Kearney v Centennial Angus Place Pty Ltd

[2015] NSWDC 421

District Court

New South Wales

Medium Neutral Citation:

Kearney v Centennial Angus Place Pty Ltd [2015] NSWDC 421

Hearing dates:

24-25 November 2015

Date of orders:

25 November 2015

Decision date:

25 November 2015

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

Award for the plaintiff for $475.20 p.w. from 10 December 2014 to date and continuing

 

Following further awards for the plaintiff:
$22,375.00 for 22.5% loss of efficient use of the plaintiff’s left leg at or above the knee;
$4,299.75 for 5% loss of efficient use of the plaintiff’s left foot;
$4,961.25 for 5% loss of efficient use of the right leg at or above the knee;
$4,299.75 for 5% loss of efficient use of the right foot;
$5,953.50 for 7.5% permanent impairment of the back; and
$22,066.67 pursuant to s 67 of the Workers Compensation Act 1987

 

Defendant to pay the plaintiff’s hospital, medical and like expenses pursuant to s 60 of the Workers Compensation Act 1987

 Defendant to pay the plaintiff’s costs

Catchwords:

WORKERS COMPENSATION – COAL MINER – Claims for weekly payments, hospital and medical expenses, and lump sum compensation

 

Widespread degeneration disease of back, hips, knees and feet – Total hip replacement on left side – Need for total hip replacement on right side

  Claim for permanent loss compensation for an injury to an arm supported only by a medical practitioner’s opinion without diagnosis, investigations or reasons fails

Legislation Cited:

Workers Compensation Act 1926
Workers Compensation Act 1987

Category:

Principal judgment

Parties:

Peter Kearney
Centennial Angus Place Pty Ltd

Representation:

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

  Solicitors:
Slater & Gordon (Plaintiff)
Unrecorded (Defendant)

File Number(s):

RJ599/14

Publication restriction:

No

Judgment

1. HIS HONOUR: The plaintiff, Mr Peter John Kearney of Lithgow was a coal miner. Mr Kearney was born on 20 June 1952. He is currently 63 years old. He grew up in Lithgow and completed what is now called year 10 and obtained the school certificate. He then had a number of jobs, but eventually in approximately 1979 he entered the coalmining industry. His first job as a coal miner was at the Invincible Colliery at Cullen Bullen. He was there for some 11 years. Antecedent to starting in the coalmining industry, the plaintiff had completed an apprenticeship as a fitter and, therefore, he took into coalmining his expertise as a fitter.

2. The plaintiff stopped working in the Invincible Colliery when it closed down. Whilst there he had a number of falls, but as far as he was concerned, he was left with no permanent problem in any part of his body. He then worked for a short time at the Angus Place Colliery and then went to the Clarence Colliery where he worked for another 11 years. All of these jobs were in underground coalmining. At the Clarence Colliery, he was also involved in driving a bull dozer on the dump. He did that for the last four years of his service at the Clarence Colliery. He remembers one incident where he was driving a Komatsu dozer and the dozer fell some 60 feet down a hole until it wedged in the hole which was narrowing. The plaintiff sustained a jarring of his back in that event. Indeed, because of the length of the fall, one might infer that his whole body was jarred. However, this event happened at night and the plaintiff was not concerned about his physical health, but was concerned that he might die if the dump continued to be loaded with coal and the hole into which his dozer had fallen were filled in. Fortunately that did not happen. The plaintiff took three days off work to get over the effect of that event on his nervous system. He then went back to work for two or three years. Such a frightening event might have dissuaded many from working any longer in a coal mine, but it did not dissuade Mr Kearney.

3. The plaintiff told me that the Clarence Colliery shut in about 1998. The plaintiff told me that in the Clarence Colliery he had problems with his shoulders due to carrying and dealing with both props and cables, but the condition of the plaintiff's shoulders is irrelevant to the current proceedings, as is the plaintiff's psychic health. After the closure of the Clarence Colliery, the plaintiff worked outside the mining industry for some time, during which period he worked as the manager of the Lithgow Hotel. The plaintiff then turned to the coalmining, first at the Ulan Colliery for about six months doing underground work. He then worked at the Baal Bone Colliery for six to eight months and then commenced working for the current defendant, Centennial Angus Place Pty Ltd, the owner of the Angus Place Colliery. The plaintiff remained employed by the defendant until the defendant terminated his services in March 2015.

