Blatchford v Xstrata Glendell Mining Pty Limited

[2015] NSWDC 349

District Court

New South Wales

Medium Neutral Citation:

Blatchford v Xstrata Glendell Mining Pty Limited [2015] NSWDC 349

Hearing dates:

17-19 August 2015

Date of orders:

19 August 2015

Decision date:

19 August 2015

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

Award pursuant to s 11(2) of the Workers Compensation Act 1926 as preserved in its operation for coal miners by Sch 6 of the Workers Compensation Act 1987 for each of the periods claimed in the statement of claim.

 

Award for $14,288.40 for 18% permanent impairment of the plaintiff’s back after a deduction for 10% of total loss pursuant to s 68A

 

Award for $15,000 pursuant to s 67.

 

Defendant to pay s 60 costs

 Defendant to pay plaintiff’s costs

Catchwords:

WORKERS COMPENSATION – Coal miners – Nature of the compensable event – Whether injury a disease – Non-compensable aggravation of underlying condition irrelevant to the compensability of a period of incapacity – Assessing lump sum compensation – Inadequacy of medical evidence – Court relying on general principles drawn from case law

Legislation Cited:

Workers Compensation Act 1926
Workers Compensation Act 1987

Cases Cited:

Calman v Commissioner of Police [1999] HCA 60; (1999) 19 NSWCCR 40
Szauter v Centennial Northern Mining Services Pty Ltd [2015] NSWDC 112

Category:

Principal judgment

Parties:

Craig Blatchford (Plaintiff)
Xstrata Glendell Mining Pty Limited (Defendant)

Representation:

Counsel:
Mr D Benson (Plaintiff)
Mr L Goodman (Defendant)

  Solicitors:
Slater & Gordon (Plaintiff)
Sparke Helmore (Defendant)

File Number(s):

RJ551/13

Publication restriction:

No

Judgment

1. HIS HONOUR: The plaintiff, Mr Craig William Blatchford, is a coal miner. He claims weekly payments of compensation from 9 December 2013 to 12 December 2013 and from 10 January 2014 to-date and continuing pursuant to s 11(2) of the Workers Compensation Act 1926, as it is preserved for the benefit of coal miners by the Workers Compensation Act 1987. The plaintiff also claims lump sum compensation under s 66 of the Workers Compensation Act 1987 for 27.5% permanent impairment of his back and 10% loss of efficient use of each of his legs at or above the knee, and a consequential lump sum for pain and suffering, anxiety and distress resulting from that impairment and those losses. He also claims a general order under s 60.

2. In issue are the questions of injury, incapacity and causation, to put things in short form.

The plaintiff’s background

3. The plaintiff was born on 24 April 1970. He is currently 45 years old. He attended the Whitebridge High School near Charlestown and left there at the age of 16, having obtained the School Certificate. The inference to be drawn is that he completed his education in 1986 and then entered the workforce. All told, he worked for BHP for five years, I infer from his evidence, in at least two different periods of employment. He went to Western Australia for a number of years where he worked as a professional fisherman, as a grape picker in the Margaret River vineyards, and then in the mining industry at Meekatharra.

4. He returned to the Hunter from Western Australia and commenced working in the coal mining industry for Skilled Engineering in April 2004. He worked for Skilled Engineering at the Mount Thorley mine. He left the mining industry in April 2007 to take up a position as a real estate agent involved in sales. However, he only persisted with that occupation for 12 months and then returned to the mining industry. He told me the mine work lured him back into the industry. It was not the money which he could earn in the coal mining industry but rather his love of driving plant and machinery. The plaintiff told Dr Roger Rowe, who examined him on a number of occasions for the defendant, that most of his adult life he worked as an earthmoving plant operator.

5. In April 2008 the plaintiff returned to the Mount Thorley mine, working for Pegasus. He then applied for work with the defendant. He completed the necessary health examinations with Xstrata Health on 2 December 2008, and, according to exhibit D, commenced working with the present defendant on 19 January 2009. He worked at the Glendell colliery. That colliery is halfway between Singleton and Muswellbrook, part of the Mount Owen complex. It is an open cut coal mine.

6. The plaintiff told me that he spent 97% of his time working at the Glendell Mine, driving bulldozers, but after a while he progressed to driving digging machines. The bulldozers which he drove, he identified as D10s. Once upon a time, the largest Bulldozer known was a D9, but I am know led to believe the largest bulldozer that is driven is a D11. These are very large pieces of machinery which initially are slow moving, but once they get moving are very hard to stop. In order to drive the machine, the plaintiff sat on its right-hand side and would need to look over his shoulder to the right when reversing. He demonstrated the bodily posture which he adopted when doing that and it clearly showed him throwing the weight of his body onto his right buttock and twisting his neck, at least, to the right to look over his right shoulder, and clearly that would throw stress onto the spinal column. These machines are well known to cause vibration and are well known to jerk, jolt and jar when they go over uneven terrain which might be constituted by a large boulder which has been partially or wholly unearthed and might be hard to move. I need not describe the plaintiff's worth as a bulldozer driver further because it will be necessary for me to quote documentation on the question of injury which establishes the extent of the potential traumata to which a bulldozer driver might be exposed whilst driving such heavy machinery.

The onset of symptoms and initial treatment

7. The plaintiff noticed an insidious onset of pain. That onset appears to have occurred on 18 November 2009. The plaintiff reported it on that day to Mr Dean Dunn. Exhibit C is an incident detail report. The detail contained in it is this:

"Operator was operating DZ401 in Barrett Pit Block 5 West when he started to feel sharp pains in his upper legs, hip region and lower back. Reduced his workload to try and relieve pain he was feeling and reported injury to Health and Safety Coordinator when he came in for crib, approximately 1 hour after initial pain. No particular event could be identified to have contributed to this injury."

The “operator” concerned was clearly the plaintiff. His responsible supervisor was Mr Chris Hanlon. According to the same document the plaintiff was treated by Dean Dunn. The nature of the complaint was categorised thus: "Sprains and strains of joints and adjacent muscles." The mechanism described was "exposure to mechanical vibration". In the top right-hand corner of the first page of exhibit C is a "Risk Rank: 18 High." The inference to be drawn is that the employer considered this operation to carry a high risk of injury.

8. The defendant immediately called in Ms Roseanne Baxter, an occupational therapist. She visited the mine that afternoon; that is, on 18 November 2009. She obtained this history:

"Craig reported that he was performing his normal work duties of dozer operation cleaning up around the digger today, 18/11/09 on dayshift. He felt a gradual onset of pain in low back, hips and anterior thighs bilaterally as the shift progressed. Craig reported that there was no specific incident that correlated to his onset of pain. He reported that he was working in relatively easy material, with no ripping involved. On coming in for crib (approximately 1pm), Craig reported his pain to his supervisor who arranged his transfer to the First Aid office on site. Ice was applied and the Occupational Therapist contacted. Craig was assessed at 2pm in the site first aid office. Craig reported no significant history of low back pain. He did report that last week he was experiencing some tightness in his hamstrings, but this had settled spontaneously. He reported that he had been symptom free over the week end. He reported that he had gone swimming at the beach at Newcastle. He reported that he presented to work this morning feeling symptom free."

On a review of all the documentation available that history appears to be accurate. Ms Baxter examined the plaintiff. Her report says this:

"Central low back pain (low lumbar region) with sharp pain radiating around to both hips and down the front of both thighs. Pain reported to be sharp and/or "electric shock" in nature. VAS rating of 7/10 when operating, 4/10 at start of assessment, slight improvement after local treatment.

- Slight torso list to the right-hand side.

