Dean v BHP Billiton Ltd

[2017] NSWDC 418

District Court

New South Wales

Medium Neutral Citation:

Dean v BHP Billiton Ltd & Ors [2017] NSWDC 418

Hearing dates:

8 – 10 November 2017

Date of orders:

10 November 2017

Decision date:

10 November 2017

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

I make an award for the applicant for $1,264.76 from 26 August 2014 until 24 February 2015, and for $481.50 per week from 25 February 2015 as indexed until 11 January 2016.

 

I formally find that the plaintiff's wife has been at all material times totally dependent upon him for support.

 

I make a further formal finding that the plaintiff is right-handed.

 

I make the following awards under s 66:
(1) for $7,144.20 for 13.5% impairment of the plaintiff's neck;
(2) for $17,860.50 for 22.5% impairment of the applicant's back;
(3) for $31,752 for 30% loss of efficient use of the right arm at or above the elbow;
(4) for $19,845 for 20% loss of efficient use of the left arm at or above the elbow;
(5) for $24,806.25 for 25% loss of efficient use of the right leg at or above the knee;
(6) for $14,883.75 for 15% loss of efficient use of the applicant's left leg at or above the knee.

 

I make an award under s 67 for $30,000.

 

I make a general order under s 60. That order includes the costs of surgery to the plaintiff's right shoulder performed by Dr Osborne on 9 December 2015.

 I order the defendant pay the plaintiff’s costs

Catchwords:

WORKERS COMPENSATION – Coal Miner Claim for weekly payments from date of acceptance of voluntary redundancy to 66th birthday – Claim for lump sums for impairment of back and of neck and loss of efficient use of each upper and lower limb – Disease process conceded – Plaintiff unable to recover lump sums for loss of each leg and loss of each foot as foot part of each leg

Legislation Cited:

Workers Compensation Act 1926
Workers Compensation Act 1987

Cases Cited:

J Odlin Shopfitting International Pty Ltd v Kaljanac (1993) 9 NSWCCR 156
KB Hutcherson Pty Ltd v Correia (1995) 11 NSWCCR 213
Stokes v Brambles Australia Ltd & Anor (1994) 10 NSWCCR 515

Category:

Principal judgment

Parties:

Darrell John Dean (Plaintiff)
BHP Billiton Ltd (First Defendant)
Coal & Allied Operations Pty Ltd (Second Defendant)
Blackdown Investments Ltd (Third Defendant)
Oceanic Coal Australia Pty Ltd (Fourth Defendant)

Representation:

Counsel:
Mr P O’Rourke (Plaintiff)
Mr T Rowles (Defendant)

  Solicitors:
Whitelaw McDonald (Plaintiff)
Sparke Helmore (Defendant)

File Number(s):

RJ 62/16

Publication restriction:

Nil

Judgment

1. HIS HONOUR: Darrell John Dean was a coalminer. He claims weekly payments of workers' compensation from 26 August 2014 until 11 January 2016, the day before he achieved his 66th anniversary. He also claims lump sum compensation under s 66 for permanent impairment of his neck, permanent impairment of his back, the loss of efficient use of each of his arms at or above the elbow, the loss of efficient use of each of his legs at or above the knee, and the loss of efficient use of each of his feet together with a lump sum under s 67 for pain and suffering, anxiety and distress resulting from those impairments and losses.

2. After leaving school at the age of 15, the plaintiff entered an apprenticeship as a butcher. He completed that apprenticeship and then worked in his trade until entering the coalmining industry on 28 May 1979 when he was 29 years old. He has only worked at two collieries. The first was at the John Darling Colliery where he was employed by Broken Hill Proprietary Company Ltd, as it was then called. John Darling was an underground coalmine. On 28 July 1980, he commenced working at the West Wallsend No 2 Colliery. He worked at the West Wallsend Colliery until he took a voluntary redundancy with effect on 25 August 2014. In essence, therefore, he worked in the coalmining industry for over 34 years. As could have been expected, over that period of time, the plaintiff sustained an almost innumerable number of injuries. Some of them were only minor and were of no moment. They include things such as cuts, abrasions, foreign bodies entering the eye or lodging on the cornea, the penetration of his skin by wood splinters, iron splinters, tools and the like, but also injuries to his back, neck, shoulders and knees.

