Bulmer v Hitachi Construction Machinery (Australia) Pty Limited

[2016] NSWDC 284

District Court

New South Wales

Medium Neutral Citation:

Bulmer v Hitachi Construction Machinery (Australia) Pty Limited [2016] NSWDC 284

Hearing dates:

26-27 July 2016

Date of orders:

27 July 2016

Decision date:

27 July 2016

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

Award for the plaintiff for $1,373 per week from 19 July 2014 to 9 December 2014

 

Award for $475.70 per week (as indexed) from 10 July 2014 to-date and continuing pursuant to s11(2) Workers Compensation Act 1926 as preserved by Sch 6 Pt18 Cl 1 of the Workers Compensation Act 1987, for a worker with two dependent children

 

Defendant to pay the plaintiff’s s 60 expenses.

 

Defendant to pay the plaintiff’s costs

 Liberty to the plaintiff to apply on 5 days’ notice concerning any future proposed surgery

Catchwords:

WORKERS COMPENSATION – Coal miner – Claim for continuing weekly payments – No dispute about injury – Ongoing incapacity found – Whether plaintiff had ongoing mutuality to sustain an award for partial incapacity deemed to be total under the Workers Compensation Act 1926 s 11(2)

Legislation Cited:

Workers Compensation Act 1926
Workers Compensation Act 1987

Category:

Principal judgment

Parties:

John Bulmer (Plaintiff)
Hitachi Construction Machinery (Australia) Pty Limited
(Defendant)

Representation:

Counsel:
Mr D Benson (Plaintiff)
Mr B Odling (Defendant)

  Solicitors:
Turner Freeman (Plaintiff)
Turks Legal (Defendant)

File Number(s):

RJ373/15

Publication restriction:

No

Judgment

1. HIS HONOUR: The plaintiff, Mr John Ronald Bulmer, claims weekly payments of worker's compensation from 10 June 2014 to date and continuing for either total incapacity or partial incapacity to be treated as total pursuant to the provisions of the Workers Compensation Act 1926 s 11(2) as preserved in its operation for coalminers pursuant to Schedule 6 Pt 18 cl 1 of the Workers Compensation Act 1987. The defendant concedes that if the plaintiff's claim under s 11(2) be unsuccessful, the plaintiff might still be entitled to succeed under s 11(1) of the 1926 Act, on account of partial incapacity simpliciter.

2. The plaintiff was born on 25 October 1971. He is presently aged 44. The plaintiff attended the Entrance High School and obtained the School Certificate. He then undertook an apprenticeship as a motor mechanic. He had three different employers as an apprentice but eventually completed his apprenticeship when working for Glen Fulton Holden and he then continued to work for that company as a motor mechanic. In February 1996 he started working for Rick Damelian Automotive where he worked until 19 March 1999. ForRick Damelian at Leichhardt the plaintiff was the head motor mechanic working on sports cars and in the new car department.

3. He then opened his own business under the name of "Tru Blue Mobile Mechanics" in which he was engaged until one week prior to commencing working with the defendant. In addition to being a mobile mechanic, the plaintiff had a secondary business of installing motor vehicle accessories, in particular reversing cameras and communication systems. However, as technology has increased, so has the number of cars fitted with accessories of that nature and the plaintiff found that the work that he had in his own business was declining. Hence he gave it away and started working for the defendant on 7 January 2012.

4. Prior to commencing work with the defendant, essentially in the coalmining industry, the plaintiff obtained a clearance, that is a fitness for work as a machinery mechanic from Dr Greg Egan of Long Jetty. Dr Egan made his certification on 2 December 2011. On 6 November 2012, the plaintiff obtained a medical clearance from Coal Services Health, the report that is before me is from Dr J Hilton and bears the date 6 November 2012. However, there must have been an earlier clearance from Coal Services Health for the plaintiff to have taken up his position with the defendant on 7 January 2012.

