Cruickshanks v Drayton Coal Pty Limited
[2014] NSWDC 294
•25 November 2014
|
New South Wales |
Case Name: | Cruickshanks v Drayton Coal Pty Limited |
Medium Neutral Citation: | [2014] NSWDC 294 |
Hearing Date(s): | 24-25 November 2014 |
Decision Date: | 25 November 2014 |
Jurisdiction: | Civil |
Before: | Neilson DCJ |
Decision: | Finding that plaintiff was at all material times totally incapacitated for work |
Catchwords: | WORKERS COMPENSATION – Coal miners – Whether plaintiff injured as alleged – Whether alleged injury cause of incapacity |
Legislation Cited: | Workers Compensation Act 1926 |
Category: | Principal judgment |
Parties: | Tristan Cruickshanks (Plaintiff) |
Representation: | Counsel: |
File Number(s): | RJ96/14 |
JUDGMENT
Ex tempore
The plaintiff Mr Tristan James Cruickshanks of Muswellbrook claims weekly payments of compensation from 30 October 2013 to date and continuing pursuant to s 9 or alternatively s 11(2) of the Workers Compensation Act 1926 as preserved in their operation for coal miners pursuant to the transitional provisions contained in the Workers Compensation Act 1987.
The plaintiff relies upon an injury which he says occurred to him on 30 October 2013. Although compensation is claimed from that date, it appears that on that day and the following day the plaintiff performed his normal work and was paid wages. In fact, the plaintiff's claim is not adequately particularised in the statement of claim, but in due course the parties can attend to working out what compensation, if any, he be entitled to.
In essence, the issues tendered for my determination are whether the plaintiff injured himself on 30 October 2013 and, if so, whether that injury was the cause of the incapacity which appears to have become manifest to the plaintiff by 6 December 2013. In addition to relying upon the event of 30 October 2013, the plaintiff's statement of claim has been recently amended to allege that the type of work he did after 30 October 2013 materially aggravated his condition. The evidence only suggests to me that if there was any increase in symptoms, it was because of an underlying problem caused by the alleged frank injury of 30 October 2013. I cannot find that the plaintiff's work on or after 30 October 2013 was a material aggravating factor, nor could I find that it was a substantial contributing factor to the incapacity claimed after, at the latest, 6 December 2013.
The plaintiff is a young man. He was born on 17 May 1989. He is currently 25 years old. He grew up in the Upper Hunter Valley. He attended the Aberdeen High School and obtained the Higher School Certificate. He then obtained an apprenticeship as a plant mechanic at Muswellbrook and after completing that apprenticeship commenced work at the Drayton Colliery for WorkPac Pty Limited. He commenced there in approximately November 2011. The plaintiff's employment at the Drayton Colliery was taken over by the current defendant, Drayton Coal Pty Limited in March 2012. WorkPac had been a contractor to Drayton and when the plaintiff learned that Drayton itself had vacancies for plant mechanics, he applied and was accepted onto the staff of the current defendant.
30 October 2013 was a Wednesday. On that day the plaintiff was working on day shift and working alone. He went to the number 405 drill in the Drayton open pit colliery. He spent some time in his evidence-in-chief describing the part of the drill which he was called upon to repair. There are things called "mast shins" which are solid and made of hard plastic or a similar substance. The plaintiff told me that they are three dimensional, solid box type structures, approximately 6 inches long and 2 inches wide, or perhaps 2 inches high, and each weighs about 10 kilograms. Four of these mast shins are placed in a rectangular frame. The frame containing the mast shins is reasonably heavy, weighing, according to the plaintiff's estimate, around forty kilograms or more.
When he reached the drill in question, he noticed that one of the frames containing mast shins had fallen onto the deck of the drill. He had arrived at the drill in a utility truck which he used for the purposes of his work. The utility truck has a flat tray. He parked his utility about 30 metres away from the drill. He picked up the frame containing the mast shins and then carried it towards the utility in order to convey it, by the utility, to the workshop.
The utility truck is a Nissan Patrol vehicle which has its tray at waist height. As the plaintiff was carrying and lifting the frame containing the mast shins onto the tray of the truck, he twisted and felt pain in his back. The plaintiff indicated to me a band about 2 inches wide about 2 inches above his belt line. One wears one's belt so that it sits on the top of the iliac crests. If one draws a line through the iliac crests, one draws a line through L4/5 disc. The plaintiff was indicating an area of his back higher than the L4/5 level and it appeared to me to extend into the low thoracic spine.
I have little doubt that the plaintiff is completely unaware of the significance of the site of his pain. There is a dispute as to whether the pain was sharp or mild, whether it was a twinge or not, but I accept the onset of some pain. However, it appears to have been severe enough to inconvenience the plaintiff. He then sat in the cab of the utility truck for about 20 minutes or half an hour. As he was sitting, he was waiting for the pain to disappear. It did not disappear but subsided. He then drove back to the workshop. The plaintiff told me that the pain gradually subsided, especially when he was driving back to the workshop. He admitted in chief that he did not report this experience of pain when he arrived at the workshop.