3. A substantial part of the hearing time for the current case was taken up in a recitation of injuries to the plaintiff's back, neck, shoulders and knees between 1982 and 2014. Some of them required time off work; some of them required the plaintiff to undergo treatment, albeit that there was no time spent off work. Some of the injuries did not involve any loss of time from work, nor did they require any treatment. However, they do demonstrate the type of activities to which the plaintiff was exposed during the course of his work as an underground coalminer. The plaintiff in his statement of claim alleges that he was exposed to a disease process and that all the problems about which he complains to me should be seen as part of a disease process, the disease being of gradual onset.

4. In submissions, the defendant admitted that this was a "disease case" and, therefore, it was unnecessary to adduce evidence of each individual injury as had been done. Nevertheless, counsel for the plaintiff was required to do so because the admission made by the defendant in counsel's address was not an admission made when the case was commenced. Some agreement on that issue between counsel prior to the presentation of the case would have substantially shortened its length.

5. A convenient summary of the activities in which the plaintiff was involved is contained in the report of Dr AVB Isaacs, an orthopaedic surgeon, who examined the plaintiff at the request of his solicitors on 28 June 2016. That report says this:

"During Mr Dean's employment in the underground, coalmining industry, he was involved in the following work activities:

• Repetitive and frequent bending, lifting and twisting.

• Repetitive and frequent kneeling and squatting.

• Walking over rough and uneven surfaces, kicking toppers of coal and standing on canches.

• Working in muddy and sodden conditions in heavy footwear of a Wellington • Boot type of nature.

• Periodic walking of returns and second means on egress: ie extremely long distances underground.

• Riding in and driving heavy underground, coalmining equipment and machinery including Eimco's, man transports, SMVs and PJBs, riding locomotives, shuttle cars and continuous miners.

• Working in mud and water laden conditions.

• Striking head on protruding roof surfaces including pit timbers, baulks, W straps, protruding roof bolts, longwall canopy and longwall side shields.

• Striking head on canopies on underground mining equipment including Eimco's.

• Working above shoulder and head height whilst undertaking activities including, but not limited to, roof bolting, meshing, and installation of vent tubes.

• Necessity to wear pit0-cap lamp, battery and self-rescuer.

• Carrying and manually handling underground coalmining consumables including mechanical parts, stone dust bags, belt structure, conveyor belt rollers and monorails.

• Undertaking underground longwall installations and change-outs.

• Shovelling of coal spillages including slurry/fines.

• Heaving and manipulating heavy, underground electrical cables used to drive underground coalmining equipment; heaving, manipulating and installing water pipes and similar to roof on belt and previously belt structure.

• Roof and rib bolting including use of fire flys and wombat-type bolting devices together with manually operated rib borers and percussion equipment.

• Manual and pneumatic tools.

• Installing and retrieving, carry and handling heavy, pneumatic pumps."

6. That list did not refer to other activities which included carrying 20 litre drums of oil. The plaintiff told me that he would need to lift and carry bags of stone dust which weighed up to 25 kg and bags of other material such as plaster which, again, weighed up to 25 kg.

7. There is no dispute that the work of an underground coalminer is arduous and throws stress and strain on the spinal column and the joints of the body, in particular the shoulders, the elbows, the wrists, the hips, the knees and the ankles. Unsurprisingly, the plaintiff has now developed many symptoms in his spine, his shoulders, his arms, his legs, his knees and his feet. Most of those conditions can be described as degenerative conditions, or conditions caused by microtraumata which have accumulated over the years to lead to major pathological changes in his body. There is no dispute that the plaintiff has various losses and impairments. The dispute concerns the quantum.

Incapacity

8. There is really no dispute that the plaintiff is incapacitated at least for work as a coalminer. The question before me is the extent of the plaintiff's incapacity for work. The latter issue is really straightforward. The plaintiff said that he took a voluntary redundancy offered to him because his body was about to give up the struggle to continue to do the work that he was doing at the coalmine in the final years, manual handling of mining equipment mainly at ground level rather than within the mine, although he still descended the mine, taking materials down, essentially, to the coalface where the work was actively being done collectively coal from the coalface.

