the time of his assessment here, were at their usual level."

The doctor's report bears date 16 September 2013, so I assume that was the time of his assessment of the plaintiff. When discussing the relevant past history Dr Meredith noted that this episode was the first time that the plaintiff had had any time off work due to problems in his neck and back. The plaintiff told Dr Meredith that usually he had a period of modified duties following events at work but remained at work without time loss. This appears to be common ground in the way the case has been conducted.

21. The first part of Dr Meredith's opinion is this:

"I have not had access to any specific diagnostic investigations aside from the MRI cervical spine mentioned above [22 February 2012]...However, the history of chronic and recurrent pain in the absence of any significant structural abnormality or underlying inflammatory joint disease, in my opinion, is consistent with non specific lumbosacral and cervical spine pain. Some prefer the title "segmental dysfunction", but unless you plan to identify the precise level and structure with nerve blocks, this doesn't make any practical difference to management.

His lumbosacral pain, he has also developed a chronic pain element. The constant background level was identified at 4/10, which he has been able to tolerate without the need for medication for many years.

Mr Adler's cervical spine pain does not appear to have developed the chronic feature of his low back pain, but it is nonetheless quite prone to recurrence. The pattern of radiation into the occipital region suggests pathology in the first few segments. The MRI scan was of no help in identifying the source, but diagnostic blocks could possibly do so if the pain becomes unrelenting."

Dr Meredith was of the view that the plaintiff was not fit to return to the unrestricted duties of an open cut plant operator for a number of reasons. Of all the pieces of plant considered by Dr Meredith, the one offering the plaintiff the least amount of potential risk was the excavator. That is stated at the foot of the third page of Dr Meredith's report. At the foot of the following page Dr Meredith expressed the view that it was highly likely that the plaintiff would continue to experience exacerbations of his conditions with the return to his work. It would appear that the plaintiff was then given restricted duties. He was given restricted duties in the training area. The plaintiff gave as examples of the sorts of things he would do as merely filing paperwork and providing barbeques for those attending training meetings and courses.

22. An interesting report, because of its brevity but concision, is the report of Professor Mark Parsons of 17 October 2013. Professor Parsons noted that since being off the machinery or plant that he normally drove, the plaintiff's symptoms had stopped. He thought the plaintiff was suffering from "chronic vibration induced neuropathy" which is a new and interesting diagnosis.

23. In February 2014 the plaintiff underwent an assessment by an exercise physiologist with a view to improving the plaintiff's core stability and general strength and endurance of his upper and lower body musculature, clearly with a view to the plaintiff's returning to driving trucks. The assessment was made on 11 February 2014 by Mr Joe Venter. He concluded his treatment of the plaintiff on 16 April 2014. On 6 June 2014 the plaintiff was seen by a physiotherapist at Singleton. The notes made on 6 June 2014 and 14 July 2014 at that practice are exhibit 11. The note made on 6 June 2014 recorded correctly that the mine was about to close in August. It also recorded that the plaintiff had not worked in the mine for a number of months. The plaintiff's neck was thought to be "okay" but the plaintiff's back was "tight", although the plaintiff noted that he was fitter than he had been for ages. That is probably because he had not been driving plant and is making the same observation made by Professor Parsons on 17 February 2014. The physiotherapist who saw the plaintiff on 6 June prescribed massage and exercise.

24. On 14 July 2014 there was a further consultation with the physiotherapist. At that stage sciatica of the right leg was diagnosed. There is indication that another physiotherapist called "Ben" was to write a report. Exhibit M is a report of Mr Ben Kostrezewski, an occupational therapist and rehabilitation consultant employed by Coal Services Health. The final part of the report contains this matter:

"The evaluator has considered Mr Adler's fitness to perform the physical demands of his pre injury duties as a plant operator with reference to a CS Health task analysis of a plant operator.

Haul truck operation:

Mr Adler reports to be limited with sitting to approximately two hours, which is potentially problematic to Mr Adler as shifts on a haul truck are usually in excess of four hours, with nil to little opportunities for breaks to allow for postural changes. Additionally, it would be expected that Mr Adler's sitting tolerance be reduced in a haul truck due to the bodily exposure to unexpected jarring and vibrations as a result of the road surface and coal loading. Subsequently, the evaluator considers that Mr Adler is not fit for pre injury duties on a haul truck, but would be fit for haul truck duties if he had the opportunities to rest and perform stretches approximately every hour.

