Bates v Stratford Coal Limited
[2024] NSWDC 693
•1 May 2024
|
New South Wales |
Case Name: | Bates v Stratford Coal Limited |
Medium Neutral Citation: | [2024] NSWDC 693 |
Hearing Date(s): | 1 May 2024 |
Date of Orders: | 1 May 2024 |
Decision Date: | 1 May 2024 |
Jurisdiction: | Civil |
Before: | Neilson DCJ |
Decision: | Award for the defendant. |
Catchwords: | CIVIL – COMPENSATION – COAL MINING – Injury to neck allegedly caused by driving haul truck over hole in haul road – Onset of symptoms about 17 hours after event alleged to have caused injury – Court not satisfied of causation on balance of probabilities of exacerbation, by alleged event. |
Legislation Cited: | Workers’ Compensation Act 1926, s 11(2) |
Cases Cited: | Nil. |
Texts Cited: | Nil. |
Category: | Principal judgment |
Parties: | Plaintiff – Craig Timothy Bates |
Representation: | Counsel: |
File Number(s): | 2023/00223054 |
Publication Restriction: | Nil. |
JUDGMENT
HIS HONOUR: The plaintiff, Mr Craig Timothy Bates of Gloucester, claims weekly payments of compensation from 21 February 2023 to 19 July 2023 for either total incapacity or partial incapacity, or partial incapacity deemed to be total pursuant to s 11(2) of the Workers’ Compensation Act 1926, as its operation is preserved for those who work in or about a coal mine under Workers’ Compensation Act 1987, Sch 6, Pt 18. The plaintiff was and remains an employee of Stratford Coal Pty Ltd, for whom he commenced working directly on 5 December 2022.
Mr Bates first entered the coal mining industry in this State in October 2013 when he started working as an operator at the Mount Arthur Coal Mine. He was working there for a number of subcontractors to the mine owner. He first started working at Stratford Coal on 2 August 2021, but that was originally with a contractor to that colliery. He commenced, as I said, to be directly employed by the colliery in December 2022. The plaintiff relies on an event which is alleged to have occurred on 20 February 2023. That is pleaded in this fashion:
“On or about 20th February 2023, during the course of his employment with the defendant, the plaintiff was operating a haul truck over rough ground when it struck a hole and caused injury.”
The plaintiff also relies upon the type of work he was doing for the defendant, which it is alleged involved whole body jarring and vibrations as a result of operating various plant and equipment over rough roads, and in dumps, and certain other activities for which there is no evidence. The defendant operated a Caterpillar 785 haul truck. He drove that truck on a full-time basis. He was working overtime in addition to his normal hours and was on a rotating roster.
The event relied upon occurred on Monday, 20 February 2023. The plaintiff had not worked over the previous weekend. He had worked for the five days of the earlier week. He had last worked on Friday, 17 February 2023. On 20 February 2023, the plaintiff commenced his shift at 2.30pm. According to the plaintiff’s claim for compensation, the event occurred at about 5.30pm, after having been working for some three hours. In oral evidence today, Mr Bates told me that the event occurred at about 5.35pm. Nothing hinges on that very minor inconsistency.
The plaintiff was driving his truck along a haul road on the left-hand side of the roadway, and was approaching a left-hand bend, as I understand it. He saw coming a truck on the other side of the road, travelling in the opposite direction, and he said it was necessary for him to pull over a bit to the left-hand side, as he was looking to his right at the truck coming in the opposite direction. It appears from the evidence given today by the defendant’s operations manager, who at the time would have been the plaintiff’s mining supervisor, that the roadway is in fact divided by there being a windrow between each side of the road in order to prevent trucks from colliding with each other.
I can accept that the plaintiff may have instinctively pulled over to the left a bit, which his evidence suggests, and the terminology “a bit” is what the plaintiff himself stated in his claim for workers’ compensation. When he pulled to the left, the plaintiff said his vehicle noticed a bump, as he put it. That is, it struck a hole which had been only recently filled with fresh gravel, and he hit one side of the hole, displacing some of the gravel. In his claim for compensation, the plaintiff described the event in this fashion:
“Driving haul truck when I hit a bump in haul road while looking to my right as there was an oncoming haul truck coming towards me. I got over a bit, that’s when I hit the hole (bump). I continued operating as it didn’t really affect me at the time.”
The plaintiff continued working. His shift was due to finish at 12.50am on the following Tuesday morning. He was ready to clock off at 12.40am, waiting until he could permissibly leave the mine. He went home. He told me that it took him one quarter of an hour to drive home, and he went to bed at either 1am or 1.30am. I am fairly confident that he does not remember what exact time it was that he went to bed, but he has provided me with his usual range for when he retired to bed, and that was in the range between 1am and 1.30am. He awoke the next morning; again, he provided me with two times. I suspect it is a range between 8.30 and 9am.