- Reports that symptoms more manageable when he is upright and moving around pain aggravated by sitting.

- AROM - lumbar forward flexion to just below knee (Craig reports that he can normally place his palms on the floor) with aggravation of symptoms, normal extension, decreased lateral flexion to left.

- Tender on palpation of spinous processes L4/5 with aggravation of radiating pain, moderate tightness of erector spinae musculature of lumbar vertebrae. Marked tightness of gluteals and external hip rotators.

- Positive neurological signs in lower limbs indicating L4 involvement bilateral weakness of knee extension, left weaker than right."

Ms Baxter went on to say this:

"Craig is presenting with the symptoms consistent with a disc and/or nerveirritation at L4/5. Given the nature of Craig's symptoms, it was recommended that he cease dozer operation for the rest of the shift."

Ms Baxter then went on to make suggestions as to how to manage the plaintiff's complaint of injury. The last of those recommendations was a reassessment by telephone call on the morning of 19 November 2009 to obtain advice concerning suitable work duties and any necessary medical or other intervention. The fact that Ms Baxter recommended the plaintiff stop dozer driving indicates that, in her view, dozer driving may have been the cause of the problem that she identified with the L4-5 disc.

9. On 19 November 2009 the plaintiff was sent to see Dr William Debelak at the Singleton Medical Centre. Doctor Debelak has been described in the evidence as the defendant's medical officer or the company medical officer. He obtained a history of the onset of pain on the preceding day, and his having seen Ms Baxter and having already seen Ethos Health and his needing non-specific anti-inflammatory drugs. He prescribed Panadeine Forte. The clinical notes of Dr Debelak are before me. They are exhibit O. They do not set out any clinical findings, and the evidence of the plaintiff suggests that Dr Debelak did not actually examine the plaintiff at any time. However, he was interviewing the plaintiff and providing him with certificates and writing letters to the defendant. He saw the plaintiff again on 25 November, 4 December, 7 December 2009 and 2 February 2010.

10. The plaintiff, as the notes of Dr Debelak tells me, was sent to Ethos Health. Ethos Health has practices at Newcastle and Charlestown, and in 2013 also had a practice at Singleton. The plaintiff went to Ethos Health clinic in Newcastle. There are some reports from that practice before me, but also that practice's notes, and the notes indicate many more attendances than are mentioned in reports. On 19 November 2009 it was noted that the plaintiff was tender to palpation at L3-4 and there was found to be left paravertebral muscle tenderness and spasm. Paravertebral muscle spasm is an objective sign of organic disability. The physiotherapist also noticed a bilateral reduction of the tendo Achilles reflex which, again, is an objective sign of organic disability, a neurological symptom indicating some nerve root compression from a protruding lumbar disc. The physiotherapist, Mr Pickering, diagnosed a lumbar spine discogenic irritation; that is, the irritation of a nerve root caused by a bulging or protruding disc.

11. The exact location of the plaintiff's main tenderness varies in the clinical notes of Ethos Health, but it always concerns the lower lumbar segments, and is generally centred around the L4-5 level. On 20 November palpation showed maximum tenderness at L3-4. On 23 November maximal tenderness was at L3-4 again. On 25 November there was no identification of the exact level of maximal tenderness, but there was a finding of a positive slump test greater on the left than on the right; again a sign of organic disability, referrable to nerve root irritation. On 26 November 2009 the identified level of maximal tenderness on palpation was L4-5, and on palpating that level, pain was referred to the superior glutus on each side. The pain on palpation of L4-5 was said to be sharp. On 27 November there was no identification of any particular level in the low back. On 30 November there was, again, no particularisation of any one level, but the straight leg raising was limited to 70 degrees on each side; and on straight leg raising, there was a reproduction pain in the low back. Again, a positive straight leg raising test suggests organic disability. Furthermore, there was a positive Trendelenburg test; again, a positive sign of organic disability. On 2 December both the notes and a report indicate maximal tenderness at L3-4 and L4-5. There was also a finding of spasm. There was also a finding of a positive neurological deficit on the left hand side.

12. On that day, arrangement was made for a "on site work assessment" on the following day. That assessment was attended by Mr Pickering, the plaintiff; Mr Nathan Heuston, a colleague of Mr Pickering; the plaintiff's health and safety manager, Mr Dean Dunn; and a rehabilitation provider. The following recommendations were made:

"To appropriately adjust the dozer seat height to improve pelvic and hip position and encourage loading through his lower limbs (to minimise the effects of vibration and jarring during operation).

To adopt a 'side-saddle' position for operating during 'ripping' tasks.

-To adjust and utilise his armrest bilaterally to support his elbows whilst operating the joystick and steering wheel in order to minimise loading through his spine.

- To appropriately adjust the seat air pressure to minimise travel of the seat and the impact of vibration and jarring during operation.

-To engage his gluteal and quadriceps muscles bilaterally, as well as his deep core stabilising muscles, during loading/operation of equipment."

The inference to be drawn from those recommendations is that the vibration and jarring were bad for the plaintiff's low back condition. Equally, an inference can be draw that they might be the cause of the plaintiff's low back condition.

13. The plaintiff, again, attended Ethos Health for treatment by a physiotherapist on 7 December when the site of maximal tenderness was said to be L3-4.

14. On 9 December 2009 the plaintiff was seen by Dr Sandra McBurnie, an occupational physician at Maitland at the request of the defendant. It was Dr McBurnie's opinion the plaintiff did not have signs or symptoms of radicular pain. She went on to say this:

"In my opinion, Mr Blatchford would be able to return to work on the haul truck for limited hours initially with the aim of increasing the hours quickly as tolerated, and then moving onto the dozer in the same manner. A complicating factor is that Mr Blatchford lives at Redhead and so drives for 1 2 hours to get to work. This may delay his return.

Once he has returned consideration should be given to the use of a gel seat/lumbar support to try to improve comfort and to limit transmission of vibration, particularly if the plant seats do not have built in mechanisms."

Again, Dr McBurnie has recommended that steps be taken to minimise the vibration experienced by the plaintiff when driving bulldozers, and, again, the inference to be drawn is that it is inimical to the low lumbar disc and, therefore, could be a cause of low lumbar disc pathology.

15. On 10 December 2009 the plaintiff returned to Ethos Health when the level of maximum tenderness appears to be L3-4. On 15 December 2009 there is not only a contemporaneous note but also a report. That shows that palpation at L4-5 and L5-S1 resulted in tenderness with central pressure and the intermittent referral of symptoms to the right hip. There was a positive femoral nerve tension test on the right, again, an objective sign of organic disability. The report made by Mr Pickering indicates that consideration was being given to possible seating changes that would hasten the plaintiff's ability to return to bulldozer driving. The plaintiff returned once more to Ethos Health in 2009 on 17 December 2009, and the inference to be drawn is that the report bearing the date 24 December 2009 refers to the tenderness on 17 December 2009. According to the handwritten notes, pain was maximal between L3 and L5, although the report refers to L5-S1.

16. It is common ground that the plaintiff had returned throughout this period to one form of suitable duty or another. After Christmas the plaintiff returned to Ethos Health on 7 January 2010. The plaintiff told Mr Pickering that he was feeling good and had no low back pain. On palpation it was found that the L5-S1 disc space remained mildly tender with central and/or right transverse pressure. Straight leg raising on that occasion was negative. The report of 8 January concludes thus:

"Craig continues to demonstrate a positive response to treatment. A further 2 3 sessions over the next 3 4 weeks are likely required to consolidate correct manual handling technique and further strengthen his trunk stabilisers to reduce his risk of re-aggravation. I have strongly encouraged Craig to continue with his home exercise program regularly. Based on testing of Craig's functional work capacity within the clinic (as outlined in his return to work plan) I anticipate Craig will continue to progress toward pre-injury duties as outlined in his suitable duties plan."

