Holland v Peabody Resources Limited (Wilpinjong Coal Mine)

[2015] NSWDC 47

District Court

New South Wales

Medium Neutral Citation:	Holland v Peabody Resources Limited (Wilpinjong Coal Mine) [2015] NSWDC 47
Hearing dates:	23 March 2015
Date of orders:	23 March 2015
Decision date:	23 March 2015
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	Award for the plaintiff Defendant to pay plaintiff’s s 60 expenses Defendant to pay plaintiff’s costs
Catchwords:	WORKERS COMPENSATION – Coal miners – Whether plaintiff injured as claimed – Inconsistent histories recorded
Legislation Cited:	Workers Compensation Act 1987, s 60
Category:	Principal judgment
Parties:	Amy Holland (Plaintiff) Peabody Resources Limited (Wilpinjong Coal Mine) (Defendant)
Representation:	Counsel: Mr Benson (Plaintiff) Mr Odling (Defendant) Solicitors: Slater and Gordon (Plaintiff) Hicksons Lawyers (Defendant)
File Number(s):	RJ368/14
Publication restriction:	No

1. HIS HONOUR: The plaintiff, Ms Amy Therese Holland of Erudgere near Mudgee claims weekly payments of compensation from 28 February 2014 to 17 March 2014 and her expenses under s 60 in respect of treatment afforded during that period and perhaps shortly thereafter. The plaintiff relies on an event which occurred in the course of her employment on 28 February 2014.

2. The plaintiff is employed by the defendant as a plant operator. According to her evidence she signed a contract of employment with the defendant on 8 March 2011, but that contract did not commence until 20 June 2011. According to exhibit 2, her employment commenced on 1 April 2013. According to the plaintiff’s evidence her initial conditional employment was confirmed on 20 November 2011. Nothing turns on that discrepancy because the plaintiff still works for the defendant.

3. As a plant operator the plaintiff either drove a large Caterpillar dump truck or a water cart. The normal dump truck which she operated is known as a Caterpillar 785 which carries some 300 tonnes of coal. On 28 February 2014 the plaintiff was rostered to drive a Caterpillar 789 dump truck which is the size “up” from the Caterpillar 785. It has a larger capacity but the size of that capacity has not been stated.

4. The plaintiff was rostered to perform night shift on 28 February 2014. She commenced that shift at 6.30pm. As a plant operator the plaintiff wears a uniform or safety clothing provided to her by the defendant. That uniform includes steel capped boots, trousers, a high visibility shirt, a jumper, a jacket, a raincoat and a hard hat. She was wearing that attire on the evening of 28 February 2014. She commenced the normal safety routine when commencing to drive the large dump truck. That took about 15 minutes. She was then, essentially, on standby as a fuel run was being conducted. She sat in the cabin of the truck for about 45 minutes waiting for a call to put her truck into operation. It was raining on 28 February 2014 but the plaintiff had removed her raincoat prior to entering the cabin of the truck on the second occasion. Whilst sitting in the cabin of the truck the plaintiff became hot. According to her evidence, she tried to remove her jacket. She was seated whilst she was engaged in that manoeuvre. She had pushed the driver’s seat back, I infer, as far as it would go backwards from its more forward position. She had removed her seatbelt. The jacket was unfastened, that is, it had been closed neither with its zipper nor its buttons. The plaintiff said that she let the jacket fall from her shoulders and rotated her body to the left and she indicated rotating her neck some 90 degrees to the left. She felt a sharp pain in her neck.

5. After what she thought was one or two minutes, she sought to report the onset of neck pain. She tried to contact her OCE, the open cut examiner or supervisor. He was not available. She reported to the control room. I infer she called on the radio to the control room. About 20 minutes later she said that she was attended by her supervisor/OCE, Mr Matt Addley, who was in company with Mr Luke Lunney, a member of the emergency response team. They took her in a troop carrier to the first aid room. The incident appears to have occurred about 8.10pm. According to the plaintiff’s estimate Mr Addley and Mr Lunney would have attended upon her about 8.30. According to a record of the first aid room, at the pit, the Wilpinjong open cut mine, she arrived at the first aid room about 9 o’clock. At 9.08 the plaintiff completed a statement. It is not in her handwriting but has been signed by her. The substance of that document is this:

“As I was taking off my second jacket, I felt a sharp pain to the left hand side of my neck and as a result I can’t turn my head to the left. Previous to that I had done a [section] 103 [inspection] for RE7028 [her dump truck] to start doing a fuel run. When I entered the cab I did all the pre start checks, started the truck…Before moving off I took my jacket off. At no time did I feel any pain to my neck until this happened.”