5. The defendant provided heavy vehicle equipment to coalmines, in particular excavators. That was the main type of vehicle upon which the plaintiff worked. The defendant had a yard at Muswellbrook where heavy vehicles were processed, disassembled and then taken to mines where they were reassembled. Amongst other mines the plaintiff worked at various times at Mount Arthur, Bulga, Mount Thorley and various mines at Mudgee, the mine at Gunnedah and eventually in the mine at Boggabri. The plaintiff's work was partly in the yard at Muswellbrook and partly in the mines to where the vehicles were transported in pieces and then assembled to work in the mine in question. This was undoubtedly heavy work, work that required heavy lifting, bending and working in confined and awkward spaces. The job of a motor mechanic is well known to this Court, and working with very large, heavy machinery used in coalmines increases the extent of the demand upon the motor mechanic's body when working on such machinery.

6. There is no dispute about the plaintiff's injury which occurred on 10 June 2014. The plaintiff was working, walking along a walkway in one section of a large excavator when he stepped on a floor plate that had not been properly bolted into place, as a result of which the plate tilted and the plaintiff fell forward, one of his legs going down into the void underneath the tilted floor plate, his leg projected about 30 centimetres below the level of the floor upon which he had been walking. The excavator on which he was working at the time was known as a 3600. He was one of a crew of four together with a supervisor who were assembling that machine at the time the plaintiff's injury occurred. According to contemporaneous documents, the injury occurred at approximately 3.30pm on 10 June 2014. The plaintiff was taken in a car by a supervisor to what was described in evidence as the Boggabri Hospital. He arrived there at 5pm. He was seen in triage at 5.30 and saw the medical practitioner, Dr Gamage, at 5.51pm. He was sent home at 6.30pm. When seen at triage, the plaintiff was complaining of pain in his back and in his left leg. It was noted at the time that he had a graze on his right knee.

7. Dr Gamage's notes form part of exhibit C. According to Dr Gamage, the plaintiff's pains were in his lower back. Dr Gamage noted that when the plaintiff moved or walked, he experienced pain running down his left leg. however, there was no numbness or weakness in either lower limb. On my reading of the doctor's notes, he made no finding of any neurological abnormality, but there is no description of the usual tests carried out to assess low back pain such as the range of movements and straight leg raising.

8. On the following day, the plaintiff went to Singleton where he was seen by Dr William Debelak at the Singleton Medical Centre at the request of his employer. Dr Debelak has a consistent history of injury, however, he points out something the plaintiff did not point out to me, that at the time of the injury the plaintiff had been carrying a breaker bar and a pipe in his right arm. According to Dr Debelak, the plaintiff had pains in his lower back on each side and some pain in the right groin. Dr Debelak noted that on the previous day, the plaintiff had pain down the outside of his left leg when his back was being examined, but that symptom had gone away. The symptoms that the plaintiff discussed with Dr Gamage at the Boggabri Hospital and with Dr Debelak are suggestive of some form of either radicular or referred pain from the low back into the legs. Dr Debelak provided the plaintiff with a certificate to perform restricted duties for seven days commencing on 7 June 2014. However, the plaintiff was not provided with restricted duties by his employer, but was sent home to the central coast.

9. On 18 June, the plaintiff attended upon Dr Egan at the Jetty Medical Centre at Long Jetty. According to a referral note given by Dr Egan to a physiotherapist, the plaintiff had low thoracic tenderness and marked paraspinal tenderness in the thoracolumbar area leading to his diagnosis of a thoracolumbar strain. Dr Egan certified the plaintiff as unfit for any work from 11 June until 20 June 2014.

10. An X-ray was performed on the following day, 17 June. The radiologist was Dr Roger Burgess. There were a number of abnormal findings in the thoracic spine but on my reading of the report, I suspect that they merely described old Scheuermann's disease, an opinion which has subsequently been expressed by Dr Bodel, an orthopaedic surgeon qualified by the plaintiff's solicitors and also by Dr James Powell, an orthopaedic surgeon qualified by the defendant's solicitors. Of more interest, however, is the finding of a "retrolisthesis of L5 backwards on the sacrum", when it would merely have been necessary to say, "retrolisthesis of L5 on S1". Dr Burgess described that finding as, "very important". Such a retrolisthesis generally makes the lumbosacral disc, L5-S1 more vulnerable to trauma as well as the disc above it, L4-5 being more vulnerable to trauma. It is also indicative of incipient established degenerative disc disease.