The plaintiff finished his shift at approximately 7pm. He told me that he still had some pain in his back, which did not completely go away. He did no active work in the workshop that evening but he told me merely that he walked around. He did not take the frame containing the mast shins from the tray of the utility but left it to the shift that commenced after the end of his shift to continue doing the work that was to be done on drill rig 405. The plaintiff went home that evening and met his sister, who was then living with him at his home in Muswellbrook. He told his sister what had happened to him. On the morning of Thursday 31 October the plaintiff went to work the next morning. He did his normal work as a plant mechanic. His back was still sore but he told me that he could manage his work. He made no complaint about his back to anyone at work.
The plaintiff's work pattern appears to have been to work a 12 hour or 12 and a half hour shift and then have three days off work. Friday, 1 November to Sunday, 3 November were rostered days off. On the morning of Friday, 1 November 2013, the plaintiff told me that he woke up in the morning with pain in his left buttock. The plaintiff asked me to accept that this pain he did not relate to his experience of back pain on 30 October. He thought it was a different type of pain. He told me that, in essence, in the three day break commencing on 1 November he did nothing around his home. The pain in the plaintiff's left buttock radiated into his left leg.
On Monday, 4 November 2013, the plaintiff submitted a leave request form. He requested annual leave between 27 November and 28 November 2013. Earlier, on 4 August 2013 the plaintiff had requested annual leave between 2 and 3 December 2013. The inference I draw is that those two requests for annual leave gave the plaintiff a period off work from 27 November until 3 December 2013, although other evidence suggests that the plaintiff's annual leave did not actually expire until 5 December 2013. There is no suggestion in the evidence that the plaintiff's experience of pain in his left buttock or low back prompted his request for annual leave made on 4 November 2013 for leave later in that month.
On 5 November 2013, the plaintiff went to consult a physiotherapist, Mr Mark Williams, at a physiotherapy clinic run by Ethos Health at the Drayton Coal mine. This is a service available to all employees at the colliery and they can seek treatment for either work related or non-work related problems. Exhibit N tells me that the plaintiff went to see Mr Williams at 1pm. There is in evidence a report from Mr Williams dated 21 January 2014. It is exhibit 2. The report is not complete in that it records the plaintiff's attendance upon Mr Williams on 5 November 2013 and reports that he did not attend for his next scheduled appointment on 12 November 2013 but makes no further mention of any attendances by the plaintiff at the physiotherapy clinic. However, the plaintiff told me that he attended again upon Mr Williams on 19 November 2013 and that is confirmed by exhibit O, the records of Ethos Health. The plaintiff also told me that he attended upon Mr Williams again on 21 November 2013 and that is confirmed by exhibit N, a schedule of those who attended upon the Ethos Health physiotherapy clinic at the Drayton mine between 27 October 2013 and 27 December 2013. The same exhibit O, the records of Ethos Health, do not record any attendance upon it on 21 November 2013 but do contain entries commencing on 15 January 2014 which appear to relate not to any treatment of the plaintiff but to dealings concerning the plaintiff's workers compensation claim. It was never suggested to the plaintiff that he did not attend upon the physiotherapist on 21 November 2013.
In exhibit 2, his report, Mr Williams says this:
"I can confirm that Tristan attended an initial appointment on site on 5 November 2013 for a recent onset of left low back, buttock and posterior thigh.
At that time Tristan reported an insidious onset of pain in the month prior, and that he was unable to cite a specific cause of injury, other than suggesting that he had been performing an increased amount of work in forward reaching whilst in a right leaning position.
Tristan stated that during that time the pain had been gradually worsening in intensity as well as referring down into the region of his left buttock and posterior thigh. He reported his pain was notably worse in the mornings, and that it was further aggravated by sitting more than 30 minutes, with forward bending movements and with using the clutch in a manually operated vehicle.
On examination in standing Tristan was observed to have a reduced lumbar lordosis and there was evidence of para spinal muscle spasm.
Tristan's active lumbar spine flexion movement was pain limited at 2/3 normal range and his extension movement was pain free and within normal limits. Straight leg raise test was pain free on the left and right and within normal limits. Neurological testing was normal.
Tristan was provisionally diagnosed as potentially having an irritable low lumbar disc, which was unconfirmed by any radiological investigations."
On one view of the evidence, that description of what occurred on 15 November 2013 is inimical to the plaintiff's evidence. However, when I consult exhibit O, the contemporaneous records made by Mr Williams, I get a very different picture.