9. The plaintiff made it clear that he enjoyed being at work. He enjoyed the company he kept there. He enjoyed the activity involved. He would have preferred to work on at the mine until "the gate closed", but he did not feel that his body could endure longer and, hence, he took the voluntary redundancy. One could simply say that the plaintiff probably took the money because the amount of money involved in the redundancy was large and it was clear that eventually the gate would close at the West Wallsend Colliery. That in fact occurred sometime last year, the plaintiff believes. It would appear that not long after the plaintiff took a voluntary redundancy, within a year or two, active production of coal at that colliery may have stopped, and then the mine was in shut down mode until the gate finally closed.

10. The defendant has qualified one doctor, Dr Roger Rowe, an orthopaedic surgeon. Dr Rowe has examined many, many coalminers over many, many years and written many, many reports for the insurer of coalmines. Dr Rowe first saw the plaintiff on 1 February 2016. It is to be recorded that on 9 December 2015, the plaintiff underwent right shoulder arthroscopic acromioplasty at the hands of Dr Don Osborne, an orthopaedic surgeon, at the Maitland Private Hospital. The plaintiff was discharged from the private hospital on 10 December 2015, the day after the procedure, and was advised by Dr Osborne to undergo physiotherapy with Advanced Physiotherapy. In a note of 17 December 2015, sent by Dr Osborne to the plaintiff's general practitioner, Dr Osborne noted that the plaintiff had started working on his rehabilitation and that Dr Osborne planned to check on the plaintiff's progress ten weeks later. On 11 February 2016 that is, after the plaintiff was examined by Dr Rowe on 1 February 2016 the plaintiff was reviewed by Dr Osborne who diagnosed a frozen shoulder condition and organised for the plaintiff to undergo a fluoroscopically guided hydrodilatation of the shoulder, with steroid and local anaesthetic to be injected into the glenohumeral joint. That was performed by Dr Voutnis on 15 February 2016. Fortunately, the plaintiff did overcome the post-operative frozen shoulder condition. The important point to note is that at the time that Dr Rowe saw the plaintiff, he was still recovering from the effects of the surgery and probably was in the process of having his right shoulder freeze on him.

11. Dr Rowe expressed these views:

"Mr Dean retired from work in August 2014 and clearly will not return to the workforce in any capacity. Given his multiple, widespread symptoms from degenerative change, he is considered permanently unfit for work.

Mr Dean is currently recovering from an operation on his right shoulder in December 2015. As part of this recovery, he is taking medication for pain relief and is attending physiotherapy."

It appears that Dr Rowe was then saying the plaintiff was totally incapacitated for work but that assessment may have been influenced by the fact the plaintiff was probably totally incapacitated by reason of the treatment of his right shoulder condition which was then being undertaken.

12. However, Dr Rowe re-examined the plaintiff for the defendant on 6 March 2017, over a year later. In his primary report of 31 March 2017, Dr Rowe said this:

"Mr Dean retired from the workforce in August 2014 and could not return to the workforce in any capacity. At this stage and given his multiple, widespread symptoms, he is considered to be permanently unfit for work."

The words "unfit for work" can sometimes mean unfit for pre-injury work and sometimes can mean unfit for any work. Dr Rowe makes it clear in what I have just quoted that he thought the plaintiff was permanently unfit for any form of work. Bearing in mind that Dr Rowe is the defendant's chosen medical expert, I have no hesitation in accepting his opinion that the plaintiff has been at all material times totally incapacitated for work. The very interesting submissions made to me by Mr Rowles about the effect of the plaintiff's redundancy package on any entitlement he has to weekly payments for partial incapacity under s 11(1) of the Workers Compensation Act 1926 may await another occasion.

