Gibbons v Trans-Tasman Mining Pty Limited

[2015] NSWDC 340

District Court

New South Wales

Medium Neutral Citation:

Gibbons v Trans-Tasman Mining Pty Limited [2015] NSWDC 340

Hearing dates:

27 November 2015; 8 December 2015

Date of orders:

08 December 2015

Decision date:

08 December 2015

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

Award for the plaintiff for $386.90 per week from 16 December 2014 to 31 March 2015, for $391.90 per week from 1 April 2015 to 30 September 2015 and for $395.10 per week from 1 October 2015 to-date and continuing (as indexed) for total incapacity

 

Defendant to pay the plaintiff’s hospital, medical and like expenses pursuant to s60

 Defendant to pay the plaintiff’s costs

Catchwords:

WORKERS COMPENSATION – Coal miners – Causation of neck injury – Whether plaintiff totally incapacitated – Whether surgery necessary as a result of injury

Category:

Principal judgment

Parties:

Anthony Gibbons (Plaintiff)
Trans-Tasman Mining Pty Limited (Defendant)

Representation:

Counsel:
Mr D Benson (Plaintiff)
Mr B Odling (Defendant)

  Solicitors:
Kells (Plaintiff)
Hicksons Lawyers (Defendant)

File Number(s):

RJ235/15

Publication restriction:

No

Judgment

1. HIS HONOUR: The plaintiff, Mr Anthony Gibbons of Koonawarra, claims weekly payments of workers compensation from 16 December 2014 to-date and continuing and also his expenses under s 60, including the cost of proposed operative treatment for cervical spinal surgery recommended by his treating neurosurgeon, Dr Saeed Kohan.

2. The plaintiff was born on 2 June 1972. He is currently 43 years old. He attended the Kanahooka High School and left that school at the age of 15. He then obtained an apprenticeship as a bricklayer and completed that qualification and then worked in his trade as a bricklayer. All told he laid bricks for 12 years as either an apprentice or a tradesman. He then worked for Illawarra Engineering as a trade assistant for some six years. Then he worked for a company called Ross Transport doing casual truck driving. Histories given to at least one medical practitioner indicate that some of that driving work included interstate haulage.

3. In either late 2006 or early 2007 the plaintiff entered the coal mining industry. His first employer was a company called Ground Consolidation Pty Ltd. The plaintiff worked for that company initially at the Tahmoor colliery and later at the Dendrobium colliery. He was doing what was called secondary support work. That job involved both rib and roof bolting, meshing and bringing supplies down into the pit. That was full-time work. His next job was with a company called Walter Mining, for which he worked for approximately 18 months. The plaintiff worked for Walter Mining at both the Tahmoor, West Cliff and Russell Vale collieries. They are all underground pits. The plaintiff’s third employer in the coal mining industry was Triple S Mining Pty Ltd. The plaintiff joined that company in July 2009. He worked for it at the Tahmoor colliery, the Helensburgh colliery, the Appin colliery and, finally, again at the Tahmoor colliery. Again, that was underground mining work, again providing secondary support work.

4. On 25 August 2009, whilst employed by Triple S Mining Pty Ltd at the Helensburgh colliery, the plaintiff sustained an injury to his neck. A 500 kilogram regulator door frame fell on him. It struck him on the top of the head and passed over the top of him. I take that description from the records of the plaintiff’s general practitioners, the Dapto Medical and Family Practice. According to the records of that practice, the plaintiff’s neck was acutely flexed in that injury. He did not lose any consciousness. He was taken to hospital with neck pain and ended up at the St George Hospital. He was in that hospital for between ten days and two weeks. He there came under the care of Dr Saeed Kohan.

5. There is before me some medical evidence following upon that event. The primary medical record is a report of Dr Kohan of 7 October 2009. However, I should comment on some earlier radiological investigations. On 27 August 2009, that is, two days after the event, an MRI scan was performed at the St George Hospital. The findings of the MRI scan and the comment made by the radiologist are these:

“Findings: There is a high T2 signal in the posterior paraspinal muscles and interspinous ligaments from C2 to C4. The appearance suggests a cervical flexion injury. There is no widening of the interspinous distance. The ligamentum flavum is intact. There is no high signal within the ligamentum nuchae. The spinal alignment is normal. There is no evidence of vertebral body fracture. There is some high signal within the spinous process of C4, indicating a possible spinous process fracture. There is no other evidence of cervical spinal fracture. Correlation with a CT is suggested. The posterior longitudinal ligament is intact. There is no evidence of disc injury. The apical ligament is intact and the craniocervical junction maintains a normal relationship. The spinal cord is normal with no oedema or haemorrhage. There is no prevertebral haematoma. There is no subluxation.