Like most physiotherapy records, there is a diagram of the human body on which has been marked the site of the plaintiff's pain. The pain commences in the left buttock and goes down the back of the plaintiff's left thigh. The diagram does not suggest that the plaintiff had any pain in his low back, in particular any pain above L5/S1 or any central pain. The inference to be drawn is the plaintiff complained to Mr Williams not formally of low back pain but of pain in his left buttock extending into his left thigh. On the second page of the records the physiotherapist has recorded that the paraspinal muscle spasm was not in the low back but in the thoraco lumbar region, which is the region that the plaintiff indicated to me was the site of the initial onset of pain. That is confirmed by another anatomical diagram on the second page, which sites the plaintiff's problems between T9 and L1 and indicates no pain below L1. The physiotherapist has identified the top of the left piriformis region. The provisional diagnosis provided on the same page of the records indicates the diagnosis of a piriformis syndrome, which I infer is a set of symptoms in the piriformis muscle. Underneath that the physiotherapist has written a question mark and then the words "discogenic symptoms". In other words, the formal diagnosis made at the time was of a muscular problem and the physiotherapist was concerned as to whether the plaintiff's symptoms might be related to some discal lesion.
The treatments suggested are stretching of the left piriformis and gluteal muscles and also the plaintiff's hamstring. The initial treatment plan suggests that the treatment was for a muscular complaint rather than for a low back complaint. It appears to me, with great respect to Mr Williams, that exhibit 2, the report of 21 January 2014 has been written with the benefit of hindsight, when it was known, after radiological investigations, that the plaintiff had a discogenic problem.
Having considered the records of the practice, exhibit O, and Mr Williams' report, exhibit 2, I am persuaded by the plaintiff's evidence that he did complain of pain in his left buttock, radiating down into his left thigh, rather than of low back pain.
On the following day, Wednesday 6 November, the plaintiff went to see his general practitioner, Dr Sohail Meeran, at the Tristar Medical Centre at Muswellbrook. The plaintiff went there to obtain scripts for medication he was taking for hereditary hypertension. The plaintiff made no complaint at that time about his low back or his buttock or of pain radiating from his buttock into his left thigh.
The plaintiff went on in his evidence to tell me that on 8, 9 and 10 November he did his normal work as a plant mechanic with symptoms persisting in his buttock and slight pain in his low back. 11 and 12 November were rostered days off. On Thursday 14 November 2013 the plaintiff took sick leave. He formally requested that sick leave in an application made on 18 November 2013, a number of days after the event. The plaintiff saw Dr Meeran at 3.53pm. Dr Meeran has recorded this:
"Presented with left sided lower back pains. Gets worse with movement. No neurovascular issues."
There is then a heading, "Reason for contact". The doctor has typed in under that heading, "Left sciatic pain?" In other words, whatever the problem that the plaintiff presented with, the doctor was unsure as to its origin but suspected it might be sciatic pain, that is pain caused by nerve root entrapment in the low back. If the doctor was unsure as to the cause of the problem, then one can accept that the plaintiff himself may have been unsure as to the problem and that is consistent with the plaintiff's presenting not with lower back pain but a pain in the left buttock extending into his left thigh.
Dr Meeran prescribed Panadeine Forte tablets and gave the plaintiff a medical certificate of unfitness for work for that day and merely made some administrative arrangements concerning a regular review concerning the plaintiff's hereditary hypertension. In other words the treatment provided was merely painkillers, so that the doctor was perhaps of the view that painkilling medication would take away the pain the plaintiff was experiencing. However, it did not.
The plaintiff had rostered days off on 15, 16 and 17 November. One can see therefore why on 18 November he asked for sick leave for 14 November. 18 November was a Monday. During the week commencing Monday, 18 November 2013, the plaintiff was booked in to a crane chasers course being conducted at the Drayton Colliery.
Before further discussion of 18 November 2013, I should go back to the records of Dr Meeran for 14 November. It has now been drawn to my attention that a further entry was made by Dr Meeran that the plaintiff was to see the physiotherapist at work about his complaint. That will tie in with another observation which I shall subsequently make. In any event, it does not detract from my observation that as far as Dr Meeran was concerned he thought that painkilling medication would relieve the plaintiff's pain. When the plaintiff saw Mr Mark Williams on 5 November, arrangements were made for a further consultation one week later, which was 12 November 2013, but the plaintiff did not attend on that occasion because he did not go to work because it was a rostered day off.
I return now to 18 November 2013. Prior to the commencement of that course or early after it had commenced, the plaintiff had a discussion with his superintendent, Mr Mark Patrick Vallance. The plaintiff had an immediate supervisor. That supervisor reported to the superintendent, Mr Vallance. Mr Vallance noticed the plaintiff sitting on a bench seat at the back of the crib room, which Mr Vallance described as the smokers' area, although the plaintiff is not a smoker. The plaintiff was lying backwards and had his left leg stretched out to one side. Mr Vallance himself has experienced back pain and sciatica and has had a number of injuries over his 30 years in the coal mining industry. He suspected that the plaintiff had a back injury. Mr Vallance gave evidence that he asked the plaintiff whether he had a sore back and the plaintiff said that he did. Mr Vallance swore that he asked the plaintiff whether he had injured his back at work and the plaintiff said he had not and he said that the plaintiff told him that he injured his back at home.
