Jackson v Centennial Mandalong Pty Ltd

[2017] NSWDC 419

District Court

New South Wales

Medium Neutral Citation:

Jackson v Centennial Mandalong Pty Ltd [2017] NSWDC 419

Hearing dates:

7 – 8 November 2017

Date of orders:

08 November 2017

Decision date:

08 November 2017

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

I make an award for the plaintiff for $1592.50 per week, from 1 December 2014 to 31 December 2014; for $1592.50 from 6 January 2015 to 9 June 2015; and for $487.90 per week from 10 June 2015 to 14 August 2015. Each of those awards is under s 9 of the Workers Compensation Act 1926, as preserved in its operation for coal miners by the Workers Compensation Act 1987.

 

I order the defendant to pay all the plaintiff's expenses under s 60, referable to his left knee injury.

 

I order the defendant to pay the plaintiff's costs.

 Liberty to the defendant to apply.

Catchwords:

WORKERS COMPENSATION – Coal mining deputy – Injury to left knee – Whether need for surgery resulted from work injury

Legislation Cited:

Workers Compensation Act 1926
Workers Compensation Act 1987

Category:

Principal judgment

Parties:

Chad Jackson (Plaintiff)
Centennial Mandalong Pty Ltd (Defendant)

Representation:

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

  Solicitors:
Slater & Gordon
Sparke Helmore

File Number(s):

RJ 224/15

Publication restriction:

Nil

Judgment

1. HIS HONOUR: Mr Chad Jackson claims weekly payments of compensation from 1 December 2014 to 31 December 2014, and then from 6 January 2015 to 14 August 2015, for either total incapacity or partial incapacity. He also claims his expenses under s 60. What is in issue is the compensability of the plaintiff's left knee condition, which he says he injured on or about 28 June 2014, but it may have been on the preceding day.

2. On 10 February 2015, the plaintiff underwent arthroscopy of his right knee by Dr Christopher Dunkley. Dr Dunkley reported about the procedure of 10 February 2015 to the plaintiff's general practitioner on that day. The relevant report says this:

"…the knee was examined under arthroscopy which confirmed a displaced flap tear of the medial meniscus, and a torn ACL [anterior cruciate ligament]. Hamstrings were then harvested and formed into a 4-strand hamstring graft. The graft size was 8.5. He then underwent a partial medial meniscectomy to remove the displaced flap tear of his medial meniscus. Fortunately his knee was otherwise in good condition, and all his chondral surfaces were intact. A 9 mm femoral tunnel was drilled. The graft was held in the femoral side with…titanium RCI screw. On the tibial side, there was an 8.5 tunnel drilled and the graft was held with a…titanium RCI screw. The knee was thoroughly washed out with normal saline. At the end of the case, the graft was not impinging and there was a normal Lachmann's test. The wounds were closed with dissolving sutures."

Accordingly there appears to me to be little doubt that Dr Dunkley, an orthopaedic surgeon, found at operation a torn anterior cruciate ligament and a displaced flap tear of the medial meniscus.

3. The plaintiff is a painter and decorator by trade. After completing his apprenticeship, he worked in that trade. He then worked in his father's business as a truck driver, regularly driving between Sydney and Newcastle. He then entered the coal mining industry. He initially worked at the Newstan mine, and more recently at the Mandalong mine. He came into the direct employment of the present defendant, Centennial Mandalong Pty Ltd, on or about 22 October 2011.

4. After joining the defendant's employment, the plaintiff sought to qualify himself as a deputy. He obtained a ticket to be a deputy after training for two years, and was thereupon appointed as a deputy. He was working as a deputy on nightshifts at weekends at the time that he injured his left knee. On 28 June 2014, he was walking along the Cooranbong belt; the return walk along that belt was between 10 and 12 kilometres. He commenced walking along the belt at about 7.30pm, after commencing his shift at 6pm. He identified an underpass that he had to traverse, and when going up the far side of the underpass, he put his left foot on a cobble of coal, lost his footing, and fell backwards but slightly to his left. I accept that in the process of doing that, the plaintiff twisted his left knee. The plaintiff sought to demonstrate how he fell when sitting in the witness box, and it was clear to me that from the demonstration which he could perform in the witness' chair, that he was turning to his left as he was falling backwards, and how the twisting of his knee occurred is quite plain.