Comment: There is evidence of ligament and muscle injury in the interspinous region between C2 and C4. There may be a C4 spinous process fracture, correlation with CT suggested. There is no other fracture or ligamentous injury. Cervical spine instability could not be excluded, and supervised flexion extension views may be necessary.”

6. The next radiological investigation is a report of plain X-ray of supervised flexion and extension views of the cervical spine. That was made by Dr Shearman on 7 October 2009, but the evidence suggests that there were earlier investigations of the same nature. The significant part of the report made by Dr Shearman is this:

“As requested, only lateral flexion and extension views were performed. There is a loss of the normal cervical lordosis extending from C5 to C7 where there is associated intervertebral disc space narrowing with end plate sclerosis and marginal osteophytosis. There is no evidence of instability on functional imaging. The prevertebral soft tissues appear normal.”

7. The next report chronologically is that of Dr Kohan of 7 October 2009. He was seeing the plaintiff six weeks following the plaintiff’s initial admission to the St George Hospital. The doctor’s report says this:

“He was managed in a hard cervical collar and during hospital admission he was investigated with CT and MRI scan which did not show any fracture, but showed ligamentous and soft tissue injury between C2 and C4. As there was no disc injury we proceeded with flexion and extension X-rays which did not show any instability and he was allowed to remove the hard collar. He was then discharged with analgesia.”

When Dr Kohan examined the plaintiff on 7 October 2009 the plaintiff admitted some improvement, but his range of neck movements was still “significantly limited”. The plaintiff also complained of bilateral shoulder pain, more severe on the right than on the left. However, the doctor noted the plaintiff did not have any upper limb radicular pain. The significance of the last finding is that that does seem to rule out any discal injury. The doctor noted that the X-rays performed on that day pointed out some degenerative changes. In particular the doctor pointed out degenerative changes at C5/6. The doctor recommended intensive physiotherapy. There is no further report from Dr Kohan following upon the injury of 25 August 2009.

8. I know that the plaintiff was seeing the doctors at the Dapto Medical and Family Practice following upon his discharge from the St George Hospital. Apparently the doctors at the Dapto clinic gave the plaintiff a “final” WorkCover certificate on 3 December 2009. That suggests that by that stage the plaintiff was certified as fit to return to his normal work. Indeed, the plaintiff appears to have gone back to work very early after this event. Notes made on 4 September 2009 say this:

“Patient was put off work for two weeks initially, but he wanted to return to work because the employer is happy to give him office type work only, i.e. paperwork only, i.e. reading and writing only. He will also be picked up from home and returned to work until he is certified fit to drive when seen by the specialist, Dr Jonathon Li.”

The plaintiff told me that he did those light duties in the office for what he thought was about eight months prior to returning to the full normal work of an underground coal miner. The records of the Dapto clinic seem to suggest that the light duties were only a period of some four months.

9. The plaintiff regularly visited the Dapto clinic between 3 December 2009 and 31 March 2014, a period of over four years, but there is no record of any neck complaint made by the plaintiff at any time to any medical practitioner at the Dapto clinic during that period. That is consistent with the plaintiff’s evidence that, after he finished light duty work with Triple S Mining, he worked in his normal duties without complaint and without disability. In cross-examination the plaintiff did make some complaints about pain in the interim period, but he made light of it. He said that there were some symptoms, but they did not interfere with his ability to do anything. This evidence was given:

“Q. And where was the pain you experienced or where was the pain you were experiencing immediately before the 2014 injury?

A. Bit of a sore neck, bit of a headache every now and again which was nothing that’d stopped me doing anything in day to day life.”

He confirmed that during that period he was able to move his neck normally. The picture painted by the plaintiff in cross-examination is consistent with his having underlying degenerative disease in his neck, which may have given him minor symptoms from time to time, but did not prevent his performing underground mining work.

10. The findings noted by Dr Shearman in his report of 7 October 2009 can be shortly described as “degenerative changes” or “cervical spondylosis” or “degenerative disc disease”. The underlying cause is degeneration of the disc, which causes reactive bony abnormalities, the cervical spondylosis.

11. The plaintiff returned to work at either the Helensburgh colliery or the Appin colliery, but finished up working for Triple S Mining Pty Ltd at the Tahmoor colliery. Triple S then lost the contract with the collier. The plaintiff was then unemployed for two weeks before finding work with the current defendant, Trans-Tasman Mining Pty Ltd, which engaged the plaintiff on the same terms and conditions as he had worked for with Triple S Mining Pty Ltd at the same place of employment, the Tahmoor colliery. During the plaintiff’s work with the defendant he performed overtime, as well as the full underground suite of mining work.

