Mackenzie v Ulan Coal Mines Limited

[2015] NSWDC 342

District Court

New South Wales

Medium Neutral Citation:

Mackenzie v Ulan Coal Mines Limited [2015] NSWDC 342

Hearing dates:

26 – 27 November 2015

Date of orders:

27 November 2015

Decision date:

27 November 2015

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

Award for the plaintiff for:

 

$1,064.35 per week for the period 19 August 2014 to 17 February 2015;
$475.70 per week for the period 18 February 2015 to 31 March 2015;
$481.90 per week for the period 1 April 2015 to 28 April 2015

 

Defendant to pay the plaintiff’s hospital, medical and like expenses, continuing

 Defendant to pay plaintiff’s costs

Catchwords:

WORKERS COMPENSATION – Coal miners – Claim for weekly payments for a closed period – Period closed when plaintiff rendered incomplete quadriplegic in motor vehicle accident – Whether incapacitated in closed period – Cause of incapacity – Whether there is still need for operative treatment for left shoulder injury – Whether need for future surgery causally related to work injury

Legislation Cited:

Workers Compensation Act 1926

Category:

Principal judgment

Parties:

Mark Robert Mackenzie (Plaintiff)
Ulan Coal Mines Limited (Defendant)

Representation:

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

  Solicitors:
Barry F Cosier (Plaintiff)
Sparke Helmore (Defendant)

File Number(s):

RJ602/14

Publication restriction:

No

Judgment

1. HIS HONOUR: The plaintiff, Mr Mark Robert Mackenzie of Gulgong, was a coalminer. He claims weekly payments of compensation from 19 August 2014 to 28 April 2015 for either partial incapacity, or partial incapacity deemed to be total incapacity pursuant to 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. The plaintiff also claims his expenses under s 60.

2. The plaintiff was born on 15 September 1966. He is currently 49 years old. He has dependent upon him two children, his son Tommy, who is 15 years old, and a stepdaughter who is seven years old. The plaintiff grew up in western New South Wales. He completed his year 10 at the Gulgong High School and obtained the School Certificate. Very shortly thereafter he entered the workforce. He worked at the Mudgee abattoir and a little later he commenced shearing, which he did for seven years. Work in an abattoir and work as a shearer is work that is notoriously demanding of the human body. Even more demanding of the human body is work as a coal miner. That was the next step in the plaintiff's working career.

3. On 23 March 1992 he commenced working for the defendant at its underground coal mine at Ulan. He performed every aspect of an underground coal miner's work. There is no dispute that he sustained what can be shortly described as a traction injury of his left upper limb on 30 January 2006. He was lifting mesh out of the back of a continuous miner and strained his left shoulder as he was pulling. He reported this incident. Initially, he did not take any time off work. Eventually he submitted a claim for compensation on 4 March 2006. As I have already stated, the defendant does not dispute the occurrence of the event, and the suffering by the plaintiff of a left shoulder injury.

4. On 20 February 2006 he saw Dr Robin Williams at the Gulgong Medical Centre. Dr Williams took history of a left shoulder strain at work three weeks previously. He formed the tentative diagnosis of a tear of the left supraspinatus muscle. He arranged for an ultrasound of the left shoulder. That was performed on 7 March 2006 by Dr Chamberlain at Mudgee. That was said to show a possible small 5x5mm thickness tear of the mid-portion of the supraspinatus. Once that pathology had been identified and the claim for compensation processed, the plaintiff was placed on restricted duties. Nevertheless, those restricted duties were still performed underground at the Ulan mine on the shifts that the plaintiff normally worked, night shifts on weekends.

5. The plaintiff was referred by the principal doctor at the Gulgong Medical Centre, Dr Glenys Caterson, to Dr Samuel Kwa, a hand and orthopaedic surgeon at Orange. However, the plaintiff did not get to see Dr Kwa until 6 July 2006. In the interim he was seen by Dr Paul Limbers, an orthopaedic surgeon for the defendant. Dr Limbers examined the plaintiff on 11 May 2006. On examination Dr Limbers noted that the scapulo-humeral rhythm was limited by abduction. Initial active abduction was limited to 90 degrees but passively was full. However, with passive full abduction the plaintiff complained of some discomfort. Internal rotation was slightly restricted. Those appear to have been the doctor's only abnormal clinical findings. The diagnosis made by Dr Limbers was of a very small incomplete tear of the supraspinatus tendon. He appears, in my view, to have based that diagnosis mainly on the ultrasound. Dr Limbers accepted that the plaintiff's problem was directly attributable to the injury of 30 January 2006. Dr Limbers placed a restriction on the plaintiff's doing overhead work with his left arm above shoulder height. Such would inhibit, indeed prevent, the plaintiff from doing roof bolting, part of the normal work of an underground coal miner.