4. At the commencement of his work with the defendant, the plaintiff had a number of fixed term contracts before joining the permanent workforce. For the first two years, the plaintiff worked on a miner and then for the next 12 or 18 months, he worked on the construction of underground roadworks driving an Eimco carrying ballast down into the mines. The plaintiff then worked underground and also surface, but when there was a change of long wall mine sites, all employees of the colliery were required to work underground.

5. The plaintiff then told me of an event on 17 December 2008. The plaintiff made a claim for compensation following that injury some three months later on 18 February 2009. The employer also submitted an accident/incident form to its insurer at the same time. There does not appear to be any dispute that the event of 17 December 2008 occurred. According to the plaintiff's claim for compensation, exhibit B, he was carrying a 20 kilogram bag along the long wall face when he slipped on a pontoon resulting in jarring of his lower back and hips. The only addition to that information that is contained in exhibit C is that the bag which the plaintiff was carrying was a stone dust bag. Other evidence before me suggests that the plaintiff slipped about 15 inches. In this jarring event, he landed on his feet, but was still carrying the heavy bag. This was a no time loss injury. However, it is clearly a significant event because it has stayed with the plaintiff's memory ever since, although he has clearly forgotten other events which would have been important to him, had he remembered them, in the presentation of his case to this Court.

6. Of more significance is the significant that, according to exhibit B, the plaintiff had consulted his normal treating general practitioner, Dr Mark Roebuck about this event and that he had obtained a "WorkCover medical certificate" which was said to be attached to the claim for compensation. That medical certificate has not made its way into evidence, but there is no suggestion that it had not been provided and no suggestion that it did not support the plaintiff's complaints of an injury of symptoms in his hips and lower back. The plaintiff in his sworn evidence told me that his hips and lower back started aching and gradually the aching got worse as time progressed. The plaintiff told of me persisting with both work and these symptoms for about 14 or 15 months without any treatment. However, in that regard he is clearly incorrect, in that exhibit B clearly shows that he attended upon Dr Roebuck within the first three months.

7. In any event, I do know that in January 2011, the plaintiff consulted with Dr Haran Kamalaharan, a general practitioner at Wallerawang. It appears that Dr Haran, as he is generally referred to by most coal miners, was also the colliery's doctor. Part of exhibit J tells me that the plaintiff complained to Dr Kamalaharan in January 2011 about having pain in both his back and his left hip. Dr Haran arranged for X-rays of the lumbar spine, the pelvis and left hip. As far as the lumbar spine was concerned, there was said to be facet arthrosis at both the L4-5 and L5-S1 levels. In the hip joints there was said to be moderately severe degenerative change. On the left side there was joint space loss, sclerosis and prominent osteophytes. The plaintiff was then referred by Dr Haran to Dr Davé, an orthopaedic surgeon, at Campbelltown.

8. The plaintiff saw Dr Davé on 1 August 2011. Dr Davé's final diagnosis was of advanced osteoarthritis of each hip, the left hip being more acutely affected than the right. The plaintiff told Dr Davé of the event of 17 December 2008, of jarring both his hips and his spine and Dr Davé thought that the plaintiff had developed osteoarthritis of both hips, the left being the more symptomatic of the two. Dr Davé's report suggests implicitly, but does not state explicitly that the osteoarthritis was triggered off by the event of 17 December 2008. Dr Davé found objective signs of a problem in the plaintiff's hips. He recommended surgery, but noted that the plaintiff felt he could continue working as a coal miner for a few more years before he got to the point where he would need to have a total hip replacement on each side. That came about in 2014. Part of exhibit J is a referral letter from Dr Haran to Professor Walters at Wollstonecraft, but there is no evidence that the plaintiff saw Dr Walters. That referral letter bears date 29 January 2014. Eventually Dr Haran sent the plaintiff back to see Dr Davé, with a referral letter 7 March 2014.

9. In the meantime, the insurer of the defendant sent the plaintiff to see Dr Roger Rowe, an orthopaedic surgeon. Dr Rowe examined the plaintiff on 17 February 2015. Again, the only event of which a history was provided by the plaintiff to Dr Rowe was the event of 17 December 2008. On examination, Dr Rowe noted that the plaintiff walked with a left sided limp. The plaintiff complained about both his low back and his hips. As far as the back was concerned, the plaintiff indicated that there was an ache at the L5 S1 level and over the upper sacrum. The plaintiff was able to bend forward to nearly reach his ankles which is a fairly good range of movement. Straight leg raising was 30 degrees on the right and 50 degrees on the left, but the sciatic stretch tests were negative. There was no neurological deficit. As far as the hips were concerned, the plaintiff told Dr Rowe that the left hip was now worse than the right, as it had been back in 2011. The doctor noted a restricted range of movement and noted that there was no internal rotation of the hip in flection. Dr Rowe agreed that the plaintiff had bilateral osteoarthritis of the hips, the left being more badly affect than the right. The doctor also diagnosed a lumbar spondylosis which is probably a misnomer for lumbar degenerative disc disease. Dr Rowe expressed the view that it was "virtually certain" that the plaintiff would require each hip to be replaced. Dr Rowe also expressed the view to the insurer that if the plaintiff underwent bilateral hip replacement surgery, that he would then be permanently unfit for work as an underground coal miner.