11. On 18 June 2014, the plaintiff saw Mr Ryan Stanton, the physiotherapist to whom the plaintiff had been referred by Dr Egan. In a report to Dr Egan of 18 June, Mr Stanton said this:

"During a light massage, John reported pins and needles and pain in various regions of his legs. Treatment was not advanced beyond this. Whilst I was not directly concerned with the symptoms during treatment (a light massage cannot really cause this) I thought it was worth reporting this to you."

Pins and needles or paraesthesia and pain in various regions of each leg are indicative either of referred pain or radicular pain caused by a problem in the low back. However, Dr Egan for a while maintained his diagnosis of a thoracolumbar strain. At one stage he thought there may have been a compression fracture in the thoracic spine, but again that is merely one view of changes due to Scheuermann's disease.

12. Dr Egan arranged for a bone scan to be performed on 24 June 2014, and that is reported by the radiologist, Dr Morony, as not revealing any significant problem, indicating that there had been no recent fracture.

13. Dr Egan certified the plaintiff as unfit for any work until 27 June 2014 and then commenced to certify the plaintiff as fit for restricted work commencing on 28 June 2014. He thought that work could be performed for four hours a day for three days a week. Initially the plaintiff was provided with suitable employment. He was given computer type work initially in the defendant's yard at Muswellbrook and subsequently in the office which I assume was also at Muswellbrook. He confirmed that it was for four hours per day and I assume from other evidence he gave, that it was for three days a week.

14. Whilst the plaintiff was engaged in restricted work, he was seen by Associate Professor Paul Miniter, an orthopaedic surgeon, at the request of the plaintiff's employer's insurer, GIO General Ltd. On physical examination, Dr Miniter noted some discomfort in the lower portion of the lumbar spine but did not think that there was any "segmental instability" and could not find any neurological deficit, but that is unsurprising as no-one previously had found any neurological deficit. Before going on to express an opinion, it appears to me with the utmost respect to the Associate Professor, that he took into account irrelevant considerations to the proper role of an independent medical examiner. Under the heading "other information" the Associate Professor said this:

"I note that there has been some conflict in the workplace and this was the reason that he has joined a union. He told me that he had been accused of being the cause of the issue in relation to this injury but was adamant that this was not the case. He also told me that as he has back pain, that he is not very enthusiastic to return to his sporting activities or normal physical activities. He is very protective and concerned of his back."

The fact that the plaintiff may have joined a trade union is irrelevant to the issue of whether he had suffered an injury and as to whether he had any ongoing incapacity. Any "industrial dispute" at the plaintiff's workplace is equally irrelevant. This was acknowledged in Court because these matters were never mentioned in the evidence at all either by learned counsel for the plaintiff or learned counsel for the defendant.

15. It appears to me that the Professor took these irrelevant considerations into account when considering the plaintiff's position. Under the heading "opinion", the Associate Professor said this:

"The matter is confusing in that there seems to be conflicts as to the exact nature of this injury and it is also complicated by the fact that there are accusations in the workplace as to his role in the matter. Whilst there is such conflict, one can determine almost with certainty that the matter will be ongoing and unresolved. This is further complicated by the fact that he has joined a union and it seems that both parties are sustaining significant conflict in relation to this entire matter.

From an objective perspective, I could not see any evidence of injury. I would be surprised if there has been an injury and would not advise anything but return to normal work over the next week. The physiotherapy needs to be discontinued and exercise physiology, perhaps only one or two sessions, needs to be instituted. In reality, this man surfs regularly, is very physically fit and should not require anything more than a very short period of treatment. He should be reassured that this issue will resolve and that he should resume his normal life as soon as possible."

Some of the content of the second paragraph is interesting in that the doctor had earlier complained that the plaintiff refused to engage in his recreational activities including surfing because of his concern for his back, but the doctor thought that because he was a regular surfer, he did not have anything wrong with his back.

16. The defendant through its insurer then denied liability for the plaintiff's claim. The plaintiff continued to be certified as fit for restricted work by Dr Egan until 31 July 2014 by which time liability had been declined. Despite the fact that compensation is claimed from 10 June 2014, it is common ground that the plaintiff was paid compensation and/or wages until 18 July 2014.