Impairment of the back

13. I turn, firstly, to the question of the impairment of the plaintiff's back. One of the first pieces of medical evidence before me, chronologically, is a report of Dr David O'Dell of 24 March 1982. It is a radiological report concerning the plaintiff's cervical spine and his lumbosacral spine with functional views. At the time, the plaintiff was aged 32 years. No abnormalities were detected in the plaintiff's neck. An examination of the lumbosacral spine started at the lower thoracic spine. The lower three thoracic disc spaces appear to have slightly narrowed, and there was a minor right, concave scoliosis in the upper lumbar region centred about the L1 vertebra. However, below that level, there appears to have been no abnormality. The radiologist thought that there was an early disc degeneration in the lower thoracic spine but in the lumbar spine itself, the disc spaces appeared to be normal and there was no significant degeneration seen.

14. On 9 June 1998 when the plaintiff was 48 years old, he went to see a general practitioner, Dr Cocking. Dr Cocking's notes on 9 June 1998 say this:

"Lifting dust bags at work yesterday, causing yet another episode of low back pain in his job. Pain radiating down back of right leg as well. Referred X-ray, CT scans. Certificate given to continue on selected duties without bending and lifting heavy objects. Voltaren 50 milligrams bd PC; Panamax fourth hourly".

The Voltaren was to be taken twice daily after food. An X-ray and CT scan of the low back was performed by Dr Colin Walker on 10 June 1998. What was previously observed in the lower thoracic spine was still present. However, on this occasion, there was a scoliosis convex to the right at the lumbosacral level. There was also minor, anterior spurring on the edges of L3-4 and L4-5. The CT scan is reported as showing a mild, broad-based annular bulge at the L4-5 level. At the L5-S1 level, there was a minimal degree of right central annular bulging but it was not as great as that at the L4-5 level. Eventually, Dr Cocking gave the plaintiff a certificate to return to work on normal duties on 23 June 1998.

15. The plaintiff was seen by Dr Kim Ostinga at the request of his then solicitors on 29 May 2000. Dr Ostinga thought that there was 18% permanent impairment of the lumbar spine at that time. A little later, on 7 July 2000, the plaintiff was seen by Dr Bernard Zicat, also an orthopaedic surgeon. Dr Zicat thought that the extent of the plaintiff's back impairment was 30%. A further CT scan of the low back was performed on 11 March 2015. By this time, there was a mild, generalised bulging of the L3-4 disc which the radiologist thought minimally indented the thecal sac. The position at the L4-5 level had worsened. The radiologist, Dr Josey, said this:

"A degenerative Grade I anterolisthesis is present of L4 relative to L5. There is uncovering of the disc with slight narrowing of the left and right foramina although no neural compression. The canal remains relatively patent. A severe bilateral facet arthropathy is present."

Dr Josey did not identify any particular problem at that time with the lumbosacral disc. The spondylolisthesis was clearly permitted by the facet joint arthropathy identified by Dr Josey, because the facet joints had become degenerate, they failed to keep the vertebra in position allowing the spondylolisthesis.

16. Surprisingly, the most recent medical investigation before me is an MRI scan of the lumbar spine made on 1 September 2016 at the request of Dr Ghabrial. That identifies the L2-3 disc being reduced in height and having bulged diffusely. There was still a minor annular bulge at L3-4. There was still the spondylolisthesis at L4-5 which was described by Dr Geraldine Long as causing mild to moderate canal stenosis without "significant crowding" in the thecal sac. Dr Long did not believe that the L4 nerve roots had been compromised in the foramina. At the L5-S1 level, there was no focal herniation but a heterogeneous signal was given out on in the MRI scan. At that time, there was found to be bilateral facet joint arthropathy: that is, degenerative disease of the facet joints causing mild foraminal stenosis on the left hand side.

17. One can see over the years the progressive changes in the plaintiff's low back condition. I have the usual range of assessments of the impairment of the plaintiff's back. They range between a 35% impairment and 20% impairment, but Dr Rowe believes that one-quarter of any impairment should be attributed to an underlying constitutional condition. In a case decided earlier this week, I pointed out to counsel, one of whom was not involved in this case, that a person who had the L4-5 and L5-S1 discs removed surgically and then fused between the fourth lumbar vertebra and the sacrum with the use of two rods as well as screws might expect a finding of 30% impairment of the back. I accept that this plaintiff has a substantial impairment of his back, but I could not put it out to the extent of 35%, the rating made by Dr Ghabrial. Dr Hopcroft and Dr Isaacs both put the impairment at 30%. Dr Rowe believes there is a 20% impairment but that ought be reduced because of an underlying constitutional condition.