6. There is no other description of the event in the contemporaneous first aid record at the pit. When the plaintiff made a claim for compensation on 28 March 2014 she provided a description of the incident consistent with that statement. On the same day the employer produced an accident/incident form addressed to its insurer, Coal Mines Insurance. That form is completed consistently with the plaintiff’s claim for compensation. It contains the names of Mr Matt Addley and Mr Luke Lunney.

7. There is no suggestion that the history was other than that stated by the plaintiff, nor is any information provided to the insurer on a confidential basis which might be inconsistent with the history given by the plaintiff. The only inference that I can draw is that as far as Mr Addley and Mr Lunney were concerned the history that they obtained is consistent with the history recorded by the plaintiff in the witness statement she made at 9.08pm. It is to be noted that Mr Lunney was also the man who provided treatment to the plaintiff at the first aid station at the pit.

8. An ambulance was called at 9.30. It was despatched at the same time, clearly within seconds of the call. It did not reach the mine, however, until 10.20pm. The ambulance officers attended upon the plaintiff at 10.22pm. According to ambulance records, the ambulance officers provided reassurance to the plaintiff at 10.23. They had found her in a semi-recumbent position. At 10.23 they applied a cervical brace to the plaintiff’s neck which provided support to her neck and head. Within the same minute they sought to insert a cannula into the plaintiff’s arm, unsuccessfully. The ambulance records state that the plaintiff appeared to faint, that is said at one place, and in another the plaintiff actually fainted. The ambulance records state that the plaintiff had a phobia for needles. Because the cannulation could not occur because of the plaintiff’s phobia, and because she needed to be provided with pain killing medication, after supplying oxygen, obviously to get the plaintiff out of her faint at 10.24pm, at 10.25pm fentanyl, an opioid, was administered nasally.

9. The plaintiff was placed in the ambulance at 10.35 and reached the Mudgee District Hospital at 11.21pm. According to ambulance records the plaintiff reached triage at the hospital at 11.24 but the hospital records indicate triage at 11.35pm, some 11 minutes later. I have had cause to remark, consistently with experience over the last ten years at least, this common discrepancy between hospital records and ambulance records, the error always favouring the hospital, that is, the hospital records say that the plaintiff reached the hospital later than the ambulance records do.

10. The defendant relies upon an inconsistent history recorded by the ambulance personnel. The case description indicates that when the ambulance officers arrived the plaintiff had a heat pack in situ. They record a history that the plaintiff stated that she was attempting to take off a jumper by pulling it over her head when she felt a sharp “pulling” pain originating in the area of the left scapula moving up to the base of the left side of her skull. The plaintiff described her pain when it was sharp as being nine out of ten, such an extremity of pain being felt on movement, but the pain being only five out of ten when she was at rest.

11. The records of the Mudgee District Hospital in their triage form take a history consistent with the records of the ambulance service. They commence thus:

“Patient brought in by ambulance from Wilpinjong Coal Mine. Patient was taking her jumper off, felt a spasm of pain in neck down left side, unable to move neck initially.”’

By the time the plaintiff reached the hospital her pain level was only one out of ten. She saw a doctor at 12.57am on the morning of 1 March 2014. The plaintiff was given 5 milligrams of Valium orally and was given another dose of Valium to take the next morning. The records state that the plaintiff was happy to go home with a starter pack of Panadeine Forte, a strong painkiller. The plaintiff was discharged into the care of her partner, it would appear, shortly after 12.57am. She had been advised to follow up with her general practitioner on the following morning.

12. That does not appear to have happened. The plaintiff returned to the hospital at 3.40pm seeking more analgesics, which appear to have been provided. On 3 March 2014, which was a Monday, the plaintiff attended upon Dr Craig Hearn at the Mudgee Medical Centre. It would appear that she did not attend the Mudgee Medical Centre on Saturday 1 March or Sunday 2 March 2014. The Doctors’ notes are these:

“Muscular spasm left trapezius, improving. Still having massage and improving, doesn’t feel quite ready to return to work. Will need clearance.

Blacked out with pain and fainted on other occasion. Would like [pathology test].

Aware [Pap smear] due.”

The last notation clearly takes up earlier notes made at the same practice indicating that in March of each year the plaintiff had been undergoing an annual Pap smear test. The immediately prior entry in the Medical Centre’s notes was that a letter had been sent to the plaintiff on 30 January 2014 reminding her that she needed to have a Pap smear test. The second note in my view refers to the plaintiff’s fainting when the ambulance officers sought to insert a cannula into her arm and such might have occurred on some other occasion. There is reference to the plaintiff’s having a syncope prior to Christmas 2006 when the plaintiff thought that her drink had been spiked.

