Dormer v Dendrobium Coal Pty Ltd

[2018] NSWDC 88

District Court

New South Wales

Medium Neutral Citation:

Dormer v Dendrobium Coal Pty Ltd [2018] NSWDC 88

Hearing dates:

14 – 16 March 2018

Date of orders:

16 March 2018

Decision date:

16 March 2018

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

I make an award for the plaintiff:
(1) for $980.20 per week from 30 October 2016 to 29 April 2017;

 

(2) for $408.60 per week from 30 October 2017 to 30 September 2017; and

 

(3) for $411.90 per week from 1 October 2017 to date and continuing pursuant to s 11(2) of the Workers Compensation Act 1926 as preserved.

 

I order the defendant to pay the plaintiff's hospital, medical and like expenses pursuant to s 60.

 I order the defendant pay the plaintiff’s costs.

Catchwords:

WORKERS COMPENSATION – Coal miner – Claim for weekly payments – Whether plaintiff injured left shoulder whilst working for the defendant roof bolting – Acceleration of disease process stemming from a rugby league injury at age 14 – Plaintiff’s services terminated whilst performing restricted duties – Whether plaintiff ready, willing and able to perform suitable work for the defendant

Legislation Cited:

Workers Compensation Act 1926
Workers Compensation Act 1987

Category:

Principal judgment

Parties:

Jai Edward Dormer (Plaintiff)
Dendrobium Coal Pty Ltd (Defendant)

Representation:

Counsel:
Mr R Brown (Plaintiff)
Mr M Joseph SC (Defendant)

  Solicitors:
Stacks Goudkamp (Plaintiff)
HWL Ebsworth (Defendant)

File Number(s):

RJ 334/2017

Publication restriction:

Nil

Judgment

1. HIS HONOUR: The plaintiff, Jai Edward Dormer, claims weekly payments of workers compensation from 21 October 2016 to date and continuing for either total incapacity, partial incapacity or partial incapacity deemed to be total pursuant to s 11(2) of the Workers Compensation Act 1926 as its operation is preserved for those who work in or about a mine. The plaintiff also claims a general order under s 60 of the Workers Compensation Act 1987 for the payment of his hospital, medical and like expenses.

2. The plaintiff is a young man. He was born in 1990. He is currently 28 years old. Up until 2016, he had been a player of rugby league. In 2004, as a result of a football accident which occurred, probably, in July, the plaintiff sustained a Salter Harris grade 1 fracture of the proximal humerus of his left arm. The plaintiff is right handed. For that condition the plaintiff was treated non-operatively. He was under the care of Dr Stuart Jansen who specialises in surgery to the upper limb and trauma. He is an orthopaedic surgeon. On 22 September 2004, Dr Jansen reviewed the plaintiff eight weeks after his injury. The doctor went on to say this:

"He has had no particular problems. He is comfortable. He has had no paraesthesia. His range of motion of his shoulder is full. He has grade IV + strength.

I have advised Jai against contact activities for the next four weeks. I am happy to review him in the future if he has problems. But I think this is extremely unlikely."

According to a report made by Dr Jansen on 8 August 2016, the doctor said that at the review on 22 September 2004, the plaintiff had a full range of motion of his left shoulder and he had a grade V strength.

3. The plaintiff gained the School Certificate after studying at Warilla High School. He then undertook an apprenticeship as a gyprocker which he successfully completed. Rather than practising in his trade, the plaintiff entered the coal mining industry. He was first employed by WDS (Mining) Pty Ltd in 2011. That company was a contractor which hired the plaintiff's services to the Dendrobium Colliery. The plaintiff worked for WDS (Mining) Pty Ltd and then obtained direct employment with the defendant, the operator of the Dendrobium Colliery. Prior to obtaining employment with the defendant, the plaintiff was required to be examined by a medical practitioner for Coal Services Health. That medical practitioner was Dr Murray Sinclair. Dr Sinclair examined the plaintiff on 8 June 2012. Dr Sinclair certified that the plaintiff suffered from no medical condition that was likely to interfere with the safe performance of his role as a mining technician. In particular, the doctor examined both the plaintiff's upper limbs, which would include an examination of his shoulders, and thought that his musculoskeletal function was "quite normal." The plaintiff continued to work at the Dendrobium Colliery doing full duties as a multi skilled underground miner until 6 September 2016.

4. The plaintiff continued playing rugby league after 2004. There are records made available that show that the plaintiff was playing as a senior player, that means 19 years or over, with the Shellharbour City Sharks Rugby League Football Club. Between 2009 and 2012, the plaintiff played in the Illawarra District Rugby League. In 2009 he played in both first and second grades. In 2010, he played in both first and second grades and in 2011, he played in both first and reserve grades. In 2012, he played in first grade. He does not appear to have played in 2013. The plaintiff's football club then commenced to participate in the South Coast Group 7 Rugby League. The plaintiff played in that league in 2014, 2015 and 2016. In 2014, he played 12 matches, in first grade and one match in reserve grade. However, in 2015, he played only three games in second grade.

5. In 2016, the records show the plaintiff as having played four games in reserve grade. The oral evidence of the plaintiff and Mr Abed Atallah persuades me that the plaintiff, in fact, only played two games of rugby league in 2016. Those two games were played in round 4 on 8 May 2016 and in round 5 on 14 May 2016. The plaintiff was signed up to play in round 10 on 18 June 2016 and in round 18 on 21 August 2016, but the evidence is that he did not play in either of those matches. He was signed up merely so that he could qualify to play in the final series, if his team was successful in making the final series. Mr Atallah was the coach of the Shellharbour Sharks first grade seniors team and he kept watch over the reserve grade, looking for able players to promote to first grade if a player in first grade needed to be replaced, for example, by having been injured or by being dropped back to reserve grade. Mr Atallah made it clear that he thought the plaintiff had the potential to be a first grade player, but the problem for the plaintiff in the year 2016 was that he did not participate in pre-season training and had other commitments which he told Mr Atallah which kept him away from games. The plaintiff played halfback for the Shellharbour Sharks Reserve Grade when he did play in 2016.

