Holmes v Centennial Mandalong Pty Ltd

[2017] NSWDC 422

District Court

New South Wales

Medium Neutral Citation:	Holmes v Centennial Mandalong Pty Ltd [2017] NSWDC 422
Hearing dates:	26 September 2017
Date of orders:	26 September 2017
Decision date:	26 September 2017
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	I order the defendant to pay the plaintiff's hospital, medical and the like expenses for treatment of osteoarthritis at each of his knees.  I order the defendant to pay the plaintiff's costs.
Catchwords:	WORKERS COMPENSATION – Underground coal miner – Claim for expenses of treatment for arthritis of the knees – Whether need for treatment related to injuries, a disease or the aggravation etc of a non-work-related disease – Consideration of conflicting medical evidence
Legislation Cited:	Workers Compensation Act 1926 Workers Compensation Act 1987
Category:	Principal judgment
Parties:	Anthony Holmes (Plaintiff) Centennial Mandalong (Defendant)
Representation:	Counsel: Mr D Benson (Plaintiff) Mr B Odling (Defendant)   Solicitors: Slater & Gordon Sparke Helmore
File Number(s):	RJ 120/16
Publication restriction:	Nil

Judgment

1. HIS HONOUR: The plaintiff, Mr Anthony Holmes, seeks a general order under s 60 of the Workers Compensation Act 1987 for the payment of his hospital, medical, and the like expenses for treatment of his knees.

2. Mr Holmes was born on 19 January 1961. He is currently 56 years old. He obtained the school certificate at the end of year ten after attending the Warners Bay High School. He then entered the workforce, essentially doing clerical work from 1979 to 1986. In 1986, he joined the coal mining industry. When examined by a Dr Myles Coolican, an orthopaedic surgeon, for the defendant on 25 August 2016, Dr Coolican recorded that the plaintiff had physical jobs in the coal mining industry for the previous 30 years. Dr Coolican summed up the plaintiff's work history thus:

"This has included working at the coalface, digging, driving machines and doing heavy work. In the past ten years, he has been on the long wall, which is reasonably physical work. More recently he has been placed in machinery with less standing, lifting and carrying."

The plaintiff started working at the Teralba mine in 1986. He worked there for about two years. He then worked at the Lambton mine for about 18 months, and then at the Myuna pit for some ten years. He then moved to the Cooranbong mine, and was then to work at the Mandalong mine, where he still works. The plaintiff thought that he had spent five years at the Cooranbong mine, and some ten years at the Mandalong mine, but he was not quite sure of the actual division of his working life between those two pits, as the pits were next to each other, and the staff were gradually moved from one pit to the other.

3. The plaintiff reported a large number of minor injuries to his knees between August 2009 and the middle of 2014. On 14 August 2009, the plaintiff was working on the longwall, operating a shearer when he tripped on a communication cable, landing on his left knee. He sought first aid treatment for that, but there was no loss of time from work. On 17 June 2011, the plaintiff was walking towards the crib room and walked through a muddy area of roadway and slipped, twisting his left knee. This was again a subject of first aid treatment, but no loss of time from work.

4. All of the next series of injuries, which I am about to describe, did not require the plaintiff to lose any time from work and any first aid treatment was self-administered. On 21 June 2011, he was walking across roof supports at the main gate, when he stepped off the number 2 support and twisted his right knee. On 12 August 2011, he was stepping down from a rear walkway to a front walkway when he felt pain in his right knee. On 29 March 2012, the plaintiff stepped down from the number 5 chock, I assume on the longwall, to the front walkway when he felt pain in his right knee. On 12 October 2012, the plaintiff struck his right knee whilst stepping down between supports. On 16 April 2013, the plaintiff was walking along a belt road when he tripped on a stone dust hose, and experienced pain in his right knee. On 27 February 2014, the plaintiff was stepping off the boot end walkway when he slipped on a rib spawl twisting his right knee. He also felt pain in his right elbow at the time. He needed to ice his elbow and that settled, but the plaintiff later experienced increasing pain in his right knee. On 5 June 2014, the plaintiff was climbing down from a gate crawl way ladder, and when he reached the ground with his right leg, he experienced pain in his right knee joint.

