Maurer v Stratford Coal Pty Ltd

Case •

[2017] NSWDC 426

•

29 September 2017

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: Maurer v Stratford Coal Pty Ltd [2017] NSWDC 426
Hearing dates: 27 – 29 September 2017
Date of orders: 29 September 2017
Decision date: 29 September 2017
Jurisdiction:Civil
Before: Neilson DCJ
Decision:

I make an award for the plaintiff for:
(1) $1,379.92 per week from 8 October 2015 to 1 January 2016 – s11(1);
(2) $440.50 per week from 2 January 2016 to 1 March 2016 – s11(1);
(3) $440.50 per week from 2 March 2016 to 31 March 2016 – s9;
(4) $446.40 per week from 1 April 2016 to 15 July 2016 – s9;
(5) $446.40 per week from 16 July 2016 to 30 September 2016 – s11(1);
(6) $449.70 per week from 1 October 2016 to 8 January 2017 – s11(1); and
(7) $455.50 per week from 10 April 2017 to date and continuing – s9.

 

I make a general order under s 60.

 I order the defendant to pay the plaintiff’s costs.
Catchwords: WORKERS COMPENSATION – Coal Miner – Pre-existing problems in left knee from teenage years – ACL reconstruction at age 16 (1986) – Joined coal mining industry in 1995 – Relevant incapacity commenced in August 2014 – Whether present left knee condition work-related – Whether due to frank injury or injuries – Whether meniscal and ligament tears traumatic or part of disease process – Whether aggravation, acceleration, exacerbation or deterioration of pre-existing disease
Legislation Cited: Workers Compensation Act 1926
Workers Compensation Act 1987
Category:Principal judgment
Parties: Kenneth Frances Maurer (Plaintiff)
Stratford Coal Pty Ltd (Defendant)
Representation:

Counsel:
Mr D Benson (Plaintiff)
Mr T Rowles (Defendant)

  Solicitors:
Slater & Gordon
Sparke Helmore
File Number(s): RJ 562/15
Publication restriction: Nil

Judgment

  1. HIS HONOUR: The plaintiff, Mr Kenneth Frances Maurer, claims weekly payments of compensation from 8 October 2015 to date and continuing for either total incapacity, partial incapacity or partial incapacity deemed to be total, pursuant to s 11(2) of the Workers Compensation Act 1926 as it is preserved for those who are injured whilst working in or about a coal mine. The plaintiff also claims a general order under s 60. The plaintiff claims compensation because of the condition of his left knee. The matter is complicated because there is a complex history concerning the plaintiff's left knee.

Initial problem – 1983

  1. The plaintiff was born on 14 April 1970. He is currently 47 years old. He first injured his left knee when he was 13 years old. The plaintiff was born, and has lived for most of his life, in the town of Gloucester. There is now a clinic at Gloucester called the Gloucester MediCo. Its rooms are currently in Denison Street, Gloucester. That practice holds the plaintiff's records going back to 6 March 1973. On or about 4 May 1983 the plaintiff attended the practice with an effusion of his left knee after being involved in a motorcycle accident. The plaintiff told me that he was driving a dirt bike on a rural property. The notes of the practice indicate that the plaintiff had drained from his left knee 25 millilitres of a haemoserous liquid. A bandage was then applied and he was prescribed both medication, which was probably an antibiotic, and physiotherapy.

Problems in 1986

  1. The plaintiff attended again at the Gloucester Medical Practice on 16 June 1986, just over three years later. The notes say this:

"Direct trauma to medial side of left knee. Now complaining of swollen painful left knee. Cannot bear weight and now using crutches. On examination: Swollen with effusion (medial greater than lateral). Tender medial joint surface with palpable effusion. Peripheral sensation - circulation - ok."

The next word in the notes is an abbreviation for “ligaments”. The medial ligament was tender with slight laxity, but the lateral collateral ligament and the cruciate ligaments all appeared to be normal, and the “meniscus” appeared to be normal. The plan proposed by the medical practitioner was for a bandage to be applied, for the plaintiff to continue using crutches, for him to rest for one week, and then to attempt to move the joint. The doctor speculated that arthroscopy might be required and that the plaintiff would need to be reviewed when better. On 28 June 1986 Dr CL Martin referred the plaintiff to Dr John Sage because of a persistent effusion in his left knee. I take the date of referral from the clinical notes. The referral letter is dated 30 June 1986.

  1. On 9 July 1986 an X-ray was performed at the Wallsend District Hospital at the request of Dr Martin. The report of the X-ray is this:

"There is moderate increase in the amount of fluid in the left knee. There is no fracture or dislocation. The articular cortices and spaces are intact and normal. There are no loose bodies.

COMMENT: Moderate degree of hydrosynovium. Negative for fracture or dislocation."