12. He was involved in an incident on 31 March 2014. There is no dispute about that injury. The plaintiff was driving a piece of machinery, which he described as a coal tram. This type of machinery is called an EIMCO in the Hunter Valley collieries and is generally referred to as a juggernaut in the western mining fields of this State. The coal tram was a 19 tonne piece of machinery. The plaintiff was driving it at a walking pace, up to 5 kilometres per hour. When he was driving it in the underground mine pit it hit a steel beam which was on the floor of the section he was traversing. The machine bounced and the plaintiff also bounced up. He was wearing a hard hat, but his head in its hard hat smashed into the roof of the canopy of the coal tram. The plaintiff told me that he is 6 foot 3 inches tall or 6 foot 4 inches tall and that there was very little clearance between the top of his hard hat and the bottom of the canopy, which gap he thought might have been only 200 millimetres. The plaintiff told me that he “saw stars”. The collision and bouncing had caused a large noise. Other miners came to the plaintiff’s assistance. He was taken in a man transport to the pit bottom and then by dolly car to the pit top. He reported to the under manager what had happened to him. This event occurred at about 10.30pm. That was near the close of the shift and I infer from the plaintiff’s evidence that he did not return to the pit bottom that evening. He managed to drive himself home, but felt very stiff and sore. He told me had sharp pain in his shoulders and arms and also extending into his shoulder blades.

13. He went to the Dapto clinic on the following day where he was seen by Dr Les Miller. He has a history consistent with the plaintiff’s description of the event of 31 March 2014. Dr Miller noted neck pain and restricted mobility equally on both sides of the body. He arranged for the plaintiff to obtain an X-ray of the cervical spine and for the plaintiff to be reviewed on the following day by his normal general practitioner, Dr Leon Wright. In essence from 2 April 2014 the plaintiff has been seen at the Dapto clinic mainly by Dr Wright. X-rays performed on 2 April 2014 again is described as showing evidence of cervical disc disease/cervical spondylosis/degenerative changes from C5 to C7.

14. When the plaintiff was reviewed by Dr Wright on 2 April the doctor thought the plaintiff needed rest, mobilisation and analgesia. He thought the plaintiff was fit for light duties, not performing underground work and limiting his ability to carry weight to 5 kilograms. However, light duties were not supplied at that time, but workers compensation was. The plaintiff was referred by Dr Wright to Mr Michael Baines, a physiotherapist, under whose care the plaintiff was to remain throughout most of 2014.

15. On 24 May 2014 an MRI of the cervical spine was performed. It is clear from that investigation that the degenerative disc disease/cervical spondylosis was present from C3 to T1. The areas of major affectation were the C5/6 and C6/7 disc spaces. The C6/7 disc space was said to show severe stenosis of the left foramen. Once that investigation had been made, Dr Wright referred the plaintiff to Dr Saeed Kohan again. However, it was some time before the plaintiff could get to see Dr Kohan.

16. On 3 June 2014 the plaintiff was seen Ms Rhiannon Kelly, a rehabilitation consultant for Coal Services Health. She thought the plaintiff had a capacity to do selected duties, lifting no more than 20 kilograms, driving for up to 20 minutes, but no underground mining work. She had been told that office based duties, including training, were available for the plaintiff. However, the problem was the plaintiff’s getting to and from work. As one of the “return to work barriers”, Ms Kelly noted this:

“Mr Gibbons to attempt and return to work on suitable duties by breaking up his travel to and from work. Mr Gibbons will only be required to work four hours in the middle of the day to allow for extended travel periods.”

That recommendation was noted after the observation that the plaintiff was required to travel one hour from his home to his usual workplace. However, it appears that this light duty regime was not provided to the plaintiff.

17. On 25 July 2014 the plaintiff was seen by Dr Malcolm Pell, a highly respected neurosurgeon, at the request of Coal Mines Insurance. Dr Pell is the Chairman of the Department of Neurosurgery at the St Vincent’s Private Hospital and at the St Vincent’s Clinic. By that time the plaintiff was taking up to six tablets of Endone each day, as well as anti-inflammatory medication. Endone tablets were first prescribed by Dr Wright on 17 June 2014. On 10 July 2014 the prescription was changed from Endone tablets to OxyNorm capsules, but the medication, as I understand it, is the same. It is opiate based. For Dr Wright to prescribe such potent painkillers, one has to accept that he was convinced that his patient’s pain was a major pain. Dr Pell found no focal motor or sensory deficit in either the plaintiff’s upper limbs. He did not note any wasting in the upper limbs. He thought that the biceps and supinator jerks were depressed bilaterally, but the triceps jerks were present. Although the plaintiff had no problems in his low back at that time, lower limb reflexes were absent, which may indicate a medical or physiological problem affecting not only the lower limb reflexes, but the upper limb reflexes. Dr Pell diagnosed a traumatic cervical injury causing exacerbation of pre-existing cervical spondylitic change and also a C5/6 disc protrusion. The doctor, however, has not set out in his report what findings lead him to accept that the plaintiff had a C5/6 disc problem. Dr Pell thought the plaintiff was fit for suitable duties involving no lifting of weights more than 10 kilograms, no prolonged or repetitive bending, no prolonged or repetitive sitting, no prolonged or repetitive standing or standing for more than 30 minutes. The plaintiff needed to return to work initially working only four hours per day.