5. After the fall, the plaintiff was, perhaps best described as, stunned. He lay on the ground for about 30 to 40 minutes. There was no-one else in the vicinity. He then managed to get back to his feet and to hobble to the next crib room where he could obtain ice to apply to his knee, and where he was able to make a telephone call to seek to report his injury, but he could not do so successfully at that time. He then walked further to another crib room where he again applied ice to his knee, and managed to formally report his injury at that time. He sat out the rest of his shift. He was due to work the following day and did go to work, but essentially sat in an office above ground performing some type of office duties. The plaintiff was on restricted duties from 29 June until about 31 July, but was paid his normal wages.

6. On Monday 30 June, he went to see Dr Jharna Goswami at the Warners Bay Professional Centre. The plaintiff had been using that practice as his general practice since February 2013. Dr Goswami noted that the plaintiff's knees were painful following a fall at work three days previously. She recorded that the plaintiff lost his footing on unstable ground while walking uphill and fell backwards, feeling immediate pain in his left knee, followed by a pain in his right knee a number of hours later after he had been walking to report his problem. There was no swelling noted by Dr Goswami, and no colour change indicative of, for example, inflammation. The plaintiff denied to Dr Goswami any other knee injury. Dr Goswami, it is clear from her clinic notes, suspected that the plaintiff may have torn a meniscus. She sent the plaintiff to have some investigations.

7. The first was an MRI scan of the left knee, performed by Dr Phillip Janke on 3 July 2014. Dr Janke's report says this:

"The anterior cruciate ligament is abnormal with a slightly increased signal and loss of fibre definition, consistent with at least a partial thickness tear. There is abnormal tibial translation of 15 mm, suggesting that it could be higher grade than this however. The posterior cruciate and collateral ligaments are intact. No meniscal tear seen. Low grade chondromalacia lateral tibial condyle (8 mm)."

8. Dr Goswami then referred the plaintiff to Dr Dunkley, an orthopaedic surgeon practicing at Gateshead. In his first report on 7 July 2014, Dr Dunkley said this:

"I do agree with the report that some of the fibres of his ACL do seem partially torn, but certainly on his clinic examination, although he has a slightly increased movement of his Lachmann test, his pivot shift test is normal. At this point, given that he does not perform any running sports, I would be happy for him to return to his work as an underground miner, but if he were to have any instability episodes, I would review him again. The majority of his fibres I believe are intact on the scan."

9. The plaintiff himself did not wish to go on workers compensation for financial reasons; he would lose money if he went onto weekly payments of compensation. He managed to obtain, from Dr Goswami, a clearance to perform his normal work on 15 August 2014. Dr Goswami's notes say this:

"Patient is feeling good and managing return to work plan well. Patient requests to go back to normal duties".

It is clear that Dr Goswami gave the plaintiff a certificate to return to his normal duties. There was no dispute that from then until 1 December 2014, the plaintiff worked for the defendant as a deputy, nominally performing his normal duties. He worked with three other deputies doing statutory inspections. The plaintiff told me, and there is no reason whatever to doubt anything he has told me, that he obtained the assistance of his colleagues, who did a lot of the work that he had been doing, and they tried to keep the work which he did to the necessary matters to fulfil his statutory duties as a deputy mine manager. However, things did not go well and the plaintiff continued to have difficulties and symptoms.

10. The plaintiff returned to see Dr Dunkley on 4 December 2014. The doctor's report continues thus:

"He has had ongoing and increasing amount of instability in his left knee. His right knee seems to have improved and isn't causing him too much problem, but his left knee has had several episodes of instability, one of which involved his walking down stairs while carrying his unwell daughter. He has had episodes of feeling unstable and the knee giving way. He also has some anterior knee pain, and I suspect this is due to his quads working hard to help control his knee.

I have examined him again today, and certainly he does have a grade 1 Lachmann as per last visit, but he does now have a grade I pivot. He does have a partial tear of his ACL on his MRI scan, and I suspect this tear is more significant than was originally appreciated.

Given his good description of instability on examination today, I think he would be a good candidate for an ACL reconstruction. He is keen to proceed with this, and I have booked him on my list at Warners Bay Private Hospital on 10 February, pending approval."

Dr Dunkley's staff sent a facsimile to the defendant's insurer on 9 December 2014, requesting approval for the arthroscopic procedure on 10 February 2014 at Warners Bay Private Hospital. The insurer's response was to deny liability for that operative treatment orally, on the afternoon of 9 February 2015. That was, in my view, extremely poor form.

