Honeysett v Centennial Springvale Pty Limited

[2015] NSWDC 335

District Court

New South Wales

Medium Neutral Citation:

Honeysett v Centennial Springvale Pty Limited [2015] NSWDC 335

Hearing dates:

7-8 September 2015

Date of orders:

08 September 2015

Decision date:

08 September 2015

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

Award for the plaintiff for $1,505.86 per week from 13 March 2014 to 24 June 2014:

 

for $1,505.86 per week from 25 June 2014 to 12 September 2014 for total incapacity;

 

for $382 per week from 13 September 2014 to 30 September 2014 for total incapacity;

 

for $386.90 per week from 1 October 2014 to 5 November 2014 for total incapacity;

 

for $386.90 per week from 6 November 14 to 31 March 2015 for partial incapacity;

 

for $391.90 per week 1 April 2015 to-date and continuing for partial incapacity.

 

Pursuant to s 60:

 

Defendant to pay the cost of the treatment of the plaintiff’s right hip condition.

 

Defendant to pay the plaintiff’s expenses for treatment of left shoulder condition until 31 December 2014

 Defendant to pay plaintiff’s costs.

Catchwords:

WORKERS COMPENSATION - Coal miner – Nature of injuries to right hip and left shoulder – Change of complaint regarding alleged left shoulder injury – Claim for deemed total incapacity – Lack of mutuality

Legislation Cited:

Workers Compensation Act 1926, s 11(1), s 11(2)
Workers Compensation Act 1987, Sch 6 Pt 18

Category:

Principal judgment

Parties:

Owen Honeysett (Plaintiff)
Centennial Springvale Pty Limited (Defendant)

Representation:

Counsel:
Mr D Benson (Plaintiff)
Mr L King SC (Defendant)

  Solicitors:
Slater & Gordon (Plaintiff)
Sparke Helmore (Defendant)

File Number(s):

RJ365/14

Publication restriction:

No

Judgment

1. HIS HONOUR: The plaintiff was a coalminer. He was employed by the defendant until the defendant terminated his services on 6 February 2015 on the grounds of "ill health". The plaintiff is currently 47 years old. He was born in Mudgee. He obtained the Higher School Certificate after studying at Wyong High School in 1986. He had repeated year 12. He then worked for United Dairies, essentially as a process worker, for between 6 and 12 months. He then worked as a yard man in a metal fabrication business for about 3 or 4 months and then worked in a factory manufacturing aluminium windows and doors for approximately 2 years: That business was at Tuggerah. The plaintiff's evidence was that he worked there for approximately 2 years although he told Dr Frank Harvey, whom he saw for the defendant on 24 March 2014, that he only worked there for 12 months. According to that history, he was then unemployed for almost 2 years: That was not admitted in chief but the plaintiff did concede eventually in cross-examination that he may have had some lengthy periods of unemployment.

2. He then began working in a magnetite mine owned by Commercial Mines and continued for some 5 years. He then went to Queensland where he worked in an opal mine for approximately 12 months, according to his evidence, or 18 months according to Dr Harvey's history. He then returned to New South Wales and worked for a brief period of time at a gravel quarry at Stroud but he left there on the evidence he gave to me because of a misrepresentation as to the nature of the work which he was to do there.

3. He then went to work in the western coalfields. He worked at the Clarence Colliery between 1995 and 1998. He then had a brief period of employment with the current defendant before going to the Baal Bone Colliery in 1999 for a period of 5 months, and then he returned to working for the defendant at the Springvale Colliery at Wallerawang. He remained in that employment until his services were terminated on 6 February 2015.

4. The plaintiff's work for the defendant was as an underground miner. He alleges that he was injured when he slipped and fell in the bathhouse at the end of his shift on Friday 27 September 2013. The plaintiff claims weekly payments of workers compensation from 13 March 2014 to date and continuing and his expenses under s 60.

5. It would appear that the plaintiff was working day shifts on weekends at the time of the injury alleged. On Friday 27 September 2013 he commenced his shift at 6am. He was due to complete his shift at 6pm. Whilst going from the dirty section to the clean section of the bathhouse he slipped and fell. He reported contemporaneously injuries to his right hip, his lower right leg and his head. According to exhibit B the affected areas were treated with ice. The plaintiff then drove himself to the place where he was temporarily residing at Kelso, a suburb of Bathurst, and then went with his wife to the Bathurst Hospital where he was treated at the outpatients department.