18. The doctor went on to state that the plaintiff had a disc bulge causing central canal stenosis at C5/6 and foraminal stenosis on the left at C6/7. It is perhaps on the basis of the radiological investigation that the doctor diagnosed a problem at C5/6. I would have thought the greater radiological abnormality was the foraminal stenosis at C6/7 rather than the canal stenosis at C5/6. Dr Pell believed that the plaintiff required further treatment and, if the symptoms failed to settle with conservative treatment, it could require surgical intervention involving a laminectomy and decompression at two levels, presumably, C5/6 and C6/7. Towards the end of his report Dr Pell said this:

“I do not believe there is any exaggeration of his symptoms or findings being inconsistent with the history given to me. I noted frustration at his inability to return to work and fitness training. I do not believe there was any conscious guarding of movement by Mr Gibbons when examined.”

That is in essence an averment by Dr Pell that he believed what the plaintiff was saying and believed that his complaints were genuine. As I said earlier, Dr Pell is eminent neurosurgeon and not one, one would think, who could be easily fooled.

19. The plaintiff first Dr Saeed Kohan after the injury of 31 March 2014 on or about 6 August 2014. Again, Dr Kohan noted a large intake of opiate based painkilling medication that had given the plaintiff no improvement over the preceding four months. Dr Kohan’s diagnosis is this:

“Acute on chronic neck pain secondary to recent injury. There is no acute structural changes. The structural changes affecting C5/6 and C6/7 are consistent with progressive degenerative changes which are observed between 2009 and 2014.”

That is not a particularly helpful diagnosis. Any educated layman could tell a person that, after having a neck injury and having ongoing unrelenting pain since that injury for a period of four months, he had chronic neck pain. Although the doctor does not believe that there was any “acute structural changes”, he then suggests that there could be some structural changes in the C5/6 and C6/7 discs, but then refers to progressive degenerative changes which have initially been observed in 2009 and were again observable in 2014, but were more advanced in 2014 because any degenerative disease gets worse with the passage of time.

20. The doctor’s report then ends with a section headed “Opinion and Recommendation”. In that he refers to paraesthesia and numbness in the C7 distribution, with constant symptoms which were limiting any physical exertion. Unfortunately, the doctor did not state that he found that in his findings on examination. He then goes on to suggest the plaintiff did have a component of radiculopathy explained by foraminal narrowing seen at C6/7. That, of course, would be in the C7 distribution. The doctor then recommended that the plaintiff undergo bilateral injections at C5/6 and C6/7, injections into the facet joints, which should be repeated after a two week interval to ascertain whether they, that is, the facet joints, were the cause of problems and perhaps to identify which precise level of the neck was involved. Those injections were carried out, but only gave the plaintiff a little relief.

20. The plaintiff next saw Dr Kohan after the injections on 30 September 2014. Again, there are problems when one reads Dr Kohan’s report of that date. For example, he records this history:

“He also from time to time experiences pain radiating down the arms, more so on the right side to the dorsum of hand affecting all fingers.”

Radiating pain affecting all the fingers of the hand would indicate damage to the C6, C7 and C8 cervical nerves. The doctor went on to suggest the plaintiff continue with physiotherapy and swimming and that he review the plaintiff in a further five to six weeks’ time, as well as undergoing certain further investigations, in particular a bone scan. As to the plaintiff’s fitness for work, the doctor thought the only work he could return to were “office type duties”, but anything beyond that would be impossible for the plaintiff to do.

22. On 13 October 2014 a plain X-ray of the cervical spine was made and reported by Dr Mark Chapman and a few minutes later a regional bone scan of the cervical spine was made and reported by Dr Wadhwa. Dr Wadhwa concludes thus:

“There are features of mainly degenerative arthritis of the mid/lower cervical spine extending from C3 to C6/C7 as outlined above.”

According to Dr Kohan, who saw the plaintiff again on 4 November 2014, the bone scan of the neck showed “significant increased uptake at C5/6 and C6/7 within the interbody disc spaces.” However, that observation is not consistent with the radiologist’s report, but I must defer to Dr Kohan’s expertise in this regard. Dr Kohan then advised the plaintiff to undergo surgery. He thought the plaintiff should undergo anterior cervical fusion at C5/6 and at C6/7. He thought that that was the best option to relieve the plaintiff of his symptoms. Dr Kohan reported that the plaintiff was keen to proceed with the surgery and he, Dr Kohan, recommended that it be undertaken and sought permission to do so. The insurer would not, of course, approve such surgery without arranging for the plaintiff to be examined by its consultant doctor.