11. Prior to that oral communication, the insurer had written to Dr Dunkley for clarification of his findings at his examination on 4 December 2014. The letter from Coal Mines Insurance to the doctor is part of exhibit L; a letter bearing date 2 February 2015, which the doctor appears to have received on 4 February 2015. On that day the doctor replied. The second substantive paragraph of his reply is this:

"On my first examination on 7 July, I was not able to detect a pivot shift and this is likely to have been due to his apprehension and his lack of ability to relax. Since that time when I re-examined him in December, he had had several episodes of instability on [sic] his knee and felt as if his knee was not performing as it had prior to the injury. As he had felt the sensation many times before, he was now able to relax, and I did detect that movement then. This is something that does happen not infrequently."

In other words, Dr Dunkley was pointing out to the insurer that the finding of a Grade I pivot shift at the examination on 4 December 2014 did not represent new pathology, but showed a positive test indicating that there had been some damage to the anterior cruciate ligament.

12. In addition to the information provided to it by Dr Dunkley, the insurer also had opinions obtained from Dr Roger Rowe. Dr Roger Rowe had first seen the plaintiff on 15 July 2014. The history obtained by Dr Rowe is very similar to the description given to me by the plaintiff in his evidence. The history is this:

"He stated that on the Friday night, 28 June 2014, during the course of doing a belt inspection as a deputy, he slipped with his left foot so that he stumbled and then fell backwards, landing onto his back. He did not land on his knees. The left knee was sore immediately. He continued walking for another 3 or 4 kilometres to complete this part of his inspection. He said that he then applied ice for the remainder of the shift. He said that on the Saturday he developed similar discomfort in the right knee. For the next two days he undertook surface duty only. On the following Monday he consulted his doctor."

The only difference, essentially, is that the plaintiff told me that he developed pain in the right knee on the same evening, but hours later, after he injured his left knee. There is no claim before me in respect of any injury to the right knee.

13. On physical examination, Dr Rowe found that there was a mild but definite left-sided limp, especially when the plaintiff first arose from his chair. On examination of the left knee, he thought the plaintiff's cruciate ligaments were intact. However there was mild laxity of varus and valgus when stressing the knee. Dr Rowe could not find any crepitus; he thought the plaintiff's knee had a full range of movement, and that the circumferences of the thighs on each side were equal. As to diagnosis, Dr Rowe said this:

"Mr Jackson may have strained both of his knees as claimed. The MRI reports have been noted, but clinically there is no laxity of the cruciate ligaments. It should also be noted that the nature of the injury would not have caused cruciate ligament rupture. There is some collateral laxity in both knees, which is probably of developmental origin, as there is no history of any significant previous knee symptoms or injury."

I do not know exactly why the doctor thought that the injury in question would not have cause cruciate ligament rupture, whether because the event seemed to be minor, or because of the mechanism of the plaintiff's fall. Nevertheless, Dr Rowe thought the plaintiff's employer was liable for knee strains at that time.

14. The insurer of the defendant obtained a further opinion from Dr Rowe, when Dr Dunkley proposed surgery. Dr Rowe re-examined the plaintiff on 6 January 2015. He obtained a history that the plaintiff's left knee had never been "100%", since the event of 28 June 2014. Amongst the history given by the plaintiff on this occasion was this:

"He reported that last Sunday, 4 January, the left knee because painful during the middle of his shift, so that he deliberately, forcibly, flexed it fully which caused the knee to click. This relieved his pain for most of the remainder of the shift."

This event has been pleaded in the current statement of claim, as if it were some form of injury. The doctor said this about his examination of the plaintiff:

"Examination of the left knee revealed normal alignment. There was some irritability of the patella, especially on provocation testing when there was obvious crepitus. Aside from this there was no localised tenderness. The patella was stable. McMurray's test was negative. There was moderate collateral ligament laxity.

Assessment of the cruciate ligaments was difficult, probably as the result of his difficulty in relaxing the leg during cruciate ligament testing. At times the knee seemed to be perfectly stable in regard to the cruciate ligaments. However at other times, particularly when there was external rotation of the lower leg, there was some ACL laxity. This tightened somewhat on internal rotation. The knee had a full range of movement. The left thigh circumference was reduced by 1 centimetre compared to the right thigh. This is of uncertain significance, as it is consistent with the presence of pathology in the left knee, but is also consistent with the fact that he is a right handed man."