6. According to the plaintiff's evidence he was at the Bathurst Hospital for some period of time and had sutures applied to a laceration to his right leg. He told me that he also had pain in his right hip which he reported to the hospital and a sore head and a headache and he referred to there being a large contusion on the left side of his head above his left ear. The plaintiff also said that in that event he injured his left shoulder. Whilst the left shoulder does not appear to have been the subject of complaint on Friday 27 September 2013, it clearly was the subject of a complaint when the plaintiff completed a claim form on Monday 30 September 2013. According to that document the plaintiff had in addition to the blow to his head and a twisting of his right hip suffered a jarring of his shoulder as well as a laceration to his right leg which required three stitches below the knee.

7. It was the mines’ policy not to permit workers with stitches in their body to work underground and accordingly the plaintiff did not work on Saturday 28 or Sunday 29 September 2013. However, the plaintiff freely admitted that but for that policy he would have performed his normal underground work. The plaintiff said that the stitches were removed from his leg at the surgery of a Dr Sornalingam Kamalaharan at Wallerawang. Dr Kamalaharan is generally known as Dr Haran and I should be forgiven for so referring to him hereafter. The progress notes made at Dr Haran's surgery are extremely difficult to decipher, somewhat chaotic, and as far as I can ascertain, incomplete. There appears to be no reference to an attendance by the plaintiff at Dr Haran's surgery in the week following Sunday 29 September 2013 but it may well be that if he attended the surgery and had the sutures removed by a nurse but no note was made in the plaintiff's progress notes.

8. The plaintiff continued performing work as an underground coalminer. He appears to have done so until 26 February 2014. In the meantime the notes of Dr Haran's practice suggest that he was seen at that practice for other ailments. There is a note dated 11 October 2013 which, as far as anyone can decipher, records pains in the back of the neck and headaches. There are notes made indicating that the plaintiff was due to attend at the practice on 21 October 2013 and on 22 October 2013 but he did not attend. There is then an entry dated prior to 14 November 2013 in that month but the "hieroglyphs" contained in the notes do not enable me to decipher the date of the attendance. There was an attendance on 14 November 2013, a failure to attend on 25 November 2013, and a note made on 7 January 2014 but what that note relates to I do not know.

9. What occurred on 26 February 2014 is best ascertained from a referral letter from Dr Haran to Dr Davé bearing date 19 March 2014 which is part of exhibit G. The first three paragraphs of that letter are these:

"Many thanks for reviewing Mr Owen Honeysett with regard to an injury that he sustained at work on the 30/09/2013. The patient reports that he slipped over on the bathroom floor resulting in injury to his left shoulder, right hip, laceration on his right knee and an abrasion on his scalp.

He went to Bathurst Base Hospital and was seen in casualty where he was sutured up and discharged. He presented to my practice the following day for medical review. He completed a couple of days on suitable duties at work and then went back to his normal job.

Owen has recently presented to the practice again complaining of pain in the left shoulder and right hip areas. I sent him for X rays of his pelvis, right hip and left shoulder on 27 February 2014…"

Clearly the doctor has the wrong date of injury in that report but it appears to be correctly recorded in the progress notes which are exhibit 3. There is no suggestion from the plaintiff that immediately after the injury of 27 September 2013 he was on suitable duties or restricted work, merely that he could not work underground because of sutures on the Saturday and Sunday immediately following the injury on Friday 27 September.

10. It is common ground the plaintiff performed his normal duties as an underground coalminer until seeing Dr Haran on 26 February 2014. On that day Dr Haran issued the plaintiff with a "light duties" certificate extending from 26 February until 7 March 2014. On 7 March 2014 he issued a further "light duties" certificate extending from 7 March to 14 March 2014.

11. Plain X-rays were reported by Dr Luke Deady on 27 February 2014. Essentially, the plain X-ray of the pelvis and left hip showed no abnormality. As far as plain X-ray of the left shoulder was concerned there was thought to be minimal glenohumeral space narrowing. Dr Haran then organised for an MRI scan of both the plaintiff's left shoulder and right hip. They were reported by Dr Melvin Chew on 4 March 2014. Dr Chew reported the summary of the MRI of the left shoulder thus:

"Low-grade cuff insertional tendinopathy without evidence of tear. No cuff muscle atrophy. Mild overlying bursitis. No significant acromial spur. AC joint degenerative wear with synovitis and marrow oedema, particularly involving the distal clavicle. Minor labral degeneration anteroinferiorly without definite tear cleft."