6. As I have mentioned, Dr Kwa saw the plaintiff on 6 July 2006. He noted that by that time the plaintiff had started undergoing physiotherapy, and he also noted the plaintiff was on selected duties. On physical examination Dr Kwa thought that the plaintiff's main symptom was localised tenderness over the long head of the biceps tendon. Nevertheless, the plaintiff's Speed's test was negative. Dr Kwa's initial diagnosis was bicipital tendinosis. He thought it might be associated with a SLAP lesion, or even some instability of the biceps tendon associated with a deep surface subscapularis tear. He recommended investigations.

7. Plain X-ray and an MRI scan of the left shoulder were both performed on 14 September 2006. As I read the report of the plain X-ray it reveals no abnormality. The MRI scan of the left shoulder, after injection with gadolinium, was reported on 15 September 2006 by Dr Duncan Snodgrass as suggesting some minor under surface fraying of the supraspinatus tendon, but not disclosing any significant partial or full thickness tear of the rotator cuff. However, the same investigation was later inspected by Dr Phil Lucas who added this addendum on 19 October 2006:

"I do believe there is a SLAP lesion of the tear at the base of the biceps anchor and superior labrum. There is no perilabral cyst. The tear does extend into both the posterosuperior and anterosuperior labrum. There is no perilabral cyst."

8. In the meantime, Dr Limbers had referred to him Dr Kwa's report of 6 July 2006, and then the report of the MRI scan made by Dr Snodgrass on 14 September 2006. He does not appear to have been provided with the addendum to the report of the MRI scan of the left shoulder that was made by Dr Lucas. However, after reading the first MRI report, Dr Limbers thought that, if the plaintiff's symptoms persisted, an arthroscopy would be a reasonable procedure to be performed in order to determine whether the plaintiff had any particular pathology or not. In other words, although Dr Limbers maintained his diagnosis of a probable small incomplete tear of the supraspinatus tendon, in light of what was reported by Dr Snodgrass, it would be reasonable to perform arthroscopy. One might validly say that, if the doctor had been provided with the addendum made by Dr Lucas, he would have still supported the arthroscopic investigation.

9. On 10 November 2006 the plaintiff was seen by Dr Sam Perla for the defendant. Dr Perla's expertise is injury management. When he saw the plaintiff he thought the plaintiff had made a significant recovery, and thought the plaintiff should be given a trial of his pre-injury duties for his normal pre-injury hours. In other words, Dr Perla did not accept that the plaintiff had any pathology that would justify his staying off work.

10. When the plaintiff was advised of what Dr Perla proposed, he contacted Dr Kwa who reported on 1 December 2006, and Dr Kwa made arrangements to see the plaintiff as soon as he could. That examination occurred on 8 January 2007. Again, on physical examination Dr Kwa found localised tenderness over the long head of the biceps tendon. The Speed's test was still negative. Otherwise the doctor could find no abnormality. Doctor Kwa then provided this opinion:

"Mark continues with symptoms in his left shoulder. The location of tenderness over his long head of biceps would be consistent with the finding of a SLAP tear. As there is identified pathology within his shoulder, and Mark continues to have symptoms precipitated by heavy activities, it would seem reasonable then to say that he is not currently fit to return to his pre-injury duties.

Treatment will require surgery. This will take the form of an arthroscopy with a view to repair of the SLAP lesion or biceps tenodesis, depending on the pathology found. We will also take the opportunity to perform a thorough arthroscopic examination of the shoulder joint and subacromial space and attend to any other abnormalities, as required."

11. Prior to that surgery being performed the defendant arranged for the plaintiff to be reviewed by Dr Limbers on 17 January 2007. On examination he noted tenderness present over the front of the acromioclavicular joint. On this occasion Dr Limbers thought that there was a possible Neer's impingement syndrome, although he was unsure of that. He also thought that the Hawkins test was only partly positive. In his opinion the doctor expressed the view that the possibility of a SLAP lesion was present. He accepted that there was something in the plaintiff's shoulder causing him symptoms. Dr Limbers agreed that arthroscopy was indicated.