5. During this period, the plaintiff had consulted his medical practitioner, Dr Christopher Morrissey, about his knees. On 3 July, 2013, the plaintiff complained to Dr Morrissey about what Dr Morrissey refers to as osteoarthritis of his knees. He ordered X-rays. X-rays were performed on 3 July 2013. The report made by Dr Albert Cheung is this:

"There is loss of joint space in the medial compartments bilaterally with marginal osteophytosis evident. No fracture or dislocation is seen. There is no significant joint effusion. Degenerative change is also noted in the patellofemoral articulation. No fracture is identified."

The plaintiff returned to see Dr Morrissey on 17 July 2013. The doctor's history noted a complaint of knee pains "for two years with multiple incidents at work". That clearly refers one back to 2011, although the first noted complaint was, in fact, on 14 August 2009. The history indicates the plaintiff was required to report for a review if he had any recurrence.

6. On 20 March 2015, which was a Friday, the plaintiff was carrying a belt structure stand with his deputy, Mr Chris Oliver. Each of the men had carried the structure on his shoulder. The plaintiff was in the lead, being followed by Mr Oliver. The plaintiff told me that this piece of plant weighed about 50 kilograms. He was carrying it on his right shoulder. I assume, therefore, that Mr Oliver was also carrying it on his right shoulder. The plaintiff slipped on a wet, muddy area, falling forward, and twisted on his left knee, losing his balance, causing him to throw his weight onto his right knee and also twisting, experiencing symptoms in his right knee, as well as his left knee, causing him to fall to the ground, landing on his right buttock. This happened shortly before the end of the shift. The plaintiff went to the crib room and rested, put ice packs on each of his knees, and stayed in the crib room until the end of his shift.

7. On the 21st and 22nd - the weekend - the plaintiff was not rostered for work. On the 23rd, before the commencement of his shift, he went to see Dr Morrissey. He saw Dr Morrissey at 11.41am. Dr Morrissey recorded that the plaintiff had a history of recurrent twisting-type injuries, the latest being on 20 March when the plaintiff was carrying a load on his shoulder. He noted the plaintiff had bilateral knee pain. He ordered further X-rays. X-rays were performed on that same day by Dr Leong, who reported this:

"There is osteoarthritis of both knees, with almost complete loss of medial tibiofemoral joint space. There was also mild loss of right medial patellofemoral joint space. No knee effusion or intra articular bony loose bodies. No focal bony lesions."

The plaintiff returned to work on that day. He did not lose any time off work, as a result of the event of 20 March 2015, but he still had symptoms.

8. The plaintiff returned to see Dr Morrissey on 30 March 2015. Dr Morrissey's history was of knee pain persisting, and the doctors notes then say this: "Probably accumulation from multiple injuries at work. Check MRI scan to exclude treatable causes eg medial meniscal [damage]." The doctor ordered the MRI scan, which was performed on 1 April 2015. The report of the MRI scan is very lengthy. It contains a page and a half of small type, closely typed. I shall not quote it, but suffice it to say that shows multiple abnormal findings in most structures of each knee, consistent with a degenerative process, such as widespread osteoarthritis.

9. The plaintiff returned to see Dr Morrissey on 15 April 2015. The doctor noted the MRI scan, and referred the plaintiff to Dr Verheul, an orthopaedic surgeon practicing at Gateshead. It would appear that Dr Verheul had a large backlog of work and was unable to see the plaintiff until October 2015. Accordingly the plaintiff saw, in lieu of seeing Dr Verhueil, Dr Christopher Dunkley, also an orthopaedic surgeon practicing at the same rooms.

10. The plaintiff saw Dr Dunkley on 24 September 2015. Dr Dunkley recorded this brief history: "He recently had an injury that set off a flare of pain, and this has never settled down afterwards." The inference I draw from the evidence is that the recent injury was that of 20 March 2015. It is important to note that the plaintiff told the doctor that he had not recovered symptomatically from that event. On examination the doctor found that the plaintiff had a significant varus alignment problem in each knee. Fortunately, that was fully correctable when the plaintiff was laying down, but not when he was standing up. Dr Dunkley found the plaintiff had a mild effusion in each of his knees. He thought that the X-rays showed medial compartment osteoarthritis. The doctor injected the plaintiff's right knee with anaesthetic and a corticosteroid to see what difference that made compared to the left knee, which was not the subject of any injection. The plaintiff was asked to go back later to see if the local injection led to any improvement. The doctor also asked the plaintiff to start taking Celebrex and paracetamol as another form of treatment. He went on to express this view:

"I do think that it will come to bilateral knee replacement, but given that he is an underground miner he may not be able to return to underground mining with replaced knees. He does need to check this with his employer."