His report of the MRI of the right hip is summarised thus:

"Small focal non-displaced anterosuperior labral tear at the 2 o'clock position, no paralabral cyst. No other specific finding apart from low-grade tendinopathy of the right hamstring origin."

12. The plaintiff was then referred by Dr Haran to Dr Jayker Davé, an orthopaedic surgeon. Dr Davé appears to have seen the plaintiff on 19 March 2014. Before that, however, the plaintiff was offered suitable duties by the defendant. When I categorised duties as "suitable" I am referring to the categorisation made by the defendant not the categorisation made by the plaintiff. The evidence is not clear as to when the duties were offered to the plaintiff but I note that the second light duties certificate to which I have referred expired on 14 March 2014 but there is a further certificate bearing date 11 March 2014 certifying the plaintiff as totally incapacitated commencing on 12 March 2014. An inference can be drawn that the light duties were offered to the plaintiff on 11 March 2014. The plaintiff said in his evidence-in-chief that the light duties given to him were walking around the office, filing paperwork and shuffling paper around the office. He did that for half a day but then felt that his pain was too much. He stopped working and went to see Dr Haran.

13. In cross-examination the plaintiff maintained that in addition to what he had described in his evidence-in-chief the defendant also required the plaintiff to tidy up the office including moving boxes of documents and moving filing cabinets. However, he went on to say that he did not actually move any filing cabinet. I found it somewhat strange that the plaintiff did not mention the requirement to move boxes and filing cabinets in his evidence-in-chief. I formed the impression that the plaintiff was being defensive in cross-examination on this issue and sought to make much more of the duties that were offered to him than they actually were. For other reasons, to which I shall soon come, it appears to me that the plaintiff was really not interested in performing alternative work.

14. As I have mentioned, Dr Davé saw the plaintiff on 19 March. In the meantime the plaintiff had had a cortisone injection into his left shoulder; that was performed on 14 March. The plaintiff told Dr Davé that there was considerable improvement in the condition of his left shoulder since that injection. Improvement was not something the plaintiff admitted in his evidence but it may be that he took a long term view of what improvement meant. Dr Davé's report continues thus:

"The main reason for the referral is the findings on the MRI scan of the hip showing a labral tear without any evidence of femoroacetabular impingement. He describes his hip pain as being 'niggly'. He also describes his pain as being 'nervy' and 'deep' causing diffuse distribution and some cramping over the back of the leg. The pain has a distribution from the groin, buttock and down his thigh. It causes difficulty with sleeping. He is currently on Panadeine Forte and Panadol.

Mr Honeysett also describes pain over the left shoulder, present over the top radiating down to the elbow. He has difficulty reaching out for objects. There is no paraesthesia or numbness associated with his shoulder pain."

The doctor then examined the plaintiff. The doctor noted that the plaintiff walked with a "non-specific gait". I infer that he means that the gait was not antalgic. There was a negative Trendelenburg sign and test. Hip flexion on the left was 140 degrees but on the right was only 120 degrees. Abduction on the left was 40 degrees but only 30 degrees on the right. However, tests for impingement was negative and there was no suggestion of any tightness in the iliotibial band. As far as the MRI was concerned Dr Davé thought that this was, "not an uncommon finding", and was mainly degenerative in nature. He did not think the plaintiff required any surgery. He recommended physiotherapy and pain management and he expected the plaintiff to be able to return to his pre-injury duties after that treatment. As far as the shoulder was concerned, the doctor also recommended physiotherapy and thought that the shoulder pain was "non-specific", meaning that it was not related to any particular anatomical structure or any particular anatomical lesion.

LUNCHEON ADJOURNMENT

HIS HONOUR: By consent, I grant the plaintiff further leave to re-open his case.