10. In a supplementary report, the doctor expressed the view that the incident on 17 December 2008 would have caused only a minor or temporary aggravation "at most." He went on to say this:

"It is noted that at that time his symptoms were in the back, not in the hips. It is also noted that he lost no time from work. Clearly, this was not a significant incident in the development of his symptoms: it was not until around two years later that he consulted a doctor for his hip pain. It is thus concluded that his current hip symptoms and the future need for total hip replacement surgery is not related to the incident of 17 December 2008."

There are some problems with this formulation. Firstly, the plaintiff did have symptoms in his hips as well his back after the event of 17 December 2008. It is also clear that the plaintiff did seek treatment within three months from Dr Roebuck. Furthermore, the effect of the plaintiff's evidence and histories given to doctors is that the symptoms triggered off by the event of 17 December 2008 did not go away or that from that time onwards they became more noticeable or more persistent or both. Armed with Dr Rowe’s opinion, the insurer of the defendant denied liability for the total hip replacements proposed.

11. On 4 March 2014, the plaintiff underwent an X ray of his pelvis and both hips. Again, there was severe degenerative disease in the left hip and moderate to severe degenerative disease in the right hip, as well as moderate degenerative disease in the sacroiliac joints and the symphysis pubis. Following upon that radiological investigation, Dr Haran referred the plaintiff to Dr Davé on 7 March 2014. Dr Davé saw the plaintiff on 10 March 2014 and recommended that the plaintiff now undergo a left total hip replacement. Dr Dave proposed the posterior approach to the hip replacement using a ceramic on polyethylene liner and a cementless hip. It is clear that the plaintiff was concerned about the extent of the surgery proposed by Dr Davé and later consulted Dr Michael Solomon, a specialist in surgery of the hip and knee and a lecturer in surgery at the University of New South Wales.

12. The plaintiff saw Dr Solomon on 3 June 2014 and recommended total left hip replacement and then, after a further 12 to 18 months, a right hip replacement. Dr Solomon expressed this view:

"He would be suitable for the minimally invasive direct anterior approach which may afford a quicker short term recovery[.] However, I have pointed out to him that long term, all approaches are equal. He would have a titanium stem with a ceramic bearing."

That surgery was practised at the Mater Hospital on 9 July 2014. Dr Solomon saw the plaintiff again six weeks after surgery on 2 August 2014. He thought the plaintiff was doing "extremely well." The plaintiff told the doctor he had lost his arthritic pain and he had good flexibility in the hip joint. By that stage, the wound had healed well. Dr Solomon was happy with the plaintiff's progress and he restricted the plaintiff from "high impact type running activities." He proposed a routine check up six months after surgery.

13. On 18 November 2014, the plaintiff saw Dr Lloyd Hughes for the insurer of the defendant. Dr Hughes expressed the view that the event of 17 December 2008 may have temporarily increased symptoms in the plaintiff's left hip, but any symptoms related to that event would have resolved "within a few weeks" and that the osteoarthritis was not caused by that event. However, Dr Hughes did not address the issue of whether the osteoarthritis, if it were a pre-existing condition, could have been aggravated, accelerated, exacerbated or made worse by the event of 17 December 2008. Although this was after the plaintiff's left hip surgery, Dr Hughes thought that the plaintiff now needed a right hip replacement and did not think that the plaintiff would be able to resume "light suitable duties" above ground until after he had had the right hip replaced as well as the left hip. In other words, as at 18 November 2014, Dr Hughes was of the opinion that the plaintiff was totally unfit for work.

14. Dr Solomon reviewed the plaintiff on 6 January 2015, six months following the left total hip replacement. He was very pleased with the condition of the plaintiff's hip. He noted, however, the plaintiff required a right hip replacement "in the future."