12. The plaintiff underwent surgery at Dr Kwa's hands at the Dudley Private Hospital on 8 February 2007. It is instructive to bear in mind what a SLAP lesion is. That is described by Dr Paul Hitchen in his report of 10 September 2009:

"A SLAP lesion is an avulsion or detachment of the biceps anchor as it inserts into the superior glenoid and becomes confluent with the anterior and posterior labrum. Once the lesion is identified and repaired back onto the glenoid - essentially it heals there. This means that the biceps tendon (long head) remains in continuity with the glenoid and labrum and that normal anatomy is re-established. In effect, his labral repair would have healed within four months of surgery. In other words, he would have recovered from his injury by, at the extreme, six months post-operative."

It is clear from Dr Kwa's surgical report that he found a detachment of the biceps anchor superiorly, extending anteriorly. Those were repaired. The doctor also found some scuffing on the under surface of the coracoacromial ligament, and then he re-entered the subacromial space with the arthroscope and he carried out a bursectomy. The plaintiff was then in a sling for six weeks, and after the sling was dispensed with, he commenced gentle exercising leading up to full physiotherapy.

13. The plaintiff returned to work on light duties, mainly driving with minimal lifting, in early May 2007. Doctor Kwa had certified the plaintiff as fit to return to work using his right hand only on 21 May 2007, but it appears that the relevant certificate upon which the defendant acted was a certificate given by Dr Kwa to the plaintiff when he saw the plaintiff on 8 May 2007, three months after surgery. At that stage the plaintiff was undergoing physiotherapy. He was able to start using his left hand, but the weight limit was 2 kilograms, and there was no lifting permitted above shoulder height. On 26 June 2007 Dr Kwa saw the plaintiff again and expressed the view that he was happy for the plaintiff to lift whatever weights he could manage, but that should gradually take place over the following six weeks or so. His aim was to return the plaintiff to full duties six months post-surgery.

14. The plaintiff was seen by Dr Limbers for the defendant on 18 July 2007. He thought the plaintiff's condition was excellent, that he had no complaint of pain, and full movements, and that he was fit for normal duties commencing on 8 August 2007, that is, six months post-surgery. It appears that that is what occurred. In a short letter of 24 July 2007 Dr Kwa advised the insurer of the defendant that the plaintiff did not have any permanent loss of efficient use of his left arm due to the injury on 30 January 2006. On 17 November 2007 the plaintiff underwent a Coal Services Health medical check. He gave a history of his shoulder problem, but the form has been very poorly completed and it is not clear of the significance of what has been recorded in it by its compiler, Ms Helen Sparke. The plaintiff told me that he in fact returned to doing normal duties in September of 2007, but he used, from this time onwards, his right arm more frequently than he used to. The plaintiff, it needs to be noted, is left arm dominant.

15. In 2009 the plaintiff sought some legal advice. He was referred by his lawyers to Dr David O'Keefe, an orthopaedic surgeon, at Orange. Dr O'Keefe thought that the plaintiff had a 15% loss of efficient use of the left arm at or above the elbow. The plaintiff told Dr O'Keefe that he was quite happy with his shoulder, although it felt weaker than it previously had, and the plaintiff thought he had lost some movement in it. He made a complaint of intermittent soreness, but that did not interfere with his ability to sleep, and the only major problem of which the plaintiff complained was an inability to rely on his dominant arm anymore when involved in heavy lifting. On clinical examination Dr O'Keefe found a reduced range of movements. That is not mirrored in other medical reports before me.

16. On 10 September 2009 the plaintiff was sent by the defendant to see Dr Paul Hitchen, an orthopaedic surgeon in Sydney, no doubt in relation to a possible claim under s 66. A relevant part of Dr Hitchens history is this:

"Mr Mackenzie believes that throughout 2008 he began to experience occasional episodes of anterosuperior shoulder pain. This would come on unpredictably - but often after a day's work. It would last for about ten minutes and then resolve. It was not sufficient for him to seek any further medical care. He was specific that the pain did not occur at work, and that he is coping with all of his duties. He advises as he elects not to do overtime he does not have to undertake roof or rib bolting and hence he does not perform any repetitive overhead work.