In cross-examination it was suggested to the plaintiff that he was limping at work on 18 November and that was what caused him to be spoken to by Mr Vallance. The plaintiff said that he told Mr Vallance that he had "a torn muscle in my left bum cheek", by which he clearly meant his left buttock. That is consistent with the provisional diagnosis made by Mr Williams. It was suggested to the plaintiff in cross-examination that he told Mr Vallance that he had hurt his back and had a left sciatic problem and that the plaintiff had hurt his back at home. The plaintiff denied making any such admission.
The plaintiff was then asked by the cross-examiner whether he had told Mr Vallance that he had injured himself at work and he said that he did. However, the plaintiff then said that he didn't relate the pain in his left buttock and leg to the injury of 30 October 2013 until after he was notified of the results of a CT scan. Mr Vallance was not cross-examined to suggest that the plaintiff told him that he had injured himself at work. That is consistent with the plaintiff's second answer to the question as to what was said on 18 November 2013.
The impression I had is that both the plaintiff and Mr Vallance sought to tell me the truth but probably each has a different recollection of events. The plaintiff asked me to accept that as at 18 November 2013 he did not relate the pain in his left buttock and thigh to the back pain that he experienced at work on 30 October 2013.
The diagnosis of a sciatic problem at that time is not one that had been adopted by the plaintiff himself. It was raised as a possibility by both Dr Meeran and Mr Williams but it had not been confirmed. The only treatment offered to the plaintiff at that stage was painkillers and physiotherapy for a piriformis syndrome, in essence muscle treatment for a muscular problem. Equally, there is a subtle difference between a statement that the symptoms started at home and that one had injured oneself at home. The plaintiff may have told Mr Vallance that his symptoms had started at home, which was interpreted by Mr Vallance as a statement by the plaintiff that he had injured himself at home. Ultimately, I have to take into account all the evidence in assessing credibility, but one cannot exclude, and I do not exclude, the possibility that both gentlemen, that is the plaintiff and Mr Vallance, having incomplete and/or inaccurate recollections of their conversation on 18 November.
The crane chasers course was due to last for the week commencing on Monday, 18 November. The plaintiff told me that essentially this is a series of lectures or lessons in a classroom type environment with practical work being performed on Friday, 22 November 2013. On 19 November I do know that the plaintiff went back to see Mr Williams. The only material from Mr Williams concerning that is contained in exhibit O, not in exhibit 2 and there is no anatomical diagram for 19 November. The notes start with the plaintiff telling the physiotherapist as to what increased his symptoms. The plaintiff also told the physiotherapist that his pain was worse in the morning than at other times during the day. The notes then say, "Referred for further investigation", but do not indicate who made such referral. There is nothing to suggest that further investigations had then been ordered by anybody. Perhaps the physiotherapist meant to say that he suggested to the plaintiff that he should have further investigations.
On this occasion, the notes record that the plaintiff had pain across the lumbar region and pain going below his knee. However, the treatment afforded was stretching of the thoraco lumbar area, stretching of the left piriformis and gluteus muscle, other stretches as previously provided, and the other thing prescribed by the physiotherapist I cannot decipher. It appears that the plaintiff was advised to continue to limit his sitting time to less than 30 minutes and to take care when leaning forward to perform his work. Again, no absolute diagnosis was provided.
On Wednesday, 20 November 2013 the plaintiff obtained compassionate leave in order to attend his cousin's funeral. He told me again that on 21 November 2013 he went to see Mr Williams but there are no notes made by Mr Williams contained in exhibit O, although, as I have said, exhibit N suggests that the plaintiff did so and on that was not challenged. The plaintiff told me, and I now do not recall precisely when it was, on 18 or 21 November, that Mr Williams strapped the plaintiff just below his mammillae to his umbilicus, that is from just below his nipples to his belly button. The plaintiff said that that was quite noticeable. Presumably the strapping could be seen underneath his shirt. Mr Vallance has no recollection of that, so he could not have been observing the plaintiff closely.
Saturday, 23 November 2013 was a rostered day off because the plaintiff had worked for five consecutive days in attending the course. On Sunday, 24 November 2013, the plaintiff left work early at 5pm and applied for two hours sick leave, clearly because symptoms were limiting his ability to work. On Monday, 25 November, the plaintiff went to see Dr Meeran at 11.34am. On that occasion Dr Meeran has recorded this:
"Presented to have follow-up for his sciatic pain. Seen by physiotherapist. Confirm [with physiotherapist] that it is sciatic pain. Need painkillers. Need X-ray and then other imaging."
The inference to be drawn is that Dr Meeran left it to Mr Williams to decide upon the nature of the plaintiff's pain and by this stage Mr Williams had advised the plaintiff that his pain was sciatic, that is that it was coming from his low back.
On the following day the plaintiff went to the rooms of Dr Colin Walker, a radiologist, and had an X-ray of his lumbosacral spine. This is reported in the following fashion:
"At L5/S1 there is an anterior slippage of 5 millimetres and has also moved forward in relation to L4 and there is a bilateral spondylolisthesis of L5 neural arch. This would be better demonstrated by CT and this is suggested. The sacroiliac joints show minimal degenerative change. There is minor disc space loss from L4 to S1. Above L4 the discs and pedicles and neural arches are in tact. T12 is transitioning."