15. The remaining medical reports before me are medico-legal reports. Before I go to them I should comment on other things that happened in the interim. The plaintiff told me of an event that occurred to him on 9 March 2011 when he was driving an Eimco and the vehicle hit a hole causing severe jarring of the plaintiff's back and hips, as well as his striking his head. However, the plaintiff could not recall seeing a medical practitioner after that event. The plaintiff also told me of an event on 29 August 2011. On that day he was operating a loader on the surface and was hooking up flat tops to take ballast down into the pit. He slipped off a swinging step and jarred himself. There was a drop of about 3 feet. He told me that he reported that event, but did not see a doctor following it. There was clearly a jarring when the plaintiff hit the ground, and he also complained about his shoulder. However, that has not anything to do with the current case.

16. The plaintiff told me that by early 2013, he had been given a prescription by Dr Haran for Chondroitin, which enabled him to continue to work despite symptoms in his hips and back. By that time he was driving the bulldozer mainly on the surface. However, he did have to do underground work. That which prompted the referral in 2014 to Dr Davé was the plaintiff's decision to see Dr Haran on 3 March 2014 because the plaintiff said that he had had enough of the pain in his hips and back. This was at the same time as he was required to work underground because of a long wall change over. He obtained a certificate to be absent from work for six weeks from Dr Haran and that led to the referrals, both to Dr Davé and to Dr Solomon and the surgery. The plaintiff never returned to work after that time.

17. He was paid weekly compensation up until 9 December 2014 and he claims weekly payments of compensation from that time. Despite the fact that the insurer, the defendant, initially declined to pay for the total left hip replacement surgery, the liability for the cost of that treatment was ultimately accepted by the insurer of the defendant. In other words, the insurer of the defendant was not persuaded by the opinions of either Dr Rowe or Dr Hughes.

18. The plaintiff also claims a lump sum compensation under s 66 for the loss of use of his right arm for an event I have yet to describe, for the permanent impairment of his back, for the loss of efficient use of each leg at or above the knee because of the osteoarthritis hip, for a further loss of efficient use of each leg at or above the knee, for injuries to the knees themselves and for loss of efficient use of each foot for injuries to his feet. The plaintiff also claims a consequential lump sum under s 67 for pain and suffering, anxiety and distress resulting from that impairment and those losses.

19. The one event that I have not described thus far, deposed to in evidence, was an event on 3 August 2007. On that day the plaintiff was operating a rib bolter and sustained a crush injury to his right upper limb when he was caught between the armature of the rib bolter and the rib (or wall) of the mine. The plaintiff indicated to me an area a few inches proximal to the right wrist. Exhibit A consists of three certificates referable to this event. The first is a certificate from the Lithgow Hospital bearing date 31 August 2007, diagnosing a right wrist injury and prescribing an X ray, analgesia as required and a review at the hospital in a few days after that time. This was no certificate of incapacity. The next document is a certificate of Dr Haran bearing date 4 September 2007, which certifies the plaintiff as being fit for his pre injury work on 4 September 2007. The third is another certificate of Dr Haran of 6 September 2007 certifying the plaintiff as being fit for restricted duties between 6 and 10 September 2007 and being fit to do his ordinary work on 11 September 2007. All those certificates do is certify the plaintiff as being fit for restricted duties between 6 and 10 September 2007. The plaintiff thought that during those days he may have been involved in doing a risk assessment of the injury in which his right arm was pinned against the rib of the mine. This event is said to entitle the plaintiff to lump sum compensation under s 66 for the permanent loss efficient use of the right arm at or above the elbow.

Right arm condition

20. I return to the medico-legal reports. I have before me a report of Professor YAE Ghabrial dated 8 April 2015. The history is exiguous. Dr Ghabrial said this about the plaintiff's right arm:

"Examination of the right forearm on 8 April 2015 showed generalised tenderness over the anterior part of the lower forearm where apparently his right forearm was crushed and most likely developed what appears to be some compartment syndrome which has improved, but left him with residual tenderness and pain in his right forearm, mainly on exertion."

There is no radiological investigation before me. There is no diagnosis of the condition before me. There is only a description of symptoms provided by Dr Ghabrial and a suspicion expressed by him of a "compartment syndrome," without identifying the appropriate compartment. On 18 August 2015, the plaintiff was examined by Dr Lloyd Hughes, an orthopaedic surgeon, for the defendant. Dr Hughes examined the plaintiff's right upper limb and found no abnormality. The plaintiff was examined by Dr David Millons for the defendant on 3 September 2015. The plaintiff told Dr Millons that he has some aching in the forearm in colder weather, but it did not swell up. The plaintiff also told Dr Millons that he had "no real issues" with his right wrist, forearm or elbow. The doctor found no abnormal neurological symptom in the plaintiff's right upper limb. The following are the doctor's findings on examination of the plaintiff's right forearm:

"There is no swelling or tenderness through the right forearm. The right forearm exhibits a full range of painless movements.