EXHIBIT #O CERTIFICATE OF DR S KAMALAHARAN DATED 29/09/14 TENDERED, ADMITTED WITHOUT OBJECTION

15. HIS HONOUR: At the time that I adjourned for lunch today, I had reached the stage where I was about to comment upon the report prepared by Dr Frank Harvey following upon his examination of the plaintiff on 24 March 2014. However, before I could return to this judgment, the plaintiff tendered a further document being a legible certificate of Dr Haran of 29 September 2014. That document indicates that Dr Haran saw the plaintiff for this injury on 30 September 2013, 3 October 2013, 14 October 2013, 22 October 2013, 25 November 2013 and 26 February 2014. Of the first five dates just given, there is only reference in exhibit 3, a copy of the doctor’s clinical notes to 22 October 2013 which clearly indicates the plaintiff did not attend on that day. I am still left in confusion as to what treatment, if any, the plaintiff obtained from Dr Haran between 30 September 2013 and when I do know he saw him on 26 February 2014. The history recorded by Dr Haran contained in the referral letter to Dr Davé appears to be inconsistent with the attendances noted on exhibit O on 30 September, 3 October, 14 October, 22 October and 25 November 2013.

16. I turn now to Dr Harvey’s report which bears date 24 March 2014, the same date as his examination of the plaintiff. The plaintiff’s main complaint to Dr Harvey was about his right hip. The plaintiff’s then complaints were these:

“Mr Honeysett says that his main complaint is pain in the right hip. He indicates that the pain starts in the right groin and then goes straight through and is felt behind in the buttock region. He also complains of pain in the outer aspect of the hip in the trochanteric region. The pain is there all the time and he has difficulty sleeping. He says there has been some improvement since he stopped working. The pain tends to be worse at night if he has walked much during the day. Occasionally he will have pain in the hip during the day if he twists in the wrong direction and it ‘feels like a knife going into the groin area.’ He complains of some difficulty with stairs and pain on squatting. He says that he can still manage stairs and squatting but he experiences pain. He says that if he gives a deep cough, he can experience some pain in the left groin.

He says his left shoulder is much better since the steroid injection and he only gets pain now if he overdoes things. He no longer has any pain in the left shoulder at night but he had difficulty sleeping on the left side before the steroid injection.”

Dr Harvey sets out on p 4 of his report a table showing the range movements in each of the plaintiff’s hips. That table is this:

Right	Left
Flexion	110 degrees	120 degrees
Adduction	30 degrees	40 degrees
Abduction	40 degrees	50 degrees
Internal Rotation	30 degrees	30 degrees
External Rotation	60 degrees	60 degrees

17. One ought compare the range of flexion. Dr Davé had flexion on the left to 140 degrees, reduced on the right to 120 degrees whilst the reduction from Dr Harvey is from 120 degrees to 110 degrees. Dr Davé has abduction reduced from 40 degrees to 30 degrees whilst Dr Harvey has it reduced from 50 degrees to 40 degrees. There therefore appears to be some consistency between the doctors’ findings of reduced flexion and abduction in the right hip. However, this is to be contrasted later with findings made by Dr Randhawa.

18. Under the heading “Work Capacity”, Dr Harvey said this:

“Mr Honeysett gives the unusual history of returning to work and having very little pain until the MRI scan was done on 04/03/14. I believe that he may be attaching rather too much significance to the findings. I note he has told me that he has had significant family worries recently and his anxieties in his regard may have resulted in some magnification of his symptoms. I think there is now a significant non-organic component to his complaint. I consider that he should be able to return to his normal work in the near future. I do not consider that there is any objective evidence that he has any physical disability which would prevent him from doing the mining work as he describes.”

19. It also struck me, when the plaintiff was giving his evidence-in-chief that there was no real explanation for why he stopped working. There was no suggestion from the plaintiff that gradually his symptoms became worse to the extent that he could not continue working. There is force in the observation by Dr Harvey that the plaintiff’s incapacity may have been prompted by his becoming aware of what he thought might be significant pathology in his hip.

20. Dr Harvey concluded that the plaintiff might have some trochanteric bursitis which could have resulted from the fall which the plaintiff described to him. As far as the plaintiff’s left shoulder was concerned, Dr Harvey thought the plaintiff had made a “dramatic recovery” following upon the steroid injection. He found that there was no objective evidence of any ongoing permanent problem. Dr Harvey commented that the MRI changes in both the plaintiff’s shoulder and hip would be unlikely to be due to trauma and would be a common finding in persons of the plaintiff’s age group. In that regard, his comments echo to an extent the observations made by Dr Davé. The doctor thought the plaintiff’s left shoulder condition would not prevent him returning to work. The doctor appears to me to give the plaintiff the benefit of the doubt as far as the complaint he made about his right hip. However, he points out that the findings of trochanteric bursitis which he was prepared to accept were not consistent with the finding on the MRI scan of a labral tear.