17. The final attendance upon Ethos Health in 2010 was on 29 January. According to the clinical notes, the plaintiff told Mr Pickering that he was feeling one hundred per cent at work and in his daily activities. He was currently doing half days driving dozers without any problem. There was no complaint of hip pain. There was no local tenderness on palpation of the lumbosacral spine. As I read the clinical notes, they suggest that in essence the plaintiff was pain free and without any major ongoing problem. The report of 29 January 2010 suggests the plaintiff had returned to full-time dozer work, but that is inconsistent with the clinical notes and inconsistent with other evidence. The report of Ethos Health of 29 January 2010 suggests the plaintiff had been cleared as being fit to return to his pre-injury duties, but that had not yet occurred.

18. Doctor Debelak certified the plaintiff as fit to return to his pre-injury work. On 2 February 2010 the plaintiff told Dr Debelak that he was "pretty close to one hundred per cent better." Doctor Debelak issued a certificate certifying the plaintiff is fit for his pre-injury duties commencing on 2 February 2010. The plaintiff then returned to those duties.

Investigations

19. The interesting thing about the plaintiff's treatment over the period from 18 November 2009 to 2 February 2010 is that no X-ray of any type was ever performed. There was no investigation. Subsequent plain X-rays have been performed by chiropractors. Only one of them is before me, and one has to have concerns about radiological reports made not by radiologists but by chiropractors. However, the plaintiff was referred by a general practitioner at the Redhead General Practice for an MRI scan of his low back. That was performed on 17 December 2013. It is reported by Dr Stuart Slater. That report is exhibit V. No abnormality was detected at L2-3 or L3-4. The report says this of the next two levels:

"L4/5 disc has annular fissure in the midline with small broad based protrusion. The canal, intervertebral foramina and lateral recess appear normal. Minor end plate change. Apophyseal joints appear normal.

L5-S1 disc, canal and intervertebral foramina appear normal. Mild apophyseal joint degenerative change."

The opinion expressed by Dr Slater is this:

"Annular fissure and degenerative disc at L4-5 with minimal broad based protrusion. No significant neural compression."

20. Another way of describing a "annular fissure" is a tear in the annulus fibrosis of the disc. When there is a tearing of the annulus fibrosus of a disc, the interior of the disc can extrude through the tear. The interior of the disc is the nucleus pulposis. A disc can be equated to a golf ball. It has a hard external surface (the annulus fibrosus) and a liquid interior (the nucleus pulposis). When there is a tearing of the annulus the nucleus pulposis can extrude and impinge upon the theca of the spinal cord or on the adjacent nerve roots, causing a neurological deficit. A protrusion of the nucleus through an annular tear can be described as a disc lesion, a disc herniation or a disc protrusion, but it is only really significant if it impinges upon the theca or the nerve roots causing symptoms. The primary symptom is pain. If the protrusion is substantial or becomes chronic it can lead to neurological signs in the lower limbs, if it be a low lumbar disc, such as the interference with knee and ankle jerks, with the production of altered sensation in the dermatomal distribution of the nerve root affected, and can lead to such things as muscle wasting within the muscles innervated by the affected nerve, and can lead to things such as foot drop. However, it is common for the protruding material of the annulus fibrosus to be resorbed into the disc itself, that is, for the material to go back through the fissure into the nucleus.

Finding as to injury

21. Bearing in mind, in particular, what was said by Ms Baxter when she examined the plaintiff on 18 November 2009, and bearing in mind the findings of Ethos Health from time to time thereafter, it appears to me to be more probable than not that on 18 November 2009 the plaintiff tore the annulus fibrosis of the L4-5 disc, and that at the time there was a protrusion of some nuclear material which impinged upon at least nerve roots at the L4-5 level. There was a gradual amelioration of the condition; that is, the extruded nuclear material returned to within the disc; there was reabsorption of that material leading to the amelioration of symptoms and the plaintiff's eventual return to work on 2 February 2009.

22. Lest it be thought that I have embarked upon some frolic of my own, that is exactly the opinion, expressed somewhat more cryptically, by the plaintiff's treating neurosurgeon, Dr Peter Spittaler, who was only to examine the plaintiff on the 17 July 2014. In a report of 17 July 2014 addressed to Dr Kathryn Martin of the Redhead Medical Practice, Dr Spittaler said this:

"The patient developed lower back pain in 2009 after spending a period ripping on a dozer after a 'bad shot'; there was a large amount of large rocks and debris and he was jolted around a lot on the dozer. Since this time he has had multiple exacerbations of back pain which have been associated with bilateral leg pain and tightness in his hamstrings. He was on light duties at work, but these were drawn in January [2014] and he has not been able to return to work. He does not take medication but he has been treated with chiropractic, which helps transiently. He has had physiotherapy in the past.

The MRI of the lumbar spine performed by Hunter Imaging Group at Charlestown demonstrates desiccation of the L4/5 intervertebral disc with a modest annual disc bulge and an annular tear. There is no nerve root compression."

23. In a medico-legal report of 20 October 2014 the doctor was asked to comment on the relationship between any injury identified by him and any work incidents recited in the history or employment duties or employment practices in which the plaintiff was engaged whilst working at the Glendell Mine. Earlier in this report, the doctor had identified an injury as being an injury to the L4-5 intervertebral disc. The doctor then said this:

"Whilst the patient may well have had a degree of lumbar disc degeneration prior to the incident in 2009 it would appear that he was asymptomatic and is likely to have remained asymptomatic had he not been injured in the manner in question. Whilst it is not possible to be dogmatic, I think the most likely explanation is the event in 2009 has led to the annular tear, and therefore led the disc pathology becoming symptomatic."

24. Doctor Spittaler’s history of what occurred on 18 November 2009 is not consistent with the contemporaneous documents. For example, Ms Baxter points out that there was no ripping involved and the plaintiff did not mention to her any "bad shot" leading to there being a large amount of large rocks and debris which caused excessive jolting whilst the plaintiff was driving his bulldozer. However, the fact remains that he was driving his bulldozer with the usual problems attendant upon that work when he noticed the onset of symptoms on 18 November 2009, and it is clear that what happened then was a tear of the annulus fibrosus of the L4-5 disc.

25. The defendant called evidence from Mr Robert Gordon Chard, the plaintiff's open cut examiner at the Glendell Mine in April 2012. Mr Chard is currently an open cut examiner at the Ravensworth mine. In essence, he was the plaintiff's supervisor in April 2013. He had known the plaintiff since 2010. He was one of the two open cut examiners (or OCEs) attached to the C Crew of which the plaintiff was a member. The plaintiff was often under Mr Hanlon's supervision, but from January 2013 onwards he was always under Mr Chard's supervision. Mr Chard himself worked as a plant operator from 1997 until approximately 2003 when he became an OCE. He conceded that over his years in the industry he is aware of persons claiming to have been injured because of whole body vibration when driving heavy machinery. He said that this was a fairly common type of injury.

26. Attempts were made by mine management to treat such injuries in house in an attempt to avoid a time-loss injury under the workers compensation legislation. These can be quite expensive for mine owners or operators. In-house methods of dealing with such an injury is the providing of in house physiotherapy, in-house occupational physiotherapy, the provision of alternative duties and the retraining of those who have suffered such vibratory injuries. The documentation which I have read, the plaintiff's evidence and the evidence of Mr Chard all point inexorably to the fact that driving heavy machinery in open cut coal mines exposes the spine to vibratory type injury, jarring and jolting, which can cause damage to a low lumbar disc, and potentially damage to a disc at some levels of the spine.