6. The plaintiff's job in the coal mine was to work as a member of the team operating a mining machine in the colliery. A mining machine is manned by four operators. One is the driver of the machine who sits in the front on the right hand side. Behind him rides the right-hand side (RHS) bolter. On the other side of the machine, sitting behind each other, are two workers who have the appellation left-hand side (LHS) bolter. The miner driver does the rib bolting on the right-hand side and the RHS bolter does the roof bolting. The front LHS bolter does bolts, either ribs or roofs, and the other LHS bolter bolts the other. My notes appear to be somewhat inconsistent and it may be that the front LHS bolter ribs and the back LHS bolter bolts roofs. It matters little. According to the plaintiff's evidence, the LHS rib bolter and the LHS roof bolter alternated their jobs. Moreover, there is evidence of other alternation of jobs and that evidence was given by Mr Matthew Grant Reh who is the development coordinator for two mines, one of which is the Dendrobium Colliery. Mr Reh told me it was common for the four multi-skilled miners working on a mining machine to alternate their positions and the person designated as the miner driver for a shift might alternate at crib time to another position and in that fashion, there might be a general alternation of jobs. Another person in a crew is the shuttle car driver and according to Mr Reh, when there was alternation, the shuttle car driver might move at crib time to working on the mining machine and another worker would replace him as the driver of the shuttle car. There were other workers who did what is referred to as "process work," which is work other than working on the mining machine.

7. In these proceedings, the allegation of injury contained in par 1 of the statement of claim is that the plaintiff was operating a roof bolting machine and that he had been experiencing left shoulder pain over a period of time due to repetitive operation of the roof bolting machine which required "a lot of reaching out and overhead movements." The plaintiff's lawyers never sought to amend the statement of claim to include other activities which required the use of the left arm at or above shoulder height or required the plaintiff to lift and carry heavy weights using his left shoulder. That is unfortunate, but it may represent inexperience or a misunderstanding of the plaintiff's instructions, but it represents the vehement objection of the defendant to any amendment to particulars contained in the statement of claim.

8. A film has been exposed of the operation of a mining machine in the Main Wonga shaft of the colliery. That shows miners on the mining machine inserting both rib bolts and roof bolts. It is incorrect to describe the mining machine as a "roof-bolting machine" because it bolts both ribs and roofs as well as cutting the tunnel through which the mining machine is passing.

9. Exhibit 13 contains a series of "Development Deputy's Production District Reports," for shifts on which the plaintiff worked between 2 May 2016 until 26 October 2016. They identify the strata which was being cut by the mining machine. They could be graded as either green, yellow or red. The plaintiff referred it not to yellow, but to amber. It is common ground that when the strata which are being cut are rated green, it is only necessary to insert three roof bolts per metre. When the strata are categorised as yellow, it is necessary to insert four roof bolts per metre and when they are classified as red, it is necessary to insert three standard roof bolts and what is referred to as a mega bolt. Standard roof bolts are 2.4 metres long and weigh 7.8 kilograms. A mega bolt weighs 34.2 kilograms. It is 8 metres in length. The process of drilling roof bolts requires the operator of the miner machine to first use the machine to drill a hole in the roof of the shaft. The worker must then place a rod of chemicals into the hole which has been drilled and pushes that up into the hole using the standard rib bolt. When he has the standard rib bolt placed in the hole, it is necessary for the worker to hold the bolt there for a short period of time until the mechanism of the mining machine which screws the bolt into place can be raised to the end of the bolt and the machine then drives the bolt into the hole that had previously been drilled. The film does not show the insertion of a mega bolt, but it is clear that it is a more complicated procedure and that the operator must hold the mega bolt into position for, again, a short period until the machine can take the weight as it drives the mega bolt into the roof. The plaintiff agreed that the time of holding the roof bolt above shoulder height until it can be engaged by the mining machine is about five seconds.

10. There is a dispute between the parties as to the extent of the plaintiff’s doing work as a roof bolter. In particulars delivered on 23 November 2017, the plaintiff's solicitor said this:

"It is alleged during the course of the plaintiff's employment with the defendant, he was required to perform heavy manual work. This work included a process known as roof bolting. It is alleged that during the task of roof bolting, the plaintiff sustained injury to his left shoulder. Roof bolting is a process whereby a person, such as the plaintiff, is required (with the use of a drilling rig) to secure large, heavy steel bolts in the roof of the underground shaft. Part of this process requires the plaintiff to hold one of the bolts in one hand above his head in an extended reaching position. During a usual shift, the plaintiff would secure between 40 and 60 bolts. The plaintiff would perform this kind of work during between two and four shifts per week. A usual shift would involve approximately seven hours of roof bolting work."

11. Exhibit 13, besides containing the contemporaneous records made by the deputy on each shift, also contains synopsis of that data made by Mr Reh. However, the synopsis cannot be taken at face value. According to one summary of it, the maximum number of roof bolts inserted by the plaintiff between 2 May 2016 and 6 September 2016, was 27 in a shift. The same summary tells me that the average number of roof bolts inserted by the plaintiff over each of the shifts during that period was only four. However, in making the synopsis, Mr Reh applied a formula that if the plaintiff was doing roof bolting, he would have only done it for half of each shift.

12. 2 May 2016 was a Monday. According to the synopsis made by Mr Reh, the plaintiff would have inserted 27 roof bolts. However, that assumes the plaintiff worked only half the shift doing roof bolting. If he worked the full shift doing roof bolting, he might have inserted 54 bolts. Equally, when the crew list indicated that the plaintiff was a miner driver or process working or shuttle car driver, he was assumed not have inserted any bolts at all. However, that ignores the proposition that when he was, for example, the shuttle car driver, he may have changed at crib time and spent half of the shift working as a RHS bolter or a LHS bolter. Equally, there might be changes during a shift to accommodate some idiosyncrasy of a worker, perhaps, a dislike of one form of work or a particular like for another type of work.