23. The plaintiff was not returned to see Dr Pell, but was sent to see Dr Ian Dickinson, an Associate Professor of Surgery. Dr Dickinson saw the plaintiff on 20 November 2014. Under the heading “Current Symptoms” Dr Dickinson said this:

“Mr Gibbons told me that he had not got any better. He thought his pains at times were worse. He said that they were driving him insane. He described shooting pains up into the back of his head and also across into both shoulders. They were also between his shoulder blades. The pains would radiate down both arms to the tips of the elbows, down the ulnar borders of both arms to both little fingers. He said if he sneezed he would feel like a knife would go down both the arms. Sometimes the pain would be in one arm or sometimes in the other, sometimes both. Sometimes he would feel the pain if his head was turned the wrong way. The symptoms were associated with numbness in both little fingers mainly, but sometimes in the ring fingers.

He felt the pain is worse at the base of the neck, but sometimes he has sharp pain in the back of the head.”

A complaint of pain going down the ulnar border of each arm into both little fingers and a complaint of numbness in each little finger and sometimes in the ring finger is a complaint in the distribution of the eighth cervical nerve, C8, which leaves the spine at the C7/T1 juncture. Indeed, when Dr Dickinson examined the plaintiff there was a suggestion of an objective sign of a problem in the ulnar distribution. In that section of his report Dr Dickinson said this:

“Mr Gibbons described sensory reduction in both little fingers, more on the medial side of the little fingers and less on the coadjacent sides of the ring and little fingers. There is no sensory loss for the rest of that hand. Power in the upper limbs is normal, including specifically testing the lower cervical roots and the ulnar nerves. Palpation of the ulnar nerves at the elbow produces symptoms radiating up the arm.”

Although the doctor did not believe that those findings were indicative of any pathology, one can see complaints and findings in the ulnar distribution, that is, in the C8 dermatome.

24. Dr Dickinson diagnosed cervical spondylosis. There is nothing unusual or unorthodox in that diagnosis. However, the doctor accepted that it was a pre-existing condition and I wholly accept that. However, Dr Dickinson thought the plaintiff was fit for work and that there was no reason why his ability to perform work should be restricted. He thought that surgery was specifically contra-indicated. In other words, Dr Dickinson was of the view that the plaintiff was in the same condition in which he was immediately prior to the injury of 31 March 2014, that is, that he had cervical spondylosis, but it did not interfere with his ability to carry out his work.

25. Not only did Coal Mines Insurance decline, therefore, to agree to pay for the operative treatment proposed by Dr Kohan, but also the insurer denied liability on behalf of the defendant to make further weekly payments of compensation to the plaintiff. Exhibit A is a letter from Coal Mines Insurance to the plaintiff, bearing date 2 December 2014. The significant paragraph of that letter is this:

“We place you on notice pursuant to s 54 of the 1987 Act, that your payments of weekly compensation will cease two weeks from the date of this letter, being 16 December 2014.”

Hence one can see the claim commencing on 16 December 2014. No one was able to tell me whether the plaintiff was paid up to and including 15 December 2014 or up to and including 16 December 2014.

26. Before moving on to events since that time, I should point out that the physiotherapist, Mr Baines, expressed concerns when he saw the plaintiff on 21 August 2014 about surgery. However, he clearly has an incorrect history. The relevant record of Mr Baines is this:

“Anthony comes to us today [21 August 2014] in a soft collar that has been put on by his neurosurgeon. The background, from what I can understand, is that he saw an independent [examiner] at the request of CMI, who hasn’t given anything away yet. He has seen his own neurosurgeon at the request of his solicitor and the neurosurgeon, in Anthony’s words, has indicated that they [sic] will do two injections through the next month with ‘no likelihood of success’. To quote Anthony, they will go through the motions before he can get surgery in October. Due Anthony’s high level of opioid use, (five oxy’s a day) he has asked him to go into the soft collar, according to Anthony, whilst out and about to reduce the pain and, therefore, his need for analgesic. Anthony reports he is now down to two oxy’s a day at this stage. They are not being direct with Anthony, that there is no good for him wearing a soft collar, both regarding deconditioning and chronic pain behaviour/catastrophisation and the lack of motivation from the involvement of solicitors and the soft collar is a very poor outcome for Anthony. STarT screening score for Anthony was 7/9 and a 3/4 for the subscore, indicating a medium to high level of catastrophisation and chronicity. Anthony is defiantly at high risk of never returning to work as a coal miner, whether this be through his physical limitations or his adaptive changes. Today we have just looked at breaking some pain barriers and soft tissue release through his thoracic spine and getting him out of the collar, I want him on an exercise bike, and I want him up and training. He has started to use his upper body in a non-threatening way to his neck. I am happy to give Anthony a month of just once a week cuing and progressions, but should he remain pain focused and in the collar there is no real indication for active physiotherapy at that stage then.”