27. I am persuaded on the balance of probabilities the plaintiff injured his L4-5 disc in doing his normal work on 18 January 2009.

Flare up in 2013

28. It is clear that the plaintiff returned to work, as I have said, on 2 February 2010. There was a further flare up of back pain in April 2013. The defendant's position is that this flare up of back pain had nothing to do with the plaintiff's work, was distinct and discrete from the event of 18 November 2009, and is not comparable.

29. The plaintiff told me that after returning to work to his normal duties in February 2010 he still had some intermittent problems. He told me that at "sporadic times" his back played up and to seek to relive symptoms he had either a remedial massage from a remedial masseur or massages provided by other types of masseur. He told me that between 2010 and 2013 he attended upon Mr Colin Reeves, a remedial masseur at Charlestown Square. The plaintiff also told me Mr Reeves did not charge the plaintiff because the plaintiff was his distant relative. No evidence was adduced from Mr Reeves. The plaintiff told me that he had about six other massage treatments from a masseur at the Charlestown Square to whom he paid $60 on each occasion. He thought that there were six such massages. I am completely in the plaintiff's hands about his treatment by Mr Reeves and the need for it. I am also almost in completely in the plaintiff's hands about his need for remedial massage given to him at Charlestown Square. Exhibit B is the business card of Magic Hands Massage at Shop G 8038 at Charlestown, which records him as having massages on 19 April 2013 and 16 May 2013.

30. However, evidence has been given by telephone by Ms Alison Trotter who described herself not as a masseuse but as a masseur which would be awfully confusing to any French speaker. It became clear from Ms Trotter's evidence, which I have no hesitation in accepting, that the plaintiff attended upon her practice which was known as "Back on Track" at Whitebridge on 18 January 2013. Exhibit N and exhibit AA contain copies of her notes. On 18 January 2013 Ms Trotter noted that the plaintiff "works in dozers" and that he was always twisting when he was doing that work. That, in essence, is what the plaintiff told me. She recorded the plaintiff complained of tight hamstring muscles. She massaged the plaintiff's legs when he was prone, and his back and neck muscles when he was both prone and supine. There is also reference in her notes to the plaintiff's hamstrings and to his gluteal muscles, no doubt as the site of tenderness. The first page of her clinical notes contains four printed anatomical diagrams: the first is a an anterior view of the body, the second is a posterior view of the body, the third is a left lateral view, and the forth is a right lateral view of the body. These diagrams were originally marked by the plaintiff and subsequently marked by Ms Trotter herself, and she was to make notations next to these anatomical diagrams on 22 April 2013. However, what they clearly show on the posterior view is a line indicating pain across the neck at a low cervical level immediately above the thoracic spine, and there is a line on the low back which appears to me to be over the top of the iliac crest, that is L4-5, although the plaintiff himself would not have known that. However, the line could well be just a general impression. Subsequently, the line across the low back on the posterior view has a hatching marked over it, and that hatching has been placed there, on the evidence, by Ms Trotter herself either on 18 January 2013 or perhaps on 22 April 2013. In any event, what that entry shows is the plaintiff was having problems in his low back and in his lower cervical spine in January 2013 which he attributed to the type of work that he was doing.

31. Ultimately, whether the plaintiff was having intermittent symptoms between February 2010 and April 2013 depends on whether I accept the plaintiff as a witness of truth. The plaintiff himself conceded that he did not have a good memory. He did not put himself forward as a reliable historian, and, for a reason already given, I cannot accept that he is particularly reliable in the sense of being accurate, because what he complained of on 18 November 2009 is not the history he gave to Dr Spittaler on 17 July 2014. However, there is a difference between reliability and credibility. Some people appear to be awfully reliable but they can be incredible. Some people who are perfectly credible can be unreliable, that is, inaccurate. However, as the plaintiff's complaints of intermittent problems are corroborated by the entry made by Ms Trotter on 18 January 2013, and as some attendances have been established of the plaintiff's attending the massage practice at the Charlestown Square, and, as otherwise, I formed a favourable impression of the plaintiff, I do accept that he had intermittent symptoms in his low back between February 2010 and April 2013 requiring the provision of massage from time to time. However, even accepting the plaintiff's evidence, those intermittent episodes were not frequent; there may have been 12 over a period of three years.

32. I turn then to what occurred in April 2013, which was the main concern of the evidence and the arguments before me. On 9 April 2013 the plaintiff went to the Redhead Medical Centre and saw Dr Bronwyn Anderson. The reason for the visit was right otitis externa; that being the diagnosis given by Dr Anderson to the plaintiff's complaint of a painful, blocked right ear. The plaintiff told the doctor that he was using Aquaear to try to remove water from his ear canals, but that was causing stinging. The plaintiff said to the doctor that he was flying to Sumatra within a few weeks’ time in order to go surfing. There was also a discussion with the doctor given that history of his having tetanus vaccinations. The plaintiff was treated for his right otitis externa and given advice about travel medication. It is clear that no complaint was recorded then by Dr Anderson of back pain. Indeed, the plaintiff had attended upon the Redhead practice on 22 February 2010 about a sore throat, on 7 July 2010 about sinusitis, and on 22 March 2010 about gastroenteritis. There was no complaint recorded on any of those occasions of low back pain. The plaintiff was cross-examined about his attendance upon Dr Anderson on 9 April 2013 in order to lay a foundation for cross-examining him about his going on holiday to Sumatra to go surfing.

33. On 15 April 2013 the plaintiff commenced a 12 hour shift. Exhibit 5 tells me that at 06:38:38pm the plaintiff took control of excavator number 151 and drove it until 06:16:38am on 16 April. The plaintiff returned to work that evening at 6.40 and commenced driving excavator 151 at 06:44:33pm and left that excavator at 04:38:52am on 17 April 2013. Those times might suggest a 10 hour shift, but exhibit F tells me that it was, in fact, a 12 hour shift. Much time was spent in trying to establish whether there was any particularly arduous work performed on those two 12 hour shifts. Exhibit 3 refers to the area where the plaintiff worked on the first of those two shifts, and exhibit 4 refers to the area where the plaintiff worked on the second of those two shifts. Nothing really turns on that for reasons to which I shall shortly advert.

34. It would appear that the plaintiff was not rostered to work on a second shift commencing on 17 April or on a shift commencing on 18 April. The plaintiff told me that on 17th, 18th and 19th April he was suffering from gastric problems, and the evidence is that those problems involved both diarrhoea and vomiting. I do know that on 19 April the plaintiff attended upon the Magic Hands Massage clinic at Charlestown Square and had a massage costing him $70. On Friday 19 April the plaintiff reported to his employer that he was ill and suffering from a vomiting virus. He took sick leave. On the night of 19 and 20 April 2013 it appears the plaintiff stayed overnight at the residence of his girlfriend in Charlestown.