15. There had been no crepitus when Dr Rowe first examined the plaintiff's left knee; there was on this occasion. There was on this occasion moderate collateral ligament laxity, but on the earlier occasion that was assessed as only being mild. Furthermore, the doctor did find some evidence of a problem with the anterior cruciate ligament. It is common for the musculature of the right arm of a right-handed person to be greater than the musculature of the left arm. Sometimes the same can be found in the lower limbs, that is, a right-handed man may sometimes have greater muscle bulk in his right leg than in his left. However, that is not always the case with the lower limbs. The finding of a loss in circumference of the left thigh could well indicate pathology in the left knee.

16. Dr Rowe was unsure of the diagnosis. He thought the plaintiff's symptoms could be arising from patellofemoral irritation, or they could be arising from ligament laxity in the knee. Dr Rowe was asked by the insurer what his recommendations for treatment and management were. He went on to say this:

"Mr Jackson said that Dr Dunkley has suggested that the knee be examined properly under anaesthesia to assess any instability. Under the same anaesthetic he would have a diagnostic arthroscopy to clarify the cause, the nature and extent of any causative pathology. This should clarify whether the main pathology is indeed chondral damage of the patella or whether it is ACL instability. If he has clear evidence of ACL instability, this should be repaired as proposed by Dr Dunkley."

The only inference to draw from what the doctor said is that he would accept that the plaintiff's undergoing the arthroscopy was a perfectly proper way of treating the plaintiff. When asked whether the finding on examination and the radiological findings were consistent with the mechanism of injury, Dr Rowe said this:

"The mechanism of the fall as described may have brought about the pathology that is now present, but it is difficult to be totally certain in this regard. The subject fall may have certainly irritated the patellofemoral joint, and possibly produced an ACL tear. It will be interesting to know the arthroscopic findings in regard to what is deemed to be the cause of his symptoms."

17. It is inexplicable to me why the insurer declined to pay for the arthroscopic treatment. Clearly once the plaintiff was anaesthetised, there was testing of the knee for stability, and on this occasion there was a Grade II Lachmann test, and a Grade I pivot shift test. When the arthroscope was introduced into the plaintiff's knee, there was a clear finding of a torn anterior cruciate ligament.

18. Nevertheless, the defendant has maintained its denial of liability for the plaintiff's knee condition. The defendant relies on an opinion expressed by Dr Paul Hitchen, an orthopaedic surgeon specialising in surgery to the shoulder and the knee. The plaintiff saw Dr Hitchen on St Patrick's Day 2015. The doctor realised that Dr Dunkley had performed an anterior cruciate ligament reconstruction. Dr Hitchen said this in his report on 17 March 2015:

"On the face of it, I do not believe the ACL reconstruction undertaken was to address the effects of injury. In other words, I am unconvinced that he acutely stretched or tore his ACL in the circumstances described. If he had done so, I would have expected his general practitioner to have found a large effusion of his knee (consistent with haemarthrosis), and indeed the MRI to have shown extensive bone bruising and a large effusion. Hence having undertaken a forensic interpretation of the documented examination investigations, I do not believe the ACL reconstruction surgery was to address the effects of a workplace injury."

Dr Hitchen however went on to express the view that after an ACL reconstruction, that the plaintiff would be unfit for six months in order to recover from the surgery. Such turned out to be the case.

19. Dr Hitchen provided a supplementary opinion dated 25 January 2016. Again, he stresses the fact that an MRI scan would show bone oedema after an acute injury to an anterior cruciate ligament. He clearly believed the plaintiff injured his knee on some other occasion. He finished his supplementary opinion with this observation:

"I note his general practitioner records that there is no previous history of knee injury, but it is apparent from the medical records that the general practitioner has only treated the patient since early 2013. Accordingly, Mr Jackson's entire medical records from his teenage years onwards are not available."

The cynic will realise that what Dr Hitchen was saying is that if one searches the plaintiff's medical records going back into his childhood years, one may well find some other injury to his left knee, and possibly an injury to his anterior cruciate ligament.

20. The plaintiff confirmed in his evidence that the history he gave to doctors was correct, that he had suffered no injury to his left knee prior to the event on 28 June 2014. Indeed, he was not cross-examined to the effect that he had earlier injured his right knee. As I said, I have no reason to doubt the testimony given to me by Mr Jackson, and I accept that the only time he has injured his left knee was on 28 June 2014.