18. As I have had cause to observe on numerous occasions when sitting here at Newcastle in the Mining List, I am often between Scylla and Charybdis, or, to use a less classical metaphor: between a rock and a hard place. Doing the best I can, I believe that the extent of the impairment of the plaintiff's backis 25%. However, one cannot entirely dismiss the argument raised by Dr Rowe that the degenerative process may have a constitutional or genetic basis or may merely reflect the passage of time. I accept that for at least spinal conditions, some allowance must be made in many cases but not all. However, the extent of the loss due to any constitutional condition is a matter often difficult to determine, and I shall therefore apply the statutory reduction of 10% which entitles the plaintiff to the appropriate lump sum for 22.5% impairment of the back.

Impairment of the neck

19. Unsurprisingly, the plaintiff also has degenerative changes in his cervical spine, that is, in his neck. The diagnosis offered is cervical spondylosis, a degenerative condition of the vertebral bodies themselves, but that generally is secondary to a degenerative disc disease, the vertebrae becoming degenerative after the discs themselves have started to degenerate. The assessments of the impairment of the plaintiff's neck range between 25% and 12%. Before me is a CT scan of the cervical spine made on 11 March 2015 and reported by Dr Josey. There are some osteophytosis on the facet joints at C3-4 and C5-6 but, otherwise, the CT scan shows no major pathology. The "impression" expressed by Dr Josey is this:

"Multi-level foraminal narrowing can be seen throughout the cervical spine, the foraminal narrowing is due to uncovertebral spurring. No focal disc protrusions identified".

Indeed, the no disc bulging is referred to by Dr Josey either. The condition of the plaintiff's neck is better than the condition of his lumbar spine. Doing the best I can, I accept the plaintiff has a 15% impairment of his neck which I reduce by the statutory 10%; so that, the plaintiff is entitled to an award for 13.5% permanent impairment of his neck.

Loss of right arm

20. The next claim which I shall discuss is the claim in respect of the plaintiff's right arm. There may be two different pathologies affecting the plaintiff's right arm. The first is the right shoulder itself. The plaintiff's right shoulder problems started very early in his mining career. On 18 May 1983 when the plaintiff was 33 years old, he complained to his general practitioner of pain and soreness in the region of his right shoulder which had been present for the previous two weeks. The GP expressed the view that it was "a combination of joint and also fibrositis". The general practitioner recommended painkilling medication, Naprosyn, and if that did not cause the problem to settle that the plaintiff should undergo physiotherapy. The plaintiff did not attend again in 1983 about his right shoulder so, presumably, it did settle without the need for physiotherapy. It is important, however, to note that early in his career, the plaintiff was having pain in his right shoulder lasting for a number of weeks at a time, requiring him to go to see his GP.

21. On 5 March 1986, the plaintiff attended upon his general practitioner again and complained that he had injured his right shoulder at work on Monday 3 March 1986. The plaintiff told the doctor that he was lifting a miner cable in the pit over his head in the evening of 3 March when he strained ligaments above his right shoulder. On examination, the GP found tenderness over the trapezius muscle and diagnosed "fibrositis". Again, Naprosyn was prescribed and the plaintiff was given a certificate to be off work for three days. The plaintiff complained of problems in his right shoulder long before he complained of problems in his low back.

22. When seen by Dr Ostinga on 30 May 2000, Dr Ostinga recorded this:

"Part of Mr Dean's function is to operate an ABM miner. This means reaching around in front of a bar with a bolt and supporting it while it dis-inserts into the overlying timber. The bolt may be held forehand or by backhand method. It puts enormous strain on the shoulder, and there is an expression amongst the miners of having an 'ABM shoulder'."