A spondylolisthesis is by definition a forward slipping of one vertebra upon another. Prior to a spondylolisthesis occurring there is generally a spondylolysis. That is an essentially congenital or inherited spinal abnormality. The inherited spinal abnormality can also be seen by the fact that the plaintiff had a transitional vertebra at T12. These congenital abnormalities would indicate to me that the plaintiff's spine was perhaps vulnerable to trauma.
On the following day, 27 November, the plaintiff returned to see Dr Meeran at 3.25pm to discuss the X-ray findings. According to Dr Meeran's notes he discussed them in detail with the plaintiff and decided that a CT scan was required. 27 November 2013 was not a work day. One will recall from what I said much earlier in these reasons that the plaintiff requested annual leave on 27 and 28 November 2013 on 4 November 2013.
On 29 November 2013 the plaintiff had a CT scan of his low back which was reported upon by Dr Phillip Janke. The plaintiff was scanned from the L3 vertebra to the sacrum. No abnormality was detected at L3/L4. The report continues thus:
"L4/5 level: small left paracentral focal disc protrusion potentially involving the left L5 nerve root in the lateral recess. Central canal capacious, the laminal patency adequate.
L5/S1 level: minimal grade 1 spondylolisthesis of L5 on S1 due to bilateral L5 spondylolysis. The disc is in tact. There is no evidence of neural compromise."
Other scanning clearly indicates the plaintiff had a disc prolapse or herniation or lesion at L4/5.
As I have already indicated, the plaintiff was on annual leave on 2 and 3 December 2012, having requested that leave on 4 August 2013. On 3 December the plaintiff attended upon Dr Meeran at 12.33pm and obtained an appointment to see the doctor later in the day at 5pm. The doctor actually saw the plaintiff at 5.22pm. The plaintiff sought to see the doctor to obtain the results of his CT scan. The doctor's poorly typed notes indicate that there was a discussion in detail and a referral was then made to an orthopaedic surgeon, Dr Hardeep Salaria, who practices at East Maitland.
The plaintiff told me that on 6 December 2013 he was supposed to go back to work after his annual leave had finished but he did not. At 1.39pm he saw Dr Meeran again. The plaintiff told Dr Meeran that he had made an appointment to see Dr Salaria on 19 January 2014. The doctor noted the plaintiff's pain was bad and he needed to talk with those at his workplace. The plaintiff also asked for a medical certificate. The doctor's note continues: "Will speak to his boss about work related injury issue."
Dr Salaria then issued a certificate for unfitness for work, covering a period from 6 to 8 December 2013 which appears to be a rostered three day period of work. The certificate given was not a "WorkCover" certificate but an ordinary sickness certificate. Criticism has been made that a "WorkCover" certificate did not issue at that time and therefore the plaintiff must not have told Dr Meeran about the work injury. However, clearly the plaintiff did mention a work injury issue and presumably the plaintiff may have told Dr Meeran that he had not lodged a claim for workers compensation.
Dr Meeran appears to have bulk billed for that attendance, if Medicare item 23 represents a bulk billing attendance, which it probably does. If the plaintiff told Dr Meeran that he had not yet made a workers compensation claim, one can understand the doctor bulk billing the patient and issuing an ordinary certificate for incapacity. If he had issued a "WorkCover" certificate, Medicare might not fund the attendance. Equally, the insurer of the defendant might not fund the attendance because no workers compensation claim had yet been submitted. I see no adverse inference to be drawn from the issuing of an ordinary sickness certificate on that occasion.
After attending upon his general practitioner on 6 December, the plaintiff rang Ms Shannon Smith-Eckman, the defendant's then occupational, health and safety co-ordinator. He rang her in order to make a workers compensation claim. There is really no dispute about that. Exhibit C, the employer's report of injury form, contains this matter:
"On 06.12.2013 Mr Cruickshanks contacted me to state that he believed he had a workplace injury and would like to lodge a claim. It was agreed that he would attend Drayton on 09.12.2013 to discuss the process."
Because it was late in the day, Ms Smith-Eckman called a meeting on the following Monday morning. Before attending that meeting, the plaintiff went to see Dr Meeran again. He saw Dr Meeran at 10.47am. The doctor's notes say this:
"Presented to update me about his lower back issues. Still having limping while walking. States good days and bad days. Going to work to discuss his case. Will come back to update me about the outcome of his appointment."
Dr Meeran charged Medicare for that attendance.
There is again no dispute about the meeting at the Drayton Colliery on 9 December. The employer's report of injury form says this:
"On 09.12.2013, Mr Cruickshanks reported to myself and Mark Vallance that he had had a back condition that is significant and may require surgery. He reported that he believed that this may have occurred around the end of October when working on 405 drill when he was carrying a piece of equipment. The incident was not reported at the time and was not witnessed. He reported seeing the on site physiotherapist in November. He confirms he needs an MRI."