Mr Mackenzie has continued to work on normal duties without restriction. Overtime is available to him, but he has declined. He usually works on a weekend. He then has days off, and during his days off has a part-time job as a Truck Driver with another Company."

Further in the report the doctor described the SLAP lesion as I have quoted above. He believed that as the SLAP lesion had been repaired and as six months had expired, the plaintiff was fit for his pre-injury work without restriction, and that there was no loss of efficient use of the plaintiff's left arm as a whole. On physical examination the plaintiff showed some limitation in flexion of the arm and in abduction, but the doctor was able to both flex and abduct the arm to the maximum anatomical limit.

17. Because of the conflicting medical evidence about the loss of efficient use of the plaintiff's left arm, Dr O'Keefe arranged for the plaintiff to undergo a further MRI scan of his left shoulder. That has been reported at some length by Professor Suzanne Anderson on 25 November 2009. It does show some irregularity of the anterosuperior margin of the labrum, which could be consistent with a small tear or degeneration, but could also merely reflect the fact that surgery had been practised. When he saw the further radiological investigation, Dr O'Keefe expressed the view that there was no further surgical remedy available to the plaintiff. Nevertheless, the plaintiff's symptoms persisted, albeit he was still performing his normal duties as an underground coalminer.

18. The plaintiff was then referred by his solicitor to Dr David Sonnabend. Dr Sonnabend is the Professor of Orthopaedic Surgery at the University of Sydney. His opinion is to be given weight. Professor Sonnabend took a history that the plaintiff experienced severe aching in his left shoulder, not only after heavy work but, by this time, also during heavy work. Professor Sonnabend examined the plaintiff on 23 April 2010. He found wasting of the left supraspinatus. He also found a significant restriction of left shoulder movement in several directions, including a restriction of flexion to 130 degrees compared to 160 degrees on the right, 40 degrees of adduction compared with 60 degrees on the right, 150 degrees of abduction compared to 160 degrees on the right, and 90 degrees of external rotation compared to 110 degrees on the right, and 30 degrees of external rotation in adduction compared to 45 degrees on the right. He thought the plaintiff's SLAP repair might have failed. Professor Sonnabend said this:

"Clinically, Mr Mackenzie appeared entirely genuine, if anything making light of a significant disability. One suspects that he copes moderately well with his disability because of his considerable residual strength."

He recommended that further arthroscopy be practised to confirm the diagnosis. He recommended referral to an orthopaedic surgeon specialising in shoulder surgery. He was of the view that the plaintiff had an 8% loss of use of his left arm as a whole.

19. It is quite possible that the reports of Professor Sonnabend were sent by the plaintiff's solicitors to his general practitioner. In the following year, 2011, the plaintiff was referred by a doctor at the Gulgong Medical Centre to Dr Benjamin Cass, an orthopaedic surgeon practising at the Royal North Shore Hospital and at the Mater Hospital, and, I infer from the doctor's reports that are before me, is a shoulder specialist. Doctor Cass examined the plaintiff on 1 September 2011. The plaintiff identified the site of his pain anteriorly over the biceps groove at a place that the doctor refers to as Codman's point. He noted that the symptoms ran down the biceps even to the forearm and was quite reliable and reproducible. On clinical examination he accepted that the plaintiff's biceps was irritable, the range of motion was decreased compared to the right, with pain anywhere above 90 degrees of rotation out past 30 degrees. He accepted the plaintiff had a "stiff shoulder and ongoing irritation possibly related to his superior labral repair". Doctor Cass ordered a further MRI scan of the plaintiff's left shoulder and made this comment about that investigation:

"It shows that the SLAP repair was well performed but it also does show some damage down along the line of the biceps, exactly correlating with his pain. There is no other major cuff tearing or cartilage loss in the joint."

Doctor Cass recommended an ultrasound guided injection into the biceps tendon. He thought that it would assist in obtaining the correct diagnosis. If it did not provide symptomatic relief it would be necessary to carry out further surgery.

