Chapple v Elcom Collieries Pty Ltd and Anors

[2020] NSWDC 913

District Court

New South Wales

Medium Neutral Citation:	Chapple v Elcom Collieries Pty Ltd & Anors [2020] NSWDC 913
Hearing dates:	30 July 2020
Date of orders:	31 July 2020
Decision date:	31 July 2020
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	See [50] – [53]
Catchwords:	Coal Miner’s Workers Compensation – Lump sum compensation claims after 42 years work as an underground electrician/multi-skilled coal miner – Further disarticulation of limbs where a disease of gradual process is alleged – Consideration of the nature of osteo-arthritis especially of the hands – Criticism of expert’s providing opinions outside their expertise where no relevant history is recorded and no relevant examination is performed.
Legislation Cited:	Worker's Compensation Act 1987
Category:	Principal judgment
Parties:	Plaintiff – Gary Chapple 1st Defendant – Elcom Collieries Pty Limited 2nd Defendant – Powercoal Pty Limited 3rd Defendant – Centennial Newstan Pty Limited 4th Defendant – UGM Emgomeers Pty Limited 5th Defendant – Bulga Underground Operations Pty Limited 6th Defendant – ARC Mining & Electrical Pty Limited
Representation:	Counsel: Plaintiff – D. Benson Defendants – T. Rowles Solicitors: Plaintiff – Whitelaw McDonalds Defendants – Sparke Helmore
File Number(s):	RJ00189/19
Publication restriction:	Nil.

Judgment

1. HIS HONOUR: The plaintiff, Gary William Chapple, was a coal miner. He was born in 1958. He is currently 62 years old. He completed high school at the end of 1975, obtaining the Higher School Certificate as a student at the Kurri Kurri High School. He underwent a pre-employment medical examination, with the Joint Coal Board, on 10 December 1975; and on 19 January 1976, he commenced an electrical apprenticeship with Elcom Collieries Pty Ltd, at the Newstan Colliery. The plaintiff went on to complete that apprenticeship and all told worked for 33 years at the Newstan Colliery. When that pit, in essence, closed, the plaintiff obtained work as a coal miner at the Blakefield South mine, which has also been described as the Beltana mine, or the Bulga mine. The plaintiff worked at that mine until being made redundant on 10 December 2016. On 20 July 2017, he found work with ARC Mining Pty Ltd, a company that was formed by former employees of the Bulga mine. The plaintiff worked for ARC Mining Pty Ltd until stopping work, in essence, on 13 September 2018, and has not worked as a coal miner since. He has been in receipt of weekly payments for compensation since he last worked.

2. The claim before me is for a lump sum compensation for impairment of the back and damage to both the plaintiff's upper and lower limbs. It can be seen that, from the age of 18 to the age of 60, the plaintiff worked as a coal miner and is no longer able to do any work at all, in essence. He spent some 42 years as a coal miner, and as one could expect, sustained many, many injuries over the years.

3. There is one significant injury that he sustained prior to commencing work in the coal mining industry. The plaintiff injured his left shoulder playing rugby league when he was a school boy. The initial injury was a dislocation of the shoulder but that became recurrent, and he underwent open reduction and surgical repair of his left shoulder at the hands of Dr Abe Isaacs, an orthopaedic surgeon, when, as I understand it, he was 17 years old.

4. The plaintiff completed his apprenticeship in 1980. According to the chronology provided to me by learned counsel for the plaintiff, MFI 1, the plaintiff sustained an injury to his left ankle on 26 August 1976 that has not been mentioned in the evidence. On 13 November 1985, the plaintiff was walking up a drift on an uneven floor and twisted his left ankle. For that, he was taken to the Wallsend Hospital. He sustained a further injury to his left ankle on 26 August 1987, when he was carrying a heavy toolbox with a fellow worker, when he felt pain in his left ankle. For that, the plaintiff saw Dr Thiru Thiruchelvam, who was often described in the evidence as Dr T T Chelvam. A report of Dr Chelvam of 12 October 1987 provides this history:

"He was carrying a big box and walking. He felt a sharp pain behind the lateral malleolus of his left ankle. He noticed a swelling, and it was the tendon from behind the lateral malleolus slipping forwards. This caused a very sharp pain. There was no previous injury or sprain to the left ankle. He was diagnosed as having ruptured the superior peroneal retinaculum, thereby allowing the peroneus longus tendon to slip over lateral malleolus. He was advised to use movelax cream and wear an ankle guard. He was given leave for 27 and 28 August 1987."

However, the plaintiff attended upon Dr Chelvam on further occasions and was referred to Dr Abe Isaacs again. Dr Isaacs described the injury as an inversion of the left ankle, and he confirmed the diagnosis of damage to the retinaculum of the peroneal tendon, allowing it to slip over the lateral malleolus. Dr Isaacs advised surgery after a short course of conservative therapy.