Dozer operation:

Mr Adler reported increased discomfort in his neck when maintaining lateral neck rotation with static sitting, which is the functional requirements involved with ripping on the dozer. Subsequently, the evaluator considers that Mr Adler is not fit for pre injury duties on a dozer.

Excavator operation:

As noted above, Mr Adler reports to be limited with sitting to approximately two hours and provided that Mr Adler has the opportunity to alter his postures approximate every 1 2 hours, he is fit to perform the pre injury demands of this duty."

Like Dr Meredith, Mr Kostrezewski believed that the most suitable work in the pit for the plaintiff was driving an excavator, provided he could be rested every few hours to have a walk or to stretch or to otherwise have a break.

25. The plaintiff was reviewed by Professor Ghabrial at the request of his solicitors on 1 August 2014. Professor Ghabrial reports a history of deterioration of the plaintiff because of an event "in September 2013". That appears to be a reference to the event of 27 August 2013. However, the plaintiff has told a number of people that when he was performing suitable duties his symptoms had improved, not that his symptoms had deteriorated. Again, Professor Ghabrial made findings on examination similar to the ones he made earlier that are not recorded by any other practitioner. However, consistent with the history that he gave of deterioration since the event of 27 August 2013, Professor Ghabrial increased his assessments under s 66 to a 27.5% impairment of the neck, a 40% impairment of the back and a 15% loss of efficient use of the right leg at or above the knee.

26. On 22 August 2014 the Camberwell pit now operated by the current defendant closed. Eventually the plaintiff was given a redundancy but that was offered to him on 9 February 2015. The plaintiff can hardly be criticised for taking a redundancy when in fact his job had gone with the wind.

27. In the meantime, on 9 December 2014 the plaintiff was reviewed by Dr David Millons. Dr Millons obtained a further piece of history that the plaintiff was anxious not to take time off work because as a single father he had four sons to support as they grew up. That is consistent with what the plaintiff told me, that he needed to keep working to keep paying child support, although he last needed to pay that in 2011. However, it explains why he tried so hard to stay at work even when suffering from neck and back pain. The plaintiff gave Dr Millons a history of the event which we know happened on 27 August 2013 and of the plaintiff's neck and back symptoms going back to a tolerable level and of the plaintiff's wanting to return to work after approximately one week. Dr Millons on this occasion had radiological investigations available to him. He thought the plaintiff appeared to have some constitutionally based attritional changes in the neck at C6-7 and some constitutionally based attritional changes at L5-S1. He accepted the plaintiff's constitutional condition had been aggravated by the plaintiff's work. Dr Millons diagnosed a 15% impairment of each of the plaintiff's neck and back and thought half of that might be due to the aggravating effects of the work that the plaintiff had done over the years in the coal mining industry. He did not believe the plaintiff had suffered any loss of efficient use of his right leg, or indeed of the other lower limb.

28. The plaintiff, since leaving the Camberwell pit on 22 August 2014, has not sought any other work. In particular he has not sought work as the driver of an excavating machine. He confirmed in his evidence a history recorded by Mr Sebastian Bass, who interviewed the plaintiff on 9 July 2015. The plaintiff told Mr Bass that he had a bleak and pessimistic attitude towards securing further work in the mining industry and that he had not looked for work due to an upcoming court case, which is the litigation currently before me. When Mr Bass makes the point that there is work available in the Upper Hunter for drivers of excavators, but the plaintiff has not sought to find any such work, the plaintiff's riposte was that he has experience driving an excavator only in the coal mining industry and not in other fields such as construction. However there might be very little difference, the only way to tell is to try.

29. However, it is common ground that the plaintiff was performing restricted duties in the training area at the time that the pit closed down. There is overwhelming evidence that the plaintiff has been partially incapacitated for work as a coal miner since at least the assessment made by Dr John Graham on 9 June 2009. Everyone since then has said the plaintiff is not fit to do the full work of a driver of plant in an open cut coal mine. The evidence suggests that at the present time the only plant the plaintiff could drive is an excavator machine and then for a maximum of two hours at a time, to which he could return after a rest or a walk or the performance of exercise or having some other form of break or attending to alternative duties. This incapacity was at all material times quite evident to the defendant because that was the opinion expressed by Coal Mines Insurance's own doctors and by officers of Coal Services Health. If one wants to be highly technical about this issue, I would draw attention to the fact that the final certificate available to the plaintiff at the time that he was sent home when the mine shut was a certificate of Dr Tanner of 15 July 2014 certifying capacity for restricted duties from 15 July 2014 "ongoing". That certificate is exhibit Q. I have no hesitation in finding that on 22 August 2014 the defendant failed to provide the plaintiff with suitable employment during his partial incapacity.