The plaintiff described the difficulty he had performing that manoeuvre on a number of occasions in his evidence. Although Dr Ostinga made no abnormal finding on examination, he thought the plaintiff could be suffering from mild intermittent subacromial bursitis and questioned whether there was some osteoarthritic change in the right acromioclavicular joint. He thought at that time, the plaintiff had an 8% loss of efficient use of his right arm at or above the elbow.

23. When Dr Ostinga re-examined the plaintiff on 8 September 2003, the plaintiff told him that he had a severe deterioration in the right shoulder since 2000 and that the plaintiff was now unable to lie any longer on his right shoulder at night, and he had difficulty raising and lifting his arm above shoulder height. On examination, there was a 10 degrees loss of abduction, 10 degrees loss of flexion, and adduction was limited by 20 degrees. Dr Ostinga did not provide any opinion as to the extent of the loss of efficient use of the plaintiff's right arm at that time because he believed the plaintiff needed further investigations because of the deterioration.

24. An X-ray of the right shoulder was performed on 12 September 2003. That was said to have shown no abnormality. However, a few weeks later, there was an ultrasound of the right shoulder which showed that the long head of the biceps tendon appeared to have thinned as had the subscapularis tendon. There were found to be small focal erosions at the anterior portion of the greater tuberosity and a minor degree of tendinopathy at the anterior portion of the supraspinatus tendon. There was also found to be a small to moderate sized bursal effusion which appeared to be blocking and limiting adduction.

25. Much more recently, the plaintiff saw Dr Don Osborne for treatment of his knees and his shoulders. Dr Osborne thought that more recent investigations indicated that there had been a tear of the supraspinatus tendon, but he was unable to gauge the size of the tear based on the ultrasounds then available to him. He offered the plaintiff surgery which was practised, as I have mentioned earlier. Unfortunately, I have no assessment from Dr Osborne of the extent of the loss of efficient use of the plaintiff's right arm because of his shoulder condition.

26. Not mentioned in the evidence is a history that the plaintiff gave to Dr Rowe when Dr Rowe examined him on 6 March 2017. That history is this:

"Mr Dean had ongoing shoulder problems that resulted in further investigation both for the shoulder and for wasting on the ulnar side of his hand.

He attended a hand specialist, Dr Myers, who in turn referred him to neurologist, Mr M Katekar. He underwent electrophysiological testing and said that Dr Katekar advised him that his problem was arising in the neck.

Dr Myers then referred him to orthopaedic surgeon, Dr R Kuru, who has suggested surgical treatment on the neck. Mr Dean has declined such treatment."

Dr Robert Kuru is known to me. He regularly gives evidence before me by way of report. He is an orthopaedic surgeon specialising in surgery of the spine. I can understand that he might offer spinal surgery to a person such as the plaintiff. I can equally understand the plaintiff would not accept such advice. The important thing, however, is that when Dr Rowe examined the plaintiff's right hand, he did not find any obvious muscle wasting or any sensory abnormality, but he thought there might be a slight weakness in the ulnar three digits which might indicate some problem in the right hand mediated by the neck. It is difficult to know.

27. The plaintiff has complained of similar symptoms in his left arm due to problems in his left shoulder, but he has never believed that his left arm was as severely affected as is his right arm. I have the usual range of assessments of the loss of efficient use of the plaintiff's right arm at or above the elbow. They range between 40% and 15%. Dr Rowe says that as far as each arm is concerned, there should be a deduction of one third because of "constitutionally determined degeneration". The assessments of Dr Ghabrial and Dr Hopcroft are both marred by the fact that each gives the same assessment of the extent of the loss in the right arm as he does in the left arm, which is not in accordance with what the plaintiff himself says. Doing the best I can, I believe the appropriate finding to be that the plaintiff has lost 30% of the efficient use of his right arm at or above the elbow.

28. I reject the contention of Dr Rowe that there should be some deductible proportion because over the many years I have been dealing with matters of this nature, I do not know what the "constitutionally determined degenerative condition" of the right shoulder might be. Dr Rowe does not tell me; therefore, I cannot understand his argument.

Loss of the left arm

29. As far as the left arm is concerned, bearing in mind my finding as to the extent of the loss of efficient use of the right arm at or above the elbow, I accept a 20% loss of efficient use of the plaintiff's left arm at or above the elbow from which there also ought be no deductible proportion.