5. The plaintiff was admitted to the Lake Macquarie Hospital on 29 October 1987; and on the same day, under general anaesthetic, he had a 1 inch bone taken from the distal end of the lateral aspect of his left fibula. It was turned to about 90 degrees and was fixed in place with two screws. That held the peroneus longus tendon in situ in lieu of the ruptured retinaculum. The plaintiff was in the Lake Macquarie Private Hospital for some ten days. He was discharged in a plaster cast and on crutches. The cast was maintained for six weeks. Eventually, he was discharged by Dr Isaacs from his care, on 17 March 1988; and the plaintiff then returned to work as a coal miner.

6. On 30 September 1988, the plaintiff felt pain in his left shoulder. According to exhibit C, while lifting a cable off the road to put into a rib, he felt a sharp pain in the left shoulder. On this occasion, the plaintiff came under the care of Dr A B Kwa, a general practitioner at Kurri Kurri. Dr Kwa saw the plaintiff on the same day and was given a history compatible with exhibit C. Dr Kwa's report, 5 November 1988, contains this matter:

"He was diagnosed as suffering from ligamentous and muscular strain of his left shoulder joint. He was advised to have physiotherapy and given time off work from 13 September until 16 September. He was seen again on 17 September when there was some degree of improvement. The range of movement was, again, full but was less tender. He was given further time off work from 17 September until 23 September and continued with physiotherapy. He was seen again on 23 September 1988, still complaining of some degree of tenderness at the extremes of abduction and internal rotation. He was given further time off work, from 24 September until 30 September.

As he told me that he had to do a lot of lifting at work, and there were no available selective duties at his place of work, he was advised to continue with the physiotherapy. On 30 September 1988, he had almost made a full recovery and resumed work on 4 October. The patient has been treated for a recurrent dislocation of his left shoulder, some ten years ago, and had an operation by Dr Isaacs at that time; and he has sustained an injury to the same shoulder joint some five years ago. In spite of that, he had no trouble due to his left shoulder prior to this injury."

That history appears, from all that I have read and heard, to be accurate.

7. Nevertheless, the plaintiff makes no claim for the loss of efficient use of his left arm at, or above, the elbow, as a consequence of the problem in his left shoulder. Dr Ghabrial has expressed the view that the plaintiff's problems in his left shoulder are, at the current time, due to his old football injury; but there is evidence to the contrary from Dr Hopcroft. Initially, I thought the current condition of the plaintiff's left shoulder would be multi factorial due to the old football injury and the consequent need for surgical repair. An open surgical repair would predispose the plaintiff to osteoarthritis in that joint, but doing the heavy work of an underground electrical tradesman in a coal mine or doing underground work as a multiskilled coal miner would no doubt aggravate, or accelerate the osteoarthritis in the shoulder joint. Nevertheless, no such claim is made.

8. On 8 July 1991, the plaintiff reported injuring his left ankle again, whilst he was walking past a drive unit when he bumped his left ankle on one of its supports. That description is contained in exhibit D; a claim for compensation made at that time. The medical evidence before me is a plain X ray made on 9 July 1991, at the request of Dr Chelvam. That contains this description:

"Two intra osseous screws transfix a united fracture through the distal shaft of the fibula. Periosteal new bone around the head of the screws has resulted in a focal bony lump, which measures approximately 8 mm. The bones of the ankle are normal with no evidence of a recent fracture, diastasis or other bony abnormality."

The important thing to note is that there was fresh bone growing around the screws that were inserted into the bony retinaculum formed by Dr Isaacs at the surgery practiced on 29 October 1987.

9. On 11 October 1996, the plaintiff was walking around a diesel machine underground, when he slipped on a wet and muddy floor and twisted his right knee. That is the subject of a claim for compensation, a copy which is exhibit E. X ray of the right knee, performed on 14 October 1996, does not show any bony abnormality. However, the plaintiff was referred by Dr Chelvam to Dr Isaacs again. On examination, Dr Isaacs found an area of tenderness along the medial joint line. He arranged for a bone scan, which is summed up thus by the radiologist, Dr John Booker:

"Scan findings consistent mild to moderate degenerative change in the right knee joint. This was maximal in the medial compartment thereof, and there may be some super added focal bony pathology, eg osteochondritis ossificans, in the medial end of the right tibial plateau and in the adjacent medial femoral condyle."

10. Dr Isaacs then proposed arthroscopy, which was practiced at the Lake Macquarie Private Hospital on 12 November 1996. At arthroscopy, Dr Isaacs found a parrot beak tear in the mid portion of the medial meniscus and a partial meniscectomy was practiced. The doctor also found grade 2 to 3 articular damage to the medial femoral condyle. That led to a chondroplasty being performed. It can be seen that by this time, the plaintiff's right knee was suffering from a degenerative condition, which was the end result of the plaintiff's work as an underground coal miner. After that surgery, the plaintiff returned to work on light duties on 14 November 1996; that is, within a few days of the operation; and eventually returned to his normal duties.