13. In each "Development Deputy's Production District Report" are listed delays. A shift was for ten hours, but Mr Reh's methodology was to allow eight hours for cutting, omitting one hour at the commencement of the shift and one hour at the end of the shift for travel to the coalface or the end of the shaft and travel back from the coalface to pit top. The methodology of Mr Reh was then to also deduct one hour from the eight hours to account for crib break or crib breaks and he would then calculate the amount of "delays" shown on each Development Deputy's Production District Report to ascertain the total time that the mining machine was cutting. Each Development Deputy's Production District Report also provides the total number of metres cut per shift and that then allows one to ascertain how many bolts would have been inserted in the roof during the available time.

14. The synopsis is, unfortunately, misleading, because although it cuts in half the time the plaintiff may have spent doing roof bolting, when he may have spent the whole day roof bolting, it does not allow any time at all when the plaintiff was not due to do roof bolting according to the crew list, when he could well have done a fair amount of roof bolting. In the circumstances, I have to be guided by the evidence of the plaintiff himself, if I believe it to be reliable. Furthermore, what was actually occurring in the crew of which the plaintiff was a member, other members of that crew could have been called to attest by the defendant or, indeed, by the plaintiff himself, but were not. The names of the members of the crew in which the plaintiff worked are fairly constant in the crew lists contained in exhibit 13. The deputy appears to be for most of the time Mr Siddle and sometimes it was Mr Cambridge and sometimes it was Mr Hjaltason, but the most constant deputy so far as the plaintiff was concerned was Mr Siddle. Others with whom the plaintiff appears to have regularly worked were Mr Stanford, Mr Colefax, Mr Cody, Mr Leadbearter and Mr Alison.

15. The plaintiff's credit has been attacked by learned senior counsel for the defendant, but I formed a favourable view of Mr Dormer and I do not believe that he consciously sought to exaggerate his evidence or to mislead me. However, it has to be observed, and in due course I shall point to the problems, that the plaintiff can be an inaccurate historian at times. Furthermore, I must take into account human nature. When one does things repetitively, one generally does not keep count. However, when one does things repetitively, one is prone to make observations which suffer from hyperbole. One can do something all day and refer to having spent the time doing it “hundreds and thousands of times”. This is just a normal way of expressing oneself saying that, "I did it repetitively. I do not know how many times it has been done, but it seemed like a large number of times." The problem arises that when someone who does something repetitively is asked to provide a number, it, in fact, amounts to little more than experienced guesswork.

16. Exhibit 13 can give me some guidance. The largest number of roof bolts inserted, according to the summary made by Mr Reh was 27. However, he conceded that if the whole day was spent doing roof bolting, that number would have to be doubled, which would provide a figure of 54 roof bolts. One can, accordingly, easily accept that, from time to time, there may have been between 50 and 60 roof bolts inserted in any one shift and if the plaintiff was doing roof bolting for the entire shift, he may have inserted that number of bolts in the roof. Another problem which one can perceive is the averaging process providing anomalies. For example, when mega bolts needed to be inserted, the averaging process indicates quite regularly that the number of mega bolts was, for example, 2.5, 5.5, 9.5, 7.5, 3.5. Of course, half a mega bolt was never inserted. They all had to be full bolts. So how many actual mega bolts may have been inserted, one would need to double and then speculate as to how many mega bolts had been inserted by the plaintiff himself.

17. I am prepared to accept the plaintiff that his work regularly involved roof bolting, but it also regularly involved rib bolting. For each metre of shaft, two rib bolts would need to be placed into each side of each shaft, the sides of the shaft being known as the ribs. One rib bolt was low down, below waist height, but another rib bolt was inserted above shoulder height and that process would also involve stress and strain on a shoulder.

18. The film shows, amongst other things, miners hanging miner cable on to the rib using brackets and miners erecting vent tube. The vent tube work is mainly above shoulder height and inserting the miner cable also requires heavy pulling of the miner cable and lifting it. Other areas that the Court knows may have required heavy lifting is moving of oil cans and stone dust bags, but objection was taken by the defendant to my seeking to ask the plaintiff about such questions and they were not given. Since the plaintiff only relies on roof bolting, I shall proceed on the basis that that was the only relevant stressor of the plaintiff's shoulder and left arm when he was carrying out work as an underground miner at the Dendrobium Colliery.

19. The plaintiff commenced to experience symptoms in his left shoulder. Exactly when cannot be stated with confidence. However, there are some guides. Sometime in June 2016, the plaintiff consulted Dr Dayal Kumarage at the Lakeside Medical Practice at Warilla. Unfortunately, there is no medico-legal report from Dr Kumarage before me, nor have the records of the Lakeside Medical Practice been tendered by either party. The plaintiff saw Dr Kumarage on or prior to 16 June 2016, because on 16 June 2016, Dr Ali Kyatt performed an X-ray and an ultrasound of the plaintiff's left shoulder. On the following day, 17 June, Dr Kumarage sent a referral letter to Dr Stuart Jansen. The substance of the letter is this:

"Thank you for seeing this 26 year 5 month old client who has been troubled by left shoulder pain with limitation of internal rotation for over six weeks. He give [sic] a history of shoulder fracture involving growth plate when he was 12 years old."

It appears to be likely that the initial history given by the plaintiff to Dr Kumarage is that he had been troubled by symptoms for over six weeks. Knowing the day when the plaintiff first complained to Dr Kumarage about his shoulder would be of assistance. However, it may have only been a few days prior to the X-ray, 16 June and the referral on 17 June. Going back six weeks from, say, 15 June 2016, takes one back to about 5 May 2016, that is, before the plaintiff played either of the games of rugby league that he did in 2016. One can accept that Dr Kumarage did not know when the plaintiff fractured his arm and it is clear to me that it was the plaintiff himself who thought he fractured his arm when he was 12 years old, but we do know he fractured his arm when he was 14 years old. The plaintiff’s memory was, obviously, not particularly accurate. That is a small example of being an unreliable historian. Being an unreliable historian does not mean that a person is being mendacious or dishonest. It merely means that memory is not particularly good. It is of interest to note that Dr Jansen's letter of 22 September 2004 is addressed to Dr Banu Thangavel at the Lakeside Medical Practice at Warilla. Another reason why the records of that practice may have been of some assistance. However, in my experience, it is unusual for busy general practitioners to look back through ten years of records to find the date of a relevant event.