  1. In his referral letter of 30 June Dr Martin referred to the plaintiff’s having injured his knee "over two weeks ago", which of course takes one back to 16 June 1986. The plaintiff saw Dr John Sage, an orthopaedic surgeon, on 3 July 1986. Dr Sage diagnosed a rupture of the anterior cruciate ligament with quite marked instability in the left knee. Dr Sage was also of the opinion that the plaintiff had damaged one of his menisci. Despite the history provided to him by Dr Martin, Dr Sage thought that the plaintiff's original injury appeared to happen four years previously, and that since that time the plaintiff had repetitive episodes of his knee giving way. That, to me, indicates that Dr Sage was of the view that it was likely that the plaintiff ruptured his anterior cruciate ligament in the motorcycle accident of May 1983, and that he then had repetitive episodes of his knee giving way until the more recent event of or shortly before 16 June 1986.

  2. Dr Sage proposed arthroscopy. That was carried out on 9 July 1986. He confirmed through the arthroscopy that there had been a tear of the anterior cruciate ligament. He found a bucket handle tear of the medial meniscus displaced at the centre of the joint. The tear was in the vascular area of the meniscus. It pushed the meniscus back into the correct position during the arthroscopic procedure. The doctor then recommended a reconstruction of the anterior cruciate ligament and a repair of the medial meniscus. That surgery was performed on 26 August 1986. It would appear to have been performed at the Belmont Hospital, at which the plaintiff was a patient between 25 and 29 August 1986. This was open surgery. Dr Sage reconstructed the anterior cruciate ligament using a pedicle graft of the middle third of the patellar tendon. On this occasion the tear of the medial meniscus had again been displaced and a further tear had occurred since the arthroscopy on 9 July 1986. Accordingly, Dr Sage said that he excised the meniscus, although it is clear that only part of it was actually excised. There was also an ilio-tibial band transfer performed. At the time of that surgery the plaintiff was 16 years old.

Problems in 1994

  1. He next returned to a medical practitioner at Gloucester on 24 March 1994. The history recorded in the notes is that he was playing soccer and twisted his left knee, and had been in pain since that time. He had applied both a liniment to his knee and ice. On examination, the general practitioner found some swelling. However, he did not find any significant signs of ligament damage. The plaintiff was told to apply a crepe bandage to the knee, and was prescribed Feldene and given a certificate to be off work for 2 days. He returned to the Gloucester clinic on 10 June 1994 with pain on the medial aspect of his left knee. The doctor noted that the pain was “recurrent with minor trauma”. The plaintiff was referred back to Dr Sage. In the meantime the plaintiff was prescribed Panadeine Forte and told to apply rest and ice, and was also sent for an X-ray. X-ray was performed on 14 June 1994, and is noteworthy only for indicating that there were staples present in the knee joint as a result of the earlier anterior cruciate ligament reconstruction.

  2. Dr Sage carried out further surgery. It was performed in one of the hospitals under the umbrella of the Royal Newcastle Hospital on 24 June 1994. According to the hospital interim discharge letter, the procedure performed was arthroscopy in which partial medial meniscectomy was practised. The plaintiff returned to see his general practitioner on 28 June 1994 when the surgical wound was attended to and cleaned, and redressed, and a certificate of total incapacity was given for the period from 24 June to 1 July 1994, and a certificate for partial incapacity commencing on 2 July extending until 17 July 1994. I should indicate that the records of the clinic at Gloucester show the plaintiff regularly attending that clinic in every subsequent year, but there were no further complaints about the plaintiff's left knee until 21 July 2010.

Employment

  1. The plaintiff completed his high schooling at the Gloucester High School in year 10. He obtained the School Certificate. He then obtained an apprenticeship as a plant mechanic with the Roads and Traffic Authority of New South Wales, as that organisation was then called. He completed his four year apprenticeship and worked on with the Roads and Traffic Authority until 1995. He told me that he was engaged on work along various stretches of the Pacific Highway between Karuah and Port Macquarie. In 1995 he applied to enter the coal mining industry. He underwent an occupational health screen test with the Joint Coal Board (JCB) on 6 June 1995, with a view to his commencing work with Stratford Coal Pty Ltd, the defendant in these proceedings.

  2. The plaintiff gave a history of his knee problem to the JCB. He gave a history of the left knee reconstruction in 1988. It is clear, however, that the reconstruction was actually in 1986, but that merely indicates the plaintiff's recollection of time was unreliable. He also gave a history of the left knee arthroscopy occurring in 1994 when he underwent a medial meniscectomy. The plaintiff told the examining physician that he had no problems with his knee since the operative treatment in 1994. The plaintiff admitted in the interview that he had a cartilage removed from his knee, that he also had a ligament injury, and that he had had operative treatment on his knee, but the plaintiff told the doctor that his knee did not give way, or in any way sublux. The plaintiff was certified as fit to enter the coal mining industry. Shortly thereafter he started working for the defendant at its open-cut coal mine on Bucketts Way South at Stratford, which is near Gloucester.

  3. The plaintiff told me that his reason for turning from working for the RTA to working with the defendant was so that he could work close to his home and not spend so much time commuting to his workplace with the RTA. The plaintiff did not work in the defendant's mine as such, but in the adjacent building which was called by him the washery, and is general so-called in the coal mining industry, but is called by others a processing plant. When he started working for the defendant the washery was some 30 metres long and 20 metres wide and was four storeys high. At some stage while he was working there it was extended so that its length was increased to 60 metres and its height was increased to the equivalent of seven storeys. The plaintiff was required to work on the various floors of the washery, and the means of access between floors was steps.