11. The evidence discloses a further injury on 18 November 1997. That appears to be a soft tissue injury. Exhibit F tells me that, while untangling a reticulation cable, the cable and plug fell from the rib of the shaft, striking the plaintiff above his left knee. This would appear to be some form of contusion to the anterior thigh. It is not suggested that there was any long term sequelae to that event.

12. On 24 January 2003, there was a third change of employer at the Newstan Colliery; however, the plaintiff remained at the Newstan Colliery doing his normal underground mining work. The plaintiff told me at the time that the mine was taken over by Centennial Newstan Pty Ltd, his left ankle was still causing him problems, and he noted aching in each of his shoulders. In or around 2006, there was a relative change in the plaintiff's duties. It was at this time that multiskilled mining was introduced. Prior to this time, the plaintiff had been working in his trade as an electrician, doing electrical work underground, but also helped out others with heavy work. When multiskilled mining was introduced, the plaintiff spent about two thirds of his time underground doing electrical work, and the balance of his time was doing all other aspects of underground mining.

13. On 20 September 2006, the plaintiff injured his back. The claim form at the time is exhibit G. That describes the event that led to the plaintiff injuring his low back as lifting miner cable onto a roller belt, when the plaintiff felt pain in his low back. X ray was carried out on 25 September 2006. The clinical history recorded by the radiologist was of severe back pain at the L3/4 level. The radiologist also noted severe muscle spasm. The radiological report is somewhat unusual. It is this:

"Disc disease is not reliably excluded with X rays, and the presence of disc narrowing, or bony changes of spurring, and zygo apophyseal joint osteoarthritis does not imply symptomatic change. There is mild intevertable spurring, and normal alignment and relatively normal preservation of disc height. There is no significant arthritis. Incomplete osseus fusion of the L5 posterior bony complex is typically benign. There is a mild left convex curvature which may be secondary to muscle spasm or pain."

The report does not definitely tell me what the radiologist saw, but provides me with comments that may or may not be useful, if one has the X-ray plates themselves. However, the reference to an incomplete osseous fusion of L5 posterior bony complex appears to record some anatomical abnormality or variation. Otherwise, the report appears to me to be describing the first signs of degenerative disc disease in the lumbar spine.

14. Again, the plaintiff saw, on this occasion, Dr Chelvam, and there is in evidence a report from him, bearing date 23 November 2007. It is not particularly helpful in providing a diagnosis. It does, however, tell me that the plaintiff was certified unfit for a period until 3 December 2007; and that prior to being certified fit to return to work, he was undergoing physiotherapy.

15. The plaintiff sustained a further injury to his back on 25 September 2007. On that occasion, he was lifting a heavy high tension cable during a move of a long wall of the Newstan pit. The plaintiff could recollect this event, although he had no recollection of the earlier low back injury. It was for this low back injury that the plaintiff saw Dr Chelvam and underwent the treatment to which I referred when referring to the first low back injury.

16. On 7 July 2008, the plaintiff injured his left knee. The plaintiff reported that, on that day, when he was attempting to stand after being in awkward position, he felt pain in his left knee. This event is referred to in exhibit J. On 9 July 2008, the plaintiff had an X ray of his left knee, which is reported as showing a small effusion; that is, a soft tissue swelling. On this occasion, the plaintiff was referred by Dr Chelvam to a Dr Lynette Reece, an orthopaedic surgeon. She records the mechanism of the injury as including a twisting moment through the left knee. She confirmed the plaintiff had a small effusion and medial joint line tenderness. She thought he may be suffering a medial meniscal tear on the left. An MRI scan was practiced at Dr Reece's request, on 15 August 2008. It is reported showing a mild medial compartment degenerative change, and a small focus of grade 4 chondromalacia of the lateral aspect of the patella. Dr Reece reviewed the plaintiff after that investigation on 25 August 2008. Dr Reece said this:

"The MRI shows that there is no meniscal tear. I think there are actually some degenerative changes within the meniscus, which certainly wouldn't have been helped by his job of squatting a lot in the mines. He also has some mild medial compartment degenerative changes in his articular cartilage, which also won't have been helped by the continuous squatting and working on uneven ground. The main problem is [I] think, because he has severe pain from being in an awkward, confined, squatting position and having done this continuously for prolonged periods in working life, he has grade 4 chondromalacia patellae over a small area."

She then commented on what she thought was an appropriate treatment regime: exercises and the taking of glucosamine. I have quoted what Dr Reece had to say because it drives home very forcefully the type of work the plaintiff was doing and the effect that it was having on his left knee, and no doubt, on the other knee as well.