35. One thing to which I ought to have adverted earlier is the fact that the plaintiff is a father of two young children, Maya, a daughter who was born on 10 February 2007; and a son, Archie, was born on 18 September 2009. They are the fruit of the marriage of the plaintiff and Lynda. Tragically, Lynda died on 30 June 2011 of an unexpected cardiac condition. Lynda was then 32 years old. When telling me of the death of Lynda the plaintiff was in tears. That would have been a very traumatic event for the plaintiff. His children were then four years and one year and nine months old. Not only did the plaintiff lose his wife but the plaintiff's children lost their mother, and the plaintiff would have to try to explain to his very young children why their mother could no longer be with them. Furthermore, the plaintiff would have had to rearrange his life whilst working for the defendant. The plaintiff was living, then, and still lives in Redhead. He was working between Singleton and Muswellbrook, and at times was living in Singleton when he was working at the mine. The children were being cared for by their mother when he was living in Singleton. When she died arrangements had to be made for others to care for the children, and the plaintiff's evidence is that such care was provided by his mother and Lynda's relatives. One can appreciate that in 2011 time would have been taken off work because of this family tragedy, and the necessity to make alternative arrangements for the care of the children once they had settled and come to cope with their loss, and suitable arrangements could be made for the children to be looked after by relatives when the plaintiff worked. The evidence does not disclose how much time was taken off work, but it may have been a lengthy period of time.

36. Subsequently, the plaintiff formed a relationship with Lisa who is a divorcee and has children of her own, but her children are much older than the plaintiff's. The disparity of the ages of the children prevent Lisa and the plaintiff cohabiting.

37. On the morning of 20 April 2013 an ambulance was called to Lisa's home. The phone call was made at 09:48:31am on 20 April. The ambulance was dispatched from the Hamilton Ambulance Station at 9.49am. The notes made by the ambulance officers are these:

"43-year-old male with back pain. On arrival, patient with family. Patient laying prone over lounge stating 9/10 stabbing pain in the lower right flank of his back which was worse on movement. History, patient awoke with pain 0430 and took unknown pain relief and went back to sleep. Upon awaking this morning, the patient was unable to get out of bed to stand. After a while, the patient crawled into the lounge room and stayed in that position for? two hours before calling for help. On examination, patient unable to stand as pain increased with movement. Patient eventually able to stand with assistance with [prescribed medication].”

The notes of the ambulance service go on to state the plaintiff complained not only pain in his right flank or loin, but also in his right buttock. Inter alia, he was given morphine. He was taken to the John Hunter Hospital.

38. According to the ambulance records, the ambulance arrived at the hospital at 11.10am. According to the hospital records, there is the usual discrepancy and they have him arriving at 11.13am. The triage nurses notes are these:

"Patent brought in by ambulance with right lower back pain that radiates down into the right glute that patient describes as stabbing in nature. Patient states had some pain yesterday leading to remedial massage attended, but pain has increased since. NSW Ambulance Service state patient only able to mobilise with difficulty post 2 milligrams intravenous morphine."

The hospital discharge summary goes on to record the plaintiff's general health condition which was quite normal other than the complaint of low back pain. A plain X-ray was performed at the hospital, but is said to show no abnormality. The diagnoses is, unsurprisingly, "lower back pain". The plaintiff was discharged from the emergency department at that afternoon.

39. This experience of low back pain has been treated as if it were an injury arising out of or in the course of the plaintiff's employment. It is not and cannot ever be seen to have been such an event.

Annual leave

40. The plaintiff was due to go on annual leave on 22 April 2013. That annual leave was to extend to a date in May 2013, which has been variously described as 13 May or 15 May. Nothing much turns on the exact ending of the annual leave period. It was during this annual leave period that the plaintiff had, long before, made arrangements to go to Sumatra with his mates to go surfing in the Mentawai Islands off the coast of Sumatra. The plaintiff clearly was due to work on 20 April 2013 but could not. He was also due to work on 21 April 2013 but could not because he was still suffering from low back pain. One can understand that having booked this trip to Sumatra and arranged to have annual leave the plaintiff's priority would be to get fit enough to take his holiday.

40. The plaintiff was advised by one of his friends to see a chiropractor, Mr Luke Stone, who practices at the Mayfield Chiropractic Health and Wellness Centre which appears to have another name of Healing Wave Chiropractic. The name "Mayfield Chiropractic Health and Wellness Pty Ltd" has been stamped on reports made by Mr Stone. Mr Stone, according to the plaintiff himself, is a keen surfer and hence the name Healing Wave Chiropractic Centre. The plaintiff, on 22 April saw Mr Stone. Mr Stone's report of 4 June 2013 says this:

"Craig presented to our clinic with acute low back pain with associated lumbar hypo-mobility and neurological signs in his left leg on 22/4/2013. He has since undergone a one week trial of care which has included spinal adjustments and soft tissue release techniques over three consultations with good results. The trial of care was interrupted by a holiday Craig had pre booked overseas. Treatment was resumed two weeks later upon his return..."

The plaintiff told me that he stayed in Newcastle for a week before eventually travelling to the Mentawai Islands to go surfing. He told me that his surfing was reduced to one hour a day rather than the five hours anticipated. It is clear that the plaintiff had treatment from Mr Stone for his "hypo-mobility", meaning a lack of ability to move.

42. The plaintiff also returned to see the masseur, Ms Alison Trotter. He clearly saw Ms Trotter on 22 and 24 April 2013. The history recorded by Ms Trotter on 22 April 2013 is:

"Been to hospital with back spasm 20/4. Stayed in one day. Given prescribed [pain killers] and sent home. 21/4 went to chiropractor.

Slight improvement. His muscles [have] been tighter and tighter after each shift from working in dozer and being thrown around with banging and vibrations. Got down on floor to try and stretch out tightness in back and hamstrings and back started spasm at lumbar area and couldn't get up. Phoned ambulance and taken to hospital."

Ms Trotter's treatment notes also provide some relevant information. They are these:

"Pain at lumbar on both sides of spine right worse than left (10 out of 10) hamstrings feel tight and glutei but right worse. Tight ITB sharp shooting pain down front into quadriceps 6 out 10 pain. Tight quadratus lumborum right worse as when reversing dozer. Has to look over right shoulder leaving back in very vulnerable twisted position causing compression. Contraction on right quadratus lumborum 5 out 10. Decrease range of movement on forward bending. Pain range of movement increases 3 centimetres after. Decrease range of movement side bending, right 15 degrees, left 20 degrees, after treatment right 20 degrees, left 25 degrees. Worked ITB hamstrings, glutei, lumbar, quadratus lumborum, thoracic areas prone, quadriceps and hip flexors trigger points in glutei and quadratus lumborum. Deep transverse friction on all areas mentioned. Given stretches."

The mention of the awkward position adopted when the plaintiff was driving a bulldozer is consistent with what the plaintiff described and demonstrated to me in the witness box. Unfortunately, Ms Trotter's notes do not indicate the maximal site of tenderness.

Return to restricted duties

43. After his return from Sumatra, the plaintiff returned to the care of Mr Stone who commenced treating him twice weekly. On his return to work, the plaintiff did not drive an excavator or bulldozer, but rather he drove either a water truck or a dump truck. When one consults exhibit 5, one sees the plaintiff drove a water cart on 14 May, a dump truck on 17 and 18 May, a water cart for two shifts on 19 May, and dump trucks on 23, 24 and 27 May and 1 June. That is consistent with the plaintiff’s having accommodation provided to him by his employer because of the problems he was alleging in his back.