It would appear, therefore, that between the event relied upon and the plaintiff’s rising, there is a gap of either six and a half or 7 hours. During that period of time, there is not a scintilla of admissible evidence that the plaintiff had symptoms. Indeed, his claim form continues, thus: “Next morning, after my shift, I had neck pains and pins and needles down my left arm.” Again, the plaintiff told that exact history to Dr Daniel Posel, an orthopaedic surgeon retained by the defendant, who examined him on 4 October 2023. Dr Posel’s history contains this:
“Subsequent to waking up on 21 February 2023 with neck discomfort and numbness and tingling in the left arm, Craig Bates had a rather extensive course of exercise physiology sessions. He ultimately resumed usual haul truck operating duties in August 2023. He stated he could have returned to such duties by at least mid-April 2023, albeit with left arm discomfort, but his general practitioner was of the opinion that his driving ability should increase prior to resumption of haul truck operating duties.”
When the plaintiff was questioned by Dr Posel, Dr Posel asked the plaintiff whether he would describe the event in question as “whiplash injury,” but he denied that would be a proper description of what happened when he hit the bump. It is common ground that at the end of the shift, that is, at either 12.40 or 12.50am, the plaintiff told his OCE (Open Cut Examiner) that when asked how the shift went, that “I’m just a bit tired, but all good.”
The plaintiff confirmed to Dr Posel, as he confirmed in his evidence before me, that he remained asymptomatic for the rest of his shift, remained asymptomatic during the drive to his residence, and remained asymptomatic before going to sleep, and was only aware of any symptoms when he awoke the next morning. Originally, he thought it might be due to the way in which he slept.
He sought to go to his general practitioner, one of the various doctors at the Gloucester MediCo at Denison Street, Gloucester. Eventually, he got to see Dr Gorgievski on 27 February 2023. When he phoned his general practice, the plaintiff was told that he should go to the local hospital. He arrived at the Gloucester Soldiers’ Memorial Hospital at 12.14pm on 21 February 2023. He was seen at 12.31pm by the triage nurse and at 12.55pm by a medical practitioner, Dr U Harrington. The triage notes contain this history:
“Male aged 49 years, nine months, presents with pain - neck, whiplash to neck one day ago, light pins and needles down left arm to fingertips today, persistent in nature. Full grip strength plus sensation in left hand. Neck ‘a little stiff’ but full range of movements. No injury to head or loss of consciousness. Was driving truck and went over pothole, which caused kink action to neck. Vitals okay, nil other complaints.”
The note made by Dr Harrington, commencing at 2.55pm, is this:
“At work last night, drove over bump - immediate left neck pain going down left arm between 17:00-19:00. Symptoms: Pain, pins and needles left arm affecting all fingers. No weakness.”
The history obtained by Dr Harrington is incorrect. There was no immediate onset of left neck pain or symptoms down the left arm at any time on 20 February 2023.
According to a history given by the plaintiff to Dr Renata Abraszko, a neurosurgeon, the plaintiff attempted to return to work on Monday, 27 February 2023, but his employer required a full clearance from the plaintiff’s general practitioner.
The plaintiff first saw Dr Gorgievski on 27 February 2023, no doubt prompted by what he was told by his employer. The notes recorded by Dr Gorgievski say this:
“Left neck injury while [driving truck] one week ago. Presented to hospital. Awaiting MRI. Neck pain radiating to right [sic] arm and hands [sic] (pins and needles). Limited motion in neck due to pain. Slightly improving.”
Dr Gorgievski went on in his notes to record the reason for the visit: the making of a workers’ compensation claim. It is noteworthy that the plaintiff does not appear to have told Dr Gorgievski that the neck pain came on immediately after the event when he was driving his truck on the previous week. However, it appears that Dr Gorgievski probably assumed that that was what had happened. Dr Gorgievski then started providing certificates of incapacity. The employer eventually declined liability on the basis that there had been no injury, or that the plaintiff brought his problem to work, rather than work causing his problem.
Eventually, Dr Gorgievski certified the plaintiff as fit for his normal work on 19 July 2023. However, the plaintiff did not get to return to work until 16 August 2023, because in addition to wanting a clearance from the plaintiff’s general practitioner, the defendant also required a clearance from its own medical advisor. That led to the plaintiff’s returning to work on 16 October 2023. However, the defendant paid normal wages to the plaintiff during the period from 19 July 2023 until he physically returned to work on 16 August 2023. Hence, the claim made in the statement of claim should have ended on 18 July 2023, a practice, which I note for the best part of 50 years has been followed by solicitors in this State, who, when payment was stopped on a certain day, make a claim from that day when, in fact, it was a day for which compensation has been paid.