17. On 14 April 2009, the then owner of the Newstan Colliery, Centennial Newstan Pty Ltd, gave notice of the cessation of mining operations as of 22 May 2009. The plaintiff sought alternative work, and on 31 May 2009, he found employment with UGM Engineers Pty Ltd. He worked there until 27 September 2009. The work with UGM Engineers was work at the Blakefield South Colliery, an underground mine near Broke. This is the mine that was sometimes referred to as being operated by Beltana Underground Operations Pty Ltd, or Beltana Highwall Mining Pty Ltd, or Bulga Underground Operations. In any event, the plaintiff told me that nothing adverse happened to him whilst he was employed by UGM Engineers Pty Ltd, during the period from 31 May 2009 to 27 September 2009. Nevertheless, the plaintiff's solicitors joined that employer as the fourth defendant in these proceedings. The plaintiff reported no injury there, told me of no injury there, and that employer was not the last employer to employ him in conditions to which any underlying degenerative process, being a disease of gradual onset, would answer for. The joinder of the fourth defendant was completely unnecessary.

18. Because the plaintiff's work with UGM Engineers Pty Ltd was casual, rather than permanent, the plaintiff sought more permanent employment and started working for the company which was eventually known as Bulga Underground Operations Pty Ltd, which is the fifth defendant. It was working at the same underground pit near Broke. With Bulga, to use a shorthand expression, the plaintiff was working either ten hour shifts, or sometimes 12 hour shifts. The pit in which he was doing work was climatically very different to the Newstan mine. There was a high gas element in the mine, and the pit bottom was very wet and very muddy compared to the Newstan pit. In other words, the climatic conditions working in the mine at Broke made work even heavier for the plaintiff.

19. On 29 August 2016, the plaintiff was reviewed by his general practitioner, now Dr Khah, complaining of left ankle and left shoulder pain. Dr Khah organised for radiological investigations, which were performed on 31 August 2016. There was a plain X-ray of the left shoulder, which showed prior surgical repair and relatively severe degenerative arthropathy in the shoulder itself. An ultrasound of the left shoulder was also carried out. As far as the left ankle is concerned, the plain X-ray showed the presence of the two screws inserted in the distal fibula by Dr Isaacs on 29 October 1987; and also, an osteochondral lesion of the talar dome. When seen by the GP, on 8 September 2016, she arranged for an ultrasound guided injection into the left shoulder.

20. On 31 October 2016, the plaintiff was notified by Bulga of an upcoming redundancy. That redundancy became effective on 10 December 2016. On 9 February 2017, the plaintiff complained to Dr Khah of hip pain which had been affecting him for two or three months and was causing him difficulty getting into and out of his car. There was an X-ray of the pelvis and each hip performed on 9 February 2017, which showed small marginal osteophytes at the right hip, with very mild medial migration of the femoral head consistent with mild osteoarthritis. It was thought the sacroiliac joints were normal. This appears to be a complaint of real hip pain; however, when the plaintiff was demonstrating to me what he described as hip pain, he was indicating pain over the right iliac crest, rather than over the right hip. Perhaps that indicates that the hip pain has abated somewhat. However, the complaint of hip pain caused the plaintiff to be referred for physiotherapy. That was, in fact, carried by Mr Glenn Aveling at Kurri Kurri.

17. On 26 April 2017, the plaintiff underwent a pre-employment medical with Coal Services Health in anticipation of his commencing work with ARC Mining Pty Ltd. It is clear that Coal Services Health gave the plaintiff permission to re-enter the coal mining industry. The plaintiff commenced working with ARC Mining Pty Ltd on 20 July 2017. Initially, he was sent by that company to work at the Appin Colliery. The plaintiff worked four 12 hour shifts each week at the Appin Colliery for a few months. He returned to his home in the Hunter Valley on the other three days of each week. The plaintiff told me that that work caused him to experience symptoms in his back and shoulders. He told me that was, "pretty sore and sorry at the end of each shift". After the work at the Appin Colliery, the plaintiff was sent by ARC Mining Pty Ltd to work at the Whitehaven pit at Narrabri. He was staying in a camp at Narrabri from Monday to Friday and going home to the Hunter Valley on the weekends. The plaintiff saw out his mining career at the Whitehaven pit.

18. In 2017, the plaintiff came under the care of Dr Wendy Bravo Sosa, a general practitioner at East Maitland. That practitioner is generally referred to as Dr Bravo. Dr Bravo arranged the plaintiff to have an X-ray of his left hand on 22 September 2017. The X-ray is reported as showing advanced osteoarthritic changes in the second metacarpophalangeal joint on the left side. There were also mild osteoarthritic changes in the remaining small joints of the fingers and thumbs, presumably of both hands. Normally when one of two limbs, or two similar items of the body are investigated, each side is looked at to see if there is any material difference. Since the radiologist refers to both thumbs, I assume that is comparing left hand with the right hand, and it is clear that there was some mild osteoarthritis in each hand, with an advanced osteoarthritic changes in his second metacarpophalangeal joint on the left-hand side.