The right wrist and hand are normal to examination.

Tone, power and sensation throughout both upper limbs are normal. I could not obtain any upper limb reflexes."

The inability to obtain any upper limb reflexes is a testing of the spinal nerves and not a testing for local pathology. Dr Ghabrial has expressed the view that the plaintiff has a 12.5% permanent loss of efficient loss of efficient use of his right arm at or above the elbow because of what he found. I am unable to accept such an opinion. There is no objective evidence of any problem in the plaintiff's right upper limb. There is not even any radiological abnormality which might support an opinion that there was some permanent loss of efficient use of the plaintiff's right upper limb. That claim must fail.

Hips: causation

21. Dr Ghabrial expressed the view that the plaintiff has a permanent loss of efficient use of the right leg at your above the knee as a result of injury to his right hip of 35%. He expressed the view that the plaintiff has a permanent loss of efficient use of the left leg at or above the knee as a result of an injury to the left hip of 45%. There is no dispute that the plaintiff has a loss of efficient use of his left leg at or above the knee because of osteoarthritis in the left hip because of the need for a total hip replacement. There is the usual dispute as to the quantum of the loss and then the usual dispute as to whether it has anything to do with the type of work the plaintiff did and/or any injury that the plaintiff sustained. As I said, Dr Ghabrial says the plaintiff has 45% loss of efficient use of the left leg because of the hip injury. Dr Hughes puts the loss at 20% and Dr Millons puts the loss at 35%.

22. When I first read Dr Ghabrial's reports I had a problem with his methodology. The plaintiff's left leg should now cause him less problems than his right leg, because the left osteoarthritic hip has been replaced surgically, whereas the right osteoarthritic hip has not yet been replaced surgically. One would expect the plaintiff now to be having more problems with his right leg than his left leg. Nevertheless, Dr Ghabrial thought there was a 45% loss of efficient use of the left leg because of a hip problem and a 35% loss of efficient use of the right leg because of a hip problem.

23. Dr Hughes, however, thought that although there was a 20% loss of efficient use of the left leg at or above the knee because of hip problem, thought the problem in the right leg was much worse and he assessed a 50% loss of efficient use of the right leg. Dr Hughes' methodology appeared to me to be more sound. However, Dr Millons whilst expressing the view the plaintiff had a 35% loss of efficient use of his left leg because of the hip problem, thought the plaintiff only had a 30% loss of efficient use of the right leg because of the hip problem.

24. Dr Ghabrial only expressed this view on causation:

"From the history given to me by Mr Kearney, I believe that his employment is considered to be the main contributing factor to the present clinical features, disabilities and impairment."

That opinion extends to all of the conditions diagnosed by Dr Ghabrial. It is a particularly unsatisfactory opinion because it is an opinion in globo and does not give me any reason for the opinion, nor does it address any of the particular issues I am required to address. It is a bare ipse dixit. I note, however, that the doctor has not expressed any view as to there being a need to apply a deductible proportion to any of the impairment or losses that he has diagnosed.

25. As far as the hips are concerned, Dr Hughes maintains the view that the problems in the plaintiff's legs because of his osteoarthritic hips are not in any way work related. Dr Millons says a significant thing at the commencement of his opinion. It is this:

"One would have to say that working underground at the face with its uneven terrain, working in poorly lit conditions, bending, lifting, working in awkward and confined spaces and driving jarring machinery would all have the potential to cause some day to day aggravation of any underlying problems."

The doctor said that immediately after pointing out that the plaintiff had worked in the coalmining industry for 37 years. As far as the plaintiff's hips are concerned, Dr Millons said this:

"He claims to have had problems with his hips since the incident in December 2008. That incident appears to have been a jarring incident and may well have caused some aggravation of hip problems, but he does not appear to have lost any time from work and he does not appear to have really reported hip problems until January 2011 when degenerative changes were identified. Those changes were almost certainly of longstanding and could have been aggravated by incidents at work prior to the incident in 2008 to which incident he refers his problems.

As would be the norm with degenerative change, the condition deteriorated with the passage of time. He appears to have put up with it over the years.

Clearly, the normal activities of daily living would have played a role in the development and perpetuation of symptoms coming from the hips. The nature and conditions of his work may well have caused some day to day aggravation of those changes, with symptoms increasing to the point where it appears that he had to go off work when Dr Hughes apparently felt that he did not have the capacity to perform the heavy work of a coal miner."