17. It is clear from the plaintiff's evidence that he was advised by his employer on 18 July 2014 that light duty work would no longer be provided to him because of the attitude displayed by its insurer. However, the plaintiff was due to continue restricted work until 31 July 2014. I accordingly have no hesitation in finding that on 18 July 2014, the defendant failed to provide the plaintiff with suitable employment during the incapacity which according to Dr Egan was continuing.

18. There appears to me to be little doubt that the plaintiff does have a continuing physical incapacity for work. Dr Egan expressed this opinion of the stance taken by the defendant's insurer. He wrote to the insurer in these terms:

"Thank you for your note in which you have denied liability for John's worker's compensation claim. I was amazed and frankly dismayed at this. If you are able to sidestep your fiscal responsibility on such a straightforward case as this then I despair for the system. I have advised the patient to seek legal redress for what I think is your unconscionable abuse of his rights. This man has a simple mechanical fall at his worksite, suffers a straightforward thoracolumbar strain that is behaving as one would expect from such an injury and I have no idea how you can say his injury is not your responsibility. Lack of support for him by your company is definitely hindering his recovery."

On 2 December 2014 at Dr Egan's request, Dr Gordon Melville carried out an MRI scan of the plaintiff's thoracic and lumbosacral spine. He found desiccation of the T7-8 disc which was bulging and abutting the spinal cord at that level, but there was no abnormal signal within the cord and no other compressive lesion could be seen in the thoracic spine. In the lumbosacral spine, he found a broad based bulging of the L4-5 disc and at the L5-S1 disc there was a minor central and left sided paracentral disc bulge which extended into the inferior aspect of the exit foramen on the left side. There were other degenerative changes in the facet joints at both L4-5 and L5-S1. Disc material extending into the exit foramen where the nerve exits the spinal column indicates that the bulging disc material could from time to time impinge upon the exiting nerve root, leading to the symptoms of a radicular nature.

19. The plaintiff was sent by his solicitor to see Dr James Bodel, an orthopaedic surgeon. On examination, the doctor found that the plaintiff's back was stiff. There was a slight restriction of lateral bending and rotation of the thoracic spine but movements in that area of the back were symmetrical. He found tenderness on palpation at the lumbosacral junction, that is at L5-S1, with guarding of the muscles in that area. The plaintiff was able to forward flex with his hands to his knees, but at that stage he had increasing backache and he also had pain on extension, which is when he attempted to bend backwards. Straight leg raising was 70 degrees bilaterally but limited by hamstring tightness and not any neurological problem. There was no wasting or any reflex abnormality or any sign of sensory dependence. On 17 February 2015, Dr Bodel diagnosed a soft tissue injury but was unable to exclude disc pathology. He felt the plaintiff was partially incapacitated for work. After the MRI was carried out on 17 December 2015, Dr Bodel was asked to comment. He made the observation I earlier made that the appearances in the thoracic spine are associated with Scheuermann's disease. Dr Bodel thought that there was disc pathology at L4 5 and L5 S1 and the plaintiff could have sustained an aggravation of facet joint arthritis.

20. On 30 November 2015, the plaintiff was sent by the defendant's solicitor to Interact Injury Management for an assessment of the plaintiff's earning capacity. That assessment was carried out by Mr Louis Silberberg, a psychologist. Mr Silberberg thought that the plaintiff was fit to work as an automotive service adviser and as a spare parts interpreter on a fulltime basis. Dr Egan agreed with that assessment, so does the plaintiff. The plaintiff earlier had been seeking to obtain employment as an automotive service adviser. It should be noted that that job pays at a much higher rate than that of a spare parts interpreter.

21. Dr Bodel reviewed the plaintiff on 29 March 2016. His findings on clinical examination were very much the same as they had earlier been. The diagnosis offered by Dr Bodel on this occasion was of mechanical backache associated with degenerative disease in the lumbosacral spine. He gave a guarded prognosis. The diagnosis of "mechanical backache" is apt to describe a backache which can be caused either by muscular problems, vertebral problems or discal problems.

22. On 7 June 2016 the plaintiff saw Dr Marc Coughlan, a neurosurgeon, at the request of Dr Egan. Dr Coughlan practises at North Gosford and in Sydney. Dr Coughlan's report is short. The final paragraph is this:

"Given his symptoms and the fact that he has failed to improve, he is keen to explore all options including that of surgery. He may be a candidate for a hybrid procedure with an anterior fusion of L5 S1 and a disc replacement at L4 5. Given the history and the fact that he did not have any significant back pain prior to the injury, it is likely that the injury played a significant precipitating role in the perpetuation of his current symptoms."