44. The plaintiff was assessed by Ms Roseanne Baxter, the occupational therapist who had assessed him on 18 November 2009, on 5 June 2013. She approached the matter as if the plaintiff had some sort of injury on or about 20 April 2013. Her report refers to a date of injury of 21 April 2013. The history continues thus:

"Had noticed some hamstring tightness in the weeks leading up to the injury. The Friday prior to the injury he had been suffering with a vomiting virus. On getting up the next day, he performed some stretches. He had an immediate onset of severe back spasm and could not get off the floor. Craig called the ambulance and required pain relief to undergo the transfer to hospital. He was taken to John Hunter Hospital where he was given pain medications, a script for Valium and then discharged. No follow up was arranged. Craig consulted a chiropractor, Luke Stone, at Healing Wave in Newcastle. X-rays done by Luke indicated disc narrowing in the low lumbar spine and alignment issues in the upper lumbar region. Craig underwent daily treatment with Luke over the next week in readiness for a surfing trip to Indonesia. He reported that his symptoms of severe muscle spasms settled over the week enough to allow him to tolerate the plane trip and engage in some surfing activity while on holiday. Craig returned to work after holiday on 13 May 2013. His symptoms at this time had improved, but he was still noticing some catchiness with spinal movement and reduced sitting tolerance. Craig was assigned relief haul truck operation and pit duties, which allowed him opportunities for frequent stretch breaks out of sitting. Treatment with Luke has been ongoing, with Craig attending one two times per week. Treatment includes adjustments of low back and neck and exercise advice."

Ms Baxter on this occasion recommended the plaintiff continue with chiropracty under Mr Stone, that he remain on restricted duties until leave that was due to be taken on 19 June 2013 and which was to end on 8 July 2013.

45. The inference to be drawn is that that regime of alternative duties continued until the further period of annual leave commencing on 19 June 2013. On that occasion the plaintiff and Lisa and their four children went to Bali, no doubt to have a holiday as a mingled family. The plaintiff described this trip as "a disaster." It would appear likely that some children did not get on and perhaps some children did not get on with the other children's parent. There is no suggestion that the plaintiff undertook any particular arduous activity which may have thrown stress on his spine.

46. After this period of holiday the plaintiff returned to work on alternate work, and continued to receive chiropractic treatment from Mr Stone. He was also sent back to Ethos Health, on this occasion visiting its practice at Singleton. The clinical notes tell me that the plaintiff saw Ethos Health on 20 August, 30 August, 17 September, 25 September and 15 October 2013. On 17 September the report indicates the plaintiff was tender at the L5 vertebra. The clinical notes refer to central low back pain and mild referred pain on each side to the lateral thighs. The diagnosis then was of mild bilateral lateral thigh pain and the impression was mechanical low back pain with somatic referred pain. Mechanical back pain is apt to describe a condition such as a torn annulus fibrosis with extruding nuclear material.

47. On 25 September the physiotherapist, at Ethos Health, recorded the plaintiff was back to "90%." He had returned to surfing, cycling and walking, but his main issue was prolonged sitting either as a bulldozer operator or a digger operator and reported that he had commenced training as a drill operator. The oral evidence is that the plaintiff commenced training to become a drill operator after his return from annual leave in July 2013. The date given in the oral evidence was 3 August. As a drill operator the plaintiff sits in a small control cabin on a drill platform and can get up and move about within the cabin on an hourly basis if he needs to, and can also get out of the cabin and test the depth of the hole being made by the drilling rig. That can be done hourly, as well, if need be, although such does not appear to be the need for the drill operator on a formal basis as far as the defendant, itself, is concerned. Eventually, the plaintiff was trained as a drill operator and appears to have worked a drilling rig for the rest of 2013.

48. I have earlier referred to a statement made by Ms Baxter in her report of 5 June 2013 about X-rays made for Mr Stone. There is a further X-ray report made for Mr Stone on 4 October 2013, but again by a chiropractor. It does, however, refer to displaced narrowing at both L4 and L5. I assume that means the L4-5 and L5-S1 disc spaces. It also refers to "degenerative disc disease at the L4 and L5 levels."

49. When formally admitting the exhibit, which is exhibit U, I referred to the maker of the radiological report as Dr K Gracie, but my spelling of the surname might be incorrect. The report is very difficult to read as its photocopying has not been very good. Throughout the remainder of the 2013 the plaintiff remained under Mr Stone's care. On 6 December 2013 the plaintiff saw Dr Kathryn Martin at the Redhead Medical Centre. It was she who referred the plaintiff for the MRI scan made by Dr Slater on 17 December 2013. The history recorded by Dr Martin is this:

"Injury to back 20 April 2013. Went to get out of bed. Felt spasm in back while doing stretches. Seen at John Hunter Hospital, had five days off work. Injury three years ago workers compensation, same pain, working for same employer, ongoing pain since, saw their doctor, had physiotherapy with Ethos Health physiotherapy. Went back to work, usual [job] after that injury until 20 April this year. Drives diggers, heavy machinery, bulldozer, twists a lot, lot of vibration. Was to go on surfing trip overseas one week after the injury. His chiropractor was on boat. Gave him treatment while away. Goes to Luke Stone Healing Wave. Coal Mines Insurance was paying for treatment until knocked back claim on 26/9[.] Had massage, had X-rays for chiropractor. Been back to Ethos physiotherapy also. Been on light duties since, work retrained him to do drilling. Keen to return to usual job, feels he could do that now. Been sent for functional assessment, needs clearance. Some pins and needles in feet, occasional weakness legs, no incontinence.”

Doctor Martin provided the plaintiff with a certificate bearing date 6 December 2013 that certifies the plaintiff having some capacity for some type of employment from 6 December 2013 until 3 January 2014. It says that his sitting tolerance was limited to 60 minutes, and his driving ability was limited to 60 minutes.

50. Such forms of restriction are fairly common. They do not mean that a person can only sit for 60 minutes in an 8 or 12 hour shift or can only drive for 60 minutes in an 8 or 12 hour shift, but are generally understood to mean that there should be no continuous sitting for a period exceeding 60 minutes or no continuous driving for a period exceeding 60 minutes, but there must be then some variation of posture for some short period of time before returning to the sitting posture or returning to driving. However, the certificate was not so interpreted by the defendant. A dispute arose needing the plaintiff to get a further certificate. He returned to see Dr Megan Hamilton at the Redhead General Practice on 11 December 2013, and a further certificate was issued saying that the plaintiff's sitting tolerance was 60 minutes followed by a ten minute break, then repeat for the entire shift as needed. The ability to drive was so limited, as well. That caused the defendant to provide the appropriate duties to the plaintiff commencing on 12 December 2013. The dispute about the certificate grounds the claim for weekly compensation from 9 to 12 December 2013. The mine shut down for Christmas on 20 December 2013. It reopened on 2 January 2014. The plaintiff did not return to work on 2 January 2014. I do not know when he was rostered on for work. He did not return to work before 10 January 2014 when he received a telephone call from the defendant. The plaintiff told me that he received that call from Mr Ross Heath, who was the second in charge of the mine. The plaintiff was told not to return to the mine because the mine had a claim made against it by the plaintiff for workers compensation. The plaintiff said that he felt "pretty devastated" by this information. He has not been told to come back to work since. However, he remains employed. He still provides his employer with certificates for suitable employment, but no such duties are provided to him. He has not looked for alternative work because he still considers himself to be a coal miner awaiting a return to work at the Glendell Mine.

51. It is unfortunate that the plaintiff was cross-examined about his not wishing to return to work after 2 January 2014, and, instead of his going to work, of his going surfing at Seal Rocks. It is unfortunate because that activity is otherwise explicable.

52. On 30 December 2013 the plaintiff attended upon Dr Kristen Rees Gallimore at the Redhead General Practice. The notes made by Dr Rees Gallimore are these:

"Not coping. Teary. Panic attacks now interfering with function. Relationship of 18 months just broken down. Has had some thoughts of self harm but feels would never act on because of kids. No grief counselling since partner (and mother of two children) found deceased from undiagnosed heart condition. Talks with kids regularly re their mum. Craig's mum and in laws both very supportive and involved. Feels may have had untreated depression for many years even in teens. Panic attacks only recent. Did go on short term antidepressant after partner passed away did help, but didn't persist. Also has had back pain. Had been on workers compensation until liability declined. Currently looking to go through courts but may take some time. Craig's work now pushing him to operate machinery that he knows will aggravate his back. Not sleeping or eating well. Keen to talk with psychologist."