19. Dr Haran referred the plaintiff back to Dr Davé in June 2014. The referral letter of 11 June 2014 says this:

“He has been seeing our Exercise Physiologist on a regular basis for active exercise rehabilitation, the result of which doesn’t seem to be improving his function or pain levels in either affected area. He has not progressed past light theraband strengthening exercises for the shoulder and low intensity body weight strengthening and ROM activities for the hip. Owen states that he experiences increased pain after completing the exercises and reports inconsistency with compliance.

He has been off work since 12/03/14. His functional ability has not improved, even with the implementation of exercise therapy. He is limited by pain and has ceased most of his normal household chores for this reason.

His self-perceived level of function was 7/10 but the result of a light physical capacity assessment indicated his actual function levels to be around a 3-4/10.

He is seeing a Psychologist for both chronic pain and personal issues. He is still fixated on a 'cure' for his pain. The above factors may be attributd by his claim denial for these injuries.

He also recently saw a masseusse[sic] on the Central Coast who recommended that he use protein-rich plasma therapy to help alleviate his symptoms.”

22. There is one other document to consider at this time and that is exhibit 2. It is a “GP Mental Health Treatment Plan” signed by Dr Haran on 14 May 2014. Under the heading “Past History” is this matter, “Currently off work due to hip pain - he does not want suitable duties and claim has been denied.” The problems diagnosed were depression and the need to give up smoking cigarettes at which he had failed previous attempts and was considering hypnosis. Under the heading “Social History” is the following:

“Separated from wife in 2014. Significant family stress. Three children, aged 25, 21, has two year old daughter (staying with Dad), and 16 who has four month old child living with mother. Looks after foster son.”

The need for the mental health treatment plan was to treat the plaintiff’s depression and to assist him in stopping smoking. At the time the plaintiff was examined by Dr Harvey on 24 March 2014, the social history recorded by the doctor suggested that the plaintiff was still cohabiting with his wife. It would appear that since then he had separated from his wife and was undergoing significant family stress which had even caused him to consider suicide. He required treatment for a depressive illness. Clearly on the history recorded by Dr Haran, he was not interested in performing suitable work. That is consistent with my assessment of the plaintiff’s attempt to perform suitable office duties for the defendant which I inferred happened on or about 11 March 2014.

23. Dr Davé did examine the plaintiff on 12 June 2014. By that stage Dr Davé noted an antalgic gait. He obtained a history of significant pain in the groin and right hip, and that description of the plaintiff’s condition was much more serious than his situation described by Dr Davé when he first examined the plaintiff on 19 March 2014. Dr Davé in his report of 12 June 2014 says this:

“I have had a long discussion with Owen regarding his hip condition. He may consider a cortisone injection of the hip joint to see how much the pain settles. It is unlikely that the labral tear is giving the extent of the pain that he has at the moment. He has read up on PRP [platelet rich plasma] injections and he will need to see a sports physician regarding the efficacy of this. I have no objection to him having the PRP injections if indicated for this, although the evidence for any improvement is weak.”

The doctor thought the plaintiff might consider arthroscopy of his hip and was of the view the plaintiff was fit for “light duties”.

24. Nevertheless, Dr Haran continued to certify the plaintiff as unfit for any work. Dr Haran referred the plaintiff for a second opinion to Dr Sunny Randhawa, also an orthopaedic surgeon. In the referral letter of 23 June 2014 Dr Haran noted the plaintiff had seen a clinical psychologist on that day for an ongoing depression and that he would be starting the plaintiff on, I assume, psychotropic medication. Dr Randhawa examined the plaintiff on 25 June 2014. Right hip flexion was 110 degrees on this occasion, the same as found by Dr Harvey on 24 March 2014, however external rotation was only 5 degrees where Dr Harvey had found 60 degrees. The difference is significant and is completely unexplained. Dr Randhawa described the labral tear as being “extensive”, but no one else made the same assessment.