20. Dr Jansen appears to have seen the plaintiff on 8 June 2016. The letter commences with the history of the plaintiff's right humeral problem at the age of 14. I have already pointed out that although the contemporaneous letter refers to a grade IV + strength, when Dr Jansen saw the plaintiff on 8 August 2016, that was turned into a grade V strength. The doctor's history continues thus:

"As you know, Jai has had a few years of increasing pain and stiffness. He is currently working as a 26 year old right hand dominant miner. He was playing football. He did enjoy weights. Jai, as you know, has been getting an increasing anterior and posterior shoulder pain with ache. He's found it troubles him with roof bolting with heavier weights."

A significant part of that history is of the plaintiff's having "increasing pain and stiffness" for "a few years." Unfortunately, it is not uncommon for doctors to confuse a few days with a few weeks, with a few months, with a few years. The plaintiff's evidence is of the onset of symptoms in 2016. A few years could be two or three years, as was put to the plaintiff by Mr Joseph SC, but that would take one back to 2014 or 2013. It is unlikely, in my view, the plaintiff had symptoms in his left shoulder in 2014 when he was able to play 13 games of rugby league. Equally, Dr Jansen may have asked the plaintiff for how long he had noticed stiffness as distinct for how long he had noted pain. The doctor might have put the two together in one phrase.

21. I am prepared to accept the plaintiff's evidence that his symptoms came on in 2016 and not in some earlier year.

22. The next significant aspect of that history is the statement that the plaintiff "did enjoy weights." Looking at that, one would think that he had been exercising, lifting weights, and sometimes rugby league players lift weights to increase muscle bulk, in particular, the arms which is important for those who play rugby league, who need to tackle other players, and need dexterity when passing balls either to the left or to the right. The plaintiff denied giving that history. There was no suggestion made that the plaintiff had a gym membership or that he trained with weights when he was playing rugby league. Perhaps Dr Jansen was confused. For example, one need only refer to a later part of the history which I quoted when the doctor noted that the plaintiff had troubles with roof bolting "with heavier weights," which might be reference to mega bolts, the bolts that weigh 34.2 kilograms as distinct from the standard bolts which weigh 7.8 kilograms. Again, I am prepared to accept the plaintiff's denial of his enjoying lifting weights. I should also point out I have seen a fair few body builders in my witness box over the last 24 years and the plaintiff, I trust, will forgive me for saying that he does not appear to me to have been a person who has done a lot of weight lifting.

23. The other significant thing to note about the history is, of course, the complaint the plaintiff made about noticing troubles when he was doing roof bolting, indicating, firstly, that he was doing roof bolting and, secondly, that part of the activity of roof bolting he perceived was causing him symptoms.

24. The remainder of Dr Jansen's report of 8 June 2016 is this:

"Jai has had recent X-rays. These show some significant arthritis. There is a possible defect over the posterior aspect of the humerus. There is a loose osteochondral body which is likely to be in the subscapularis recess. These are significant findings in a 26 year old gentleman.

Clinically, Jai has a shorter left arm. This all seemed to be related to the humerus. He has deltoid and general left shoulder muscle atrophy. Jai demonstrates 120 degrees of elevation with internal rotation to the back of his buttock and 40 degrees of external rotation. Within this range he demonstrates reasonable strength. Jai is neurologically normal.

Jai has quite severe arthritis. His decreased length of his arm demonstrates on growth arrest in the proximal humeral physis. This is uncommon and unusual in that Jai had an injury that was only moderately displaced and did not have any reduction or manipulation manoeuvres. Jai has developed quite significant arthritis which is a problem in a manual worker..."

“Physis” is merely Greek for growth. Incidentally, the Doctor’s finding of muscle atrophy appears to me to be inconsistent with the suggestion that the plaintiff was a weight-lifter. In essence, there is no medical dispute. The defendant called no medical evidence and tendered no medical evidence.

25. The plaintiff's solicitors have qualified Professor David Sonnabend, a professor of orthopaedic surgery at University of Sydney. Professor Sonnabend's specialty is the shoulder. I trust that I shall be forgiven for referring hereafter to the Professor as "Doctor" from long habit. Dr Sonnabend thought the X-ray films available suggested a possible ununited acromial epiphysis. The epiphysis is the end of a long bone such as the humerus or the femur and generally takes longer to develop than the bone itself and the doctor's view appears to be that the top end of the plaintiff's humerus did not unite with the humeral bone itself. The doctor continues to observe that the film also shows that the greater tuberosity to have "overgrown" the humeral head and to be projecting well above the superior margin of the humeral head. Dr Sonnabend went on to express this opinion:

"Mr Dormer has significant early osteoarthritis of the left glenohumeral joint. The (limited) X-ray films able to me strongly suggest that Mr Dormer suffered an epiphyseal injury at the time of his proximal humeral fracture at age 12. I interpret the films as indicating that this resulted in some growth arrest of the humeral head and neck, with subsequent minor shortening of the humeral shaft (referred to above) and 'overgrowth' of the unaffected greater tuberosity epiphysis.

The injury did not itself result in glenohumeral osteoarthritis. The articular face was not directly affected, and the glenohumeral articulation remained ' well matched'. The altered proximal humeral architecture did, however, predispose Jai to the ill effects of relative overuse. I would interpret the subsequent sequence of events as reflecting the premature development of glenohumeral osteoarthritis, developed as a result of strenuous overuse of a structurally abnormal, but non arthritic shoulder. Of note, Mr Dormer's rotator cuff is both clinically and radiologically intact. Six years of very heavy, strenuous, overhead work, as described by Mr Dormer, have effectively resulted in 'wearing out' of the glenohumeral joint and the development of osteoarthritis. Mr Dormer's sporting activities may also are contributed to the arthritis, but the nature of his work strongly suggests that the work duties were more important in that regard. Had Mr Dormer been employed at a desk, I suspect that he would either not have developed glenohumeral osteoarthritis, or that it would have taken decades longer to present."