20. The plaintiff did not accept the advice to undergo ultrasound guided injection. One can understand a patient being reluctant to undergo such injections. The plaintiff persisted with his work as an underground coal miner and also with symptoms. He underwent a further Coal Services Health check on 19 October 2012. This assessment was made by Ms Lynne Whiting. The form indicates the plaintiff's left shoulder was "still sore". The form indicates that the plaintiff had significant pain or discomfort in the preceding year. He experienced that in his shoulder. He stated the pain had not resolved. He described his symptoms as including aching, cramping, numbness, tingling and weakness. Some of the plaintiff's work tasks are outlined in the document. The plaintiff said that his work tasks involved: constantly lifting objects weighing over 20 kilograms; infrequently he dragged hoses or cables; infrequently he worked with his arms above chest height; frequently he drove heavy plant; infrequently he climbed stairs, ramps or ladders; constantly he walked over uneven ground and constantly he operated power tools. In other words, the plaintiff's work involved lifting heavy objects and sometimes involved working above chest height which would have been difficult with an injured shoulder of the dominant arm.

20. In quoting Dr Hitchens' history recorded on 9 September 2009 I quoted details of work that the plaintiff did outside the coal mining industry. The plaintiff had small truck which he had purchased in 2001 or 2002. He drove it to earn money to supplement his income. In about 2010 he acquired cages second-hand to fit onto the back of the truck so that he could carry livestock. Exhibit 1 before me is records of the plaintiff's work and earnings for the firm of GG and LM Andrews. When working for Mr and Mrs Andrews the plaintiff was not using his truck but one of the trucks belonging to the partnership. Part of exhibit 1 tells me this:

"Mark [the plaintiff] only worked for us on a very casual basis if someone happened to be sick or something and he was available he would do a trip to Sydney. Mark's duties were only to load and unload the truck which consists of all palletised products with a forklift. All the trailers have curtained side so there is no heavy lifting to put a tarp on a load or anything like that."

In the period from July 2011 to January 2012 the plaintiff drove a truck for the Andrews on 28 days. In the financial year commencing on 1 July 2012 the plaintiff only drove a truck for the Andrews partnership on four days. It would appear from the records made by the Andrews partnership, which formed part of exhibit 1, that the plaintiff was paid $300 for making each trip.

22. In February 2014 the plaintiff bought a second-hand prime mover. He soon thereafter bought a second-hand tabletop trailer. He purchased the prime mover for $40,000. He purchased that equipment because he had work arranged that he could do. His father-in-law has a contract business in the cotton fields at Wee Waa and Narrabri carting bales of cotton from the fields where the cotton is grown to the cotton gins. The plaintiff's father-in-law said that he could provide work of that nature to the plaintiff during the cotton harvesting season. The plaintiff arranged to take long service leave commencing in March 2014 and ending in early August 2014.

23. Because it was mentioned in the evidence, I should recite that prior to going on long service leave the plaintiff injured his chest whilst coal mining. On 2 April 2014 he attended upon the Gulgong Medical Practice and complained that he had fallen over 11 days previously and had bruising and pain ever since. The bruising was over the right rib cage and clearly that was where the tenderness was. Nevertheless, there were no problems with breathing. X-rays were ordered and it was suspected that they show a displaced fracture of the tenth rib which caused the medical practitioner at the Gulgong Medical Centre on 7 April 2014 to recommend analgesia as required, and prescribed restricted work involving no heavy lifting, but of course that was irrelevant because by that stage the plaintiff was on long service leave.

24. After those attendances at the Gulgong Medical Centre the plaintiff went back on 28 April 2014 because he had a further injury to his ribs when he slipped off a rail at a cattle yard and fell onto the left side of his chest. According to the records, that resulted in a bruising over the rib. The plaintiff had some pain on coughing but there was no tenderness and his chest was clear. The plaintiff said that he had been at the cattle yard in order to attend to transporting some beasts in his small truck.

25. The plaintiff was involved in transporting the cotton crop for five or six weeks, which ended in early or mid-June 2014. However, he remained on long service leave until returning to work on Friday, 8 August 2014. The plaintiff was cross-examined at some length about his self-employment as a truck driver. Exhibit 2 is the plaintiff's income tax return for the financial year ending 30 June 2014. That document describes the plaintiff's own business as being a harvesting service and transportation. There are some inconsistencies in the income tax return itself. For example, it shows business income as being $97,956 in one place, but in another as being $77,934. However, there is no dispute that the plaintiff also had a large number of deductions which amounted to $67,526. There is no dispute that the plaintiff's net taxable earnings from his business during the financial year involved were $10,408. However, those earnings were offset against a deferred non-commercial loss from a prior year of $29,478, giving the plaintiff a net loss of $19,070 for the financial year ending 30 June 2014. The important figure, of course, to reflect upon is the net taxable earnings of $10,408.