The diagnosis made by Dr Rees Gallimore was depression/anxiety. She referred him for counselling. The plaintiff returned to see Dr Rees Gallimore on 7 January 2014. She noted that the plaintiff's mood was a lot better, but there was still room for improvement. His back had not been as sore as he was off work. He woke up each morning without pain. The plaintiff told the doctor that his children were being looked after by his late wife's family, and that he had been staying with a friend at Seal Rocks and had an appointment to see the counsellor, but that could not occur until mid-February.

53. The plaintiff clearly had an existential threat which caused him to see Dr Rees Gallimore on 30 December 2013. There had been an estrangement from Lisa. Fortunately, that did not last. They have re-established their relationship. However, that stressor appears to have provoked the panic attacks and given rise to suicidal ideation. Hence, one can see that the plaintiff need to relax, to go and stay with his friend at Seal Rock and, when he was there, to go surfing. He appears not to have returned to work because of his psychiatric illness and the need to obtain counselling. The inference I draw from this evidence is that the plaintiff did not decide not to go to work because he preferred to go surfing, but rather that he did not return to work because of the panic attacks diagnosed on 30 December 2013 and the need for psychiatric care thereafter. The plaintiff told me that since he was told not to return to work on 10 January 2014 he has been prepared to return to work on a drilling rig, but such work is not available to him.

Categorisation of the event of April 2013

54. The principal question that remains for me to determine is what happened on 20 April 2013. Clearly, the notes made by the ambulance officers indicate the plaintiff woke up with low back pain. The pain was so bad that he was unable to get out of bed in order to stand. Perhaps he got onto the floor with the idea of performing exercises which might relieve the pain. His attempts to do so were unsuccessful. Eventually, the ambulance was called. One can see in the histories that I have recorded a progression. Firstly, there is no mention of the stretching at all, but then there was mention of an attempt to stretch, and, subsequently, there is a history of his doing stretches leading to the onset of pain. It appears to be more likely the plaintiff awoke with acute pain and had the intention of trying to reduce the pain by stretching, but his attempts to do so were unsuccessful.

55. There is no immediate physical activity which appears to have produced or induced the pain. However, the pain appears to be the same type of pain the plaintiff experienced back in November 2009. It must be recalled the plaintiff had torn the annulus fibrosis of his L4-5 disc. Nuclear material could protrude through the torn disc at any time. Such extrusion of the nuclear material could be induced by activity or movement, by minor activity or minor movement, or by major activity or movement; it could merely be caused by the way in which he rolled over in his sleep in bed.

56. I accept that there was some form of a non-compensable aggravation or exacerbation of pain on 20 April 2013, although it may have commenced on the preceding day. It could, as has been submitted by learned counsel for the defendant, been induced by the motion of the body in vomiting, in retching, which can throw stress on the spine. However, the fact remains the underlying tearing of the annulus fibrosis was work related. In those circumstances, the plaintiff was left with this vulnerability to aggravation or exacerbation by a non-compensable event. The High Court of Australia in Calman v Commissioner of Police [1999] HCA 60; (1999) 19 NSWCCR 40 has determined that in such circumstances it is irrelevant that the aggravation or exacerbation is not compensable, if the underlying condition is compensable that is the end of the matter.

57. Accordingly, what occurred on or about 20 April 2013 is largely relevant. The underlying pathology is the tearing of the annulus fibrosis of the L4-5 disc. That was caused in something that happened to the plaintiff at work on 18 November 2009. Everything that has happened to the plaintiff thereafter is causally related to the annular tear.

Quantum

58. It is clear that the defendant failed to provide the plaintiff with suitable employment during the first period claimed in the statement of claim; that is, between 9 December 2013 and 12 December 2013 because of a very bureaucratic reaction to the plaintiff's certificate provided to him by Dr Kathryn Martin. Common sense ought to have been used but was not. It is also clear that the defendant failed to provide the plaintiff with suitable employment; such withdrawal being on 10 January 2014. The plaintiff's probably weekly earnings, but for injury, are, according to exhibit A, $2,500. I do not know over what period the plaintiff has been paid compensation. I do not know whether the first 26 weeks of incapacity during which the plaintiff is entitled to his current weekly wage rate had expired by 9 December 2013 or not. However, suffice to say, I will merely make an order that the parties bring short minutes of order concerning the plaintiff’s entitlement under s 11(2).

59. Before I turn to the plaintiff’s claims under ss 66 and 67, I should point out that as the evidence does not disclose when the plaintiff was due to return to work after 2 January 2014, I do not know whether he failed to return to work or was unable to return to work because of his psychiatric difficulty at the time or whether merely the time had not yet arrived when he was due to return to work. The fact that he was phoned on 10 January 2014 indicates that he was either due to return to work on that day or on the following day. The plaintiff protested that he was prepared to work on a drilling rig, and I accepted that he was. Therefore, I do not believe there to be any inconsistency with the finding I made that on 10 January 2014 the defendant failed to provide the plaintiff with suitable employment and the fact that the plaintiff's failure to return to work immediately after 2 January 2014 cannot be criticised, because of the psychiatric problem for which he was under the care of Dr Rees Gallimore since 30 December 2013.

58. The plaintiff's first claim under s 67 is for the permanent impairment of his back. The plaintiff's solicitors have qualified Professor YAE Ghabrial, an orthopaedic and spinal surgeon. The plaintiff first was examined by Professor Ghabrial on 9 May 2014 and again examined by Professor Ghabrial on 7 November 2014. The plaintiff has qualified Dr Roger Rowe. Doctor Rowe is also an orthopaedic surgeon. Doctor Rowe first examined the plaintiff on 12 May 2014 and again on 23 May 2015. On each occasion, Professor Ghabrial said that the plaintiff had a 27.5% impairment of his back. On each occasion, Dr Rowe said the plaintiff had a 10% impairment of his back.

59. Professor Ghabrial in neither report provides any diagnosis. In neither report does he justify his level of assessment of the impairment of the plaintiff's back; he merely provides an ipse dixit. The diagnosis provided by Dr Rowe is of mild degenerative change in the lower lumbar spine without any evidence of radiculopathy. In his first report, Dr Rowe said that the plaintiff's back complaints were the result of a disease of gradual onset; that is, lumbar spondylosis. Lumbar spondylosis is just another way of saying degenerative disease of the low back. He diagnosed a 10% impairment of the back but provided no reasons for providing that assessment. He provided the same diagnosis at his second assessment, but on that occasion said that the 10% permanent impairment of the plaintiff's low back was a result of constitutionally determined degenerative change.

60. In Szauter v Centennial Northern Mining Services Pty Ltd [2015] NSWDC 112 I said this, at [27]:

"I turn to the plaintiff's claims under s 66. The plaintiff relies upon assessments made by Professor Ghabrial. The defendant relies on assessments made by Dr Hughes. The Court is between Scylla and Charybdis. Like Odysseus, I must steer between the siren's song coming from near Scylla and the whirlpool, Charybdis. The siren song is that of Professor Ghabrial. The siren song is attractive because it provides very large assessments of a plaintiff's losses and impairments. The siren song must be avoided because those assessments are mere ipse dixits by the professor without any reasoning being provided, without any explanation of why the losses happened and as to why there ought be no deductible proportion. Some of the assessments are extravagant. The whirlpool of Dr Hughes must be avoided because his opinion would suck me down to the bottom of the ocean. He requires that there be objective signs before making any assessment of permanent impairment, and some of his statements are internally inconsistent and, again, he refused to grapple with the argument that the type of work which a coal miner does might contribute to degenerative processes."