That is in the narrative part of the form. The form has the following additional comments, made for the benefit of the insurer of the defendant:
"There has been a significant delay in reporting. Mr Cruickshanks has been seen by a GP on several occasions and has advised that the expense associated with the MRI is costly. Mr Cruickshanks had advised that he has no sick leave remaining."
There is no doubt an MRI is a costly investigation. There is also no doubt that the plaintiff had no remaining sick leave.
In a claim form made on that day the plaintiff described his injury thus:
"Working on 405 drill, the rotary head slide had fallen to the bit. I lifted up the head slide and carried it to the ute to take to the workshop. Felt a slight niggling pain in lower back when hopping into the ute. Pain subsided in about 20 minutes."
That description, of course, is not wholly consistent with what the plaintiff attested to on oath.
On 3 February 2014 the insurer of the defendant wrote to the plaintiff advising him that liability was declined on the basis that his condition was "not related to your employment". Implicit in the denial of causation of the plaintiff's medical condition is a denial of the plaintiff's injury. Prior to that denial of liability, a number of further things occurred.
On 19 December 2013 the plaintiff underwent the MRI scan that had been suggested by Dr Meeran. That is reported as showing that the plaintiff had a broad based left paracentral L4/5 disc bulge with mild compression of the L5 nerve root in the lateral recess, again radiological evidence of a disc protrusion at L4/5.
On 22 January 2014 the plaintiff saw Dr Raymond Wallace, an orthopaedic surgeon, at the request of the defendant's insurer. Dr Wallace has this history:
"He suffered an injury at his lumbar spine in the course of duties at work on 30 October 2013.
At that time he was working on a drill when he lifted a metal frame weighing around 30 kilograms and carried it to his utility over a distance of 30 metres. He went to throw the frame onto the utility tray. He felt a twinge of pain in his lumbar spine.
He then drove back to his employer's workshop and noted increasing lumbar spinal pain. He walked around for 20 minutes and noticed some relief of his lumbar spinal pain. He did not report anything at that time.
He completed his shift at work and the following morning woke at home with a re-occurrence of the lumbar spinal pain radiating to his left buttock. He returned to work for one day and was then rostered off work for three days. He then returned to work and was reviewed by the physiotherapist at his place of employment. Again, he did not report any work-related injury at his lumbar spine."
The history goes on to record subsequent events that are not germane. One can see subtle differences between that description of the plaintiff's injury and the description contained in the claim form and the sworn evidence of the plaintiff today.
Dr Wallace examined the plaintiff. It is significant in my view that Dr Wallace noted the plaintiff could straight leg raise to 80 degrees on the right-hand side and then 60 degrees on the left-hand side. Dr Wallace also noted the plaintiff's left calf was 36 centimetres in circumference, whilst his right calf was 37 centimetres in circumference. That might be a constitutional anomaly, it might represent that the plaintiff is right handed, but it also could indicate some wasting of the left calf due to sciatic pain.
Dr Wallace diagnosed a "minor musculoligamentous strain", which had resolved, and a temporary aggravation of pre-existing multi level degenerative disc disease, which aggravation had also resolved. If one accepts what the plaintiff says, then the symptoms which he initially thought were as a result of a strain of his left buttock have not gone away. Furthermore, Dr Wallace thought the plaintiff had no evidence for ongoing disability, but ignores completely the differences in straight leg raising and the differences in the girth of the plaintiff's calves.
On 29 January 2014 the plaintiff saw Dr Salaria. The doctor's history is recorded briefly thus:
"As you know, on 30 October 2013 was lifting a heavy metal frame from the ground to a ute and as he twisted around he felt sudden pain in the back and started having left leg pain subsequently."
Again, subtle differences in reporting of the injury but the essence of what Dr Salaria records is consistent with the plaintiff's evidence to me. The plaintiff had picked the frame up from the ground, that is the deck of the drilling rig, and had then carried it 30 metres to the utility truck and as he was twisting around to put it on the tray of the utility truck he developed pain in the back and the plaintiff then clearly relates the buttock pain, which he noted on 1 November, as coming on subsequent to the initial experience of back pain on 30 November.
On examination, Dr Salaria noted a mildly antalgic gait, noted a positive sciatic nerve stretch test on the left side, noticed that there was a reduction in left ankle dorsiflexion and a dorsiflexion of the extensor hallucis longus tendon. He diagnosed an L4/5 disc prolapse, left L5 radicular pain and weakness of dorsiflexion of the ankle and of the EHL tendon. Dr Salaria thought the plaintiff's work capacity was "minimal", whereas Dr Wallace thought the plaintiff fit to go back to work.