25. Dr Randhawa suggested surgery. That was performed at the Norwest Private Hospital on 23 July 2014. There is no operative report directly before me. There are some nine arthroscopic black and white photographs on which comments have been within, I assume by Dr Randhawa; however, the significance of the comments has not been adequately explained. Dr Randhawa saw the plaintiff on 6 August 2014, two weeks post-operatively. His consultation record merely notes this, “Doing well. Walking limp free, minimal pain.” The Treatment Plan recorded was a referral for physiotherapy. Dr Randhawa has not seen the plaintiff since.

26. The defendant wrote to Dr Randhawa on 21 October 2014 asking for his assistance in reviewing the plaintiff’s work status. Dr Randhawa replied on 27 October 2014. He estimated that by approximately the middle of November 2014 the plaintiff could safely return to work as an underground miner. He thought that by that time he would not place any restrictions on the plaintiff’s normal duties. As far as diagnosis was concerned, Dr Randhawa merely refers to earlier osteoarthritis of the plaintiff’s right hip which might progress to the extent that a total hip replacement might be required. The final paragraph of the doctor’s report is this:

“Mr Honeysett’s occupation requires a lot of physical work and places a lot of stress on his hips. This is the nature of the work, and the only way for him to avoid further injuring or aggravating his hip is for him to perform office type duties. This of course, is not a practical option for him.”

27. The defendant again wrote to the doctor on 1 December 2014, providing a statement of the duties of an underground coalminer working on the long wall and on panel face operations. It essentially describes the sort of work that an underground coalminer does. On 16 December 2014 Dr Randhawa wrote to the defendant that the plaintiff was then fit to perform all the requirements of the role of an underground mine worker without any limitation or restriction. However, that statement, like the statement of 27 October 2014, is merely based upon what he would think was the natural progression of the plaintiff’s recovery following upon his last seeing the plaintiff on 6 August 2014. In other words, it is not a particularly satisfactory assessment.

28. It is clear that the defendant was keen to have the plaintiff return to work. On 12 November 2014 the defendant had written to the plaintiff asking him to provide it with written medical evidence from his treating medical practitioner by 21 November 2014 confirming that he was fit to return to his normal work. That clearly did not happen. A meeting was arranged on 29 January 2015. The meeting was held at Dr Haran’s rooms. Present were the District CFMEU/Representative, the General Manager of Industrial Relations of the defendant, and the plaintiff. Dr Haran provided to the defendant an email bearing date 30 January 2015 following upon that meeting. The substance of the email is this:

“Mr Owen Honeysett is extremely unlikely to return to full, normal duties following a six weeks suitable duties program at Springvale Colliery.”

On that day, 30 January 2015, the defendant wrote to the plaintiff advising him that on the basis that Dr Haran confirmed that it was unlikely the plaintiff would return to his full operational work, his employment was to be terminated as at 6 February 2015. It is clear that the defendant was prepared to offer the plaintiff a six weeks suitable duties program in order to try to have the plaintiff return to his normal work. For whatever reason it was decided by the plaintiff and/or Dr Haran that he would not be getting back to his normal work even with a six week selected duties program. Why the plaintiff did not attempt the six week selected duties program is unexplained. There appears to have been an a priori view taken by either him or by Dr Haran or by both of them that the plaintiff would never return to being fit for his pre-injury duties as an underground coalminer.

29. Before going on to the other issues in this case I should complete my review of the medical evidence. The plaintiff’s solicitors sent the plaintiff to see Professor YAE Ghabrial on 5 November 2014. Professor Ghabrial’s report of that date indicates that examination of the plaintiff’s right hip showed some irritability but no crepitus on movements of the hip. He thought that there was a moderate limitation of movements, with discomfort during examination, but does not indicate what the limitations of movement were. Examination of the left shoulder was said to show a loss of the last 40 degrees of both abduction and flexion and the loss of the last 20 degrees of all other movements of the shoulder.

