Boon v Coal & Allied Operations Pty Limited

[2024] NSWDC 383

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Boon v Coal & Allied Operations Pty Limited [2024] NSWDC 383
Hearing dates:	24 July 2024
Date of orders:	24 July 2024
Decision date:	24 July 2024
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	I approve the redemption.
Catchwords:	WORKERS COMPENSATION – COAL MINING – Whether causal relationship between spinal fusion surgery and work performed by Plaintiff.
Legislation Cited:	Nil.
Cases Cited:	Nil.
Texts Cited:	Nil.
Category:	Principal judgment
Parties:	Plaintiff – Garry William Boon First Defendant – Coal & Allied Operations Pty Limited Second Defendant – The Newcastle Wallsend Coal Co Pty Ltd Third Defendant – TESA Mining (NSW) Pty Limited Fourth Defendant – Labour Co-Operative Ltd Fifth Defendant – Wilson Mining Services Pty Limited Sixth Defendant – Bulga Coal Management Pty Limited Seventh Defendant – Addcar Engineers Pty Limited Eighth Defendant – Centennial Newstan Pty Limited Ninth Defendant – Centennial Mandalong Pty Limited
Representation:	Counsel: Plaintiff – Mr Williams, B. Defendants – Mr Rowles, T. Solicitors: Plaintiff – Whitelaw McDonald Lawyers. Defendants – Sparke Helmore Lawyers.
File Number(s):	2022/00162344
Publication restriction:	Nil.

Judgment

1. HIS HONOUR: There is currently before me a redemption application in the sum of $160,000.  The adequacy of that amount for redemption depends to a large extent upon whether the spinal surgery performed by Professor YAE Ghabrial in the form of a fusion of two levels of the lumbar spine is work related.  There are before me a large number of medical reports and I shall endeavour to state the matter as concisely as I can. 

2. There are two reports from Dr Minas Petrelis of Newcastle Orthopaedics.  The plaintiff was originally sent to see Dr Petrelis for treatment of his right shoulder pain.  Dr Petrelis' first report bears date 27 September 2019.  His second report bears date 8 February 2021.  That contains this history:

"In June 2020, he hurt his back when he was walking along a new concrete pathway about 10 metres long and looking up at a new installment [sic] and did not notice a 200 mm drop in the concrete and he basically fell into it.  He went from the mine site to hospital and they treated him and he has subsequently been seen by Dr Mark Russo, had some PRP injections to his back area and his back has since settled down.  He has seen Joe Ghabrial prior to this back incident about some knee degenerative issues.  I understand and Joe reviewed him with regards to his back, his knees and his right shoulder.  He was also seen by Associate Professor Miniter".

Further on in this report, Dr Petrelis said this:

"Garry at the present time, in discussing his right shoulder which he is here for today, and we chatted further about him in general, his back has settled down and he has stabilised degenerative issues with his knees according to him but I have not examined his knees.  From a shoulder point of view he gets twinges occasionally and it aches if he's using above shoulder height but he is happy to live with the shoulders the way they are as per my previous review in 2019 and more importantly he is able to sleep and drive."

Dr Petrelis went on to say that the plaintiff could return to his normal work as a mine deputy. 

3. A history recorded by Dr Neil McGill, a consultant rheumatologist, in a report dated 2 May 2022 contains this history:

"On 12 January 2021, Dr Russo recorded that Mr Boon reported 'the virtual complete elimination of all pain'.  On 8 February 2021, Dr Minas Petrelis, who Mr Boon had saw in regard to management, noted that 'his back has since settled down'.  Dr Petrelis recorded that Mr Boon had recovered from the acute jarring incident which occurred on 13 June 2020".

4. Accordingly, Dr Petrelis, an orthopaedic surgeon, and Dr Mark Russo, a pain specialist, were both of the view that in early 2021 the plaintiff had recovered from his lower back injury and was fit to return to work as far as that condition was concerned.

5. Before me are a number of reports from Professor YAE Ghabrial.  The first bears date 24 February 2021 and is essentially a medico‑legal report.  In that report, Dr Ghabrial confirms that the plaintiff had not worked since August 2020.  He goes on to record this in that report:

"I saw him on 23 July 2020 following the injury of 13 June 2020.  The X‑rays performed on 22 June 2020 showed loss of the lordosis (due to muscular spasm).

The MRI scan performed on 2 July 2020 showed minor L4‑5 protrusion and desiccation at the L3‑4 and L4‑5 segments".