It is convenient at this stage to record subsequent examinations by Dr Salaria. On 26 March, again the doctor noted a reduction in straight leg raising on the left and a reduction in dorsiflexion of the EHL tendon and discussed surgical and non-surgical options with the plaintiff. On 31 March 2014, at the suggestion of Dr Salaria the plaintiff underwent a left L4 transforaminal injection under CT guidance. That was carried out by Dr Virgil Chan. The radiologist placed a needle near the left L4 neural foramen and injected an anaesthetic. With great respect to the medical practitioner involved, it would have been more appropriate to inject the L5 nerve root rather than L4. The plaintiff said he did not get relief from symptoms from that investigation and one can understand why. It was misguided.
The plaintiff saw Dr Salaria again on 22 April and then on 27 May. Again, on 27 May Dr Salaria noted the plaintiff still had a deficiency in muscle strength of the EHL tendon and a reduction in straight leg raising on the left-hand side to 60 degrees. He booked the plaintiff into a public hospital list to undergo discectomy at L4/5, that is a removal of the protruding L4/5 disc. The plaintiff told me that he is to go to a pre-admission clinic on 10 December next at the Maitland Hospital with a view to having the surgery performed.
There is both radiological and clinical evidence of a prolapse of the L4/5 disc. I have no doubt whatever, on the evidence before me, the plaintiff has suffered a prolapse of the L4/5 disc. I have no doubt the plaintiff will probably benefit from surgery. At his age I suspect that much care will be taken to get the optimal outcome from that surgery. However, long-term, the plaintiff might have ongoing problems which will interfere with his ability to do heavy work as a plant mechanic in a coal mine. The question for me is what caused the L4/5 disc prolapse.
Dr Salaria clearly accepts that it was caused by the work injury. The plaintiff has been seen by Professor Ghabrial at the request of his solicitors on 13 June 2014. Dr Ghabrial accepts the plaintiff has an L4/5 disc fusion. He found evidence of a radiculopathy in the left leg including reflex changes, and sensory changes. In essence the doctor found decreased weakness of the left EHL tendon and decreased sensation in the left L5 dermatome as well as an absence of ankle jerks. That only confirms my view that the plaintiff has an L4/5 disc protrusion.
Traditionally, medical practitioners have told me over the last 20 years that a prolapse of a disc is caused by axial overload and torsional stress. Axial overload is generally caused by heavy lifting or carrying heavy objects. Torsional stress is twisting the spine whilst under the axial overload. What the plaintiff described to me is both axial overload and torsional stress. The plaintiff is a young layman who has no experience of the workers compensation system. The plaintiff is hardly likely to tailor his evidence to me to fit in with medical orthodoxy.
With a disc prolapse, the physical mechanism can easily be described. A lumbar disc or any disc is like a golf ball. It has a hard exterior and a liquid interior. The hard exterior is called the annulus fibrosis and the liquid interior is the nucleus pulposus. A disc protrusion occurs when the annulus fibrosis tears or ruptures and the nucleus pulposus flows or extends through the rupture and impinges on a nerve root. At the L4/5 level it would be caused by impingement on the L5 nerve root. However, the annulus fibrosis can tear and the annulus fibrosis need not extrude immediately but can extrude hours and days, sometimes weeks later.
If I believe the plaintiff, then it is very easy to conclude that on 30 October 2013 he tore the annulus fibrosis at L4/5, that there was no extrusion of the nucleus pulposus at that time but it came on during his sleep on the night of 31 October/1 November and when he woke with buttock pain on 1 November, that represents a time when the annulus fibrosis had extruded, impinging the L5 nerve root. The impingement on the L5 nerve root caused the buttock pain and the sciatic pain into the left thigh. The plaintiff told me that he did not relate the two at the time. Indeed, nor did Dr Meeran, nor, on my view of it, did Mr Williams, the physiotherapist. It was only after the investigations, in particular the CT scan, that it was realised that the symptoms in the plaintiff's buttock and thigh were due to a disc protrusion at L4/5.
The plaintiff and his sister have both given evidence. The plaintiff has attested on his affirmation that the events of 30 October occurred in the manner that I have described. The plaintiff's sister, now aged 20, also attested to the plaintiff's contemporaneous complaint, either when the plaintiff got home that evening or earlier the next day. The description of the event deposed to by the plaintiff's sister on oath is consistent with the plaintiff's description to me.
At the end of Mr Newton's searching cross-examination of the plaintiff, I asked him questions to enable me to gauge the sort of man the plaintiff is. He formerly played rugby. He was a loose head prop. He had knee injuries requiring surgery, as a result of playing rugby, and indeed the plaintiff's general practitioner records a complaint, of a changing nature, of left shoulder pain following an injury playing football on 27 April 2012. The plaintiff has not played rugby in 2013 or 2014. The GPs records extend back to 22 February 2012 and there is no suggestion of any other mechanism of injury to the low back and no complaint of back pain prior to those that I have already mentioned.
The plaintiff attested that he had not injured himself at rugby, he had not injured himself in his social activities, nor had he injured himself at home, nor had he injured himself in sporting activities outside rugby. There is no alternative mechanism of injury given in the evidence to me other than the alleged admission by the plaintiff that it happened "at home", as deposed to by Mr Vallance.