The first thing to note is that the independent examiner the plaintiff saw at the request of CMI was clearly Dr Malcolm Pell. The next thing to note is that the plaintiff was not referred to Dr Kohan by his solicitor, but by Dr Wright. Dr Wright’s referral letter to Dr Kohan of 30 May 2014 is in evidence. It appears that the dispute or disagreement is really between Dr Kohan and Mr Baines, the physiotherapist. One can understand a medical practitioner wanting to reduce the plaintiff’s opioid use. For that reason Dr Kohan prescribed a soft cervical collar. It did reduce the plaintiff’s opioid use. Mr Baines, however, thought that would interfere with the plaintiff’s ability to overcome his symptoms. However, it is clear that the plaintiff underwent the therapy suggested by Mr Baines and, indeed, the plaintiff wants to do the training and the exercises recommended to him by Mr Baines and he has been actively trying to do them. Indeed, it is clear that he wants to do those things and one of the frustrations he has is the interference of pain with his ability to exercise. In my view there is no substance in the suggestion that the observations made by Mr Baines on 21 August 2014 somehow indicate that the plaintiff may be “bunging it on” with a view to “secondary gain”.

27. The other thing I should mention about the period prior to the cessation of weekly payments on 16 December 2014, is that Ms Bernadette Murphy was seeing the plaintiff for Coal Services Health and was trying to arrange for the plaintiff to perform suitable duties. In a report of 7 November 2014 she said this:

“Mr Gibbons is not at work as he is currently certified unfit.

Mr Gibbons did not return to suitable office duties, despite Dr Kohan considering him fit to complete these, as the only site suitable duties were available was Tahmoor and details regarding driving ability were uncertain.”

Koonawarra is in the Illawarra and it appears that the driving time between the plaintiff’s parents’ home at Koonawarra and the Tahmoor pit is the approximate hour that has been referred to earlier.

28. When workers compensation payments stopped the plaintiff went onto his accumulated sick leave, but then his services were terminated by the defendant. He then obtained his long service leave benefits, but eventually went onto social security payments. Initially they were sickness benefits, but then he went onto a Newstart allowance. He also needed to withdraw moneys from his superannuation in order to pay his outstanding debts. The plaintiff thought his services were terminated by the defendant in January 2015 or early February 2015. He said he was told: “If you are not coming to work, you’re no good to us.” Nevertheless no claim is made under s 11(2) of the Workers Compensation Act 1926, as preserved for coal miners. The plaintiff, in essence, does not think he can do any form of work or sustain any work.

29. There are three opinions concerning the plaintiff’s work capacity generated after 16 December 2014. The first is from Dr Wright, the plaintiff’s treating general practitioner, in a report of 16 March 2015. Dr Wright has obviously been seeing the plaintiff more often than any other medical practitioner and, indeed, more often than any lawyer and he is in a good position to assess the extent of the plaintiff’s incapacity. In the report I have just mentioned Dr Wright said this:

“I believe in his current medical condition Mr Gibbons is incapable of the ability to resume any form of employment.

His future capacity for work will be entirely dependent on the result of his operation, but it is clear that should he be able to resume employment in the future it will not be in his current occupation, nor any occupation which involves mechanical stress to his cervical spine and upper body.”

The plaintiff also relies on an opinion expressed by Dr James Bodel, an orthopaedic surgeon, practising at 179 Elizabeth Street, Sydney. Dr Bodel saw the plaintiff on 8 April 2015. He said this:

“This gentleman has no current capacity for work and he certainly has no capacity for an underground mining position.”

There is also a further opinion from Dr Dickinson given on 12 November 2015. I note that Dr Dickinson practices in the same medical group at 179 Elizabeth Street, Sydney, as does Dr Bodel. Dr Dickinson again expressed the view that plaintiff was fit for unrestricted work as a coal miner.