30. In the New Year, that is, in 2015, the plaintiff was referred by Dr Haran to Professor David Sonnabend, a professor of orthopaedic surgery at the University of Sydney. He is a shoulder specialist. On examination on 6 February 2015 Dr Sonnabend found no obvious wasting around the shoulder girdle and examination of the glenohumeral joint itself appeared “unremarkable”. Rotator cuff provocation was only mildly uncomfortable. However he thought that the plaintiff identified the medial border of his scapula, particularly the inferior half of that border, as the site of pain. He reviewed the MRI scan of the plaintiff’s left shoulder. He thought the films were not of great quality, but showed no obvious major rotator cuff or glenohumeral pathology. However they did not cover the scapulothoracic articulation or the muscles of that area, which is where the plaintiff sited his pain. Professor Sonnabend thought the plaintiff’s injury was to the scapular motor muscles rather than to the rotator cuff or the glenohumeral joint. He recommended a course to increase the muscle power of the affected scapular motor muscles and recommended increased swimming, namely breaststroke.

31. The final report before me is a second report from Dr Harvey, who re-examined the plaintiff on 23 March 2015 and prepared a report bearing the date 24 March 2015. As far as the hip movements were concerned, Dr Harvey thought that the hip movements were symmetrical, and again sets out a table showing that the movements on the right hip were of the same extent as the movements of the left hip. The plaintiff’s complaint was of some pain in the right hip region at extreme of each movement, but there was no actual reduction in the range of movements themselves. As far as examination of the left arm was concerned, all movements of the left shoulder were “quite full”, and the plaintiff told the doctor that all movements caused a complaint of pain about the shoulder blade. The range of movements recorded by Dr Harvey must be contrasted with the range of movements recorded by Dr Ghabrial. Dr Ghabrial has a restriction of movement in all directions but Dr Harvey has no restriction at all in any direction. Furthermore, Dr Harvey, like Dr Sonnabend, came to the view that the plaintiff’s complaints were now not in the shoulder itself but in the shoulder blade area. Dr Harvey expressed these conclusions:

“Since I last saw Mr Honeysett he has had arthroscopic surgery on the right hip and he says there is some improvement. I note the pathology recorded by Dr Randhawa and note his opinion that some of this is injury related. Certainly the CAM lesion is developmental and is unrelated to trauma, and I believe it is quite likely that the labral degeneration and other pathology noted was pre-existing.

Regardless of the aetiology of the changes, Mr Honeysett says that his hip is much improved following this procedure. Mr Honeysett was impressed by the opinion given by Professor Sonnabend and was critical of the previous doctors being unable to diagnose that his problem was not arising from the rotator cuff, and he accepted Professor Sonnabend’s opinion that not much reliance could be placed on the MRI findings, and was critical of the previous medical opinions because they related his problem to the rotator cuff.

It is to be noted however that the patient is now complaining of tenderness about the lower end of the left scapula and despite what he is saying now he did say when I last saw him that the injection into the left shoulder has given complete relief and he had a full range of painless movement. In relation to the right hip, it is to be noted that when I previously examined Mr Honeysett, in March 2014, the maximum tenderness on that occasion was about the right greater trochanter and not over the front of the right femoral head as it is now.

The clinical signs have been changing, indicative that he has a changing perception of his problems, and his symptoms are probably largely unrelated to physical pathology.”

Essentially the thesis of Dr Harvey is that there is nothing objectively wrong with the plaintiff and insofar as there are radiological anomalies they are probably constitutional or degenerative and that the plaintiff’s sites of his complaints have changed with the passage of time. The observation by Dr Harvey about the change of the site of the plaintiff’s “shoulder” pain is correct. It was thought that he initially had pathology referable to the actual shoulder joint itself, an injection alleviated the pain to a large extent, but the plaintiff’s pain is not now in the shoulder joint itself but in the area identified by both Professor Sonnabend and Dr Harvey, in the medial border of the scapula, particularly the inferior half of that border, and is referable to the musculature in that region. This is really a thoracic problem rather than a shoulder problem. It appears to have arisen de novo.

32. When Dr Harvey examined the plaintiff on the second occasion he asked the plaintiff about his then complaints. Dr Harvey commences that section of his report this:

“Mr Honeysett had some difficulty deciding whether it was his left shoulder or his right hip which was giving him the most problems. Eventually he decided that the left shoulder was troubling him more than the right hip.”

However, the plaintiff’s position before me is essentially that his right problem is the major of the two problems. It may be that in February and March this year the plaintiff’s left shoulder problem, or shall I say his left thoracic problem, was troubling him more than his right hip condition.