30. The plaintiff, true it is, has not looked for work. The question is does he have the requisite mutuality? Is he ready, willing and able to engage in suitable employment for the defendant? Clearly the plaintiff liked working in the coal mining industry. It was lucrative, it was well-remunerated work and it is work of which the plaintiff has long experience, since he started working at the Drayton Colliery in 1985, in other words, the plaintiff has nearly 30 years’ experience in the coal mining industry. I believe that had the pit stayed open the plaintiff would have continued to work on with the defendant indefinitely and I believe that although the plaintiff now has a pessimistic attitude to work, the requisite mutuality is not destroyed.

31. The remaining claims are under s 66. I am unable to accede to the opinions expressed by Professor Ghabrial because his findings on examination are not replicated by any other medical practitioner and the assessment of the extent of each impairment and loss is, frankly, bizarre. To suggest that this gentlemen, who has some minor degenerative changes at L5-S1, has a 40% impairment of the back is literally incredible and cannot be given any credence by this Court. The only other assessment, of course, is that of Dr Millons. However, I carefully bear in mind the opinions expressed by Dr Meredith and the earlier expressed opinion of Dr Graham and the diagnosis offered by Professor Parsons, which is most interesting.

32. There is now, radiologically, some minor degenerative change at C6-7 and L5-S1 and there could be incipient degenerative disc disease at other levels of both the cervical and lumbar spines. Quite frankly, the paucity of radiological evidence of degenerative change indicates to me that the plaintiff is not prone to degenerative disc disease as such because generally one finds it much more advanced in persons of the plaintiff's age. Things point in my direction to most of the plaintiff's problems being determined not by an underlying degenerative condition but by the type of work the plaintiff has been performing in the coal mining industry over a large number of years. However, one cannot exclude, of course, that there is some underlying degenerative propensity or vulnerability.

33. In the circumstances I am only prepared to reduce the 15% impairment of the back and neck proposed by Dr Millins by the statutory 10%, such that the plaintiff is entitled to a finding of 13.5% impairment of his neck and 13.5% impairment of his back. I am not persuaded, on the balance of probabilities, the plaintiff has any permanent loss of efficient use of his right leg at or above the knee. Symptoms in the right leg may be referred symptoms. They cannot, in my view, be radicular symptoms as there is no evidence of any disc protrusion as such at L5-S1, that is, that there is no evidence of a compression of any neural structure by the disc at that level. Symptoms could be local and could be due to anything at all. Furthermore, they are not consistently reported. As I said, I am not satisfied on the balance of probabilities that there is any loss of efficient use of the plaintiff's right leg at or above the knee.

34. I am told that my findings under s 66 entitle the plaintiff to lump sum compensation under s 67 for pain and suffering, anxiety and distress resulting from the two impairments that I have found. Low back pain and neck pain are both notorious in the amount of discomfort they can provide and of the inconvenience they can cause to those who suffer from symptoms. The plaintiff has now had symptoms in his back and neck going back to the mid-1990s for a period of some 20 years. If he has a normal life expectancy he can expect to have them for at least a further 20 year period. However, I have to compare this plaintiff's case of pain and suffering with a most extreme case of pain and suffering, which of course includes conditions such as quadriplegia and paraplegia and in a very young person, where Mr Adler has reached an age when a lot of people decide to retire. Doing the best I can I believe the plaintiff's experience of pain and suffering stands in proportion to a most extreme case in the ratio of 1:5. If my mathematics be correct, that entitles the plaintiff to a lump sum under s 67 of $13,240.

35. I have inquired of the solicitors of the parties whether any further reasons for judgment required and I am told that none is so required.

36. I make an award for the plaintiff for $2,442.30 from 22 August 2014 to 21 February 2015; for $386.90 from 22 February 2015 to 31 March 2015; for $391.90 from 1 April 2015 to 30 September 2015; and for $395.10 from 1 October 2015 to date and continuing pursuant to s 11(2) of the Workers Compensation Act 1926 as preserved for coal miners pursuant to Schedule 6 Pt 18 of the Workers Compensation Act 1987.

37. I make an award for the plaintiff for $17,144.20 for 13.5% impairment of the neck. I make an award for the plaintiff for $10,716.30 for 13.5% impairment of the back. I make an award for the plaintiff for $13,240 pursuant to s 67. I order the defendant to pay the plaintiff's hospital, medical and like expenses pursuant to s 60. I order the defendant pay the plaintiff's costs.

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Decision last updated: 27 January 2016