30. I accept the opinions that the plaintiff is incapable of doing any work at the moment or, to put it in more orthodox legal terms, is incapable of selling his labour in any labour market reasonably open to him. The first reason is that the plaintiff has given sworn evidence on oath that he cannot do any work at the current time. He has been cross-examined and there is nothing which indicates to me that I should not accept what the plaintiff told me as being true. Secondly, Dr Wright, the plaintiff’s general practitioner, who has been seeing the plaintiff over a protracted period, expresses the view that he cannot do any work at all. That opinion is entitled to weight. Thirdly, the effects of this injury on the plaintiff personally have been, socially, gravely disadvantageous and the extent of the disadvantage indicates to the contrary of the proposition that the plaintiff, although fit for work, is deliberately saying he is not fit for work for the purposes of some secondary gain. For example, I find in the general practitioner’s records that the DASS 21 questionnaire was used by Dr Wright on 18 September 2014. That caused the doctor to make a diagnosis of an adjustment disorder because of depressive symptomatology. That is consistent with the history recorded by Dr Dickinson on 28 November 2014 that the plaintiff thought that his symptoms were driving him insane. On 2 February 2015 Dr Wright noted that the plaintiff had had to give his car back to its financier as he was unable to afford the repayments. The plaintiff and Dr Wright had a discussion on that day about the plaintiff seeking to pay for the surgery out of his own pocket. On 2 March 2015 the plaintiff discussed with Dr Wright his concern about having to fight his case in court. Dr Wright noted the plaintiff had lost his home unit and was struggling to maintain his own care and that his case was with the lawyers. In other words, what is noted is that the economically the plaintiff, as a result of this injury and the resulting symptoms, has lost his own independent place of abode, his home unit. He has lost his car. He has been forced to move back in with his parents and this clearly would cause a major social impact upon him. That is hardly consistent with a person deliberately malingering.

31. I, therefore, accept the plaintiff has been at all material times, that is, on and from 16 December 2014, totally unfit for work. Theoretically, he might have some capacity to do restricted office duties, provided he did not have to travel too far to do it, but that is a theoretical, rather than a practical, possibility. One has to look at the ability of a worker to earn on the open labour market reasonably accessible to him. What employer, I ask myself rhetorically, would employ somebody who is awaiting cervical surgery at two levels and has an extremely limited ability to do physical work? The answer to that rhetorical question is not one.

32. The remaining issues in this case merely concern the correct diagnosis. Dr Bodel accepted that the plaintiff was “quite severely disturbed psychologically”. That is consistent with the diagnosis made by Dr Wright after applying the DASS 21 test. Dr Bodel could find no objective sign of neurological abnormality when he saw the plaintiff. He found no localised sign of median or ulnar nerve pathology in either upper limb. Dr Bodel’s formal diagnosis is this:

“The diagnosis is cervical spondylitis which has been caused by work in general and has been aggravated by the injury in 2009 and the further injury of 31 March 2014.”

Dr Bodel is a medical practitioner who is well regarded by this Court. However, the last comment of his that I have quoted I find quite peccable. Firstly, the plaintiff does not have any inflammation in any of his cervical vertebrae. Such an inflammation is spondylitis. He does, however, have degeneration of his cervical vertebrae which, of course, is spondylosis. The doctor, or perhaps it was only his secretary, used the wrong Greek noun. Furthermore, I do not accept that the cervical spondylosis has been caused by the plaintiff’s work in general or that the current diagnosis includes an aggravation by the injury of 25 August 2009. It is not part of the plaintiff’s case that the cervical spondylosis was caused by the type of work the plaintiff has done as a coal miner. The plaintiff has done other forms of heavy work, such as bricklaying. Cervical spondylosis and thoracic spondylosis and lumbar spondylosis are generally thought to be degenerative processes affecting most adults. Once the spine matures it then starts to degenerate. It is an age-related process, although it can be accelerated, or made worse, or symptoms of it may be triggered off, by some work activity or injury. It appears that the injury of 25 August 2009 was an injury to the ligaments between C2 and C4 and may have been a temporary exacerbation of the plaintiff’s cervical spondylosis, but it is clear that any incapacity ceased when the plaintiff returned to his pre-injury duties. It appears that if the correct diagnosis be cervical spondylosis, this episode of it was aggravated, accelerated or exacerbated solely by the injury of 31 March 2014.

33. The real question is as to whether there was any discal damage that is amenable to surgery. On that issue Dr Bodel said this:

“I note the assessment by Professor Dickinson, who is of the view that this gentleman has cervical degenerative disc disease at C5/6 and C6/7. He feels that clinically there is no sign that any additional structural damage has occurred in the incident that happened on 31 March 2014 and he felt that surgery was “specifically contra indicated” on the basis of his clinical assessment.

This gentleman has trialled [sic] a variety of other less invasive treatments, including physiotherapy, medication and block injections without any success. A relative indication for the anterior cervical fusion recommended by Dr Kohan is a failure of further conservative care.

Therefore, the anterior cervical decompression and fusion at C5/6 and C6/7 is a surgical option to be considered, although I do agree that it is a difficult decision to make because there is certainly no guarantee that this approach will assist him significantly.”

There then follow three more paragraphs of argument and Dr Bodel concludes with this sentence:

“That is not an unreasonable approach of the medical management of this difficult issue.”

The “that” is a reference to the surgery proposed by Dr Kohan.