33. The right hip condition is hardly straightforward. However the plaintiff complained on the day of the fall, 27 September 2013, about that area of his body and has complained about it ever since. One can readily accept that an underground coalminer working upon the rough and uneven floors of coal mines and through muddy terrain might experience symptoms in the hip if the hip were injured. One can also accept that as time pressed on and the problem persisted the plaintiff might attribute greater significance to his hip symptoms. I also accept that the plaintiff’s work on the continuous miner would, when he was required to do rib and roof bolting, require him to swivel on his hip or hips and cause symptoms in a damaged, injured, or merely degenerate hip. Furthermore, the fact that the plaintiff was prepared to undergo surgery carried out by Dr Randhawa to the hip indicates that the plaintiff perceived that he had a real problem and it is to be noted the plaintiff borrowed money from his mother in order to undergo the surgery because the defendant would not pay for it. I have come to the view that I can accept the plaintiff has some ongoing problem in his right hip causally related, either by way of direct causation or the aggravation of some underlying, degenerative condition of the right hip. I accept that it might cause the plaintiff difficulty in performing full underground work as a coalminer.

34. The plaintiff claims, amongst other things, the benefit of s 11(2) of the Workers Compensation Act 1926 as preserved in its operation for coalminers pursuant to Sch 6 Pt 18 of the Workers Compensation Act 1987. I am not persuaded that at any time the plaintiff has been ready, willing and able to engage in suitable employment with the respondent. The failed attempt in March 2014 demonstrates that to me. The history contained in exhibit 2 confirms that. The failure of the plaintiff to even attempt the six week proposed light duties program in January 2015 confirms that lack of mutuality. The plaintiff was cross-examined about his attempts to find work since his services were terminated by the respondent, and I agree with the submission put on behalf of the defendant that his effort has been desultory. He applied twice to the one institution for suitable work and the second attempt was after his first attempt had been ignored and therefore one would believe that it’s unlikely that that putative employer would be prepared to consider him for a more responsible job the second time when it failed to consider him for a less responsible job the first time. The plaintiff currently is in receipt of income protection payments, and that may remove the need for him to find alternative work.

35. However it is clear the plaintiff would have been totally incapacitated for a period of time by the surgery to his right hip. Doing the best I can, it appears to me that the plaintiff should be seen as being totally incapacitated from 25 June 2014, when he first saw Dr Randhawa and agreed to undergo surgery, until 5 November 2014, when the plaintiff was examined by Prof Ghabrial. That doctor appears, on my reading his report, to have thought the plaintiff had some residual earning ability because he placed restrictions on the plaintiff’s ability to work because of his right hip condition, and also because of his left shoulder condition, but did not state that the plaintiff was totally incapacitated for all forms of work. At all other material times the plaintiff has been partially incapacitated for work, that is, from 13 March 2014 to 24 June 2014 and from 6 November 2014 to date and continuing. The plaintiff’s probable weekly earnings but for injury have at all material times been $2,679.40. The exercise under s 11(1) is probably a theoretical one. It appears to me the plaintiff is capable, in considering the condition of his left hip, to be capable of earning $25 per hour for at least 36 hours per week, which is the hours he worked for the defendant, which is $900 per week. Even allowing a 38 hour week, the plaintiff would be only capable of earning $950 per week. The difference is, of course, $1,729.40, which exceeds the current weekly wage rate of $1,505.86 per week. The plaintiff is thus entitled to the current weekly wage rate for the first 26 weeks of incapacity whether it is total or partial.

36. For those reasons I make an award for the plaintiff for $1,505.86 per week from 13 March 2014 to 24 June 2014 pursuant to s 11(1) of the Workers Compensation Act 1926, for $1,505.86 per week from 25 June 2014 to 12 September 2014 for total incapacity, for $382 per week from 13 September 2014 to 30 September 2014 for total incapacity, for $386.90 per week from 1 October 2014 to 5 November 2014 for total incapacity, for $386.90 per week from 6 November 2014 to 31 March 2015 for partial incapacity, and for $391.90 per week from 1 April 2015 to date and continuing for partial incapacity pursuant to s 11(1) of the Workers Compensation Act 1926.

37. I order the defendant to pay the plaintiff’s expenses under s 60 for the treatment of his right hip condition and to pay the plaintiff’s expenses under s 60 for the treatment of his left shoulder condition until 31 December 2014. I order the defendant to pay the plaintiff’s costs.

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Decision last updated: 21 January 2016