Duties with the defendant

  1. For the first five or six years of his work with the defendant he worked from Monday to Friday, eight hours per day, but on rotating shifts. The shift structure was then changed to 12 hour shifts with three or four shifts performed each week. However, that was again changed back to eight hour shifts between Monday and Friday, but again rotating shifts. The plaintiff told me that he did work overtime. The duties of the plaintiff performed for the defendant need to be considered. The washery was obviously a plant in which the coal was washed prior to its being loaded. It was loaded into railway wagons from the washery itself. The plaintiff was engaged in the loading of the railway wagons. To do that, a train passed under a hopper. He worked sometimes in the cabin, which controlled the hopper, operating the hopper by using levers or buttons. At other times he was required to load the hopper using a loader or dozer. The plaintiff referred to this dozer as being a D10, which indicates it was extremely large.

  2. There was fortnightly maintenance of the washery itself. That occurred one day each fortnight when it was necessary to check and maintain all the machinery. However, there were breakdowns which the plaintiff estimated happened twice each week on average. Sometimes a breakdown could last an hour. At other times a breakdown could last for up to two days. When there was a breakdown, the plaintiff and those with whom he worked were required to fix whatever had gone wrong with the machinery in the washery. The plaintiff told me that to do such maintenance or breakdown work he used pneumatic tools, large spanners, 3 foot shifting spanners which weighed between 8 and 10 kilograms.

  3. It was also necessary from time to time to replace various rollers on the conveyor belts. There were three different sizes of rollers. The smaller ones weighed about 5 kilograms. The medium sized rollers weighed between 12 and 15 kilograms, and the largest rollers weighed between 15 and 17 kilograms. Wherever it was necessary to replace a roller, a roller had to be carried to the replacement site, which might be at the top, or could have been at the bottom of the washery, and the one being replaced had to be carried back to some form of workshop, I assume.

  4. The plaintiff also told me that his duties required regular inspection and washing down of the washery itself. There were often spillages of coal from the conveyor belts, and those spillages had to be cleaned up. The spillages would not be merely of dust, but it they would include cobbles of coal and even larger sections of coal which needed to be broken up with a hammer. The plaintiff admitted in cross-examination that he was required to climb up and down stairs at minimum three times each shift, and at maximum 25 times per shift. He gave further evidence in re-examination that another duty that he performed was the collection of samples of coal. Sometimes one would need to do that every day of every week, in other weeks, less often than daily. He would collect coal into 20 litre drums. The coal was collected on the third level and taken to the ground level. The plaintiff told me that when he collected 20 litre drums of coal for the sampling process, he usually collected about ten buckets of coal. It would seem therefore that he regularly carried ten buckets, each containing 20 litres of coal.

  5. The plaintiff, in addition to carrying buckets of coal and the tools that he used in the maintenance and repair, also carried drums of oil, obviously used to lubricate either the machinery or the conveyors or both, and he would have to carry these drums with oil up to 70 metres. That distance included both vertical and lateral distance. If my recollection be correct, the drums of oil contained about 20 litres.

  6. The plaintiff was not cross-examined about his duties. There was no real contest about that.

  7. The plaintiff has given histories to doctors about his duties. Some of those histories need to be considered. The first doctor the plaintiff saw for the defendant was Dr Vijay Panjratan, an orthopaedic surgeon. Under the heading, "Pre-Injury Duties" in his report of 14 October 2014, Dr Panjratan said this:

"He does mechanical breakdowns. He drives heavy machinery, like large dozers and loaders, and he has to walk up a lot of steps. There are no lifts in the plant, but steps or step conveyors. Everything is handled manually pretty well. He works in the control room, does a lot of hosing and cleaning. He is very multi-task. He also does train loading."

  1. The other doctor who saw the plaintiff for the defendant was Dr Myles Coolican, also an orthopaedic surgeon, who saw him at Chatswood on 24 October 2016. Dr Coolican does not state in his report exactly what the plaintiff's duties were. However, he said that it would be appropriate to place significant restrictions on the plaintiff's work, and that in particular he should avoid prolonged standing and lifting or carrying loads more than 20 kilograms. He also went on to say that the plaintiff was not fit for full-time heavy work, and appears to have excluded the plaintiff from performing his pre-injury work, indicating to me that his pre-injury work was considered by Dr Coolican to be heavy, and to at least require lifting and carrying loads around the 20 kilogram mark.

Injuries relied upon

  1. In the statement of claim the plaintiff relies upon four incidents that occurred to him in the course of his employment. The first incident pleaded is one on 16 July 2010. The pleading is this: "On 16 July 2010 during the course of his employment the plaintiff stepped over a motor and twisted his left knee." On 21 July 2010 the plaintiff saw Dr Eric Barlow at the Gloucester MediCo. The doctor's notes are these:

"Five days ago twisted on left knee at work as stepped over a motor and twisted. Pain at time. Kept working. Some swelling by the end of shift. Iced. Previous cruciate repair 24 years ago [by Dr Sage]. Occasional twinge in the past. Swelling settled but still some pain and clicking."