The plaintiff relies upon, essentially, the opinion of Dr Abraszko, to which I shall turn shortly. However, there is a letter from a physiotherapist, Mr Shaun O’Connor, an exercise physiologist from Kinetic Medicine, whose address is given as being Corowa. But I do not think the plaintiff is commuting between Gloucester and Corowa to get physiotherapy. Mr O’Connor’s report confirmed that the plaintiff had been attending for treatment since 7 March 2023, and had completed seven sessions of physiotherapy by that time. According to Mr O’Connor’s report:
“Craig reported sustaining their [sic] C5/C6 injury at work during their [sic] duties as a truck driver.”
I note, however, that the first consultation was recorded on 22 March 2023, and no actual history was taken until 24 May 2023, and that commences with this history:
“Driving truck-hit some dirt while turned head to right, felt a clink-pain in left trapezius all the way down to fingertips.”
Of course, there is no such history from Mr Bates at all.
Dr Abrazko’s history contains this about his prior work:
“During the course of his employment, he was exposed to regular whole body jarring and vibration, as a result of operating various plant equipment, full shifts, rough roads, dumps, and was required to regularly climb of [sic] the descend [sic] stairs, he had to perform regularly lifting, bending, constant kneeling, traversing the uneven ground.”
As garbled as that is, it appears to have been written more by a lawyer than by a medical practitioner. Furthermore, there is no evidence that the plaintiff, as a haul truck driver, was regularly lifting anything, or was regularly bending, or was constantly kneeling. One can understand that a haul truck operator might need to climb a ladder to get into the cabin of his truck and descend the ladder to get out of the cabin of his truck, but his traversing of uneven ground would be only minuscule compared to the number of hours he spent driving.
Under the heading “History of Injury,” Dr Abraszko recorded this:
“Mr Bates told me, that the truck he was in, was reported as being rough and had been tugged [sic] out on occasion. He said, that he believed that it was a rough road and a hole caused this issue. He did not notice anything in particular at that time, but the next day he woke up with neck pain, and sensation of pins and needles in the left arm.”
Dr Abraszko examined the plaintiff in Sydney on 11 August 2023. The plaintiff had undergone an MRI scan on 6 March 2023. That had been ordered by Dr Harrington, whom the plaintiff had seen on 21 February 2023. The findings of the radiologist, Dr Aluwihare, are these:
“Alignment of the cervical spine is normal. No focal bone lesions are identified. Craniocervical junction is unremarkable. Mild multi-level facet joint osteoarthritis is present. There is mild degenerative disc bulge at C5/6. No significant central canal stenosis is identified. On the left at C5/6 there is severe bony foraminal narrowing with probable impingement of the exiting left C6 nerve. No significant right foraminal stenosis is identified.”
Under the heading “Diagnosis,” Dr Abraszko said this:
“As a result of nature and conditions of his work and a particular incident on 20 February 2023, he injured his neck. He aggravated a previously asymptomatic condition, C5-6 disc protrusion causing left sided C5/C6 foraminal narrowing due to the disc osteophyte complex. This aggravation now subsided [sic].”
Of the MRI scan, Dr Posel said this:
“I have reviewed this MRI scan online and concur with the radiologist’s report. The severe bony foraminal narrowing relates to long-standing osteophytes. There is no evidence on this MRI scan of any acute insult, especially at the C5-6 level. The changes on the MRI scan are all long-standing.”
Clearly, by the word “acute insult”, the doctor is referring to any recent injury, that is, any recent injury that could show a bony reaction. Indeed, for any bony reaction to show up on x-ray of, say, the spine, one would expect there to be a gap of about 6 months before, for example, the protrusion of a lumbar disc or a cervical disc, for that matter, and a reactive bony change being visible on x-ray or other investigation. I accept that there is no direct evidence of any recent injury.
The first thing I should say about this case is that I have no hesitation in accepting Mr Craig Timothy Bates to be an honest, reliable, and accurate historian. Everything he said was truthful. He is a most remarkable man, remarkable in many ways, because of his long work history, which itself is interesting, and for is other achievements in the industry, and in our community. The records maintained by the coal mining industry show that the plaintiff worked between 2011 and 2013 in the building industry for a company known as No Bull Building, driving an excavator, a bobcat, and a truck.