19. The plaintiff was, as I said, mainly working in his trade as an electrician. He told me that he used all sorts of hand tools, the largest of which was a 4 pound hammer. He often used much smaller tools, but clearly, he required the constant use of tools doing his work as an electrician. There is reference in other medical reports to his using other forms of tools, and I will, in due course, mention such history.

20. On 23 March 2018, the plaintiff underwent plain X ray of his left hip and an ultrasound of left hip at Dr Bravo's request. Again, the hip X rays are reported as showing mild degenerative changes in each hip, with some subchondral sclerosis of each hip. The hip is a weight bearing joint. With weight bearing, one would expect a joint to become degenerative, and I do know, by this time, that the plaintiff's hips and knees were all suffering from degenerative change.

21. On 20 April 2018, the plaintiff was reviewed by Dr Bravo, with a complaint of right hip pain, back pain and pain in the left shoulder. A number of referrals were made. Firstly, there were radiological investigations. There were investigations of the left shoulder, and a plain X ray and an MRI scan of the low back. The MRI scan of the low back is reported as showing multilevel lumbar spondylosis, most marked at the L4/L5 level on the right, where there is thought there might be compression of the exiting L4 [sic] nerve root. There were also radiological investigations performed of the plaintiff's right shoulder. The ultrasound is summed up as showing rotator cuff tendinosis, with some acromial bursitis.

22. One of the referrals made by Dr Bravo was to Professor YAE Ghabrial, to whom I may be permitted to refer as Dr Ghabrial. The plaintiff saw Dr Ghabrial about his low back and his left leg. In a report of 17 May 2018, Dr Ghabrial said this:

"I explained to him that surgery is not an option for his back at this stage. I would recommend he consider retirement on medical grounds because of the injuries. As mentioned, he is struggling with work because of his shoulders, back, left ankle and hand problems."

27. Another referral was to Dr Andrew Myers, an orthopaedic specialist who would appear to be a hand surgeon. In his report on 15 June 2018, Dr Myers said this:

"He comes with bilateral hand pain and specifically index and middle finger metacarpophalangeal joint pain. The left index finger MCP joint is the most significant for him, and the right middle finger MCP joint is the next most significant. He said he noticed loss of movement, and he feels he is unable to get a good fist with flexing anymore. He says that the last 12 months he has had quite a lot of pain at work. He is normally fit and well other than some high cholesterol. He is a non-smoker. He has no allergies. When I examine him today, he seems to have isolated swelling around the MCP joints of the index finger and middle finger bilaterally. Both joints are painful. Both joints have decreased range of motion. The X ray shows degenerative changes."

The doctor went on to say that the plaintiff had to be investigated to rule out haemochromatosis, and also, crystal arthropathy. Haemochromatosis is the presence of too much iron in the blood, and I expect that the crystal arthropathy, to which Dr Myers was referring, was, in fact, a consideration as to whether there were gouty deposits in the joints of the fingers. As I understand it, each of those conditions has been ruled out. Dr Myers recommended that the plaintiff have the affected knuckles replaced with prosthetic joints, but the plaintiff was reluctant to undergo that, especially when he was still working.

28. Another referral made by Dr Bravo was to Dr Don Osborne, who specialises in shoulder problems. Dr Osborne's report commences in this fashion:

"He is a 60 year old gentleman who is right dominant. He works as an electrician in an underground coal mine. He used to play golf, and he has had to give this up. He had a long history of problems with both of his shoulders. He had 'thousands' of dislocations of his left shoulder and a recent number of dislocations to his right shoulder. With regards to the left shoulder, he had his primary instability event as a 17 year old playing league. In 1979, Dr Abe Isaacs did a left sided open reconstruction. This cured his instability. With regards to the right shoulder, he had a primary instability event when he was in his twenties working underground with a heavy overhead cable. He now has bilateral osteoarthritis in his shoulders. The right side is worse than the left. He has stiffness and weakness. They wake him at night. He has difficulties elevating past 90 degrees."

Later in the report, Dr Osborne pointed out that the plaintiff's problems would slowly worsen, and the plaintiff would need to consider shoulder replacement surgery. Dr Osborne believed that the plaintiff should, in essence, stop working because he thought that, with his shoulders the way they were, he would be a risk working underground.

29. A further referral made by Dr Bravo was to Dr James O'Sullivan, an orthopaedic surgeon specialising in the foot and ankle. Eventually, Dr O'Sullivan was to practice surgery on the plaintiff's left ankle, surgery brought about, in essence, by the treatment previously provided to the plaintiff by Dr Isaacs. On 20 August 2018, Dr O'Sullivan recommended to the plaintiff that he undergo surgical repair of his left ankle, and in particular, the removal of the two screws that had been inserted at the time of Dr Abe Isaacs' surgery.

