Anderson v Elcom Collieries Pty Ltd

[2015] NSWDC 101

District Court

New South Wales

Medium Neutral Citation:	Anderson v Elcom Collieries Pty Ltd [2015] NSWDC 101
Hearing dates:	14 May 2015
Date of orders:	14 May 2015
Decision date:	14 May 2015
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	Redemption application approved By consent, orders in accordance with short minutes of order
Catchwords:	WORKERS COMPENSATION – Coal miners – Whether proposed sum adequate – Conflict of medical opinions on causation
Legislation Cited:	Workers Compensation Act 1987
Category:	Principal judgment
Parties:	David Anderson (Plaintiff) Elcom Collieries (Defendant)
Representation:	Counsel: Mr P O’Rourke (Plaintiff) Mr B Odling (Defendant) Solicitors: Whitelaw MacDonald (Plaintiff) Sparke Helmore (Defendant)
File Number(s):	RJ475/14
Publication restriction:	No

Judgment

1. HIS HONOUR: Mr David Alexander Anderson is a former coal miner. He has commenced proceedings in this Court claiming weekly payments of compensation from 1 October 2012 to date and continuing for either total or partial incapacity or partial incapacity deemed to be total. He also claims various lump sums under s 66 and a consequential lump sum or lump sums under s 67 for pain and suffering, anxiety and distress resulting from the claimed losses and impairments.

2. The parties have put before me a redemption proposal in the sum of $140,000. It has been suggested that the lump sum is "borderline" and merits my looking very closely at the various claims which have been made by the plaintiff in order to ascertain whether the lump sum proposed for redemption is adequate.

3. There are a number of matters which need to be noted. Firstly, the plaintiff claims a loss of efficient use of his right foot. He claims 15% permanent loss of use of his right foot which was diagnosed by a Dr Ghabrial. Dr Hopcroft assesses the loss at 5%. Dr Hughes and Dr Millons, both qualified by the defendant, assess no such loss. There is no dispute that the plaintiff injured his right foot on 17 March 1991. Dr Hopcroft has this history:

"He suffered a right foot injury on 27 March 1991 when he dropped a heavy metal pod on his foot in a boot. The metal pod had been on the back of a forklift and when it came down crushed his foot severely. He had to cut his boot off to give himself some relief. He had an X ray performed on his foot on 27 March 1991 which described in conclusion, 'There is soft tissue swelling seen in the region of the first metatarsal but no fracture or dislocation.'"

Dr Hopcroft has accurately quoted the radiological report made by Dr Peter Lau on 27 March 1991. The plaintiff's foot sustained only a soft tissue injury and there was no suggestion of any fracture to any bone or any interference with any intra-articular surface. Both Dr Millons and Dr Hughes are of the view that the plaintiff's foot complaints have nothing to do with that injury or the type of work the plaintiff did and merely reflect some underlying condition which as far as they are concerned defies adequate diagnosis. According to what the plaintiff told Dr Millons the foot swelling subsided and the plaintiff told him that his foot "does not really trouble him."

4. More recent investigations of a radiological nature made on 7 August 2013 confirm that there is no bone, joint or soft tissue abnormality identified in either foot. However, a bone scan report made on the same day indicates increased signal associated with plantar fascia bilaterally. Plantar fasciitis is really a diagnosis of sore feet. Delayed images on the bone scan demonstrate focal increase signal at the plantar surface of the right calcaneum and there is a very minimal prominence of signal on the other side of that the right foot. There were no focal changes seen in the midtarsal region in either foot although the uptake was relatively poor. The bone scan report goes on to comment on problems in the left foot which appear to involve the second, third and fourth tarsometatarsal joints. Further on, the bone scan reports that there are degenerative changes seen in the midtarsal region in each foot. It is abundantly clear that there are some degenerative changes in the plaintiff's feet but nothing can be seen to be the result of the plaintiff's right foot injury on 27 March 1991. In the circumstances, it appears that the plaintiff's symptoms, as far as his feet are concerned, are due to an underlying constitutional degenerative process which has nothing to do with the plaintiff's work as a coal miner. The Court has heard of coal miners complaints for many years and prolonged sore feet after stopping work is not one of them. In the circumstances, the Court would most likely accept the opinions expressed by Dr David Millons.