26. The plaintiff admitted that one of the reasons for buying the prime mover and trailer and taking up this work during his long service leave was because he was looking to the future, and because coal mining work is heavy and because the plaintiff was looking to providing himself with an alternative career in the future. However, common sense indicates that with a wife and two children to support, the plaintiff would not be able to survive on net taxable income of $10,408 per annum. In referring to the plaintiff's wife I am not suggesting that she is claimed as a dependent in these proceedings, but the plaintiff had an obligation to support his wife in the event that she ceased to earn income herself.

27. The plaintiff was cross-examined not only about his plans and the income derived from this business, but also upon the nature of the work that he did in providing transportation. I have no hesitation in accepting what the plaintiff told me about that work. Essentially, his only physical role when transporting the cotton crop was to tie down the bales of cotton on his truck. Six bales of cotton would be carried on the tray of his trailer. He had to tie them down using straps. Otherwise the only physical activity involved was driving the truck itself. As far as other work was concerned, it was carting hay for farmers and the same consideration attached to carting hay. Even small bales of hay are now loaded mechanically. The plaintiff also carried animals in cages on his smaller truck. He told me that he might carry up to 14 grown cattle, 26 poddy calves, and up to 120 sheep. However, they self-loaded, the sheep presumably with the use of dogs. There was clearly a risk involved in dealing with animals, such as the risk which eventuated in April of 2014 when the plaintiff fell off the rail of a cattle yard, but also a risk which he subsequently underwent, the risk of being kicked by a cow which occurred on 20 March 2015. However, I accept the thrust of the plaintiff's evidence that essentially no heavy lifting or arduous work was involved in his work, self-employed providing transport for cotton and hay, general goods and animals.

28. The plaintiff returned to work on Friday, 5 August 2014. He worked at his normal five day shift ending on Wednesday, 12 August 2014. He then had four days off, returning to work on Sunday, 17 August, and he also worked on Monday 18 August, but did not attend work on Tuesday, 19 August which is when the closed period commences. He sought to see his general practitioner on 19 August, but could not see the general practitioner until 20 August. The plaintiff told me that he returned to his pre-injury work as an underground coalminer and was called upon to do heavy work involving, inter alia, bolting and erecting and using Lincoln locks to construct columns to hold up the roof of the mine. He described Lincoln locks to me as essentially boxes about 1 metre square which are linked together to form a column. Each Lincoln lock weighs about 8 kilograms. This is undoubtedly heavy work. The plaintiff also told me that when he returned to working in the colliery his left arm was not as strong as it had been when he was working in the colliery, because when he was on long service leave he had done less physical work than he was used to doing, and, if he had not lost muscle bulk, he certainly lost muscle power. There is supportive evidence for what the plaintiff told me. For example, the plaintiff saw Dr Hitchen for the defendant again on 10 March 2015. Doctor Hitchen described the plaintiff as looking "moderately deconditioned". One will recall that Professor Sonnabend expressed the view that the plaintiff coped moderately well with his disability because of his "considerable residual strength". That is, although the plaintiff might have a problem with some of the musculature in his dominant left arm, other well-developed muscles may have been making up for the problems that the plaintiff was experiencing.

29. The plaintiff told me that he stopped working on 18 August 2014 because he could no longer put up with the pain. He made the point that he was no longer prepared to tolerate the pain. I have no hesitation in accepting the plaintiff did become "deconditioned" during his four months long service leave, and that when he returned to doing heavy work he experienced pain that he was no longer prepared to tolerate. On 20 August 2014 the plaintiff saw Dr Roslyn Doyle at the Gulgong Medical Centre. Doctor Doyle's history commenced to be recorded at 12.54pm. The notes made by Dr Doyle are these:

"Having further pain with left shoulder. Increasing over months. Work involves heavy lifting. Exacerbation previous injury. For X-ray and ultrasound. Review with Dr Kwa. Review here in one month. No heavy lifting."