30. On 27 August 2018, the plaintiff sustained a further injury. This is the subject of the claim for compensation, a copy which is exhibit K. In that document, the plaintiff said this occurred on 27 August 2018 "While inspecting the section transformer, I slipped on loose floor material, stumbled forward and felt pain in lower back". That eventually caused the plaintiff to give up work on 13 September 2018.

31. On 20 September 2018, the plaintiff was seen again by Dr Ghabrial. He certified the plaintiff has been unable to continue working as an underground miner. That was referable to the shoulder surgery that was recommended by Dr Osborne and also the condition of the plaintiff's back, left ankle and hands. He thought all of those would prevent the plaintiff from continuing to work as an underground miner, and Dr Ghabrial recorded that the plaintiff had decided to give work away. That is what occurred.

32. Since leaving the work force, the plaintiff has undergone physiotherapy, referable to his back problem, under the care of Mr Nathaniel Abrahamse, to whom he was referred by Dr Bravo. Dr O'Sullivan eventually practiced surgery at the Newcastle Private Hospital on 5 September 2019. The operation performed was a removal of screws from the left lateral malleolus, and a repair of the superior peroneal retinaculum, together with a peroneal tenosynovectomy. At operation, the doctor found that the peroneus brevis muscle was torn longitudinally, and therefore, it was repaired surgically at the time of this procedure. The plaintiff was reviewed by Dr O'Sullivan two weeks and six weeks after surgery and was then referred for physiotherapy.

33. The remaining medical evidence before me is what I describe as medico-legal, that is, it is reports from doctors qualified by the plaintiff's solicitors or by the defendants and their solicitors. I have, as usual, a large conflicting number of opinions. The plaintiff's solicitors qualified Dr Ghabrial, who assessed the plaintiff on 28 November 2018, and also, Dr Alan Hopcroft, a general surgeon specialising in orthopaedics. Dr Hopcroft saw the plaintiff on 9 July 2019. The plaintiff was reviewed by Dr Pillemer, an orthopaedic surgeon for the defendants on 14 May 2019; however, it ought be clear that there was surgery practiced after those assessments on 5 September 2019, causing a re-examination by Dr Hopcroft on 10 March 2020 and by Dr Pillemer on 17 March 2020. In addition, the defendant arranged for the plaintiff to be seen by Dr Michael Rochford on 14 May 2019. Dr Rochford is a urologist, and his opinion was only sought on one item in the number of claims made by the plaintiff.

Back

34. The first claim is in respect of impairment of the back. Dr Ghabrial tells me that there is a 30% impairment of the back. Dr Hopcroft diagnosed a 25% impairment of the back, and Dr Pillemer believes that there is a 15% impairment of the back with no need to deduct anything from that assessment. Assessments under s 66 are supposed to be objective. It must be remembered that the table of mains started with the loss of an item such as the loss of a finger by amputation, or a hand by amputation, or a foot by amputation. No matter what the person's age was, what the person's occupation was, or the extent of symptomatology, the losses were exactly the same. Whilst the definition of loss of use has been extended to loss of efficient use, the requirement of objectivity remains. I might allow a 30% impairment of the back for a worker who undergoes laminectomy and fusion at a low lumbar level; but where that surgery is unsuccessful, it must be remembered that the word back, when used in the Worker's Compensation Act 1987, refers to that part of the rear of the trunk that is not the neck and is not the pelvis, that is it starts at the commencement of the thoracic spine and continues down to the sacrum. It includes not merely the spinal segments but also, the ribs and the musculature. I might allow an 18 or 20% impairment of the back where surgery has been practiced to remedy a true disc protrusion at the L5/S1 level and even at the L 4/5 level. The assessments made by Dr Ghabrial and Dr Hopcroft are extravagant. I accept that plaintiff has a 15% impairment of his back.

Right upper limb

35. There is also a claim for a loss of efficient use of the right arm at, or above, the elbow; and a claim for loss of efficient use of the left hand. The plaintiff's solicitors have disarticulated the plaintiff's body, as have Dr Ghabrial and Dr Hopcroft. This is impermissible. The arm at, or above, the elbow includes the arm below the elbow. The arm below the elbow includes the hand. After all, for a dominant right arm, the maximum payable is 80% of the statutory maximum. The loss for the arm below the elbow is 75% of the statutory maximum; and the loss of the hand is worth 70% of the statutory maximum. Of course, different sums can be awarded if there be a different pathological process. For example, a worker might rupture a meniscus, leading to meniscectomy, which might cause a ten or 15% loss efficient use of the leg; and later, there may be a fracture of the tibia and fibula, which increases the loss of efficient use of the leg as a whole: two different lump sums may be awarded. However, here I have a degenerative condition affecting the plaintiff's shoulder and hand, and that degenerative process has been made worse and perhaps, even caused by the type of work the plaintiff has done for 42 years in coal mines. The degenerative process is one process caused by each part of the work the plaintiff has done.