In this case, deja vu.

63. Again, I have assessments from Professor Ghabrial which are large, provide no diagnoses and no reasoning process; again, only ipse dixit. From Dr Rowe I have a 10% impairment which the doctor believes to be a result of constitutionally determined degenerative change. The doctor did, however, say the same thing in his first assessment under s 66.

64. Such plain radiological reports that have been made available to others clearly suggest some degenerative changes not only at L4-5 but also at L5-S1, and perhaps at another level of the spine in the cervical region. Doctor Spittaler accepted in his medico-legal report that there may well have been a degree of lumbar disc degeneration prior to the incident in 2009. He says that in paragraphs numbered 3 and 4 of the medico-legal report of 20 October 2014. However, superimposed upon that degenerative change has been a tearing of the L4-5 disc. I cannot accept the opinion of Dr Rowe that the whole of the plaintiff's permanent back impairment is due to an underlying constitutional condition.

65. Having worked in the medico-legal field for 39 years and sat as a judge for 21 years, nine of which were in the Compensation Court of New South Wales, I have come across the current problem very often. There have been judgments delivered by me in the Compensation Court where I pointed out, in order to obviate litigation of a current type, that when there is a true disc protrusion, the impairment of the back can generally be seen to be about 20%, and when it is necessary to practice laminectomy and fusion to remedy that defect, the permanent impairment of the back might be 25%. The back, it must be recalled, includes the whole of the posterior of the body from the end of the neck to the commencement of the sacrum; that is, as far as the spine is concerned, extends from T1 to the L5-S1 disc space, includes not only the vertebral column and the spinal cord encased in the vertebral column and the nerve roots leading off the spinal cord, but also all the surrounding musculature of the thoracic area and the lumbar area; and, for example, it includes the posterior ribs between T1 and T12. However, the low lumbar discs (that is, L4-5 and L5-S1, in particular L5-S1) are very important because those are the levels at which a body bends forward and backwards. They are very much involved in movement of the spine. If there be a problem at L5-S1 greater stress is thrown on L4-5 and, conversely, if there be a problem at L4-5 greater stress is thrown on L5-S1. Those two levels are very important for bending and twisting and lifting and weight bearing.

66. Here there is no frank protrusion of the L4-5 disc impinged such that the nuclear material impinges the theca and/or the nerve roots. However, the plaintiff is prone to having such exacerbations from time to time, as happened in April 2013. The exacerbations may happen at work, they may happen outside work. At some stage it is possible that a true disc protrusion will occur; that is, that there will be a protrusion of nuclear material to impinge the nerve root and theca which cannot be remedied except by surgical intervention. Bearing in mind the pathology which is here being demonstrated, the importance of the L4-5 disc space in the movement of the body, bearing in mind the plaintiff's background, which is almost wholly doing work involving driving heavy machinery, which is now probably beyond him, I accept that the plaintiff has a 20% impairment of his back. However, clearly, that arises because there is degenerative disc disease. The disc may have been vulnerable because of pre-existing degenerative disc disease/degenerative lumbar disease/lumbar spondylosis. In my view, there must be a deductable proportion. However, the evidence is scanty and I will therefore apply the statutory provision and deduct 10% of the loss to allow for a pre-existing condition or abnormality, such the plaintiff is entitled to a lump sum for 18% permanent impairment of his back.

67. The plaintiff's remaining claims are in respect of the loss of efficient use of each of his legs at or above the knee. As could be expected, I have mere ipse dixits from Professor Ghabrial. Doctor Rowe, when he first examined the plaintiff obtained a history of ache radiating from the low back into the lateral aspect of both thighs on an intermittent basis. However, the plaintiff told the doctor that he did not have any problem with either walking or standing; indeed, the plaintiff told the doctor that he was most comfortable when he was standing and walking. Doctor Rowe was not initially asked to assess any loss of efficient use of either or the plaintiff's legs. When he examined the plaintiff on 23 February 2015, he was asked to do so. On that occasion, Dr Rowe took a history that the plaintiff did not have any leg symptoms at all. His ache at that time was across the low back. Straight leg raising was 90 degrees bilaterally with a negative sciatic stretch test. There was no neurological deficit in either lower limb and there was no muscle wasting. He pointed out the plaintiff had no leg symptoms and that was consistent with a complete absence of any nerve root irritation or radiculopathy. He did not believe that there was any loss of efficient use of either of the plaintiff's legs. In his short report making the assessment in respect of each leg, the doctor pointed out that there were no leg symptoms and no signs of any abnormality in the legs, and there was no evidence of any radiculopathy or never root irritation.

68. Some organic signs of nerve root irritation were noted immediately after the event of 18 November 2009, but they went away. Some were equally noted after the exacerbation on or about 20 April 2013, but those have gone away. It is quite correct for Dr Rowe to observe, because it is consistent with all the other medical evidence, that there is no radiculopathy at the current time, and there is no evidence of any ongoing nerve root irritation, and, indeed, there is no evidence of any symptoms in either of the plaintiff's lower limbs. In those circumstances, I cannot be satisfied that there is any permanent loss of efficient use of either of the plaintiff's legs at or above the knee. Were there to be a frank prolapse with nerve foot irritation and radicular symptoms, one might so find. This, however, is not such a case. The plaintiff's claims in respect of the loss of efficient use of each of his legs at or above the knee must fail.

69. The one finding I have made under s 66 entitles the plaintiff a lump sum compensation under s 67 for the pain and suffering, anxiety and distress resulting from the impairment of his back. At the time of the discal tear on 18 November 2009, the plaintiff was 39 years old. He is currently 45 years old. If he has a normal life expectancy, and there is nothing to suggest otherwise, the plaintiff can expect to live for at least a further 40 years. That is a considerable time in which to experience intermittent symptoms in the low back. Low back pain is a notoriously inconvenient pain because it can affect one at any particular time without warning, and can cause inconvenience in one's activities and discomfort when one is doing things. It is noted to be quite a debilitating pain when it occurs. I have to rate the plaintiff's experience of pain and suffering, anxiety and distress against a most extreme case of pain and suffering, anxiety and distress which, of course, includes quadriplegia and paraplegia. I am also required to award more to a younger person than to an older person because a younger person would experience pain for longer than an older person. Here, the plaintiff has experienced pain since November 2009, almost six years now, on an intermittent basis and can expect similar symptoms intermittently for the next 40 years. However, he is not 20 at the current time nor is the pain sufficient to require surgery or the like. I would place the plaintiff's experience of pain and suffering between one-fifth and one-quarter of a most extreme case. A quarter or a most extreme case is $16,550. A fifth of the most extreme case is $13,240. I award the plaintiff $15,000 pursuant to s 67.

70. I have inquired of the solicitors of the party whether any further for judgment are required. I am told that none is so required.

Award

71. For those reasons, I make an award for the plaintiff pursuant to s 11(2) of the Workers Compensation Act 1926 as preserved for coal miners for each of the periods claimed in the statement of claim. The parties are to bring in short minutes of order setting out that award.

72. I make an award for the plaintiff for $14,288.40 for 18% permanent impairment of the plaintiff's back after a deduction of 10% of the total loss pursuant to the provisions of s 68A.

73. I make an award for the plaintiff for $15,000 pursuant to s 67.

74. I order the defendant to pay the plaintiff's hospital and medical and like expenses pursuant to s 60.

75. I order the defendant to pay the plaintiff's costs.

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Decision last updated: 04 February 2016