The last observation made by Dr Sonnabend clearly indicates that the doctor was contemplating that the type of work that the plaintiff had done in the mine had accelerated the development of osteoarthritis of the glenohumeral joint.

26. It appears clear to me that the fracture of the plaintiff's proximal humeral shaft at age 14 led to the shortening of the left arm, the maldevelopment or misdevelopment of the epiphysis of the head of the humerus, leading to the bony abnormalities described by Dr Sonnabend. This, Dr Sonnabend believed predisposed the plaintiff to the ill-effects of "overuse." The overuse process has led to an acceleration of the condition, the premature onset of osteoarthritis which might not have developed until decades, after it actually did, if the plaintiff had not performed work throwing repetitive stress on his left shoulder.

27. One cannot exclude the plaintiff's sporting activity, namely, his playing rugby league as carrying the potential to accelerate or aggravate the condition of the plaintiff's left shoulder, nor can one exclude the distinct possibility that the plaintiff's work as an apprentice gyprocker would have carried with it the risk of overuse. The plaintiff told me that when gyprock was being used to create a ceiling, that a machine would raise and lift the gyprock up to the appropriate height, but it would then be necessary for him to use a screw gun to insert the screws which hold the ceiling into position. Equally, when gyprock was being used to create walls, one can accept that the plaintiff would also have to use a screw gun above shoulder height to insert the screws. However, the plaintiff did not have any symptoms, nor any outward appearance of the underlying condition when he passed the Coal Services Health medical examination, carried out by Dr Murray Sinclair on 8 June 2012.

28. The plaintiff developed symptoms in 2016. When, it is impossible to say on the evidence available to me, but if the history obtained by the plaintiff's general practitioner be accurate, it may have been in early or mid-May of 2016. The plaintiff told me, and I am prepared to accept, that he did not notice any symptoms when playing rugby league when he did in early May 2016. Equally, Mr Atallah watched the plaintiff play league and there was no suggestion that the plaintiff was impeded in any way as he was playing or, for example, that he suffered an injury or that he needed to come off the field at any particular time for a reason connected with his shoulder.

29. The history given by the plaintiff to Dr Jansen on 8 August 2016 does suggest that the plaintiff associated his symptoms with roof bolting "with heavier weights," presumably with use of mega bolts. Dr Jansen proposed to refer the plaintiff to Dr Wade Harper for a second opinion. Dr Harper is an orthopaedic surgeon practising at the Prince of Wales Private Hospital at Randwick. On 30 August 2016, the plaintiff was reviewed by Dr Jansen. That was after the plaintiff had undergone an MRI scan of his left shoulder and also a CT scan of his left shoulder on 15 August 2016. Dr Jansen's report of 30 August 2016 has been copied by him, not only to Dr Wade Harper, but to Coal Mines Insurance. In other words, Coal Mines Insurance were advised by Dr Jansen of the plaintiff's problems before the plaintiff ever submitted a claim form. After reviewing the recent examinations, Dr Jansen advised that the plaintiff did have some posterior glenoid deficiency which, in his view suggested that that may have "accelerated his osteoarthritis." The doctor might mean by that that it may have been the cause of the osteoarthritis. He pointed out that at the time of the fracture in 2004, appears to have led to the shortening of the plaintiff's left arm which he thought probably resulted from the arrest of growth of the humerus, but he pointed out that it was unusual for that growth arrest to precipitate arthritis. In other words, he is pointing out that it is not the shortening in the arm following the old fracture that was the cause of the problem, but the posterior glenoid deficiency, the problem in the glenohumeral joint which has led to the osteoarthritis. Dr Jansen went on to express this view:

"Jai has a complex shoulder problem in a young person. He does heavy manual work with heavy overhead work. His main options lie with observation, pain management and activity modification, shoulder fusion or humeral hemi arthoplasty and glenoid resurfacing."

It was to consider the treatment alternatives that Dr Jansen proposed that the plaintiff go to see Dr Wade Harper.

30. However, the plaintiff did not do that. He had been consulting the works doctor, Dr Michael Jamieson. I have computerised records made by Dr Jamieson on 7 September and 19 October 2016, although documentary evidence suggests that Dr Jamieson may have seen the plaintiff prior to 7 September 2016. Dr Jamieson practices from rooms in Caringbah but appears to attend the Dendrobium Colliery once per week. He is an orthopaedic surgeon specialising in sports and rehabilitation. Dr Jamieson referred the plaintiff to Dr Jerome Goldberg who is also an orthopaedic surgeon specialising in shoulder surgery.

31. Dr Goldberg's opinion, in essence, is no different to that of Dr Jansen and Dr Sonnabend. The first part of Dr Goldberg's report is this:

"He is a 25 year old right handed miner who four months ago developed left shoulder pain and stiffness unrelated to any specific traumatic event, but probably related to his work practices. He has pain with overhead movements as well as a loss of function. He noted a catching sensation in his shoulder.

His condition is deteriorating.

He has a history of a fracture of his left shoulder at the age of 14 years, but it is hard [to] relate that to his present shoulder condition."

Dr Goldberg recommended non operative management, but if that failed and the plaintiff's symptoms became more severe, which he thought would be likely to happen, then total shoulder replacement surgery should be offered to the plaintiff. The doctor went on to say this:

"The principle of non-operative management is to reduce the load on the shoulder and, therefore, maintain the articular cartilage. The patient should, therefore, avoid lifting weights above the horizontal as well as repetitive and overhead activities.

As such, I would recommend the patient be medically retired from work as a miner and re train to a job in a clerical or supervisory capacity only. He should avoid sporting activities that involve the chest and upper limbs."

32. Prior to seeing Dr Goldberg, the plaintiff had, in fact, notified his employer of his problem. On 6 September 2016 an "Event Report Guide" was completed by both plaintiff and his deputy, Mr Siddle. Their brief description of the problem was "ache/pain in shoulder (left)". The description of the event given is this: "Pain in left shoulder progressively getting worse. Discussed with Dr Jamieson; gave me a referral for a specialist (Monday 12/9/16)." Both the plaintiff and Mr Siddle dated the report 6 September 2016 and that date appears as the "incident date" in the two medical notes made by Dr Jamieson. However, if the event report be correct, the matter had been discussed with Dr Jamieson prior to his seeing the plaintiff on 7 September 2016. The second page of exhibit A, the "Event Report Guide" appears to have been largely completed by Mr Siddle. This is what he appears to have written:

" - no specific event initially causing shoulder to hurt, has been sore and on off for a few months. Thought pain might pass, last few weeks pain not going away.