5. The plaintiff also claims lump sum compensation in respect of each of his arms at or above the elbow because of the condition of each shoulder. Dr Ghabrial diagnoses a 20% loss of efficient use of the right arm at or above the elbow and a 12.5% loss of efficient use of his left arm at or above the elbow. Dr Hopcroft diagnoses a 10% loss of each arm due to the condition of the plaintiff's shoulders and in essence Dr Hughes and Dr Millons agree with Dr Hopcroft but they are of the opinion that the plaintiff's shoulder condition is purely constitutional and has nothing to do with the type of work he did as a coal miner. The records indicate that the plaintiff sustained some frank injury to his right shoulder on 26 November 1986 and another frank injury on 5 May 1987 in which the plaintiff claimed injuries to his neck, back and shoulders. Neither incident caused the plaintiff to see any medical practitioner or alternative medical treatment. After the event of 5 May 1987, the plaintiff saw a chiropractor on 4 November 1987, six months later. For what problem the plaintiff saw the chiropractor is unclear, but he had been seeking chiropractic treatment for a large number of years before then for treatment of his back condition.

6. The matter is complicated by the fact that there has been an intervening non compensable injury. On 18 January 2002 the plaintiff attended upon Dr Daniel Posel, an orthopaedic surgeon, to whom the plaintiff had been referred by Dr Shah of Glendale. The plaintiff then had a subluxation of his right acromioclavicular joint. Prior to sustaining that subluxation, the plaintiff had enjoyed golf. Golf is an activity which throws stresses on the shoulders. The history recorded by Dr Posel is this:

"On Christmas Day David was 'wrestling' with his nephew, he fell landing on the tip of his right shoulder. He feels he 'corked' his right shoulder. He felt immediate pain over the AC joint and noticed a bony prominence over the distal clavicle superiorly. He has had no previous problems with his right shoulder. He hasn't returned to work as yet. He has now regained good function of his shoulder once again."

The plaintiff was examined by Dr Posel who diagnosed a grade II AC joint disruption on the right of the right shoulder with some minimal crepitus. He advised against operative treatment but said that if there were subsequent developments, such as acro-osteolysis, surgery would need to be considered. Such would be an arthroscopic acromioclavicular joint resection. The doctor noted that the plaintiff was to return to his work at the Newstan Colliery in the following week and was going to avoid roof bolting for a further four weeks.

7. Clearly, the plaintiff sustained a dislocation of his right shoulder joint in the event on Christmas Day when he was engaged in some horseplay with his nephew. That led to the need for treatment. Surprisingly, this event does not appear to now be determinable on plain X rays which merely show degenerative disease of the rotator cuff in each arm. Furthermore, the history recorded by Dr Posel is one that has not been given to any of the medico legal practitioners, and, in any event, it appears to have only caused some transitory interruption to the plaintiff's use of his right arm. However, one must note that the plaintiff told Dr Posel that prior to the event on Christmas Day 2001 the plaintiff had no previous problems with his right shoulder joint. There is also no complaint about the left shoulder joint.

8. In the circumstances the, Court would have to accept the opinions expressed by Dr Millons and Dr Hughes that the plaintiff's shoulder complaints are referable to an underlying constitutional condition which is not related in any way to any injury that the plaintiff sustained as a coal miner or to the type of work he did over many, many years as a coal miner.

9. Another problem which arises concerns the plaintiff's neck. The plaintiff claims a lump sum for 15% impairment of his neck, albeit that Dr Hopcroft diagnoses a 20% impairment of his neck. Both Dr Hughes and Dr Millons say that there is a 10% impairment of his neck but is wholly and solely due to the underlying degenerative process of cervical spondylosis. Dr Millons said this about the plaintiff's impairment:

"That would seem to reflect some underlying, constitutionally based attritional change and does not appear to specifically relate to the incident at work in 1987 or anything that seems that have happened to him since that time."

The incident of 1987 was on 5 May 1987 which, as I have already pointed out, did not lead to any immediate need for treatment; the plaintiff was next to see the chiropractor six months later. And insofar as s 66 is concerned, if it contributed something to the impairment of the plaintiff's neck, it would not be compensable because events occurring before 30 June 1987 lead to no entitlement for a lump sum for impairment of the neck, there being no such entitlement under the table of maims in the Workers Compensation Act 1926.

10. It would seem, therefore, that the plaintiff's claims in respect of the impairment of his neck and the loss of efficient use of each of his arms at or above the elbow because of the condition of his shoulders, and that his claim for loss of the efficient use of his right foot would all fail.

11. In the circumstances, it appears to me that the sum proposed for redemption is adequate. I approve the redemption. By consent, orders in accordance with short minutes order, which I have initialled and placed with the papers.

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Decision last updated: 25 June 2015