On examination Dr Barlow did not find any swelling, but he noted some crepitus and slight tenderness along the medial joint line. He thought the plaintiff could continue with his work and prescribed Nurofen as the need arose. He thought the plaintiff may have had a "minor ligament strain". This event is also referred to in exhibit D, a certificate issued by Dr Barlow to the plaintiff on 21 July 2010, which indicated that the plaintiff continued to be fit for his pre-injury duties.

  1. The next event pleaded is this: "On or about 19 April 2011 during the course of his employment with the defendant, the plaintiff twisted his left knee." That was not the subject of any oral evidence from the plaintiff. The only reference to it is in exhibit C, a letter that the plaintiff wrote to Coal Mines Insurance Pty Ltd in response to a letter to him dated 9 October 2014. Unfortunately the plaintiff did not put a date on his letter. That letter says this of this event:

"19-04-2011 - reported in First Aid Record Book - sharp pain to left knee. I did not lose any time off work, but the knee was very stiff, swollen and sore for around six weeks."

I have to assume that the plaintiff took this information from the First Aid Record Book kept by his employer. Exhibit C does not tell me the mechanism of the injury, and I am accordingly unable to find that there was a twisting injury at the time, but I accept that there was pain in the left knee and it became stiff and swollen and sore for a period of time.

  1. The next event pleaded is this:

"On or about 6 February 2014 during the course of his employment, the plaintiff missed a step on a stairwell landing heavily on the left foot, and jarring the left knee."

A contemporaneous record of this event is exhibit B, an incident report form compiled by the plaintiff's supervisor, Mr Brad Cooper. The sequence of events is interesting, not only to describe what happened, but to show the type of work the plaintiff was doing for the defendant:

"Hosed screen deck adjacent to screen motor.

Returned hose to top floor, hosed structure and stairs while waiting for raw coal system to restart.

Started to descend stairs when glasses fogged up due to the use of dust mask. Misjudged step and jarred left knee.

Lifted safety glasses and safely descended the stairs and reported incident."

According to exhibit C, the plaintiff did not lose any time from work, but was told by Mr Cooper to do light work. The provision of light work is not referred to in exhibit B, and it is possible that this was merely a friendly suggestion by Mr Cooper, rather than a direct order. Exhibit C tells me that the plaintiff felt stiffness and soreness in his left knee for around six or seven weeks after this event.

  1. For how long the plaintiff experienced discomfort after this event is an interesting question. The plaintiff was sent by his solicitors to see Professor YAE Ghabrial on 13 January 2016. Dr Ghabrial's history said the plaintiff's symptoms settled down fully after, "he had treatment and a few weeks rest". Mr Rowles asked me to accept that the history given to Dr Ghabrial was accurate, and that the plaintiff's condition fully settled down after "a few weeks". However, there is no evidence the plaintiff had any rest at all, or had any treatment at all, other than first aid treatment. I am afraid I cannot put any reliance on Dr Ghabrial's history.

  2. However, that the plaintiff probably had little ongoing effect from this event is confirmed when one considers the records of the Gloucester MediCo. On 26 February 2014, 20 days later, the plaintiff phoned the practice and asked for a further prescription for the drug being used to treat his gout. On the following day, 27 February 2014, 21 days after the event, the plaintiff saw Dr Safwat Khalid, complaining of symptoms of gout in one of the metatarsal phalangeal joints of his right foot. The doctor noted that the area was hot and tender to palpation, and the diagnosis offered was that of gout. There was then a discussion about changing the dosage of the medication prescribed to the plaintiff for the control of his gout.

Intervening events

  1. In June 2014 the plaintiff was involved in a motor vehicle accident. The fullest description of that is in Dr Panjratan's report of 14 October 2014. It is this:

"Mr Maurer was involved in a motor vehicle accident about three months ago. He was coming home from work and had a microsleep. This was about 7.15am, after being on night shift. He ran off the road into a tree. The car was written off. Ambulance, fire brigade, and the police attended, and he was transported to Gloucester Hospital. The on-call doctor was called in. His neck was the main painful area, which was examined. A diagnosis of a whiplash injury was made. He was put off work for one week. Along with the whiplash he also had bad headaches. The problem settled down in a week. He did not have any physiotherapy or any other form of treatment. He did take some anti-inflammatory medication, Celebrex, for the muscle spasms."

The plaintiff attended upon Dr Shyam Gurudoss at Gloucester MediCo on 16 June 2014 concerning this motor vehicle accident. The notes made by Dr Gurudoss indicate that the plaintiff was seen at the hospital by a Dr Bird, who is one of the practitioners at the Gloucester practice. Dr Gurudoss issued a "WorkCover certificate" on 16 June. The plaintiff returned to see Dr Gurudoss on 24 June 2014 when he told the doctor that he was feeling much better, that the neck pain had resolved, and that although he was having some flashbacks his sleep was all right. There was no tenderness on examination of the cervical spine and the range of movements was good.