- hurts mostly to lift anything above head or when lifting an arm extended.

- discussed with Dr Jamieson last week and today (7/9/16)."

The words "and today (7/9/16)" appear to have been added in a different hand and may have been made by the next person whom I shall mention, which is the undermanager at the mine, Mr T Szabo. That gentleman appears to have written the final statement in that part of this document that the issue had been reported to the Deputy Max Siddle originally and then to the undermanager, Mr Szabo on 6 September.

33. One of the sections of the document is headed "Corrective Actions Required." Under that appears this matter:

"(1) reduce time spent bolting/lifting above head until further investigation."

Someone has then added to that matter "and any medical restrictions imposed," and that appears to have been made by Mr Szabo.

34. The plaintiff made a formal claim for workers compensation on 15 September. The document has been date stamped 16 September which may indicate the date the document was received by the defendant or by its insurer, Coal Mines Insurance. The plaintiff continued working under these limitations. He did not do any bolting and he did not do any lifting above head height, the restrictions referred to in exhibit A. However, his services were subsequently terminated while he was performing restricted duties. Exhibit C is a letter from the defendant bearing date 8 December 2016. The plaintiff confirmed in his oral evidence that the letter was received well after relevant events. The letter says this:

"This letter is to confirm that in line with subcl 13.9 of the Dendrobium Mine Enterprise Agreement 2015, as a result of your inability to perform the duties required of your position [,] your employment will be terminated.

As an outcome of recent discussions with yourself and your Union delegates, it has been agreed that you will continued to be paid as if at work for a total of three months commencing on 30 October 2016 until 21 January 2017."

The letter goes on to offer the plaintiff the services of an "out-placement provider," meaning, I assume, an employment agency, and also records an agreement by the company to give to the plaintiff up to $10,000 for appropriate training costs, no doubt to assist him in finding a new job. The letter of 8 December 2016 merely confirms the plaintiff has been given three months' notice of his services being terminated with effect on 21 January 2016 and that three months' notice commencing on 30 October and the plaintiff was to be paid in lieu of working out the period of notice. That is consistent with the plaintiff's evidence that he last worked on 29 October 2016 when his services were terminated.

35. The plaintiff told me that he would have kept working on restricted duties if those had continued to be offered to him. On 7 November 2016, the plaintiff had a telephone consultation with Dr Goldberg. The substance of the Doctor’s report is this:

"He advised me that the insurance company was going to retrench him because of his shoulder problem.

He does, however, tell me that he can do jobs underground that do not involve heavy lifting and these include driving a shuttle car, driving machinery and belt inspections.

If the insurance company is keen to have him underground, then I would strongly recommend that he could perform the above duties without any risk to his shoulder."

That letter was written by Dr Goldberg to Dr Michael Jamieson, the defendant's own doctor and a copy of it was sent to Coal Mine Insurance. The letter does indicate what the plaintiff said, that he wished to continue working underground doing restricted duties for the defendant. He sought Dr Goldberg's assistance and Dr Goldberg was happy to tell everybody concerned what work the plaintiff was capable of doing safely underground. Nevertheless, no further light duties were offered to the plaintiff by the defendant.

36. The remaining medical evidence is the report of Dr Sonnabend of 17 March 2017 and a report of Dr Goldberg of 3 October 2017. Because of its significance, I should cite Dr Sonnabend's history. It is this:

"Jai is a 27 year old right handed coal miner, in good general health. He takes occasion non steroidal medication for shoulder pain, but takes no other regular medication. Mr Dormer left school at 15. He was a gyprocker by trade. He got a Grade 3 certificate in gyprocking. That took approximately four years and he worked with gyprock until the age of 21 at which stage he 'went into the mines'. Gyprocking did not involve much overhead work. Subsequent mine work was more strenuous and frequently overhead. In September 2016, Mr Dormer developed an ache in his left shoulder, which he felt was brought on by repetitive bolting underground. It was this specific activity rather than any one specific incident which Mr Dormer felt precipitated his shoulder problem. This job involved holding a heavy bolt, weighing approximately 10 kilograms, with the left arm out stretched, while drilling with the right hand. The job involved holding bolts in that position repetitively for approximately five seconds at a time. He developed an ache in the left shoulder while carrying out this work and the ache increased gradually over some days and months. Initially, it was only sore while working. Over time, the ache became more severe and more long lasting, finally interfering with all activities of daily living and with sleep. From September to October 2015, Mr Dormer was on light duties because of left shoulder pain. He was laid off in mid October 2016, and has not worked since then.

Mr Dormer has seen a number of doctors regarding the shoulder, but has received no specific treatment for it. He has not received any injections, physiotherapy, or other intervention. Mr Dormer did injure his left shoulder when aged approximately 12. He suffered a fracture of the left proximal humerus, not involving the joint, and this was treated in a sling for some weeks. Mr Dormer felt that he had recovered fully from the injury, having returned to unrestricted physical activities, including unrestricted sport. He played numerous sports, including rugby league, until the end of the 2015 season. He experienced no shoulder symptoms during that time."

37. Again, there are a number of matters argued about that history. The first was whether the gyprocking did not involve much overhead work. I accept that it did involve overhead work, but I accept that it probably was not as great an amount of overhead work as there was in the mine. It was suggested by the defendant the plaintiff sought to downplay the gyprocking which he did, and that might have occurred, but it does not lead me to change the view I have of the plaintiff or of the evidence as a whole. There is no suggestion that the plaintiff sought any treatment at any time that he was gyprocking or that he had any symptoms. Furthermore, that is inconsistent with the assessment made of the plaintiff by Dr Murray Sinclair on 8 June 2012 at which time the plaintiff had been working in the mine for just under a year.