In his assessment of loss of efficient use of the plaintiff's left leg at or above the knee due to the hip problem, Dr Millons said this:

"Of that figure [35%], arbitrarily, one half might reflect the underlying, constitutionally based attritional change and the normal activities of daily living, the other one half the aggravating effects of the nature and conditions of his work over the years. The incident in December 2008 does not, of itself, appear to be of particular significance in the overall picture."

26. Before announcing my finding on the question of osteoarthritis of the left hip, I should point out that records made available to Dr Millons indicated that on 27 June 1997, the plaintiff slipped off a ladder and sprained his left hip. That event did not appear to cause any time loss, but it clearly was reported to Coal Mines Insurance. The interesting thing, of course, is the plaintiff's left hip is more gravely affected than his right hip. It might or might not be of significance that antecedent to the event of 17 December 2008 the plaintiff had injured his left hip on 27 June 1997. That, perhaps, could explain why the left hip is more greatly affected than the right hip. However, that leads to this collateral observation. Not only did the plaintiff not tell me about the problem that befell him on 27 June 1997, he did not tell me two injuries to his lower back which are recorded by Dr Millons, but were not referred to in the plaintiff's evidence. In other words, this is not one of those cases where a litigant has looked through records, ascertained when he or she was injured and tried to reconstruct his or her medical history or tried to attribute, for example, a greater left hip problem because of an earlier left hip injury. In other words, this inability of the plaintiff to recall earlier events or even attempt to tell me about them indicates the plaintiff has not been manipulative, has not sought to reconstruct his evidence and, therefore, it is an important factor in finding, as I do, that the plaintiff has done his best to tell me the truth as he remembers things and is entitled to be viewed as a witness of credit.

27. I find the arguments advanced by Dr Millons convincing. Furthermore, the arguments of Dr Millons steer me between a rock and a hard place, steer me on a course between one extreme view, of that Dr Ghabrial, and another extreme view, of that Dr Hughes. I have had cause to mention these matters previously in deciding matters in the Coal Miners' Workers Compensation List. I accept, therefore, that because of the plaintiff's left hip condition, he has a 35% loss of efficient use of his left leg at or above the knee, half of which is due to the work the plaintiff did for the defendant in the coalmining industry. This is a disease of gradual process. The plaintiff last worked in the coalmining industry for the present defendant in conditions to which the nature of the disease or the aggravation of the nature of the disease was due.

Right hip

28. There is a short answer to the plaintiff's claim in respect of the loss of efficient use of his right leg at or above the knee because of his right hip problem. The short answer is the plaintiff's condition is currently unstable and not properly capable of assessment because the plaintiff has had recommended to him total right hip replacement which I am told from the Bar table is expected to be practised within the next 12 months. I would prefer to await the outcome of that surgery and the stabilisation of the plaintiff's right hip condition following total right hip replacement before making any finding as to the loss of efficient use of the plaintiff's right leg at or above the knee because of problem with the right hip.

Knees and feet

29. Dr Ghabrial took a history that the plaintiff injured his knees and feet on 29 August 2011. I have referred to that event earlier when reciting the plaintiff's evidence. Dr Ghabrial said this about the plaintiff's knees and feet:

"Examination of the knees on 8 April 2015 showed some pain during examination with slight effusion and crepitations consistent with the development of osteoarthritic changes in both knees.

Examination of the feet on 8 April 2015 showed evidence of plantar fasciitis, most likely due to os calcis spurs."

The doctor clearly had available X rays of 4 December 2013 which he said showed calcaneal spurs "confirming the diagnosis of plantar fasciitis." Dr Hughes examined the plaintiff's feet on 18 August 2015 and said that they revealed no abnormality. He did not think that there was any loss of efficient use of either foot. Dr Hughes did not obtain any history of any problem in the plaintiff's knees, nor did he examine the plaintiff's knees, but he wrote on 14 September 2015 that as he was unaware of any injury to the plaintiff's knees, he could not agree that there was any loss of efficient use of the knees.

30. Dr Millons sets out the findings of the X ray of 4 December 2013 of the plaintiff's feet. The radiological report is this:

"There are some degenerate changes in the metatarsophalangeal joint of the left great toe. There are degenerate changes in the interphalangeal joints of the right and left great toes. There are large calcaneal spurs inferiorly and a small calcaneal spur posteriorly on the right. Degenerative changes are noted in the left talonavicular joint."