  1. On 24 July 2014 the plaintiff went back to the Gloucester practice complaining about chronic back pain after an acute exacerbation of it when he was moving firewood on the previous day. This was an event that would have happened at home. It certainly did not happen at the defendant's premises. The next consultation was on 28 August 2014, but concerned the plaintiff's left knee. It is clear that in none of the consultations between 27 February 2014 and 24 July 2014 did the plaintiff mention any problem with his left knee. The inference to be drawn is that the plaintiff's left knee was "all right". Any problem caused by the event of 6 February 2014 had settled down within a month of the event.

Further alleged injury

  1. The next event pleaded in the statement of claim is this: "On or about 27 August 2014, the plaintiff developed symptoms in his left knee whilst operating a loader." This again is the subject of exhibit A, a claim for compensation made by the plaintiff on 2 September 2014. The description given in that document is this:

"Whilst operating ROM loader, left knee stiff and sore, hopped out and stretched, return operating loader. End of time, parked loader and walked to control room, leg had become very painful and swollen. Applied RICE [rest and ice]."

The plaintiff told me in his evidence that he was required to use the pedals on the loader with his left leg and after repeated pressing of the pedals with his left leg, his knee became painful. He then, after a while, got out and stretched his leg and returned to his work which he completed, but with increasing symptoms.

  1. In that claim form the plaintiff referred to the events of 6 February 2014 and 19 April 2011, and an event in November 2012, but that is not the subject of any evidence at all. The plaintiff said in the claim form that all of those times represented sprains of his left knee on earlier occasions at work. In his letter to Coal Mines Insurance, exhibit C, the plaintiff said this, amongst other things:

"There have been many occasions over the last 12 years which I have never bothered to put in the First Aid Book where I had twisted, aggravated and felt pain whilst on shift, especially walking up and down stairs. Some of my work colleagues are aware of this."

That is a frank concession by the plaintiff that perhaps dating as far back as 2002 he had been having problems with is left knee when he felt symptoms after twisting on his left knee, and after walking up and down stairs. That, in my view, is hardly surprising, considering the operative treatment that the plaintiff underwent in 1986 and 1994.

JCB/CSH Records

  1. It is correct, as has been submitted by Mr Benson for the plaintiff, that certain findings recorded in documents at Coal Services Health Pty Ltd indicate the plaintiff was having increasing difficulties with his knee with the passage of time. The first document in question is a functional assessment made on 7 April 2004. The compiler of the assessment form noted that the plaintiff had a left anterior cruciate ligament reconstruction in the past, as a result of which he had a decreased range of movement in his left knee, "but no residual pain". The plaintiff could perform most of the activities required of him in a satisfactory manner. However, with sustained crouching he found it necessary to prop himself, obviously with a hand. When required to do manual handling involving lifting weights from the floor to waist level, the plaintiff was initially able to fully squat, but then he adopted a semi squat position to complete the test.

  2. On 19 August 2013 the plaintiff underwent a medical examination for Coal Services Health and was required to fill in a questionnaire. He was asked whether he had any difficulty doing a number of activities. Three of the activities that he indicated that he had difficulty with were squatting, kneeling and walking/running. He attributed his problems with squatting and kneeling to restricted movement in his left knee. The problems he had with walking/running were because of his cardiac fitness. The medical officer nevertheless certified the plaintiff as being fit to do his normal work. However, they do show a general problem progressing that the plaintiff had in his left knee prior to the events of 2014. Just as significant is the fact that the events of 16 July 2010 and that of 19 April 2011 were not mentioned at the time of the medical examination on 19 August 2013.

Events after 27 August 2014

  1. On the day after the plaintiff had the problem with his left knee after using the loader, he consulted Dr Gurudoss. This was on 28 August 2014. The doctor noted that his left knee was swollen, that there was an effusion, and that the knee was tender over the superior aspect. Flexion of the knee was limited to 30 degrees. The doctor prescribed analgesics and gave the plaintiff a certificate to be absent from work. He indicated that he would refer the plaintiff to an orthopaedic surgeon once WorkCover approval had been given for the injury in question. The plaintiff returned to see Dr Gurudoss on 5 September 2014. The doctor noted that the swelling had reduced and that the plaintiff was able to walk better than he could on 28 August. The flexion had improved from 30 degrees to 60 degrees and there was minimal tenderness. Dr Gurudoss indicated that he would certify the plaintiff as fit for modified duties from that day.

  2. Antecedent to the event of 27 August 2014 the plaintiff had applied for annual leave because he had planned a family trip to Fiji. That annual leave, and that trip to Fiji, occurred. When the plaintiff saw Dr Panjratan on 14 October 2014 he noted this:

"Mr Maurer is still on the current annual leave. He is scheduled to go back to work tomorrow, but it is his rostered day off. He will be back to work tomorrow. He will have half a day on Thursday and back to normal on Monday 7 o'clock, for eight hours."