11. The plaintiff told me that he could not recall any improvement following upon the injection into his right knee, but the contemporaneous history suggests otherwise. The plaintiff returned to see Dr Dunkley on 22 October 2015, and the plaintiff told Dr Dunkley that he only received some two weeks benefit from the earlier injection. However, the plaintiff had not yet started taking Celebrex or paracetamol. The plaintiff was told to start taking those drugs. Again, Dr Dunkley expressed the view that the plaintiff was going to need knee replacements, but there was a risk that he might lose his job as a coal miner if that were to occur.

12. The plaintiff saw Dr Dunkley again on 7 November, 2016. There was little change in his condition. Again, in a report following upon that consultation - a Medico Legal report of 8 March 2017 - Dr Dunkley expressed the view that it was likely that the plaintiff would end up with bilateral total knee replacements, which would require a period of rehabilitation after the surgery was performed. He thought that that was the only relevant surgical option. Another surgical option is high tibial osteotomy, but the defendant's doctor Dr Coolican is of the view that that would not give the plaintiff any assistance whatsoever, and he agrees that the only appropriate operative treatment is total knee replacement.

13. It can be seen, that as far as s 60 expenses are a concern, the plaintiff has incurred the costs of seeing his general practitioner Dr Morrissey, his specialist Dr Dunkley and has had the radiological investigations to which I have referred, and the injection to which I have referred, and also has been purchasing Celebrex and Panadol Osteo to help relieve the pain that he is experiencing in his knees. The plaintiff has not told me that the symptoms that he experienced since 20 March 2015 have completely abated, but rather the symptoms have persisted and are gradually getting worse.

14. The plaintiff told me, without there being any objection, that he is booked in to have total knee replacements performed - I assume by Dr Dunkley - on 5 December 2017. Both knees are to be replaced at the same time. The plaintiff no longer does work underground. He has also stopped performing overtime. He last worked over time on 20 June this year. He is doing outbye work at the direction of the undermanager Mr Daryl Swaas. He is basically driving the plant at the present time, but that is part of a multi-skilled miner's work.

15. The finding that I must make concerning the present claim will probably be material to any future claim the plaintiff may bring for the cost of his total knee replacements. The issue before me is a classical problem in worker's compensation matters. I have competing views from medical practitioners as to the compensability of the plaintiff's knee complaints.

16. The plaintiff has qualified Prof YAE Ghabrial, an orthopaedic and spinal surgeon. The plaintiff was seen by Prof Ghabrial on 15 June 2016. Dr Ghabrial commences his report saying this:

"Mr Holmes gave me the history of injuries to both knees as follows:"

There is then a précis of all the minor events that I have earlier recorded in these reasons, and also, the event 20 March 2015. The plaintiff told me that he did not give those dates to Dr Ghabrial, and I have no reason to doubt the plaintiff in that regard. It appears to be likely that Dr Ghabrial took them from the letter written to him by the plaintiff's solicitors in which his opinion was sought. Dr Ghabrial, like the other medical practitioners, notes the varus deformity of each knee, and found an effusion in each knee joint, as well as quadriceps muscle wasting. He also found some pain and maltracking of the patello-femoral joint. Dr Ghabrial believed that it was only a matter of time before the plaintiff came to bilateral total knee replacement. There is no issue, medically, about that. As I said, the surgery is now scheduled to be practiced on 15 December. Dr Ghabrial went on to express this bold view: "From the history given to me by Mr Holmes, I believe that his employment is considered to be the main contributing factor to the present clinical features, disabilities and impairment." That is a mere ipse dixit, which is not argued in any way by the doctor.