38. The next point raised as a credit issue by Mr Joseph SC was that the doctor took history that the plaintiff only developed symptoms in "September 2016." That history is incorrect. It is highly unlikely, in my view, that the plaintiff gave that incorrect history, but, rather, that the doctor merely recorded that as the onset of symptoms because that was the time when the plaintiff reported his symptoms to his employer. It is otherwise common ground that the plaintiff had symptoms a long time prior to 2 September 2016 and had been seeking treatment since June 2016.

39. It is clear that the roof bolts that the plaintiff was describing to Dr Sonnabend were the standard 2.4 metre bolts weighing 7.8 kilograms. In my view, nothing turn on the discrepancy between 7.8 kilograms and 10 kilograms, especially when the plaintiff merely approximated the weight at 10 kilograms.

40. The description of how the symptoms first came on and developed is consistent with my understanding of the evidence that the symptoms came on insidiously, that initially they were short lived, they then became longer and eventually the symptoms did not go away, but increased. That is the typical development of symptoms of a degenerative condition such as osteoarthritis of the shoulder.

41. The next credit issue raised by Mr Joseph SC was the fact that the plaintiff, according to Dr Sonnabend's history, played rugby league until the end of the 2015 season. It is also admitted, and not a matter of any argument, that the plaintiff, in fact, played two games of rugby league in 2016, but it is also clear that in 2015, the plaintiff only played three times of rugby league. I do not know the source of the intelligence the plaintiff played rugby league until the end of the 2015 season. I know it is incorrect. The plaintiff admits that it is incorrect. If he gave that incorrect history, it does not appear to have in any way misled the doctor. I see no significance in it.

42. As to the extent of incapacity, Dr Sonnabend said this: "The only restriction, albeit a major one, which is imposed on Mr Dormer's fitness for work, is that he not be required to undertake any strenuous or repetitive work with the left shoulder. This includes any heavy lifting and any forward reaching or overhead activity." Dr Sonnabend expressed a very guarded prognosis and, again, discussed likely future surgery.

43. In his report of 3 October 2017, following upon reviewing the plaintiff on 12 September, Dr Goldberg said this:

"I believe the most important aspect of Mr Dormer's treatment it to be restrained into a job in a clerical or particularly a supervisory capacity where he does not have to do any heavy lifting or repetitive or overhead work. He certainly can drive an automatic car with power steering.

The patient will undoubtedly require a joint replacement at some time in the future, but the longevity of a joint replacement is about 10 to 15 years and he should not undergo this surgery until he's at least 50 years of age if that is at all possible. If he requires a joint replacement prior to that point in time, the results of the replacement are not always particularly good.

In short, the patient's prognosis is guarded. If he does return to work, it should be in a clerical or supervisory capacity. He will ultimately require surgery, but the longer one can wait until performing a shoulder replacement, the better for the patient.

Non operative management in the form of activity modification, anti-inflammatory medication, perhaps some intra articular cortisone injections is palliative treatment only and will not cure his problem."

44. At the time that the plaintiff was stood down from work on 29 October 2016, he was performing modified duties for the defendant. He maintains that he was ready, willing and able to undertake suitable employment with the defendant at that time. I accept that to be the case. The real remaining question is whether the plaintiff remains ready, willing and able to engage in suitable employment for the defendant. The plaintiff says that he is. The defendant submits that he is not.

45. Of the $10,000 offered to him by the defendant for restraining, the plaintiff has thus far only spent $3,000. He spent that obtaining an HR licence to drive heavy rigid trucks and doing a course to be able to drive a front end loader. The plaintiff has really not been looking for work. He did pursue one job with Rail Corp to be an off-sider to the driver of a train. Once upon a time, the off-sider to the driver of a train was called the fireman, though often, the off-sider to the train driver is still sometimes called the fireman. The plaintiff underwent a medical examination for that purpose and was certified fit to work as a train driver by Dr Fiona Henneuse-Blunt, a general practitioner at the Dapto Medical and Dental Centre. Unfortunately, for the plaintiff, the job fell through. The plaintiff admitted that when he applied for the job he was untruthful. He denied having any disorder in his neck, back or any limb. He also denied that he was currently being treated by a doctor for any illness or injury, which was untrue, because he was under doctors for the condition of his left shoulder. This was raised by the defendant as a major credit issue that the fact the plaintiff lied in order to try to obtain a job. With the utmost respect, I am one of those many who would excuse a worker trying to find employment, which he believed he could do, telling an untruth about his medical condition if that would not interfere with the new job he was seeking, bearing in mind that if he disclosed the problem for which he was being treated, it is highly unlikely that any employer would take him on. Unfortunately for the plaintiff, that job "fell through", as the plaintiff put it, did not become available to him and so he did not take it up. However, the plaintiff's further attempts to find employment in recent times were minimal and to say "minimal" might be a slight exaggeration.

46. The plaintiff was cross-examined to suggest that in 2017 he parted company with a long term lady friend and that may have caused him some despondency or unhappiness. One can accept that it would. However, often people turn to their job to give them meaning when things at home are not happy. The plaintiff told me that his breaking up with his lady friend happened in April or May 2017. When pressed by Mr Joseph has to why he not been looking for work, the plaintiff said that it was the "stress of the whole thing being a lot to handle." By that I infer the plaintiff meant the loss of his job, the onset of symptoms, the realisation that he had a major problem which would keep him out of manual workforce for the rest of his life, and stress of the current litigation.

47. The plaintiff has, last year, had a number of overseas trips. He went to Bali in 2017. He also went to New Zealand for a couple of weeks. He then went on an odyssey, if I may use that expression, which took him to Sri Lanka, South Africa, Zimbabwe, Zambia, Kenya, Morocco, France and Iceland. He was travelling from what it will appear to be late August 2017 for about three months. It may have been a bit longer. However, when I looked at the plaintiff's passport it is clear that he had been regularly travelling in years prior to 2016, no doubt, because, as a single man with no dependants, earning the wages earned by a coal miner, he had a large disposable income and a young man ought travel and see the world before taking on the commitments of a wife and children.