Dr Panjratan had available to him X-rays of the left knee performed on 24 September 2014, and an MRI scan performed on 4 October 2014. His diagnosis was of the aggravation of a pre-existing osteoarthritis of the left knee and a medial meniscal tear. Unfortunately the doctor's diagnosis is not particularly helpful. It is abundantly clear, and not a matter of any contest, that the plaintiff had osteoarthritis of his left knee well established in August 2014. We know that the plaintiff had medial meniscal tears diagnosed and treated in the past. It is unclear whether Dr Panjratan believed that there was some fresh medial meniscal tear.

  1. On the question of fitness for work, Dr Panjratan said a number of things. They are these:

"I would not send Mr Maurer on to machinery work as yet, and he should go on light duties. He should avoid steps and twisting movements…I agree with the certificate issued by the doctor that Mr Maurer is fit for light duties in which he does not have to use steps and does not have to twist and turn…The prognosis is guarded as the condition is likely to recur from time to time."

  1. The plaintiff told me that he was given a return to work plan which was due to commence on 22 September 2014. Essentially when the plaintiff returned to work, he returned to work pursuant to that plan. The plaintiff told me that it required him mainly to "shuffle papers" in an office at the defendant's mine.

  2. He was then referred by Dr Gurudoss to Dr Peter Berton. The plaintiff first saw Dr Berton on 17 October 2014. Dr Berton was concerned that the MRI scan of 4 October 2014 suggested that there had been a "meniscal tear" that may have dislodged into the back of the plaintiff's knee. It would appear that despite two medial meniscectomies performed by Dr Sage, that there was some remnant of that meniscus still present in the plaintiff's knee that may have become dislodged. The doctor also thought that the MRI scan showed evidence of osteoarthritis, which was reported as being advanced chondromalacia. On examination Dr Berton noted that the plaintiff was "quite bandy on both legs". That is a popular way of saying that the plaintiff had bilateral genu varum, which would be due probably to some constitutional pre-disposition, or could merely result from the plaintiff's weight. Dr Berton also found slight wasting of the plaintiff's inner quadriceps. There was mild crepitus behind the kneecap whenever the plaintiff straightened the knee. That was found on both the left and right sides of the body, that is affected each knee. The plaintiff's active flexion was reduced, and the plaintiff told Dr Berton that that condition was longstanding. The doctor found some wasting of the thigh musculature 10 centimetres above the patella. There was also a positive apprehension test when the patella was pushed laterally with a suggestion of increased glide.

  3. On the final page of his report of 17 October 2014 the doctor set out his impression. The first two paragraphs of that impression are these:

"This gentleman does appear to have a complex problem of tearing of the meniscus of the knee. It is hard to be sure what is old and what is new, although the likelihood is, based on history, that he underwent a partial meniscal resection under the care of Dr Sage a few years after his ACL reconstruction.

Based on his history of a functional knee, until a few work injuries in recent times, it was seen that he may have torn that meniscus in February this year, and possibly subluxed his patellofemoral joint. I am not entirely comfortable with the state of his anterior cruciate ligament."

The medical issues

  1. Suffice it to say that those two paragraphs to an extent sum up the issues before me. The speculation of Dr Berton is correct, that the plaintiff did undergo, after his ACL reconstruction, a partial medial meniscectomy. What Dr Berton did not know is that there was an earlier partial medial meniscectomy at the time of the anterior cruciate ligament reconstruction. The doctor speculated that the plaintiff could have torn his medial meniscus in February 2014, but that is mere speculation. There is no hard evidence that that actually happened. The question of a subluxation of the patellofemoral joint has now been excluded. That appears to be the result of the plaintiff's genu varum. However, it has been more recently postulated that the plaintiff may have torn the anterior cruciate ligament repair in the event of 6 February 2014.

Treatment

  1. Dr Berton prescribed physiotherapy. He also ordered some special investigations. One was a left long leg alignment. That showed that there was osteoarthritis in the medial compartment of the plaintiff's left knee, but none in the lateral compartment. A special CT scan was ordered to see whether there was any maltracking of the patellae of the plaintiff's knees. However, there was no such maltracking. In a letter of 10 November 2014 Dr Berton noted that by that stage the plaintiff was on near normal duties, with his only restriction being carrying weights of 15 kilograms or greater. Nevertheless, the plaintiff had pain over the medial joint line, and there was a "jamming sensation" at times, by which I assume is meant some sort of locking of the knee sensation.

  2. Dr Berton proceeded to arthroscopy on 19 November 2014. The arthroscopy showed the previous ACL reconstruction. It also showed evidence of a previous partial resection of a resected medial meniscus. The doctor shaved the retropatellar surface "cautiously". He arranged specialist physiotherapy after that procedure. By 2 December 2014 Dr Berton noted the plaintiff was back to driving and was confident that he could do control room duties, as long as he was not required to climb repetitively up and down stairs, and Dr Berton thought that such restriction was reasonable. By 13 January 2015 the plaintiff was in less pain than he had prior to surgery. By that time there was no wasting of the left thigh. However, there was still a small effusion present, and a positive Lachman test, which indicates problems with the medial compartment of the knee. Dr Berton then expressed this view:

"Ken seems to have recovered well. The knee itself feels stable, and I think at this point of time if that continues we are in agreement to withhold further surgery to the cruciate complex."