36. Dr Ghabrial says that there is 32.5% loss efficient use of the right arm at, or above, the elbow. Dr Hopcroft puts it at 40%, and Dr Pillemer puts it at 20%. In addition, Dr Ghabrial diagnoses a 20% loss of efficient use of the hand, and Dr Hopcroft puts that at 30%. Dr Pillemer made no allowance for it because he did not think that the loss of efficient use of the hands, caused by osteoarthritis, was causally related to the plaintiff's work.

37. I shall deal with that allegation first. Dr Ghabrial expressed the view the plaintiff had sustained "multiple injuries" during the course of his employment involving, inter alia, each hand. The plaintiff did not sustain any frank injuries as such. The doctor may use the word "injuries" to mean different pathological entities. He then expressed the view that the plaintiff's employment was the, "main contributing factor to the present clinical features, disabilities and impairment". In essence, I have, from Dr Ghabrial, an ipse dixit. I also have an ipse dixit, to the opposite effect, from Dr Pillemer. Dr Hopcroft has been a little more helpful. Inter alia, he recorded the plaintiff had worked with pneumatic and manual tools and percussion hammers. Not only were there hand tools, but there were also pneumatic tools and percussion hammers. Dr Hopcroft expressed these views:

"He has a permanent percent loss of use, or loss of efficient use, of the right hand, due to his employment in the underground coal mining industry, of 30%. He has a permanent percentage loss of use, or loss of efficient use, of the left hand from injuries arising in the course of his employment in the underground coal mining industry, of 30%."

Why the doctor used different verbiage, I know not. However, I believe he was trying to tell me the same thing, that is, that it is his view that the osteoarthritis of the hands causes a 30% loss of use of each hand, and it is related to the plaintiff's work as an underground coal miner. In essence, this is really another ipse dixit.

38. It is necessary to go back to basic considerations. Osteoarthritis develops because of damage to intra articular linings. Between bones, there are intra articular linings, and when those intrer-articular linings wear away, bone rubs on bone, and osteoarthritis develops. The more one uses something, the more likely it is to erode away. Constantly using one's hands, using tools for some 42 years, is likely to cause damage to the inter-articular surface of the small joints of the hand. This, in essence, is what Dr Hopcroft is describing. I accept that the plaintiff's osteoarthritic hands are the result of the type of work he did in the coal mining industry over 42 years. Therefore, the extent of the loss of efficient use of each hand needs to be taken into account in assessment of the loss of efficient use of the right arm.

39. Dr Ghabrial's assessment of a 20% loss of efficient use of a hand translates into a 17% loss of efficient use of the arm as a whole. Dr Hopcroft's 30% loss of efficient use of the hand indicates a 26% loss of efficient use of the arm as a whole. However, I do not know whether the doctors intended that those two amounts be added together or whether they did truly disarticulate the limb, and that, for example, Dr Hopcroft's assessment of a 40% loss of efficient use of the left arm at, or above, the elbow only applies to the arm between the shoulder and the ante cubital fossa. If this disarticulation was in the doctors' minds, for there to be, for example, a 20% loss of efficient use of the right arm at, or above, the elbow, there would have to be a 20% loss of efficient use of each segment; that is, of the upper arm or the lower arm and of the hand because there could be a 20% loss of efficient use of the arm as a whole.

40. Doing the best I can on the material before me, I accept that there is a 30% loss of efficient use of the plaintiff's right arm at, or above, the elbow.

Left hand

41. Because the plaintiff makes no claim in respect of the loss of efficient use of the left arm at, or above, the elbow, I am only confronted with the assessments of the loss of efficient use of the plaintiff's left hand. I have 20% from Dr Ghabrial and 30% from Dr Hopcroft. I accept the plaintiff has a 25% loss of efficient use of his left hand.

Right lower limb

42. As far as the right leg is concerned, I have an assessment of 32.5% loss of efficient use from Dr Ghabrial, 30% from Dr Hopcroft and 10% from Dr Pillemer. Again, doing the best I can, I accept the plaintiff has a 20% loss of efficient use of his right leg at, or above, the knee.

Left lower limb

43. As far as the left lower limb is concerned, I, again, have disarticulation. Dr Ghabrial says that there is a 30% loss of efficient use of the left leg at, or above, the knee; and a 27.5% loss of efficient use of the left leg below the knee. Using similar methodology, Dr Hopcroft says that the loss of efficient use of the leg at, or above, the knee is 30%; but the loss of efficient use of the left leg below the knee is 15%. Thankfully, Dr Pillemer has provided me with a combined loss, which he puts at 13% loss of efficient use of the left leg at, or above, the knee. In mentioning Dr Hopcroft's assessments, I omitted to mention that after the surgery practiced on 5 September 2019, Dr Hopcroft reviewed the plaintiff and increased the loss of the left leg below the knee from 15% to 22%. Again, the methodology is breathtakingly inadequate. One practices surgery to improve things, not to make them worse. Doing the best I can, I believe the plaintiff has a 30% loss of efficient use in his left leg at, or above, the knee.

