Day v BHP Steel (AIS) Pty Limited - Cordeaux Colliery and 3 Ors

[2016] NSWDC 120

District Court

New South Wales

Medium Neutral Citation:	Day v BHP Steel (AIS) Pty Limited – Cordeaux Colliery & 3 Ors [2016] NSWDC 120
Hearing dates:	13 April 2016
Date of orders:	13 April 2016
Decision date:	13 April 2016
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	Award for the defendants
Catchwords:	CIVIL – Workers compensation – Coalminers claim – Claim for weekly payments whilst undergoing bilateral total knee replacements and for associated treatment expenses – On evidence tendered, condition of plaintiff’s knees not related to any injury or the type of work performed as a coalminer – Award for the defendants
Legislation Cited:	Workers Compensation Act 1987
Category:	Principal judgment
Parties:	Richard John Day (Plaintiff) BHP Steel (AIS) Pty Limited – Cordeaux Colliery (1st Defendant) Coal Mines Insurance Pty Limited for Brown Day Cleaning Services (2nd Defendant) Delta SBD Limited (3rd Defendant) Mastermyne Services – Westcliff Colliery (4th Defendant)
Representation:	Counsel: Mr D Benson (Plaintiff) Mr B Odling (Defendants)   Solicitors: Barry F Cosier & Associates (Plaintiff) HWL Ebsworth Lawyers (Defendants)
File Number(s):	RJ546/14
Publication restriction:	No

Judgment

1. HIS HONOUR: The plaintiff claims weekly payments of workers compensation from 9 December 2014 to 28 July 2015 and his expenses under s 60 of the Workers Compensation Act 1987.

2. Prior to the period now in question the plaintiff was examined by Dr Frank Harvey, an orthopaedic surgeon, on 27 August 2014. The plaintiff gave a lengthy history and made a number of complaints about various parts of his body. He complained of pain in each knee, pain in each wrist and hand, pain in the right elbow, neck pain and back pain. As far as incapacity for work was concerned, Dr Harvey accepted that the plaintiff had an incapacity for work on the open labour market due to the condition of his knees. He said this:

"Mr Day has quite significant osteoarthritic changes in both knees and I find it remarkable that he is still able to work as a fitter and diesel mechanic as he is now doing. He certainly has significant disability in both knees, but I do not consider that this is work related."

Earlier, Dr Harvey said this about the plaintiff's knee complaints:

"Mr Day's main complaint at the present time is related to bilateral knee osteoarthritis. He first noted symptoms in the left knee when he pushed a toolbox across the floor with the left foot. It is quite apparent, however, that the marked pathology seen in both knees now is unrelated to such a minor incident occurring 15 years ago. I consider that the osteoarthritis is related to inherited diathesis and also the situation has been aggravated by his obesity. He has BMI of 31 and it is known that such elevation of weight to this level causes a four fold increase in the incidence of osteoarthritis. He has quite a marked varus deformity at the knees and some of this could have been longstanding and this would also have increased his likelihood of developing osteoarthritis in the knees. Some of the varus deformity is clearly related to the loss of articulator cartilage on the knee or compartments of the knee.

In summary, however, I consider that his osteoarthritis of the knees is almost entirely related to constitutional factors and unrelated to his work and certainly not caused by the isolated incident where he was pushing the toolbox with the foot."

3. During the period of incapacity claimed the plaintiff underwent total knee replacement surgery on each side. In a report of 10 September 2015, following upon an examination on that day, Dr Harvey said this:

"On 30 March 2015 he was admitted to hospital and had bilateral total knee replacements. He was discharged from hospital on 3 April 2015 but he then spent ten days in the Lawrence Hargrave Rehabilitation Hospital. He says that he was using a walking stick for about a month. He was having physiotherapy while he was in the Lawrence Hargrave Rehabilitation Hospital and subsequent to his discharge, arrangements were made for him to be picked up with a bus and taken back twice a week for further physiotherapy and exercises. This continued for one month. Since then he has been driving back to the Rehabilitation Hospital which is only a short distance from his home twice a week and he does exercise in their pool. He says he [is] also doing his own exercises at home."

4. Clearly, the plaintiff would have been incapacitated during the period claimed by his knee condition and clearly for a substantial period of time the incapacity would have been total by reason of the surgery and the treatment following it. The cost of the treatment would not have been small; in fact, it would have been substantial. There was a period of one month in a hospital followed by a period of ten days in the rehabilitation hospital. There was the cost of physiotherapy and hydrotherapy, and there was also the cost of ambulance transportation to and from the hospitals for undergoing treatment.

5. Unfortunately, Dr Harvey maintains his view that the plaintiff has suffered no relevant injury to either of his knees and that the need for the total knee replacements was completely unrelated to any injury that the plaintiff suffered in the course of his work as a coalminer and completely unrelated to the type of work he did as a coalminer. That being the only evidence on the issues currently before me, the plaintiff's claims for weekly payments of compensation and s 60 expenses must fail.

6. In that regard, I make an award for the defendants.

**********

Decision last updated: 18 May 2018