6. It was Professor Ghabrial who then referred the plaintiff to Dr Russo.  Dr Ghabrial's findings on examination on 23 February 2021 are reported thus:

"Examination of the back on 24 February 2021 showed a normal sitting and standing attitude.  There was a normal gait and normal postural curves.  The spinal movements were mildly decreased with discomfort.  Extension, lateral bending and rotation were normal with discomfort.  There was mild paraspinal lumbar spasm.  The straight leg raising was normal.  There were no motor, sensory or reflex, deficits.  There was moderate tenderness at the L4‑S1 level of the lumbar midline.  The femoral stretch was negative and the sacroiliac tests were normal."

7. Dr Ghabrial often finds paraspinal lumbar spasm.  Others do not find it and it probably represents an observation of some paraspinal muscle guarding.  Omitting that, it is clear that there were no objective signs of any organic disability in the lower back as at 24 February 2021 other than subjective complaints of "discomfort".  However, the plaintiff indeed had further symptoms after that examination, and that is referred to in a report of Professor Ghabrial of 9 December 2022 that contains this history:

"When I saw him on 21 September 2021 he reported he had an incident on 27 June 2021 when he was bending down to pick up a bucket and developed severe lower‑back pain.  He attended the emergency department at Kempsey Hospital and it was suggested [that he] have MRI scanning.  This was performed on 29 August 2021 which showed no change from the previous MRI scan of the lumbar spine.  He had a dynamic MRI scan on 7 February 2022 which showed L3‑4 retrolisthesis which corrects on flexion and returns to retrolisthesis on extension".

8. That caused the plaintiff to go back to see Dr Ghabrial on 16 June 2022 and that led to Professor Ghabrial carrying out surgery on 30 August 2022 being fusions at the L3/4 and the L4/5 disc levels.  That surgery could not possibly be related to anything that happened to the plaintiff at work considering that he had last worked in 2020.  The defendant's medical evidence confirms that opinion.

9. The plaintiff saw Associate Professor Miniter on 18 October 2021.  In his report dated 3 November 2021, Associate Professor Miniter said this:

"Please note that this gentleman has extremely minor change in the lumbosacral region and there are no features of significant injury following the episode in the workplace last year".

10. In a report dated 24 April 2024 following up on a consultation on 2 April 2024, Associate Professor Miniter said this:

"Thank you for asking me to see Garry again.  I recall seeing him back in 2021 and this was before he had surgical treatment which has been performed by Dr Ghabrial on 30 August 2022.  I read through the correspondence from Dr Ghabrial and in truth, I found it hard to understand the indications for surgery".

11. The history taken at that time also confirmed that the plaintiff had not worked since 2020.  The plaintiff has also seen Dr Neil McGill, a consultant rheumatologist, as I have earlier mentioned.  Some parts of Dr McGill's history recorded in his report of 26 January 2024 are these:

"After stopping work, and prior to my assessment in May 2022, he had two substantial episodes of back pain.  In 2021 he picked up a bucket while caravanning at Kempsey.  He needed to attend Kempsey Hospital where he remained for about six hours.  He received an injection into the back (no radiology control) from a doctor.  That flare of pain lasted for at least one week.

About one week later he attended Mater Hospital in Newcastle because of further flare up of pain with no apparent precipitant.  He was at the hospital for about four hours.

...

The only area where there has been change since I last saw him in May 2022, is the lower back.  Here today (26 February 2024) explains that between May and August 2022 he had further episodes of pain and spasm in the lower back which he attributed to a nerve being pinched.  The worst of the pain was associated with radiation into the buttocks and posterior thighs, never below the knee.  There was no paraesthesia or numbness.  Following further assessments by Professor Ghabrial and further imaging, he received surgery at the L3/4/5 level by Professor Ghabrial on 20 August 2022.  He was in hospital for 16 days.  At the first six months, he 'couldn't do much'.  He attended rehabilitation sessions twice per week for six weeks including elastic‑band exercises, balance activities, and massage.  The exact surgery performed was not available but Mr Boon understood that it involved fusion."

12. It is abundantly clear to me that there is no causal relationship between the spinal surgery performed in 2022 by Professor Ghabrial and the work which the plaintiff performed as a mine deputy over a period of time which ended in 2020.

13. For those reasons, the sum proposed for redemption is, in my view, reasonable.

14. I approve the redemption. By consent, orders in accordance with short minutes of order which are initialled and placed with the papers.

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Amendments

28 August 2024 - Remove apostrophe in catchwords.

Decision last updated: 28 August 2024