13. On 3 March 2014 pathology tests were requested, clearly to see if there was any medical reason why the plaintiff might have fainted. The plaintiff returned to the Mudgee Medical Centre and saw Dr Peter Bryant on 6 March 2014. He is the only doctor at the Mudgee Medical Centre who recorded a history of the event. However, it is a curious history. It is this:

“Onset of neck pain while at work in cab of truck, twisting to remove the jumper.”

One does not need to twist to remove a jumper, but one generally needs to twist to remove a jacket. There is a big difference between pulling a jumper over one’s head and twisting to remove a jacket. Dr Bryant thought the plaintiff’s condition was muscular or thought there was a possibility that she might have some intervertebral disc prolapse. He asked to see the plaintiff on the following Monday. The plaintiff returned to see Dr Bryant on 12 March 2014, and gave him a history that her neck pain had settled. The Doctor examined the plaintiff, found a normal range of movement and cleared the plaintiff to return to work performing normal duties. A certificate to that effect was issued on 12 March 2014.

14. Essentially the issue tendered for my determination is whether the plaintiff injured her neck attempting to remove her jacket given histories obtained of the plaintiff’s injuring her neck whilst pulling the jumper over her head. If either of those events occurred then the plaintiff suffered a personal injury arising out of and in the course of her employment. However, technically, since the plaintiff denies that she injured her neck pulling her jumper over her head, it would be perverse of this Court to find that she injured herself pulling a jumper over her head. Since there was a denial of that event in her oral evidence, accepting histories to the contrary could be seen to be perverse. However, I have seen and heard the plaintiff being cross-examined. She did seek to fence with the cross-examiner, Mr Odling, but admitted that she was fencing with him.

15. It is significant in my view that the plaintiff had an earlier episode of neck pain. It is not suggested that this was work related. The plaintiff attended the Mudgee District Hospital on 9 June 2013 giving a history that she had awoken with neck pain on 8 June 2013. That neck pain prevented the plaintiff from looking to her right. She also said that when she moved her neck or arm she had a shooting or pinching pain from her neck to between her shoulder blades, that is, down the spine, which was between “eight out of ten.” Torticollis was diagnosed, for which the plaintiff was advised to seek physiotherapy and to take Panadeine Forte as needed and to take Voltaren or Nurofen with food until her pain resolved and to take Valium for the next couple of days as it might be needed. I should indicate that the history of being unable to look to her right is in another place given as a history of being able to move her neck to the left. The plaintiff has been candid about this prior episode of neck pain.

16. Although it is not mentioned in her statement, made at 9.08pm on 28 February 2014 the plaintiff recorded it in her claim for compensation and it is recorded in the employer’s report of injury form, each of which forms was made, as earlier recorded, on 28 March 2014 and the plaintiff also gave a description of the event to the ambulance officers and correctly at the time stated that it had happened eight months previously. It is not recorded in the notes generated at the Mudgee District Hospital commencing on 28 February 2014, but that may well be because they are well aware because of the notes made in 2013.

17. When the plaintiff gave a history to Dr Bryant on 6 March 2014 she again mentioned this earlier episode of “wry neck” and it should be noted that the plaintiff had not attended the Mudgee Medical Centre about that episode of neck pain in 2013. That indicates to me that the plaintiff is a truthful person. The gentlemen who had attended upon her at the pit, Mr Addley and Mr Lunney, had no reason to doubt the history which she gave at the time. An inconsistent history is recorded by the ambulance officers, but clearly that history was given at least two hours after the event and more than an hour and ten minutes after the plaintiff had made her witness statement.

18. It is very common for incorrect histories to be re-recorded, and that appears in my view to have happened in Mudgee District Hospital and appears to have been perhaps taken up again by Dr Bryant, although twisting to remove the jumper is, as I have said, an inconsistency of the type of movement being reported and perhaps the plaintiff unwittingly referred to her jumper rather than her jacket.

19. I accept the plaintiff’s evidence that she injured her neck whilst attempting to remove her jacket, twisting to her left, and that she is incapacitated by that neck pain from about 8.10pm on 28 February 2014 until 12 March 2014.

20. It is agreed that her current weekly wage rate was $1,106. For those reasons I make an award for the plaintiff for $1,106 per week from 28 February 2014 until 12 March 2014. I order the defendant to pay the plaintiff’s s 60 expenses. I order the defendant to pay the plaintiff’s costs.

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Decision last updated: 20 April 2015