Loss of the legs

30. The plaintiff has widespread osteoarthritis in each of his knees. The plaintiff's right knee is much more severely affected than his left leg. On 11 March 2015, Dr Josey carried out plain X rays of both of the plaintiff's knees. In the right knee, he found Grade 4 osteoarthritis of the medial compartment, Grade 2 osteoarthritis of the lateral compartment, and Grade 2 osteoarthritis of the patellofemoral compartment. On X ray of the left knee, he found Grade 3 osteoarthritis of the medial compartment, Grade 3 osteoarthritis of the lateral compartment, and Grade 2 osteoarthritis of the patellofemoral compartment. There are five grades for classifying the severity of knee osteoarthritis: the lowest of them is nil which indicates a normal knee; the highest is Grade 4 which shows definite osteophytes, marked joint space loss, and subchondral sclerosis. One needs to say little more.

31. The evidence gives me a range of between 35% loss of efficient use of the plaintiff's right leg at or above the knee because of the condition of his right knee, and a 15% loss with, again, an argument that one third of the loss is due to constitutional degenerative condition. As far as the left leg is concerned, the assessments range between 25% and 15%, again, with an argument raised by Dr Rowe about an underlying degenerative process.

32. The plaintiff also claims a loss of efficient use of each of his feet. Dr Ghabrial said the plaintiff has a 12.5% loss of efficient use of each foot. Dr Isaac says there is a 15% loss of efficient use of each of his feet. Dr Hopcroft, oddly, says that there is a 15% loss of efficient use of the left foot and a 10% loss of efficient use of his right foot. However, there is nothing in the evidence to discriminate between the affectation of the plaintiff's left foot with any affectation of his right foot. The plaintiff, essentially, says the same thing about each of his feet, and that is acknowledged by the similar assessments made by Dr Ghabrial and Dr Isaacs. Dr Hopcroft is the odd man out, so to speak.

33. Dr Rowe on the first occasion could not identify any pathology and said that there was no loss of efficient use of either of the plaintiff's feet. In the second report, he did note that there was some pathology present in the plaintiff's feet but, again, expressed a view that there was no loss of efficient use of either of the plaintiff's feet.

34. X-rays performed on 11 March 2015 are reported thus:

"Enthesophytes are present at the insertion of both the left and right plantar fascia onto the calcanei. The enthesophytes are consistent with longstanding plantar fasciopathy".

That pathology can be shortly described as the plaintiff's having calcaneal spurs. An enthesophyte is a bony spur forming at a ligament or tendon insertion into a bone growing in the direction of the natural pull of the ligament or tendon involved. They can also be described, as Dr Ghabrial describes them, as os calcis spurs. Without operative treatment, the enthesophytes will not disappear. No one has suggested the plaintiff undergo such operative treatment. Calcaneal spurs are common amongst those who work on their feet most of their working lives, particularly if they are walking over hard surfaces such as concrete. I accept that the enthesophytes affecting the plaintiff's heels are due to the heavy work he did in the mine in which he wore, as he put it, "gumboots", trying to carry out the work of an underground miner. The pain eased, he told me, when he stopped wearing the gumboots but did not disappear completely. Were it left to me, I would find the plaintiff had a 5% loss of efficient use of each of his feet.

35. However, that cannot be done. In Stokes v Brambles Australia Ltd & Anor (1994) 10 NSWCCR 515, I held that a leg includes a foot. That finding can be found at p 529 C. I also held that a worker was unable to recover a lump sum in respect of the loss of efficient use of his leg below the knee and for the loss of efficient use of his foot as well and pointed out that the decision of the Court of Appeal in J Odlin Shopfitting International Pty Ltd v Kaljanac (1993) 9 NSWCCR 156 had been overcome by statute and that, therefore, a plaintiff could not recover moneys for both a loss of efficient use of a leg either at or above the knee or below the knee and a foot as well. That reasoning was applied by the High Court of Australia in KB Hutcherson Pty Ltd v Correia (1995) 11 NSWCCR 213 at 219 D where their Honours observed that the decision of the Court of Appeal in Kaljanac's case was erroneous.