However, as I said, there is a subtle difference between saying symptoms came on at home and saying the injury happened at work. There is nothing to gainsay the proposition that the plaintiff's injury actually occurred as he deposed. For example, some workers in the position of someone who had injured his back at home and try to make it into a compensable event, make up stories which are disproved when, for example, it is found out that on the date the injury was alleged he or she was not at work. There is no such suggestion here.
Furthermore, there is a significant omission in the defendant's case to support the evidence of Mr Vallance. Mr Vallance said that on 18 November 2013 he made an entry in his computer diary about what was said on that day. That computer entry has not been printed out and put into evidence. What the printed entry is I do not know, nor was it sought to adduce it in evidence. Furthermore, it is clear that Mr Vallance was upset with the plaintiff for not reporting the injury now alleged at the time it occurred. However, when completing the occupational health and safety form, the alleged admission made by the plaintiff to Mr Vallance of an injury at home was not included for the benefit of the insurer. It beggars belief that Ms Smith Eckman did not record that, if it were told to her by Mr Vallance, and one would expect Mr Vallance to advise Ms Smith-Eckman of the admission, if it were made.
I am therefore not persuaded on the balance of probabilities that the plaintiff admitted having injured himself at home, although I accept that he may have told Mr Vallance that his symptoms came on at home, meaning the symptoms in the buttock extending into the thigh, which the plaintiff did not originally believe to be related to his experience of back pain on 30 October 2013.
Furthermore, it will not have escaped the observation of anybody that the plaintiff did not indicate the L4/5 level as a site of pain at the time of the event on 30 October. He indicated pain at higher levels, consistent with what is recorded by Mr Williams in the notes. However, a disc annulus can tear without there being symptoms because there is no extrusion of the nucleus to impinge upon the nerve root or other neural structure. What the plaintiff's experience of pain indicates is that the event that he experienced was such as to cause pain at a higher level of the spine and therefore one can accept damage at a lower level of the spine, which is more important to the activity of twisting, that is the L4/5 level and the L5/S1, level than higher levels such as T12/L1.
Ultimately it becomes a question of whether I can believe Mr Cruickshanks and his sister and I have formed the view that I should and I do. I accept the evidence deposed to by the plaintiff as to how he injured himself. One can parse and analyse the various inconsistencies between the claim form, Dr Wallace's histories and the histories obtained by Dr Salaria and Dr Wallace. However, the essence is all there, carrying a heavy object, twisting whilst carrying it, experiencing the onset of symptoms in the back and the subsequent development of symptoms in the left buttock and left thigh which are now explained by nerve root entrapment caused by a prolapse of the L4/5 disc. It is unfortunate the plaintiff did not report the injury at the time. That would have avoided this litigation completely.
The plaintiff has been certified as being totally incapacitated for work since in essence 6 December 2013. It would be easy for me to announce an award commencing on that date, but of course the plaintiff is entitled to have the time that he took off by way of sick leave and annual leave taken into account in reckoning the first 26 weeks of incapacity.
The plaintiff has been certified as unfit for any form of work by Dr Salaria and unfit for his normal duties by his general practitioner and there is no suggestion made to the plaintiff that he was fit for any form of modified or suitable duties. An issue under s 11(2) of the 1926 Act was not raised. Accordingly, the appropriate finding is, and is consistent for a man awaiting spinal surgery, that the plaintiff has been at all material times totally incapacitated for work. There will be a general order under s 60.
Counsel and/or the solicitors in question are to bring in short minutes of order, setting out the award consistent with these reasons and identifying the dates covered by the award consistent with the plaintiff's annual leave and sick leave absences from work.
HIS HONOUR: Any further reasons for judgment required?
BENSON: No, your Honour.
NEWTON: No, your Honour.
BENSON: Is your Honour prepared to make a finding, even though it's implicit in what your Honour said, that the surgery proposed by Dr Salaria is a consequence?
HIS HONOUR: Is the defendant going to take issue?
NEWTON: I will have to get some instructions. I would have thought, given the hour, if your Honour would just allow the matter to be stood over to tomorrow, those instructions can be obtained.
HIS HONOUR: Firstly, counsel and/or solicitors are bringing a form of an award for weekly payments in the general order under s 60. Order the defendant to pay the plaintiff's costs.
You can advise me tomorrow, but in light of the clinical findings and radiological findings, it is undoubted that the plaintiff requires surgery.
BENSON: I understand that, but what I'm concerned about is that the plaintiff may well now, given your Honour's findings, have some prospect of having the operation done a little sooner rather than later.
HIS HONOUR: Between now and 10 December is not long.
BENSON: But that's a pre-admission thing.
HIS HONOUR: They will hurry up if they know they're going to get paid.
BENSON: Delaying treatment is often an issue. Anyway, I just raise that for what it's worth.
HIS HONOUR: You can let me know tomorrow whether there is any issue about the surgery proposed.
NEWTON: Yes.
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