He joined the coal mining industry in 2013, initially at Mount Arthur as a drill and blast stemming truck operator. He did that for a number of companies before moving to Stratford Coal. Those same records show that in 1991, the plaintiff sustained a stress fracture of his right hip when he was playing cricket. It was the result of a repetitive injury as the plaintiff was a bowler. He recovered from that stress fracture with physiotherapy.
More significantly, is the plaintiff fractured his right leg in a motorcycle accident whilst herding cattle, as a result of which he spent 29 weeks in plaster. No “hardware” was inserted into the fracture, meaning that there was no appliance left in the plaintiff’s body after he had recovered from the motorcycle accident. Dr Posel recorded that Mr Bates was an enthusiastic cricketer, playing both locally and in England. He only gave up playing cricket six years prior to being examined by Dr Posel last year. Dr Posel noted the plaintiff was a fast bowler who had given up playing cricket because of discomfort in his left knee.
Dr Posel also records that the plaintiff has been a volunteer in the NSW Rural Fire Service since the age of 16 and is still working in the RFS. Dr Posel also recorded the plaintiff was a rugby league coach, coaching from under 12-year-olds to under 18-year-olds for many years. He also recorded the plaintiff was previously employed on the land, and he reported a number of motorcycle accidents when mustering cattle. When he was mustering cattle, the plaintiff was not wearing a safety helmet, and it is possible that in one of the many throws from the motorcycle accidents, the plaintiff may have injured his neck, albeit that he was not aware of it.
However, neither the fact that the plaintiff is a truthful witness, nor the fact that he has had a very interesting working life, nor the fact that he has contributed remarkably to our society means that he is entitled to succeed in this case. The Court must be disciplined. The principle of post hoc ergo propter hoc is a fallacy in logic. Because one thing happens after another thing does not mean that the two are related. The authorities make it clear that the principle of post hoc ergo propter hoc is just as fallacious in the law as it is in logic, and medical practitioners have constantly reminded me over the years that the same principle applies in medicine.
This Court often deals with cases where the diagnosis is the aggravation, exacerbation, or acceleration of a degenerative condition, such as cervical degenerative disc disease, thoracic degenerative disc disease, and lumbar degenerative disc disease. The only way of knowing that an aggravation, acceleration or exacerbation is caused by work is because the onset of the symptoms of the condition occurs at work.
Because one bends over at work to pick something up off the ground or the floor, does not mean that pain experienced two or three days later was caused by that bending over at work. If one, for example, is bending over to tie up one’s shoelaces, the only way of fixing the nexus between work and symptoms is the fact that the symptoms were triggered off by the activity at work. Here, there is no evidence of any triggering of symptoms.
A triggering of symptoms is an exacerbation. A work injury can also cause an acceleration, which is the speeding up of the condition, but again, one can only determine whether the work sped it up because of the presence of symptoms. Again, aggravation is the same consideration; it is only the triggering off of symptoms by the event at work that might enable the Court to find that there had been a relevant exacerbation, acceleration, or aggravation.
Here, there is at least 16 and a half hours, if not 17 hours, between the event relied upon at work and the experiencing of symptoms by the plaintiff. As the plaintiff himself realised when he woke up on the morning of 21 February 2023, he thought the condition might be due to the way in which he slept. People can toss and turn in their sleep, or roll over, or misplace their body part, for example, by the misuse of a pillow. Here, it is common ground that there was no symptom incurred or experienced at the time the plaintiff’s truck hit a hole, which had been incompletely filled with recent gravel.
In the circumstances, the Court could not be satisfied on the balance of probabilities that the period the plaintiff had off work, between 21 February 2023, and his being certified as fit to return to work on 19 July 2023, was caused by the event relied upon. Nor indeed could the Court be satisfied on the balance of probabilities that the plaintiff’s work somehow caused this relevant exacerbation, if that is the correct categorisation of what occurred.
Exacerbation is probably a better term to use for a short period where symptoms are experienced, rather than an aggravation, which appears to be making the condition more grave, that is, weightier, or heavier, or less endurable. It is unfortunate that the system adopted by the employer did not permit the plaintiff to return earlier to work. He clearly would have returned to work if he were permitted to after one week off, and clearly, he thought that he could return to work much earlier than he did. As is pointed out by Dr Posel, the plaintiff himself thought that he could have gone back to work by mid-April of 2023.
The system adopted is cumbersome, but that, again, does not give rise to an entitlement to workers compensation in respect of the period now in question. I should say that on the evidence available, the plaintiff would have succeeded in his claim under s 11(2) had he been entitled to be successful in these proceedings, provided that the parties could reach an agreement as to what the current weekly wage rate was during the relevant period.
For those reasons, I make an award for the defendant.
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