When Dr Millons examined the plaintiff's feet he noted the plaintiff had discomfort over the tops of the feet rather than under the heels or in the soles of the feet. Those findings are inconsistent with plantar fasciitis, the diagnosis offered by Dr Ghabrial without his telling me what evidence he actually found to support that diagnosis. However, Dr Millons diagnosed bilateral foot pain of which he said this:

"Probable postural foot pain related to long term use of gum boots. Calcaneal spurs quiet just now. No evidence of plantar fasciitis. Evidence of some degenerative changes through the midtarsal regions which could have been aggravated by the nature and conditions of his work."

Dr Millons diagnosed a 10% loss of efficient use of each foot of which half was work related. I have no hesitation in accepting Dr Millons' formulation.

31. As far as the knees were concerned, Dr Millons noted that the plaintiff's knees ached and creaked, however, they did not sway or give way. The plaintiff told Dr Millons that he was able to kneel, but he found it hard to rise from the kneeling position. On examination of each knee, the doctor found some tenderness around the medial joint line and some crepitus when the knee was put through a range of movement. He found no effusion and found the knees to be quite stable. Unfortunately, the plaintiff's knees have never been X-rayed. However, like Dr Ghabrial, Dr Millons thought the plaintiff had probably osteoarthritis of the knees which had not been investigated. Dr Millons' opinion about the plaintiff's knees is not as helpful as his other opinions. In his supplementary opinion concerning the knees, he says this:

"I do not consider that there is any particular quantifiable work related permanent loss of efficient use of either leg at or above the knee that would specifically relate to his presumed degenerate knees."

32. The first thing to do is to tell me whether there is any loss of efficient use of either leg at or above the knee due to a knee complaint, and then to tell me whether it is work related or not, or, if it is only partially work related, the extent of the work relationship. Dr Millons did not do so in that opinion. However, Dr Millons clearly, at the commencement of his opinion, pointed out that the type of work which the plaintiff did as an underground coal miner had the potential to cause day to day aggravation of underlying problems. If it could cause such aggravation of problems in both the hips and the feet, one must ask rhetorically why would it not cause problems, why would it not cause an aggravation of problems in the plaintiff's knees. Clearly the plaintiff's hips and feet have been affected by osteoarthritis. It is highly likely and, therefore, probable that he has osteoarthritis in his knees. Both Dr Ghabrial and Dr Millons accept that. It appears to me that I must accept that there has been some aggravation of the plaintiff's knee conditions by the type of work he has done in the coalmining industry over the years. Doing the best I can, I accept that the plaintiff has a 10% loss of efficient use of each his legs at or above the knee as a result of osteoarthritis of the knees and of that half is work related. That is a disease of gradual process and the plaintiff's work as a coal miner aggravated, accelerated, exacerbated or caused to be made worse the underlying condition and, therefore, the plaintiff is entitled to a lump sum under s 66 for 22.5% loss of efficient use of his left leg, being the sum of 17.5% and 5%. The plaintiff is also entitled to a lump sum under s 66 for 5% loss of efficient use of his left foot. As far as the right leg is concerned, the plaintiff is entitled to a lump sum for 5% loss of efficient use of his right leg at or above the knee because of an aggravation of osteoarthritis of the right knee and a 5% loss of efficient use of his right foot because of an aggravation of osteoarthritis of his right foot.

Back

33. The remaining claim concerns the plaintiff's back. Dr Ghabrial diagnoses a 25% impairment of the back. Dr Hughes diagnoses a 10% impairment of the back and Dr Millons says the impairment of the back is 15%. Dr Ghabrial's report suggests that the 25% impairment of the back is wholly work related. Dr Hughes says the impairment of the back is wholly un-work related and Dr Millons says that it is half due to an aggravation of pre-existing, underlying osteoarthritic condition of the back. Again, I have no reason not to accept Dr Millons' opinion, so the plaintiff is entitled to a lump sum for 7.5% impairment of his back.

Pain and suffering

34. I believe, and I can be corrected by counsel, that the quantum of my findings under s 66 entitles the applicant to a lump sum under s 67 for pain and suffering, anxiety and distress resulting from those losses and that impairment. The plaintiff is current 63 years old. As I have earlier stated, he has been experiencing symptoms in his back and left hip, at least, since December 2008, that is, getting on for seven years now. I accept that his symptoms, as far as his left hip is concerned, were maximal prior to surgery. I accept that at the current time his right hand symptoms would be the worse of his problems, but that should ameliorate with surgery. However, as I have not found any entitlement currently under s 66 for the loss of efficient use of the right leg at or above the knee because of the right hip problem, I cannot rely upon symptoms in the right hip at the current time as a source of any entitlement under s 66. It may be necessary, in due course, if a claim is, again, pressed under s 66 for the loss of efficient use of the plaintiff's right leg at or above the knee because of the hip condition after total knee replacement to revise my finding under s 67. However, as I say, the plaintiff's symptoms in his left hip would have been maximal prior to surgery.