Indeed one could go further, given that the plaintiff denied any earlier history of back problems, consistent with the medical evidence before me. It appears that not only did the injury perpetuate the symptoms but it set them off, that is exacerbated the condition, and appears to have made the condition objectively worse, that is, that it aggravated the condition assuming that the degenerative disease in the L5-S1 and L4-5 discs was related to the retrolisthesis of L5 on S1 which is, of course, a constitutional condition. The plaintiff wishes to undergo the surgery that has been suggested to him by Dr Coughlan.

23. The remaining evidence is from Dr James Powell, an orthopaedic surgeon, qualified by the defendant's solicitor. On examination, Dr Powell found tenderness in the mid to lower lumbar spine in the midline with no obvious tenderness above that level. The range of motion showed slight limitation of extension and forward flexion with "slightly dyssynchronous recovery and discomfort". On examination of the lower limbs, the doctor found a general reduction of light touch sensation in the left leg down the lateral thigh involving all surfaces of the leg and foot. That is highly suggestive of the S1 dermatome indicating a problem at the L5-S1 level of the spine. The diagnosis offered by Dr Powell was a chronic thoracolumbar back pain with non specific symptoms in the lower limbs, though not of a radicular nature. Dr Powell then went on to say that the plaintiff had developed "a chronic pain disorder". That terminology is the modern euphemism for what was previously called "functional overlay" which could be anything from psychosis to malingering. Dr Powell went on to say that the plaintiff's prognosis was poor but then made an assessment of 12% whole person impairment because of the plaintiff's low back condition and he thought that there should be no deduction from that impairment rating for any pre-existing condition. I find that a stunning concession, and an erroneous one, because the retrolisthesis of L5 on S1 was clearly a pre-existing constitutional abnormality. Dr Powell thought that the plaintiff would be able to do work of a light nature where there was no requirement for forward bending, turning, twisting, overhead work or lifting beyond about 5 kilograms on a regular basis. In other words Dr Powell accepts that the plaintiff is partially incapacitated for work.

24. The plaintiff acknowledges that he is only partially incapacitated for work and is eager to find work. He told me of making between 60 and 100 applications for work albeit that they were all unsuccessful. He told me that had light duties not been withdrawn by his employer, he would have stayed at Muswellbrook performing restricted work but that work was no longer available to him. True it is the plaintiff has not subsequently asked the defendant to provide him with suitable employment, but it would not provide it to him when he was still working there doing it, and he was thought to be at least partially incapacitated because of a work injury, and it withdrew suitable duties, sent him home to the central coast and terminated his services. He is now criticised for not going back to either Muswellbrook or Boggabri to ask the defendant to provide him with suitable employment that he told me he would have kept doing had it not been withdrawn. There is no reason in my view to speak of any lack of mutuality on the plaintiff's behalf, I accept that he is ready, willing and able to engage in suitable employment for the current defendant.

25. The plaintiff's average weekly earnings but for injury have been calculated to be $2,546.35. It is agreed that the current weekly wage rate is $1,373 per week. It is agreed that the plaintiff was paid compensation and all wages until 18 July 2014. The plaintiff is still supporting two of his children. They are Ryan who is now 13 years old and Krystal who is now 11 years old.

26. I have inquired of counsel for the parties if any further reason for judgment are required, I am told none is so required. For those reasons I make an award for the plaintiff for $1,373 per week from 19 July 2014 to 9 December 2014. I make an award for the plaintiff for $475.70 per week (as indexed) from 10 July 2014 to date and continuing pursuant to s 11(2) of the Workers Compensation Act 1926 as preserved by Schedule 6 Pt 18 cl 1 of the Workers Compensation Act 1987 for a worker with two dependent children. I order the defendant pay the plaintiff's expenses under s 60. I order the defendant pay the plaintiff's costs. I grant liberty to apply to the plaintiff in the event that there be any issue about proposed future surgery. Liberty to reply on five days’ notice to my Associate.

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Decision last updated: 03 November 2016