Grace v South Bulli Colliery Ltd

[2014] NSWDC 295

District Court

New South Wales

Medium Neutral Citation:	Grace v South Bulli Colliery Ltd [2014] NSWDC 295
Hearing dates:	18 November 2014
Decision date:	18 November 2014
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	Redemption approved
Catchwords:	WORKERS COMPENSATION – Coal miners – Redemption application – Whether proposed sum reasonable – Whether plaintiff’s need for right hip replacement caused by work performed for defendants
Category:	Principal judgment
Parties:	John Edward Grace (Plaintiff) South Bulli Colliery Ltd (1st Defendant) Allied Bellambi Ltd (2nd Defendant) Bellambi West Colliery (Allied Coal Pty Ltd) (3rd Defendant) Delta Mining Pty Ltd (4th Defendant) Ground Consolidation Pty Limited (5th Defendant) Gujarat NRE Coking Coal Ltd (6th Defendant)
Representation:	Mr Benson (Plaintiff) Mr Medak (Defendants)
File Number(s):	RJ266/13

Judgment

Ex tempore

1. There is currently before me a redemption application in the sum of $75,000. There are some complications about the assessment of the plaintiff's entitlement to workers compensation, following certain injuries that he sustained. However, importantly, the plaintiff underwent a right hip replacement at the hands of Dr Allen Turnbull on 21 August 2008, at St George Private Hospital. The plaintiff had been referred to Dr Turnbull by Dr Jim Aroney of the Wollongong Medical Centre. The plaintiff had presented with right hip pain worsening over months to Dr Aroney.

2. That led Dr Aroney to refer the plaintiff to Dr Turnbull on 16 June 2008. I am told that the approximate cost of the right hip replacement surgery was $18,500. That was largely paid by the plaintiff's private health insurer, and paid in part by Medicare. Should that condition be compensable, it could well be argued that the sum proposed for redemption is inadequate. Therefore, I need to carefully peruse the medical evidence to ascertain whether the plaintiff is likely to succeed in his claim in respect of the right hip condition. The plaintiff saw Dr John Garvan, an orthopaedic surgeon, for CMI on 17 April 2012. The plaintiff told Dr Garvan that he underwent a right hip replacement some three years earlier, and the plaintiff said that that was "a private matter". The plaintiff gave no history to Dr Garvan of any injury to his right hip, nor did the plaintiff tell Dr Garvan that any form of the work he did as a coal miner contributed to the pain in his right hip. The plaintiff saw Dr Garvan again on 5 February 2013. At that time, the plaintiff was still employed as a coal miner. He went to see Dr Garvan again on 23 April 2013, primarily about his left knee. On that occasion, the plaintiff gave this history about his right hip condition to Dr Garvan:

"He stated that working in the mines caused his right hip to, "Just get worn out." He stated he had never had an injury to his right hip. He stated that he had paid for his right hip replacement surgery himself. He stated that he was off work for two months after the right hip replacement, and did light duties for a couple of weeks, and then returned to full duties."

It can be seen from that history that the plaintiff had time off work, as well as the surgery; yet there is no suggestion that at the time, he made any claim for workers' compensation. It may well be that the advice given to him by Dr Aroney and Dr Turnbull was that the condition of his right hip had little, if anything, to do with the type of work he did as a coal miner. Dr Garvan has maintained his view that the need for the plaintiff's right hip replacement was due to widespread underlying osteoarthritis; and at the examination on 23 April 2013, Dr Garvan suspected that the plaintiff might have psoriatic osteoarthritis, and that the plaintiff should be assessed by a rheumatologist.

3. Unfortunately, that has never occurred. It is significant that at the time of that examination, Dr Garvan detected a rash on the posterior aspect of the plaintiff's left elbow, and to a lesser extent, a similar rash on the posterior aspect of his right elbow, also affecting the dorsal aspect of the right small metacarpal phalangeal joint in the right ring finger. That rash might be a symptom of psoriatic arthritis. In any event, the plaintiff has widespread degenerative changes in his body, affecting many of his joints, and clinically, he has Heberden's and Bouchard's nodes, affecting fingers of each hand. Such nodes are a sign of underlying osteoarthritis, and are generally thought to be purely degenerative. Indeed, one of my female colleagues has the same condition affecting her hands. The doctor who argues for the compensability to the plaintiff's right hip condition is Dr O'Keefe, an orthopaedic surgeon, who has seen the plaintiff once at the request of his solicitors. Under the heading "causation", Dr O'Keefe said this:

"He has injured both knees, and these have been documented. He has had to work in confined spaces, twisting his right hip. He has not injured his left hip; it looks perfectly normal on x-ray and does not require replacement, so I believe that this is due to his employment."

The doctor's comment is cryptic, but it appears to indicate that in his view, as the plaintiff's right hip is the subject of osteoarthritis, but his left hip is not the subject of osteoarthritis, the condition of his right hip was due to the plaintiff's employment. However, that opinion ignores the fact the plaintiff has widespread osteoarthritis, and sometimes it can affect all joints; or, can skip a joint or two. The fact that the left hip has no osteoarthritis does not mean that widespread, constitutional, idiopathic arthritis might not affect the right hip. The plaintiff had no injury to his right hip, just as he had no injury to his left hip.

4. The plaintiff's work as a coal miner did require him to work in confined spaces, twisting; but such twisting would have affected both hips. In the circumstances, the Court could not be satisfied, on the balance of probabilities, that the need for the plaintiff's total right hip replacement was caused by the type of work he did for the defendants in the current proceedings. Accordingly, it appears to me the plaintiff's claim in respect of the right hip condition must fail. Accordingly, it appears to me that the sum proposed for redemption is reasonable, and well within range. I approve the redemption. By consent, I make orders in accordance with the short minutes of order which I have initialled and place it with the papers.

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Decision last updated: 05 March 2015