Termination of the plaintiff’s work and compensation

  1. After his recovery from the surgery practised by Dr Berton on 19 November 2014 a further return to work plan was initiated by Coal Services Health on 15 January 2015. The plaintiff was to return to doing office work for around six weeks or so, perhaps for a couple of months, and then he was eventually required to get back to doing normal duties. The plaintiff told me that he went on to be cautious in his use of steps, and descending steps caused him some problems. He told me that his left knee felt loose or unstable or "sloppy". However, it is agreed that the plaintiff got back to performing normal duties. He was performing normal duties until he was stood down from work on 7 October 2015. On the following day he was without work and Coal Mines Insurance Pty Ltd denied liability for the plaintiff's worker's compensation claim.

Further treatment

  1. On 16 July 2015 the plaintiff was reviewed by Dr Berton. In a letter to the general practitioner Dr Berton said this:

"Ken was reviewed and the mechanical symptoms in his knee were improved for the arthroscopy. He still however finds that he lacks confidence in the knee (i.e. he has no trust). He is doing his normal work but does have pain with stairs, and today his knee comes out straight and moves well, but there is a two plus Lachman Test differing to his opposite knee.

With Ken, he is now starting to think that he should get that cruciate ligament fixed to stabilise his knee and help protect against further giving way episodes that could cause structural damage."

In a report to Dr Gurudoss of 13 August 2015, Dr Berton pointed out that at the time of the arthroscopy practised by him, it was clear that the ACL graft had been damaged and by 13 August 2015 it appeared to have failed structurally. Of an MRI performed on that day the radiologist, Dr Slater said this:

"ACL graft has very minimal residual intact fibres just proximal to the tibia. The posterior cruciate ligament is intact. There is 5 mm of lateral tibial translation. Compared to the previous study, the fibres appear to be more poorly defined and not well demonstrated."

In a comment, Dr Slater said this:

"The ACL graft changes appears to have progressed compared to the previous study of October 2014. There are very minimal residual intact fibres, suggesting there is a tear of its mid portion, and just proximal to the tibia."

In other words, the studies made in October 2014 showed fraying of the anterior cruciate ligament repair, and that fraying had continued and become much more problematic by 13 August 2015. That raised, of course, the question of whether there should be a further ACL reconstruction. At the time that Dr Slater performed the MRI on 13 August 2015, he also completed another long left leg alignment procedure. By this time the amount of osteoarthritis in the medial compartment had increased.

  1. On 17 August 2015 Dr Berton recommended that the plaintiff obtain a second opinion. How the plaintiff was to be treated was a problematic question. Dr Berton conceded that many of his colleagues might suggest conservative treatment, such as that the plaintiff lose weight and have a special exercise program to strengthen his ability to cope with problems in his left knee. He also pointed out that there was the suggestion of surgery, but he did not think that the plaintiff should undergo high tibial osteotomy or a partial replacement of the knee joint. The doctor said that the more challenging question was whether there should be a revision of the "now failing" ACL graft.

  2. On September 2015 Dr Berton wrote to the defendant's insurer in answer to a request for a review of his file. The doctor said this:

"I also note that in about 2011 he suffered an injury at work with his current employer when he twisted his knee.

The more worrying injury, however, was in February 2014 when he hyper loaded his knee when walking with fogged up safety glasses (hot, dusty and humid day) and his knee gave way with an acute flare of pain and early swelling.

Following that episode he developed instability symptoms and locking symptoms.

The likelihood is that in that incident he damaged his cruciate ligament that had undergone previous successful reconstruction, as well as damage to the other secondary restraints of the knee."

I must point that that is speculation. Firstly, as I have already pointed out, there is no direct evidence that in the event of 19 April 2011 the plaintiff twisted his left knee.

  1. I have discussed the event of 6 February 2014. There is no evidence that following upon that episode the plaintiff developed symptoms of instability and locking. The plaintiff admitted that the knee came good. The real question is how long it took for the plaintiff's knee to return to its pre-injury condition. At most it was two months, it may have been six weeks, or as I have previously found, probably in about a month. To suggest that in that event the plaintiff damaged the ACL repair is speculation. The ACL repair continued to fray after the plaintiff stopped work in August, albeit that he was able to return to work performing his normal duties. There was no further event, as was pointed out by Dr Berton in his earlier report of 17 August 2015. It would appear that the ACL reconstruction was fraying and one does not need to postulate that there was a frank tear in some injury. I should point out that, because of the mechanism involved, there can be no suggestion that in the event of 27 August 2014 the plaintiff tore any structure in his left knee.

  1. The second opinion requested by Dr Berton was provided by Dr Don Osborne, an orthopaedic surgeon specialising in knees and shoulders. He ended his report with this comment:

"I think it is clear that Ken has two problems, one is an osteoarthritis and the other is an ACL deficient knee. Certainly we can't cure the osteoarthritis, and at some point in time he will come to a knee replacement, however if he has no confidence and feels that the knee is unstable, it is reasonable to address the ACL regardless of age, as long as he understands that the ACL reconstruction will not resolve his osteoarthritic process, I think this is a completely reasonable thing to do. I understand that Ken has arrangements in place to see Dr Berton, and as such I will leave them to it. I have not made any further follow-up appointments for him."