30. The plaintiff was cross-examined at some length about that history, in particular about having further pain over the preceding number of "months". The plaintiff could not honestly remember giving that history. One of the problems with the history is that it does not specify the number of months. It may have been over 12 months rather than, for example, four months. It was suggested to the plaintiff by Mr Odling, for the defendant, that in essence his pain had increased whilst he was doing work driving his own trucks whilst on long service leave. The plaintiff would not agree. However, Dr Doyle did not give evidence and doctors sometimes get things wrong. The plaintiff could have mentioned weeks and the doctor could have typed months. I accept it is more likely than not that the plaintiff did return to work deconditioned, experienced pain doing the work, and was no longer prepared to tolerate it. The plaintiff was provided by Dr Doyle with a certificate certifying him as totally incapacitated on 20 August 2014, and certifying he was fit for restricted duties thereafter until 20 September 2014. There are before me a number of further “light duties” certificates. They restrict the plaintiff to carrying no more than 2 kilograms with his left arm, and he was restricted to pushing or pulling using his right arm only.

31. The plaintiff was sent back to see Dr Kwa on 26 September 2014. Dr Kwa's history is this:

"He states that he has had pain ever since then [the earlier surgery] but has been able to put up with it and to continue working. However, over more recent times he's been unable to work and he's currently off work. Over the last 12 to 18 months the symptoms and pain have increased. He has not had any further traumatic incidents. He has had no treatment. Pain is felt mainly around the front of the shoulder and it can radiate down the arm towards the biceps."

One will see there a history of increasing symptoms over the previous 12 to 18 months, which might be some indication of what the history given to Dr Doyle was: it may have been not complaint of pain for the last four months, but a complaint of pain for 12 to 18 months, just like the history recorded by Dr Kwa. Doctor Kwa recommended further investigation and, in particular, a further MRI arthrogram of the left shoulder. Doctor Kwa had available to him some ultrasound images which suggested the presence of a problem with the biceps tendon. If a further MRI were performed, a report of it has not been put before me.

32. The next report I have from Dr Kwa bears date 13 February 2015. The doctor noted that the plaintiff had had an injection into his acromioclavicular joint, but that did not provide him with "much relief at all". Again, the plaintiff felt pain mainly around the front of the shoulder radiating down into the biceps. On examination Dr Kwa found that the O'Brien test was positive, and that the tenderness was mainly over the anterior aspect of the joint around the long head of the biceps. There was a positive impingement sign. Doctor Kwa expressed the view that the plaintiff's pain related to the long head of the biceps. He suggested further arthroscopy. I point out, as I pointed out to counsel during addresses, that Dr Kwa's initial examination of the plaintiff on 6 July 2006 noted localised tenderness over the long head of the biceps tendon. The doctor was identifying the same pathology.

33. By letter of 18 March 2015 Dr Kwa advised the plaintiff's solicitors that he had recommended arthroscopy. He noted the plaintiff had undergone cortico-steroid injections into the shoulder but the problem had persisted. The defendant arranged for the plaintiff to be re-examined by Dr Hitchen who was of the same opinion that he earlier expressed, that there was nothing preventing the plaintiff from performing his normal pre-injury work. The defendant, by its insurer, then denied liability for the further treatment proposed by Dr Kwa.

34. On 25 March 2015 the plaintiff was seen by Dr O'Keefe at the request of his solicitor. Dr O'Keefe describes the surgery proposed by Dr Kwa somewhat dramatically but incorrectly. However, it is clear that Dr O'Keefe accepted that the plaintiff had an ongoing problem, and came to a view, which is similar to my own. He said this:

"It is my clinical impression that he probably had acromioclavicular joint problems all along, and as usual with MRI scans, the diagnosis that was made initially was incorrect, stating that he had a SLAP lesion, and this was repaired instead of his acromioclavicular joint being attended to, and this has been the problem all along since the original injury in 2006. I would recommend the surgery be carried out as recommended by Dr Kwa, including a biceps tenodesis."

If by the "acromioclavicular joint problems" Dr O'Keefe is referring to a problem with the long head of the biceps tendon, then I completely concur with Dr O'Keefe. It appears that the radiological investigation has been treated rather than the plaintiff's symptoms.

35. In a report of 9 July 2015 Dr Kwa said this:

"It is my opinion that his current injury and disability is[sic] related to the injury in 2006 and also subsequent heavy nature of his employment. Whilst he may have had an initial good recovery from the surgical repair of the SLAP tear, Mark reports that he has had ongoing pain of a similar nature since returning to work. It is quite possible that there has been a further injury, with further heavy work contraction[sic] or there has been a problem with a previous SLAP repair, or that the heavy nature of his work subsequently led to the development of some instability of his biceps tendon, and moreso for inflammation of his acromioclavicular joint."