34. Dr Dickinson re-examined the plaintiff on 12 November 2015. Again, on examination he found slight subjective sensory loss on the borders of both little fingers and both hypothenar eminences. With the utmost respect to him, Mr Anthony Gibbons is hardly likely to understand the significance of such a sensory lost. It is in the C8 distribution, in the distribution of the ulnar nerve. In essence, Dr Dickinson expressed the view that he expressed in late 2014. He then deals, I think, with the suggestion of surgery that had been commented upon by Dr Bodel. He calls in aid of his own opinion Dr Bodel’s opinion, which he thought agreed with his. In other words, the two doctors practising in the one practice each agrees with the other. Nothing in life is surprising. However, Dr Dickinson thought that there were no particular gains to be had from surgery in his view and that there were “significant risks”. Of course, if the surgery does achieve nothing, it has been done unnecessarily or perhaps with a view to treating the radiological appearances rather than the plaintiff’s condition. True it is there are significant risks. There are significant risks with any form of surgery. There is a significant risk in administering a general anaesthetic. There is a risk even in administering a local anaesthetic. However, with the passage of time, surgery has become more and more safe because of advances in medical technology and medical science. On p 7 of his report Dr Dickinson said this:

“On the second occasion, Dr Kohan described ongoing significant neck pain but on this occasion, pain and numbness radiating in the right arm in the C7 dermatomal distribution. He has had no relief of symptoms from the facet injections.

He recommended that surgery would help both for neck and shoulder pain, although the suggested success rate appeared low - i.e. improvement of pain (more than 50%) in about 70-80% of patients in resolution of arm and shoulder pain.

Noteworthy, however, is that Mr Gibbons’ pain in the arm had always been of a vague distribution, never strictly neurological and is not supported by clinical test to support these. For instance, the triceps jerks are brisk where they should be reduced in C7 radiculopathy. As well, the uncovertebral joints which have been degenerative in nature are more significant on the right side at C6 and on the left side at C7. This is not consistent with Mr Gibbons’ symptoms. If he had a C6 nerve root compression on the right his symptoms would have been in the thumb and index finger and if he had a C7 pain on the left they would have been in his little and ring finger on the left. Although he has described the little and ring finger numbness, there has not specifically been pain in the distribution as the pain has radiated down the outer aspect of the arm and the dorsum of the forearm. These distributions of the pain are non-physiological and anatomical in nature and position and do not reflect any particular nerve root which is necessary in defining a radiculopathy.”

That sent me running to my books on anatomy and a number of sources tell me that the little and ring fingers are enervated by the C8 nerve root, which leaves the spinal column between C7 and T1. That has been a finding of Dr Dickinson on two occasions and it appears to be consistent with the problem at C7/T1, which was said to be the site of minimal bilateral facet joint arthropathy in the MRI of the cervical spine of 24 May 2014. Perhaps it is that the doctors are using different numbers to describe the same nerve root. However, there could be a minimal or minor entrapment of a nerve in the spine which is causing some subtle problems in the ulnar distribution.

35. In essence, if the plaintiff’s symptoms are not mediated by nerve root compression or entrapment in the neck and the cervical surgery is practised, then it will not relieve the plaintiff’s symptoms. However, if it does relieve the plaintiff’s symptoms it would confirm the diagnosis. Although there is a risk, there is also a distinct possibility, the details of which are set out by Dr Kohan in his report, reiterated as they have been by Dr Dickinson, that it carries a real chance of improving the plaintiff’s condition. One can understand that the plaintiff would be willing to undergo the surgery if he genuinely has the pain. There is no reason, as I said, for me to doubt the plaintiff’s sincerity and his genuineness. It is a question for him, of course, whether he wishes to undergo surgery, but I, for one, would not stop him undergoing it if he believes it might ameliorate his condition. However, he should clearly take time to recover from this litigation, get his affairs back in order and then undergo such preparatory investigations as Dr Kohan may think necessary before undergoing surgery. I have not been asked to make a finding that the plaintiff ought undergo cervical surgery. All I can indicate is that I would not find otherwise if the surgery is practised on the evidence that is currently before me. However, it does appear to me that there is a likelihood that the plaintiff has some cervical neuropathy which may account for his symptoms.

36. I have enquired of each party whether any further reasons for judgment are required. I am told that none is so required.

37. For those reasons I make an award for the plaintiff for $386.90 per week from 16 December 2014 to 31 March 2015, for $391.90 per week from 1 April 2015 to 30 September 2015 and for $395.10 per week from 1 October 2015 to date and continuing (as indexed) for total incapacity. I order the defendant to pay the plaintiff’s hospital and medical and like expenses pursuant to s60. I order the defendant to pay the plaintiff’s costs.

**********

Decision last updated: 27 January 2016