Sex organs

44. The remaining claim under the table of maims is the loss of efficient use of the penis as a sexual organ. I have two ipse dixits, one from Dr Ghabrial and another from Dr Hopcroft. Dr Ghabrial puts the loss at 32.5% and Dr Hopcroft puts it at 20%. As I said, each is an ipse dixit, and each is given by a medical practitioner outside his expertise, who carried out no relevant examination and took no relevant history. The opinions are absolutely worthless. However, as I said, the plaintiff has been seen for the defendants by Dr Rochford, a urologist. Dr Rochford examined the plaintiff and found no anatomical irregularity and no neurological abnormality affecting the plaintiff's genitals. The complaint made by the plaintiff to Dr Rochford was not of any such problem, but it was this:

"He states that he has pain in the back, which limits his activities during sexual intercourse. There is aggravation of his back pain in any position; in the male superior or the supine position or on the side. Pain still effects his sexual performance. He said decrease in sexual activity has come over the years since he hurt his back."

45. The plaintiff told me of a decrease in sexual activity with his wife, in particular over the last five years; but when cross examined, told me that he has, in fact, not had sexual intercourse for the last 12 months because he has been unable to find any position in which he can comfortably perform penetrative sexual intercourse. I have no hesitation in accepting what the plaintiff told me. I accept the assessment of Dr Rochford that the plaintiff has a 15% loss of his penis because of the problem in his back and other limbs.

Pain and suffering

46. My findings under s 66 entitle the plaintiff to lump sum compensation under s 67 for pain and suffering, anxiety and distress, resulting from the impairment and the various losses which he has sustained. The maximum of $66,200 can only be awarded in a most extreme case. A most extreme case, as has been pointed out over many years; includes quadriplegia and paraplegia, and I have held it to apply to a young man who had a hemiparesis; that is, a reduced sensation of the whole of one side of his body, with organic brain damage, which led to intellectual dysfunction and social disinhibition. That young man was, I believe, about 18 years old. The plaintiff is currently, as I said, 62 year old. He would appear, especially on the assessments made by Dr Pillemer, to be an otherwise fit and healthy man. His life expectancy is 24.1 years. He has been suffering with problems now for many, many years. In particular, he has been suffering from low back pain since 2006; that is, for the last 14 years.

47. The plaintiff's experience of pain can sometimes be quite severe. For example, when seen by Dr Pillemer, initially, that is, on 14 May 2019, the plaintiff told the doctor that his back pain was constant and ranged between two out of ten and seven out of ten, being aggravated by any form of physical activity, in particular: sitting for a long period of time, standing for a long time, bending or lifting, arching his back, and lifting to the right. The left ankle was not then causing a great amount of discomfort. The plaintiff said that it was about one out of ten at that time. As far as the right shoulder was concerned, the plaintiff said it could go as high as eight out of ten. The symptoms were made worse by elevation or doing any activity above head height, and he pointed out the advice given to him to undergo shoulder replacement surgery. In other words, some of the plaintiff's experience of pain can be quite debilitating.

48. There is little physically he can now do. He does potter around his house and in his garden, but takes a long time to mow his lawn. He, otherwise, can no longer do sports such as playing golf or, for example, prolonged walking or the like. In my view, the plaintiff's experience of pain and suffering, anxiety and distress, is somewhere in the range between 45% and 50% of a most extreme case. I believe the appropriate lump sum toward the plaintiff, under s 67, is $30,000.

Nature of the awards

49. The awards which I have indicated I am about to make are all made under s 15 of the Worker's Compensation Act 1987. No argument was put forward by Dr Pillemer about the compensability of any conditions, other than the plaintiff's hands, that is he did not give any evidence that there should be some deductible proportion because of some underlying condition, or underlying propensity.

50. Accordingly, I make awards for the first, second, third, fourth and fifth defendants. I make the following awards for the plaintiff against the sixth defendant: (1) $11,907 for 15% impairment of the back; (2) $31,752 for 30% loss of efficient use of the right arm at, or above, the elbow; (3) $21,498.75 for 25% loss of efficient use of the left hand; (4) $19,845 for a 20% loss of efficient use of the right leg at, or above, the knee; (5) $29,767.50 for a 30% loss of efficient use of the left leg at, or above, the knee; (6) a $9,327.15 for a 15% loss of efficient use of the penis.

51. I make an award for the plaintiff for $30,000, pursuant to s 67.

52. I make a general order under s 60.

53. I order the sixth defendant to pay the plaintiff's costs.

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Decision last updated: 15 June 2021