48. The plaintiff has, at the moment, the benefit of an income protection policy from the loss of his work with the defendant. Despite not looking for other work, thus far, I am prepared to accept that the plaintiff remains ready, willing and able to return to work at the Dendrobium Colliery doing restricted duties as he was doing between 6 September and 29 October 2017, the work which Dr Goldberg thought he was fit to do underground.

49. It is agreed in these proceedings that the plaintiff would have earned, but for injury, at all material times, $2,405.25 a week. That is a good income. The plaintiff has not wasted his income. Travel is not necessarily a wasting of money and it is clear that the plaintiff has managed to buy himself at least three investment properties, two in Queensland and one in the Illawarra. They may be negatively geared, as one would expect for a young person, especially at a time when such tax deductions may soon cease, but the plaintiff has not frittered away or wasted his income and has used it to get ahead in life. That, to me, indicates that he would go back into the coal mine if he could to earn the income which he used to earn: after all the benefits of his income protection policy will cease with time. If he remained on a good income, it would make his future secure. I am therefore prepared to accept that at this time the plaintiff is ready, willing and able to engage in suitable employment for the defendant.

50. As I said, there is no medical issue in the case. The evidence is all one way. The plaintiff has a physical restriction in the work that he can do with his left arm, so succinctly dated by Professor Sonnabend and maintained by Dr Goldberg, who, after all, was retained by the defendant's own medical practitioner, Dr Jamieson.

51. Another source of attack on the credit of the plaintiff was his activities whilst travelling. Exhibit 2 is a photograph of the plaintiff with a fish. This was taken when he was fishing in the Hauraki Gulf when he visited New Zealand this year. The fish appears to be extremely large, but that is because its appearance has been exaggerated by the angle at which the photograph is taken. The plaintiff told me that it was 16 kilograms in weight. The plaintiff is taking the weight of the fish with his right hand and holding the fish's tail with his left hand at shoulder height, but with his left elbow bent such that the angle between his upper arm and his forearm is 45 degrees. In other words, it was really not putting much stress at all on his left shoulder by taking the fish by the tail.

52. Exhibit 3 is a photograph of the plaintiff taking a bungy jump in New Zealand. I am prepared to find, albeit, that the photograph is not 100% clear, that the bungy rope was attached to the plaintiff's ankles, rather than his left arm or his right arm or his neck. Clearly, there would be a jerk at the end of that, but that is hardly using his left shoulder above shoulder height carrying weight. It is completely irrelevant to any issue before me.

53. The final relevant document is exhibit 4 which is a photograph of the plaintiff holding another fish. This fish was identified in the evidence as a mackerel. However, the fish was caught while the plaintiff was in a boat on the high seas off Wollongong. The fish is not particularly large. Obviously, the plaintiff was pleased to catch the fish. On this occasion he is holding the body of the fish in his left hand out stretched and he is holding the fish by the tail with his right hand. However, the fish is not particularly big, and, again, the plaintiff's arm is not at all above shoulder level, but slightly below shoulder level.

54. None of these matters, in my view, are inconsistent with the plaintiff's evidence at all. They clearly do not show a capacity that is inconsistent with the incapacity certified by the medical practitioners. They are merely an attempt to muddy the waters by showing that the plaintiff can enjoy himself at times and that is often why one takes a holiday.

55. The other main matter which I should comment on briefly is a report from an osteopath, Mr Wesley J Cuthbert. Mr Cuthbert describes himself as Dr Wesley Cuthbert, but an osteopath is not a medical practitioner. Mr Cuthbert does not tell me what his academic qualifications are and I have yet to come across an osteopath who holds a doctorate in philosophy. Rather, his appellation "doctor" appears to be common when so many people wish to be called “doctor”, who have no right to be so called. A doctor is a person who holds a doctorate which is an academic degree. By courtesy, medical practitioners are called doctors, but these days everyone wants to be called a “doctor”, including dentists, veterinarians, chiropractors, osteopaths and before long we will have butchers, bakers and candlestick makers wishing to be called “doctor”.

56. Mr Cuthbert's report is completely useless. It indicates that the plaintiff has been a patient of his "since 2010." When the plaintiff was cross-examined he was unsure why he commenced seeing the osteopath in 2010, but thought it was because of his knee. He did tell me that he has in recent times consulted the osteopath about his shoulder and also because of a back injury which has arisen since a fall, but what the plaintiff may have talked to him about between 2010 and 2016 is completely unknown. Mr Cuthbert does tell me that in 2016, the plaintiff had some radiological investigations of his left glenohumeral joint, but that I know from the other evidence before me. Importantly, Mr Cuthbert does not tell me when he saw the plaintiff, what the history was and what treatment, if any, he offered to him. Furthermore, Mr Cuthbert's opinion is that the plaintiff is unable to do "any meaningful task overhead" which would "make even small tasks of everyday living difficult." The plaintiff said that he had no problems performing the normal tasks of everyday living. The opinion of Mr Cuthbert exaggerates the extent of the plaintiff's incapacity. Furthermore, a subpoena for production went out to Mr Cuthbert. It appears from the court's records to have passed under the seal of the Court on 9 March 2018. Besides the fact that other persons who were served with subpoenas issued on 9 March 2018 returned the documents called for, Mr Cuthbert did not. His opinion before me is of no utility whatever because anything he says cannot be tested by reference to his records.

57. I have inquired of counsel for the plaintiff and the solicitor for the defendant if any further reasons for judgment were required. I am told that none is no required.

58. For those reasons, I make an award for the plaintiff:

1. for $980.20 per week from 30 October 2016 to 29 April 2017;

2. for $408.60 per week from 30 October 2017 to 30 September 2017; and

3. for $411.90 per week from 1 October 2017 to date and continuing pursuant to s 11(2) of the Workers Compensation Act 1926 as preserved.

I order the defendant to pay the plaintiff's hospital, medical and like expenses pursuant to s 60.

I order the defendant pay the plaintiff's costs.

59. Credit to the defendant for payments made during the period of the award.

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Decision last updated: 11 April 2018