21. The defendant also relies upon an opinion to a similar effect, provided by Dr Myles Coolican, also an orthopaedic surgeon specialising in knee surgery. Exhibit G before me, are black and white photocopies of photographs taken through the arthroscopic procedure at the Warners Bay Private Hospital. Notations have been made on them, and from what I can work out from the documentation I have seen, the notations have been made by Dr Dunkley. I must say that the quality of the reproduction before me is poor. In his report, Dr Coolican said this:

"There were multiple polaroids taken at the operation at Warners Bay Private Hospital, that have been photocopied and the copies are poor. 'Lax torn ACL' is written beside some of the photos, which to my interpretation show an intact anterior cruciate ligament."

Those notations are beside images numbered IMG013, IMG014, and IMG015. I am not an orthopaedic surgeon. However, I can confirm the photocopies are poor, and I believe the person who was best able to describe what those images were is Dr Dunkley, who was present when they were taken, rather than Dr Coolican relying upon poor quality photocopies.

22. Dr Coolican, as I have said, makes the same point about a massive effusion caused by blood leaking into the joint causing haemarthrosis, and such massive effusions are often treated by the aspiration of the knee, by the insertion of a large needle into the knee, seeking to draw out the fluid that has collected in the damaged knee. This of course has not occurred in this case. Dr Coolican, like Dr Hitchen, also relies on the fact there is no oedema of the bones shown on the MRI scan. However, both the medical practitioners are referring to what one would expect if there were an acute tearing or rupturing of an ACL, and they are also generalising about a typical case. Not everyone's body is the same. Some people's physiology can react differently to different stressors of a physical nature.

23. It is quite possible that the plaintiff only suffered minor tearing of his anterior cruciate ligament on 28 June 2014, and that thereafter it frayed with the passage of time, such that it could be described as torn when surgery was practised on 10 February 2015. Furthermore, the opinions of Dr Hitchen and Dr Coolican beg the question: how did the plaintiff suffer the pathology which was repaired by Dr Dunkley, the repair leading to the plaintiff's return to work in August and September of 2015, to work which the plaintiff has been doing for the last 2 years? The answer is that neither Dr Coolican nor Dr Hitchen can explain why.

24. However there is some assistance, really to the plaintiff's case, in an observation made by Dr Coolican. On p 3 of his primary report of 26 October 2015, Dr Coolican said this:

"The radiologist describes 15 mm of abnormal tibial translation. I measure anterior translation at 13 mm. Anterior translation of the tibia has been described as a method of objectively measuring how far forward the tibia moves on the lateral side, and is a secondary radiological feature of ACL rupture. It is not indexed, and accordingly the numbers would vary depending on the size of the patient. It is not a method of diagnosing ACL rupture that is in general use and as indicated above, my opinion of the ACL is that the ACL is intact."

The doctor went on to point out that in his view, the MRI of the right knee performed on 11 July 2014 showed 11 mm of anterior translation in that knee. However, whether the extent of the translation was 15 mm or 13 mm or 11 mm, it is some confirmation of an objective nature that the plaintiff had damaged his anterior cruciate ligament.

25. There is only one possible finding open to me on the evidence, and that is that on 28 June 2014, the plaintiff injured his left knee, and that the injuries he then sustained led to the symptoms, which led to the arthroscopy practiced by Dr Dunkley on 10 February 2015, and that the plaintiff took approximately six months to recover from the effects of that surgery. The medical evidence concerning the time in which the plaintiff needed to recover from the surgery is all one way. The plaintiff indeed returned to work on 15 August 2015, and performed restricted duties for approximately six weeks prior to resuming his full normal duties, which would have been six months post the surgery practised by Dr Dunkley.

26. For those reasons, I make an award for the plaintiff for $1592.50 per week, from 1 December 2014 to 31 December 2014; for $1592.50 from 6 January 2015 to 9 June 2015; and for $487.90 per week from 10 June 2015 to 14 August 2015. Each of those awards is under s 9 of the Workers Compensation Act 1926, as preserved in its operation for coal miners by the Workers Compensation Act 1987. I order the defendant to pay all the plaintiff's expenses under s 60, referable to his left knee injury. I order the defendant to pay the plaintiff's costs.

[FURTHER SUBMISSIONS]

27. Liberty to the defendant to apply.

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Decision last updated: 01 March 2018