35. The plaintiff's life expectancy is an approximately 21 years. I note that Dr Davé described the plaintiff as overweight. Dr Solomon described him as being hypertensive. I note a history of his smoking 20 cigarettes per day and I notice histories telling me that Mr Kearney regularly takes alcohol. Nevertheless, there is no evidence before me that those are going to interfere in any way with the plaintiff's life expectancy. I, therefore, accept the plaintiff may continue to have symptoms for a further 21 years.

36. The operation on the plaintiff's left hip should have abated his symptoms. However, there does not seem to be any suggestion of abatement in symptoms in the plaintiff's low back or in his knees or in his feet. Indeed, one would expect them to get worse with the passage of time because of the inevitable progress of degeneration. However, increased symptoms in futuro are most likely due to the inevitable progress of the underlying condition and it appears to me that I should only look at the symptom level at the current time to ascertain what the plaintiff's likely symptoms are as a result of compensable events for the future.

37. The plaintiff was a very keen golfer. He was very good at it. He had a handicap of 2. He has had to give that away. He has taken up lawn bowls, instead, but, even so, has a non "regulation" method of delivery of bowls and uses a lifter. The plaintiff refers to his knees and feet as causing him problems. His back condition interferes with his ability to perform sexual intercourse and his symptoms generally have led to a major interference with the plaintiff's enjoyment of life, have caused him pain and suffering and have caused him anxiety and distress. The only thing that can be said, on the other hand, is that the plaintiff is rather laconic, he is stoic, but there is no reason to suggest that his experience with pain should be seen as any less than a person who is not laconic, a person who is not stoic, and who is prepared to complain vociferously about aches and pains.

38. I have to compare Mr Kearney's experience of pain and suffering against a most extreme case of pain and suffering which, of course, includes conditions such as quadriplegia and paraplegia. Doing the best I can, I accede to the submission put to me by Mr Benson on behalf of the plaintiff that this plaintiff's case stands in proportion to a most extreme case in the radio of 1:3.

Weekly payments

39. Now, the remaining claim is for weekly payments of compensation. This I find amusing. I have already pointed out that Dr Hughes, after his examination on 18 November 2014, thought the plaintiff was totally incapacitated. The claim for weekly payments commences on 10 December 2014, less than two months later. Dr Ghabrial thought the plaintiff was fit for some form of light work. Dr Haran appears to be of the same opinion because he has issued "light duties" certificates. However, Dr Lloyd Hughes expressed this view when he examined the plaintiff on 18 August 2015:

"Due to the osteoarthritis of his right hip, he is not fit for any physical work at present. He would only be able to perform office duties."

The plaintiff has no experience of office work. Dr Millons said this:

"Just now, Mr Kearney is really unfit for work while he waits Dr Solomon's pleasure in regard to his right hip. Once he is through that, at around the three to four months mark, he should be fit for some light office based duties and, perhaps, some light driving tasks. He is advised not to return to any underground activities or be involved in any heavy plant operation."

The doctor then went on to point out that as the plaintiff was 63 at the time he examined him on 3 September 2015, that there was little prospect of the plaintiff being able to return to the workforce. Throughout these reasons, I have accepted the opinions of Dr Millons. I have no hesitation accepting his opinion that the plaintiff is totally incapacitated for work and has been at all material times. The plaintiff has had dependent upon him for support at all material times his wife.

Orders

40. For those reasons, I make an award for the plaintiff for $475.30 per week (as indexed) from 10 December 2014 to date and continuing pursuant to s 9 of the Workers Compensation Act 1926 as preserved by Sch 6 Pt 18 of the Workers Compensation Act 1987.

41. I make the following further awards for the plaintiff:

$22,375.00 for 22.5% loss of efficient use of the plaintiff's left leg at or above the knee;

$4,299.75 for 5% loss of efficient use of the plaintiff's left foot;

$4,961.25 for 5% loss of efficient use of the right leg at or above the knee;

$4,299.75 for 5% loss of efficient use of the right foot;

$5,953.50 for 7.5% permanent impairment of the back; and

$22,066.67 pursuant to s 67.

42. I order the defendant to pay the plaintiff's hospital, medical and like expenses pursuant to s 60.

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

**********

Decision last updated: 10 March 2017