17. Prof Ghabrial then had referred to him reports generated by the defendant's two doctors Dr Roger Rowe and Dr Myles Coolican. Dr Ghabrial went on to say this:

"I believe that the degenerative changes of the knees are the result of the nature and conditions of his employment over the years. However, the injuries listed in my report of 15 June 2016 did cause aggravations to the pre-existing degenerative conditions which I strongly believe are related to the nature and conditions of his employment. Hence, his employment is considered to be the main contributing factor to the present clinical features, disabilities and impairment."

Prof Ghabrial then refers to the opinions of Drs Rowe and Coolican, and maintains the opinion which I have just quoted. Again, the opinion smacks of a bare ipse dixit.

18. Dr Rowe saw the plaintiff on 27 April 2015. The doctor took this piece of history:

"Mr Holmes said that he has never had any previous significant trouble with his knees and that his knees were good prior to the subject incident [20 March 2015]. However, he mentioned that over the years as a miner, he had several slips, trips and falls for which he has not required any specific treatment. He said that in the past he has not had any physiotherapy or other treatment. He has not consulted a doctor or had any surgical treatment on his knees."

That history is inaccurate, but it seems to be likely that the plaintiff, at that time, had forgotten that in 2013, he consulted Dr Morrissey about his knees and had his knees X-rayed. Nothing turns on that minor discrepancy. Dr Rowe went on to record that the plaintiff had no other relevant accident or injury, including any problem when he was playing sport. That is consistent with the evidence that I have heard. Like all the others, the doctor found the minor varus deformity, which he thought led to collateral laxity consistent with medial compartment osteoarthritic change. He did not find any crepitus at the time of his examinations. Dr Rowe thought that, radiographically, the plaintiff's left knee appeared to be more affected than the right knee. He went on to express this view:

"Mr Holmes has significant osteoarthritis in the medial compartment of both knees which is a reflection of age and constitutional factors. The work incident on 20 March 2015 may have caused some aggravation of his underlying osteoarthritis which has been giving him trouble for around one year previously. On the basis of the history, there is still some work related aggravation as his knees have not settled to the state that existed prior to the subject incident. On this basis there is some attributability by way of some continuing aggravation of pre-existing pathology."

19. Dr Rowe did not see the plaintiff again. However, in a supplementary report, he expressed the view that he thought that any work related aggravation from the subject accident, that is the accident 20 March 2015, "should settle within one month or so, ie it was anticipated that it would settle within one month or so after my assessment of him on 27 April 2015." Dr Rowe examined the plaintiff more than one month after the original event. What the supplementary opinion seems to be suggesting, is that he expected that the aggravation should settle within two months. However, he appears to have some a priori view that it ought to have settled within one month. Dr Rowe raises as features of osteoarthritis, age and "constitutional factors". What those might be, he does not tell me.

20. Dr Coolican made findings consistent with those of every other practitioner. His diagnosis is bilateral advanced medial compartment osteoarthritis of the knees. Under the heading "Attributability to the Reported Injuries", the doctor said this:

"The injuries Mr Holmes describes where his knee has become sore with twisting are quite unlikely to be the primary cause of his current knee symptoms. Mr Holmes has developed osteoarthritis of both knees involving the medial compartment. This is evidence on his examination and imaging studies and it is likely that he had mild osteoarthritis that was present with his episodes beginning in September 2009 with the left knee and these symptoms were a manifestation of osteoarthritis with both knees not tolerating bumps, knocks, trips and stepping down as a consequence of the presence of osteoarthritis, but these injuries were not the cause of the osteoarthritis. Accordingly, in my opinion, Mr Holmes' osteoarthritis is not related to a work injury and is a degenerative condition."

21. If one accept that the osteoarthritis in the knees pre-existed any complaint made by the plaintiff - the first being in September 2009 - it logically follows that that event, and subsequent events were not the cause of the osteoarthritis. However, that is not the end of the matter. The Act defines injury to include, "the aggravation, acceleration, exacerbation or deterioration of any disease." The word "disease" is apt to describe a morbid pathological condition, which pre-exists any relevant event.