36. Since we are here dealing with a disease of gradual process, each injury is deemed to have occurred on the day on which the plaintiff last worked, 25 August 2014. The injury process is the same for work that he was doing. He, therefore, cannot recover an amount for the loss of efficient use of his leg at or above the knee because of a knee condition as well as an amount for the loss of efficient use of a foot because of the same work that he was doing. I have to incorporate in my awards for the loss of efficient use of each leg at or above the knee something to account for the loss of efficient use of each of the feet because of the calcaneal spurs. Doing the best I can, I accept that the plaintiff has a 25% loss of efficient use of his right leg at or above the knee, and a 15% loss of efficient use of his left leg at or above the knee. There is some merit when discussing knees with the argument advanced by Dr Rowe about there being an underlying degenerative condition. That might not be constitutional but in the sense of genetic, it may be constitutional in the sense that there may be the ageing process involved. However, I have taken such consideration into account in reaching the two assessments which I have just announced.

Pain and suffering

37. I believe that my findings under s 66 entitle the application to lump sum compensation under s 67 for pain of suffering, anxiety and distress resulting from those impairments and those losses. The plaintiff is now 67 years old. Unfortunately, I have not available to me here at Newcastle the life expectancy tables. Suffice it to say that there is nothing before me which would suggest that the plaintiff's life expectancy is impaired by some other medical condition, as people do not die of orthopaedic or surgical problems unless they are undergoing surgery. No surgery is currently being suggested or ought be considered by this plaintiff. There is no suggestion that he has any problem with his heart or problems caused, for example, by obesity such as diabetes or any type of cardiovascular condition. I accept that he has a normal life expectancy.

38. His symptoms go back many, many years. I ignore any symptoms occurring before 1 July 1987. Indeed, as far as the neck and back are concerned, I can only take into account the condition of his neck and back since that time. I accept that as far as the back is concerned, I can take into account his experience of pain and suffering since the event I mentioned for which he saw Dr Cocking on 9 June 1998 and subsequently. I accept that prior to his retirement, the plaintiff had experience of pain and suffering over a period of some 16 years. They were gradually getting worse with time. Clearly, leaving the stressful work may have ameliorated the experience of pain and suffering somewhat, but I accept what the plaintiff told me about himself, about continuing to have pain and discomfort affecting his neck, his back, his knees, his shoulders and his feet.

39. However, it has to be made clear that I am required by law to award more to a younger man than to an older man because a younger man will experience symptoms for a longer period. It must be also borne in mind that I can only award the maximum for a most extreme case of pain and suffering, anxiety and stress, so that if a man is rendered a quadriplegic or a paraplegic at the age of 30, I might be able to award such a young man the maximum. It is difficult to award the maximum to a person in the present plaintiff's position. The maximum amount available is $66,200. Doing the best I can, it appears to me that I should award the applicant under s 67 the amount of $30,000.

Awards

40. For those reasons, I make an award for the applicant for $1,264.76 from 26 August 2014 until 24 February 2015, and for $481.50 per week from 25 February 2015 as indexed until 11 January 2016.

41. I formally find that the plaintiff's wife has been at all material times totally dependent upon him for support.

42. I make a further formal finding that the plaintiff is right-handed.

43. I make the following awards under s 66:

1. for $7,144.20 for 13.5% impairment of the plaintiff's neck;

2. for $17,860.50 for 22.5% impairment of the applicant's back;

3. for $31,752 for 30% loss of efficient use of the right arm at or above the elbow;

4. for $19,845 for 20% loss of efficient use of the left arm at or above the elbow;

5. for $24,806.25 for 25% loss of efficient use of the right leg at or above the knee;

6. for $14,883.75 for 15% loss of efficient use of the applicant's left leg at or above the knee.

44. I make an award under s 67 for $30,000.

45. I make a general order under s 60. That order includes the costs of surgery to the plaintiff's right shoulder performed by Dr Osborne on 9 December 2015.

46. I order the defendant pay the plaintiff's costs.

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Decision last updated: 01 March 2018