Lambert v Elcom Collieries Pty Limited

[2023] NSWDC 625

District Court

New South Wales

Medium Neutral Citation:	Lambert v Elcom Collieries Pty Limited [2023] NSWDC 625
Hearing dates:	26 May 2023
Date of orders:	26 May 2023
Decision date:	26 May 2023
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	I approve the redemption. By consent orders in accordance with short minutes of order which I have initialled and placed with papers.
Catchwords:	CIVIL – WORKERS’ COMPENSATION – COAL MINING – REDEMPTION – Claims for total right knee replacement and arthrodesis of the metatarsophalangeal joint of the great left toe – Prospects of success.
Legislation Cited:	Nil.
Cases Cited:	Nil.
Texts Cited:	Nil.
Category:	Principal judgment
Parties:	Plaintiff – John Barry Lambert Defendant - Elcom Collieries Pty Limited
Representation:	Plaintiff – Ms Balendra. Defendant – Ms Beattie.
File Number(s):	2022/00167477
Publication restriction:	Nil.

Judgment

1. HIS HONOUR: This is a redemption application for the sum of $50,000. The Plaintiff has previously undergone a total knee replacement of his right knee on 1 July 2016 under the hands of Dr John Limbers, an orthopaedic surgeon. He has underwent an arthrodesis of the metatarsophalangeal joint of the great left toe on 28 November 2016. That was also under the hands of Dr Limbers.

2. The Defendant has not, nor has any employer in the coal mining industry, paid for those operative treatments. The cost of those operative treatments, but in particular the treatment of the Plaintiff's right knee condition, would have been substantial. It is, accordingly, necessary for me to determine if the cause of the need for the surgery results from any injury arising out or in the course of the Plaintiff's employment in the coal mining industry.

3. The first thing to note is that the Plaintiff entered the coal mining industry on 19 November 1979, however he has never worked underground or in an open cut pit. He has been a storeman, and in particular a manager of stores at underground pits since he entered the industry in 1979. He retired at the age of 72 years, which is old for a person in the coal mining industry, but is explicable by the fact that he had never actually worked as a miner.

4. The history recorded by Dr Anthony Schwarzer, a specialist qualified by the Plaintiff, is this, concerning the Plaintiff's right knee:

"Mr Lambert suffered increasing pain in his right knee. He underwent a right knee reconstruction in 1980, but over the years experienced increasing pain in the right knee. The pain was mostly in the medial aspect of the knee, worse on weight bearing and twisting. He was seen in consultation by Dr John Limbers, orthopaedic surgeon, on 5 July 2012 and Mr Lambert demonstrated a varus deformity of the right knee with crepitus on knee flexion. X-rays demonstrated severe medial compartmental osteoarthritis of the right knee with lateral tibial staples. Dr Limbers discussed operative and non-operative interventions, including joint replacement. There was no intervention at that stage. However, he underwent a right knee reconstruction on 1 July 2016."

5. That was a total knee replacement. As far as the Plaintiff's left foot is concerned, Dr Schwarzer has this history:

"Mr Lambert has for many years walked on hard concrete surfaces as well as walking on rough uneven surfaces on pit top, carrying, lifting, squatting and climbing up and down stairs and ladders [in] the store and developed increasing pain in the right and the left ankles. He also developed pain in the left big toe despite wearing appropriate modified footwear. He was complaining of increasing left first metatarsophalangeal joint pain. It was also interfering with his golf. There was a hallux valgus deformity. He saw Dr John Limbers, orthopaedic surgeon, in consultation. He considered that he would benefit from a first metatarsophalangeal joint arthrodesis, which was done on 28 November 2016. The pain in his toe has improved since that time."

6. Dr Schwarzer made a note that the Plaintiff suffered, inter alia, from gout. Dr Schwarzer considered the radiological appearances. As far as the left foot was concerned, he said this:

"X-rays of the left foot done on 20 September 2017 demonstrated severe degenerative changes involving the first metatarsophalangeal joint with joint space narrowing, joint surface irregularity, and subarticular sclerosis and cyst formation in association with osteophytes. There were degenerative changes affecting the sesamoid bones and ossicles. There was early bunion formation with minimum hallux valgus deformity noted. There were minor degenerative changes in several interphalangeal joints. There was a small calcaneal spur. There was no evidence of erosive disease.

Plain X-rays of the left foot done on 15 January 2018 demonstrated internal fixation transfixing the first metatarsophalangeal joints. There were no other abnormalities."

7. As far as the left hallux was concerned, Dr Schwarzer thought that there was a 20% loss of efficient use of the great left toe, and he thought that was due to "injuries ... in the course of his employment in the underground coal mining industry". However, the Plaintiff never worked as an underground coal miner.

8. Furthermore, he obtained no history of any frank injury as such to the Plaintiff's left great toe. The Plaintiff's solicitors have also qualified Dr Alan Hopcroft, a general surgeon. In a supplementary report, bearing date 6 January 2022, Dr Hopcroft said this:

"...the patient I'm almost certain he suffered an internal derangement of his right knee in the football injury mentioned in your letter of 30 September 2022, which more likely than not let to the patient undergoing meniscal excision surgery.

I noticed that Dr Darren Paterson referred to the patient undergoing an high tibial osteotomy which is one of the orthopaedic surgical interventions to correct a varus deformity, often resulting from medial meniscal surgery, and that had occurred some time prior to 23 February 2016, the date of Dr Paterson's report.

It is therefore not possible to suggest that the nature and conditions of the patient's employment as a coal miner was the main or substantial reason for his undergoing right total knee replacement surgery, although no doubt his work as a coal miner contributed to some degree to the deterioration of his right knee joint over the period of time he worked in the mining industry."

9. The opinion expressed in the last paragraph is speculative. Clearly there was a knee injury. It led to medial meniscus damage, and then that led to a right knee construction in 1980, that is, the year after the Plaintiff started working above ground in the coal mine industry, and eventually he went on to need total knee replacement in 2017. It would appear that the condition of the Plaintiff's right knee was caused his old football injury.

10. As far as the Plaintiff's right great toe is concerned, Dr Posel, an orthopaedic surgeon qualified by the Defendant, pointed out that the Plaintiff has bilateral constitutional pes planus, or bilateral flat feet. However, Dr Posel used the incorrect Latin noun. I have corrected his erroneous latinity. He also pointed out the Plaintiff has bilateral hallux valgus problems, leading to the need for the fusion of the left first metatarsophalangeal joint on the right hand side.

11. As the doctor pointed out, such a pathology is constitutional and does not relate to any injury that the Plaintiff sustained in the course of his employment in the coal mining industry.

12. There is a suggestion that gout may have contributed to the problem in the Plaintiff's left knee, however that is a question peculiar to a rheumatologist. The Defendant has qualified a rheumatologist, Dr Steven Potter, and he attributes nothing of the Plaintiff's leg problems to any work-related factor and certainly does not support any suggestion that work could have aggravated the Plaintiff's gout.

13. In the circumstances it appears to me that the condition of the Plaintiff's left great toe was not related to any injury arising out of or in the course of employment. For those reasons, the redemption appears to me to be appropriate.

14. I approve the redemption, by consent orders in accordance with short minutes of order which I have initialled and placed with papers.

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Decision last updated: 17 April 2024