Firstly, there does not appear to have been any "further injury". It appears that the plaintiff's problems all along have been with the long head of the biceps tendon. Initially, that is before the initial surgery, Dr Kwa pointed out that the plaintiff's alternative to a SLAP lesion repair was biceps tenodesis, which of course is what ought now be carried out in light of what has been found consistently by Dr Kwa, and also what was found by Professor Sonnabend and Dr Cass. The surgery has not been practised. As I said, this case involves a closed period claim. The reason the period is closed is because the plaintiff has suffered a major catastrophe.

36. On 28 April 2015 he was involved in a truck accident. He is now an incomplete quadriplegic. He is currently confined to a wheelchair. He gave evidence from that wheelchair. He is due to finish, I understand, today with his rehabilitation at the Royal Rehabilitation Hospital at Ryde. In a report from a staff specialist at that hospital the following is stated:

"The recommended surgery on his left shoulder would be a safe and indicated procedure to do and would prevent further damage to the shoulder joint and the need for more extensive surgery within the future.

However, as Mr Mackenzie relies on his left arm for mobilising his powered wheelchair (as the right arm is currently weaker) I suggest the surgery to be postponed until natural recovery following his injury is likely to finish. I expect this to occur in 6 - 12 months."

The plaintiff does have more use of his left arm than his right arm. He uses it to operate and steer his powered wheelchair. It is his dominant arm. I can understand his desire to strengthen his dominant arm to assist him in coping with the consequences of his tragic accident.

37. There is no dispute that after obtaining his light duties certificate on 20 August 2014 the plaintiff rang his immediate supervisor, Mr Simon Box, and sent the certificate to him via workmate on the following day. Mr Box told the plaintiff that he would refer the matter to the occupational health and safety supervisor. Mr Box rang the plaintiff back, I assume on 21 August 2014, and told the plaintiff that there were no light duties available to him. The plaintiff told me, and I accept, that if suitable duties had been provided to him he would have done them. The plaintiff worked in his transport business, but there is no suggestion the plaintiff's earnings in his self-employment between 20 August 2014 and 28 April 2015 got anywhere near the type of earnings that he would have earned had he remained working full-time as a coal miner. The plaintiff told me that sometimes he might work 30 hours per week at the maximum, but other weeks he would not be able to find any work at all. That is completely consistent with what the plaintiff told Dr Hitchen on 10 March 2015 prior to the tragedy of 28 April 2015.

38. I have no hesitation whatever in finding that the plaintiff still suffers from the effects of the injury of 29 January 2006. It appears to be likely that although this plaintiff's symptoms were not mediated by the SLAP lesion identified radiologically, but because of the treatment afforded for the repair of that lesion, the plaintiff's symptoms rapidly abated. He was being, so to speak, wrapped up in cotton wool because of the surgery that had been practised, and therefore not using his arm, and therefore any symptoms caused by a problem with the long head of the biceps tendon abated. However, he eventually returned to work, symptoms recurred, and appeared to have become worse over time.

39. I accept that there has been an exacerbation of the plaintiff's original problem due to the type of work he did for the defendant, up until 18 August 2014. That view is supported by the opinion of Dr Kwa which I have cited. It is clear that on or about 21 August 2014 the defendant failed to provide the plaintiff with suitable employment during his partial incapacity for work. The plaintiff is accordingly entitled to the benefit of s 11(2) from that time onwards. As to 19 and 20 August, I believe the appropriate finding is the plaintiff was, in effect, totally incapacitated on those days because Dr Doyle said so on 20 August, and the plaintiff was unable to see the practitioner on the preceding day, so that the incapacity should be viewed as iatrogenic. It appears to me that it is reasonable the plaintiff undergo the surgery initially proposed by Dr Kwa in late 2014 or early 2015, the surgery that is still supported by those treating the plaintiff currently for his incomplete quadriplegia.

40. For those reasons I make an award for the plaintiff for $1,064.35 per week from 19 August 2014 to 17 February 2015, and for $475.70 per week from 18 February 2015 to 31 March 2015, and for $481.90 per week from 1 April 2015 to 28 April 2015. I order the defendant to pay the plaintiff's hospital, medical and like expenses. That order is an ongoing order, not restricted to the closed period. I order the defendant to pay the plaintiff's costs.

**********

Decision last updated: 27 January 2016