Lane v Bengalla Mining Company Pty Limited

[2022] NSWDC 711

District Court

New South Wales

Medium Neutral Citation:	Lane v Bengalla Mining Company Pty Limited [2022] NSWDC 711
Hearing dates:	22-23 August 2022
Date of orders:	23 August 2022
Decision date:	23 August 2022
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	I approve the redemption.
Catchwords:	CIVIL – WORKERS COMPENSATION – REDEMPTION – Claim for injury to shoulder - Prospects of claim for compensation – Redemption as suitable alternative.
Legislation Cited:	Nil.
Cases Cited:	Nil.
Texts Cited:	Nil.
Category:	Principal judgment
Parties:	Plaintiff - Jeffrey Allan Lane Defendant - Bengalla Mining Company Pty Ltd
Representation:	Plaintiff – Mr Benson, D. Defendant – Mr Rowles, T.
File Number(s):	2022/00162422
Publication restriction:	Nil.

Judgment

1. HIS HONOUR: There is currently before me an application for redemption in the sum of $190,000. I have no hesitation in approving that redemption. In making that decision I take into account my own impression of the evidence which was given by the Plaintiff in his evidence on 22 August 2022. However, I also have to bear in mind the evidence relating to the Plaintiff's right shoulder.

2. On 17 May 2018, Dr Mark Rikard-Bell, a general practitioner at Muswellbrook, referred the Plaintiff to Dr Daniel Posel, an orthopaedic specialist. The complaint for which Dr Rikard-Bell referred the Plaintiff was of "a painful and unstable right shoulder". The past history provided by Dr Rikard-Bell did not provide any history of any right shoulder injury. Shortly after that referral, an x-ray was made by Dr Yeo of Muswellbrook Diagnostic Imaging that is reported in this fashion:

"There is superior migration of the humeral head with loss of the subacromial space consistent with chronic rotator cuff tears. There is moderate glenohumeral joint degenerative change. No acute fractures are identified."

3. On the same day, an ultrasound of the right shoulder was performed by Ms Lisa Turner, and was reported on by Dr Yeo again. That showed the supraspinatus and infraspinatus of the right shoulder to be completely torn. The long head of the bicep’s tendon was thinned. There was atrophy of the supraspinatus muscle belly. There was degenerative change in the acromioclavicular joint, and there was a subacromial bursal effusion consistent with subacromial bursitis.

4. Those appearances indicate longstanding traumatic damage to the right shoulder without any history being obtained by Dr Mark Rikard-Bell of any shoulder injury, and his records date back to 2 August 1999. I would point out that the Plaintiff only commenced working for the Defendant on 27 March 2000, that is a year after the Plaintiff saw Dr Rikard-Bell, and he obtained his first historical entry which was of dyspepsia on 2 August 1999.

5. The Plaintiff first saw Dr Posel on or about 5 June 2018. He recorded this history:

"Jeff reports right shoulder discomfort and progressive weakness for some years. He dislocated his right shoulder initially 30 years ago. There have been two further dislocations, but his right shoulder problems began at the age of 17 years when he got his right arm caught up in a posthole digger. He fractured his right forearm, this was plated. He developed an infection for a few months, he also fractured his right humerus, this was treated conservatively.

Jeff reports his right shoulder has crepitus and clunks and has no power. He can't sleep on his right side and the shoulder does feel unstable."

6. The "impression" recorded by Dr Posel was this:

"As I explained to Jeff, surgical options are limited. He is only 58 years of age and remains active, nonetheless given his right shoulder discomfort and weakness I recommended a reverse shoulder replacement. I showed Jeff and Lyn [his wife] a model prosthesis and Jeff has been given a booklet to peruse regarding the shoulder replacement surgery."

7. That shoulder replacement surgery was practiced by Dr Posel on 5 September 2018 at East Maitland Private Hospital. Eventually, Dr Posel certified that the Plaintiff was fit to return to work for the Defendant as a plant operator with effect on 1 November 2018. There was a follow up examination by Dr Posel on 11 December 2018, in which the doctor pointed out that the Plaintiff had been working out in a gymnasium and he reported that he had minimal discomfort and that his shoulder was smoother and more powerful than it had been prior to surgery. Again, the Plaintiff was thought to be fit to continue working as a plant operator.

8. I know from MFI-1 (the chronology) and the Plaintiff's evidence that in 1977, whilst working as a farm hand, he fractured the right radius and ulna and was treated with open reduction and internal fixation with plating and metalware, and I was told in evidence that that plating and metalwork remains in situ. More importantly, I was told that in 1985 that the Plaintiff injured his right shoulder playing touch football, and that appears together with the event of 1977 to be the genesis of the condition for which Dr Posel carried out surgery.

9. I am currently in the process of trying to write an obituary for my late colleague Ramon Francis Burke CCJ, that has caused me to read back through many cases decided since his Honour was appointed in 1982. One of the maxims which his Honour constantly applied was that the Court is concerned with genesis, not revelation, with causation rather than eventual symptoms. A number of opinions have been expressed by doctors in this case as to the effect of the worker's work as a plant operator on his diseased right shoulder but I am confident on the medical evidence that I have seen and bearing in my approach to the Plaintiff's evidence that the need for the surgery resulted from the initial injuries back in 1977 and 1985, that they were the genesis of the condition which gradually deteriorated and no matter what the Plaintiff did, his condition would continue to have degenerated.

10. I, therefore, find that there was no compensability in the Plaintiff's right shoulder condition, and certainly the employer is not liable for the surgery practiced by Dr Posel on 5 September 2018.

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

Decision last updated: 06 March 2023