22. Dr Coolican does not comment on the suggestion that the plaintiff's knee problem may have been aggravated, exacerbated, accelerated or made worse by any event that happened to him at work. Later in his report, Dr Coolican says this: "Whilst there is no doubt that patients in heavy industries are more likely to develop osteoarthritis of the knees, Mr Holmes' osteoarthritis is more a result of the degenerative process than any work injury." Given the premise in that statement, it behoves the doctor to tell me what are the relevant factors, and why, in this particular case, the osteoarthritis in the plaintiff's knees should be seen to be merely the result of a degenerative process, rather than any work injury or the aggravation, acceleration, exacerbation or deterioration of some pre-existing condition.

21. A little further in the same report the doctor says this:

"Mr Holmes has undoubtedly aggravated his knees from time to time with the injuries that have been described; beginning in September 2009. Each of these aggravations would last somewhere between six and twelve weeks and any aggravation would then cease. Accordingly, in my opinion, Mr Holmes' ongoing symptoms are not related to any episode of work injury and are a result of his degenerative arthritis."

That opinion contains an a priori view that any aggravation, acceleration, exacerbation or deterioration of a pre-existing condition must cease within a finite period of six to twelve weeks. Whence comes that a priori view, I know not.

24. In the anti-penultimate paragraph of his report, Dr Coolican points out that the plaintiff did not have a family history of osteoarthritis, which might be relevant in deciding whether the osteoarthritis was due to work or due to some intrinsic condition. He then went on to say this: "As indicated above, degenerative osteoarthritis is associated with patients who work in heavy industries, but the primary cause is degeneration of articular cartilage." If one accept that the osteoarthritis predated any event that happened at work, one can still see that it is open to argue that the events at work accelerated the condition, or made the condition worse, or exacerbated the condition, that is, set off painful symptoms of the condition of the osteoarthritis. In essence, the plaintiff's evidence - or the thrust of it - is that he has never recovered from the event of 20 March 2015.

25. The histories are consistent with that, as is the plaintiff's evidence. However, it is not merely the events relied upon by the plaintiff that must be taken into account, as Dr Coolican, himself admits. There is a proven link on an epidemiological basis between heavy work and osteoarthritis of the knees. That is, one can postulate causation or worsening of the condition by heavy work.

26. In my view, the key to this dilemma is the opinion of the plaintiff's treating doctor. In his medico-legal report of 8 March 2017, Dr Dunkley said this:

"The development of osteoarthritis is multifactorial. Those factors include genetic predispositions, such as alignment, as well as sporting activities and certainly employment. There is no doubt that performing underground coal mining work for 29 years has a significant influence on the development of osteoarthritis. This would have been made worse by any superimposed injuries that he sustained at work."

A little later in his report, the doctor said this:

"As mentioned above I do agree that Anthony Holmes' employment as an underground coal miner for 29 years is certainly a significant contributing factor to the development of osteoarthritis in his knees and I would say that it would have certainly aggravated, accelerated, exacerbated and cause the condition to deteriorate quicker than if he was not employed as an underground coal miner."

27. As I said, there is no history of any genetic predisposition. However, there is the history of the varus deformity, as distinct to a valgus deformity, and Dr Dunkley believes that that varus alignment problem is a part of a genetic predisposition. Accordingly, it would appear that the plaintiff's osteoarthritis may be causally related to that condition, at least in part. However, there is no evidence of the plaintiff’s having had any sporting activities which could contribute to the osteoarthritis and there is no evidence of any other employment which could have contributed to the plaintiff's osteoarthritis. Bearing in mind the concession made by Dr Coolican and the opinion of Dr Dunkley, I am more than satisfied that the plaintiff's work activities as an underground coal miner for 29 years aggravated, accelerated, exacerbated or caused to be made worse the osteoarthritis in each of his knees.

28. I also accept that the minor events to which the plaintiff deposed, but more importantly the event of 20 March 2015 exacerbated the condition to the extent that it has led to the need for treatment, ongoing symptoms and ultimately that those symptoms led to the necessity for the plaintiff to plan to have the total knee replacements.

29. For those reasons I order the defendant to pay the plaintiff's hospital, medical and the like expenses for treatment of osteoarthritis at each of his knees. I order the defendant to pay the plaintiff's costs.

BENSON: May it please the Court.

HIS HONOUR: Any other orders sought? No? Good, thank you.

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Decision last updated: 01 March 2018