Dr Osborne, therefore, was recommending that the plaintiff undergo a further ACL reconstruction procedure.

  1. At Dr Berton's request, a bone scan was performed on 30 October 2015. That shows abnormalities in both the plaintiff's knees. There is no evidence that at any stage has the plaintiff injured his right knee. In a letter to Dr Gurudoss of 13 November 2015, Dr Berton said that the right knee did show either developing or established osteoarthritis and/or a stress response. I do not know exactly what the doctor means by "a stress response", but it may be one way of explaining what the bone scan showed as far as the right knee was concerned. In that letter Dr Berton said that he and Dr Osborne had told the plaintiff that a reconstruction of the anterior cruciate ligament did not alter the fact that arthritis was present in the knee, which was lacking its medial meniscus. He also pointed out that in a man who was less than 50 years old, a total knee replacement would generally be "a last option".

  2. Dr Berton scheduled surgery for 2 December 2015. However, that was postponed because the plaintiff had problems with the skin of his left foot. There was also tinea on the medial border of each foot, and until the problems for which the plaintiff was being treated by a podiatrist, and the tinea were resolved, it would be imprudent to practise surgery. The doctor thought that further investigations should be carried out in the meantime. In a third letter to Dr Gurudoss of 30 November 2015, a letter written in the afternoon, after the doctor had earlier written following a review of the plaintiff in the morning, Dr Berton pointed out to the general practitioner that the plaintiff's wife believed that he was becoming psychologically distressed because of the prospect of large out of pocket expenses from the proposed surgery, since the insurer had denied liability. Certain arrangements were then proposed by Dr Berton to deal with the financial implications of the defendant's denial of liability for the plaintiff's ongoing treatment.

  3. Further long leg alignment scans were performed on that same day. By this stage the medial compartment arthritis in the left knee was stable, but there was now arthritis Grade I in the lateral compartment. Furthermore, the right leg was also tested and the plaintiff had Grade III osteoarthritis in the medial compartment of his uninjured right knee. An MRI performed of the right knee on that day showed that there was a large effusion within the joint, and there was said to be a tear of a horizontal type through the posterior horn of the medial meniscus, and a mildly complex tear at the posterior root region of the medial meniscus, but it was not a true bucket handle tear. Those findings are important. When one describes a tear, one generally thinks of a tearing procedure being an injury. However, there is no suggestion that the plaintiff ever injured his right knee. A tear can occur as a consequence of a degenerative process. One has to see the tears in the right knee as being part of the degenerative process. If the plaintiff's right medial meniscus was tearing in the degenerative process, if there were a residual medial meniscus in the left knee, it might also tear as part of a degenerative process. Furthermore, what might be described as a tearing of the ACL graft, following upon the initial surgery by Dr Sage, could be just another way of saying that there was a progressive tearing or fraying of that graft as a result of degenerative process.

  4. It is clear that the plaintiff lost confidence in Dr Berton. He told me that in his evidence. Dr Berton was being very cautious. After all, if he did carry out a further reconstruction of the ACL joint, that might accelerate the osteoarthritis in the joint. That surgery was eventually carried out, the second ACL reconstruction, by Dr Jai Kumar. The plaintiff first saw Dr Kumar on or about 8 December 2015. The first parts of Dr Kumar's report of 8 December 2015 are these:

"It started back in 2011 when he sustained a hyper extension injury to his knee at work. This settled down quite well with non-operative measures, and no MRI or significant imaging was performed at the time. On all accounts he recovered exceedingly well from this and returned to pre-injury duties without any problems. Unfortunately he re-injured his left knee back on September 27, 2014, whilst driving a loader. He does not recognise a specific traumatic event, but the pain, locking and catching, warranted referral to one of my senior colleagues, Dr Peter Berton, who organised an MRI which confirmed a Grade II disruption of the ACL and chondral fragments and a chondral loss. An arthroscopy was performed to remove the chondral fragments and a chondroplasty performed and debridement of the ACL notch. It appears that this was well on the way towards an ACL disruption at the time, which is the first documentation of this injury and likely a direct consequence of the work related injury in 2011 or 2014. As there is no documentation or imaging from 2011, it must be assumed this injury occurred September 27, 2014.

I was pleased to read that Kenneth was able to return to pre-injury duties and was functioning quite well after his knee arthroscopy. Unfortunately he was sent for a medico-legal opinion performed by Dr Vinjay Panjratan down in Sydney, the content of which I have reviewed. There appears to be a number of contradictions in Dr Panjratan's assessment. The long and short of it is essentially on the back of this assessment, Mr Maurer's employment was deemed to be unsafe based on the consequence of this report, despite him[sic] functioning normally before the report was written."

  1. I should deal with the minor matter first. If the doctor wishes to refer to one of his colleagues he could at least do him the courtesy of correctly spelling his name. Secondly, the comments that the doctor makes about Dr Panjratan are, in my view, "unfortunate", to use a word that Dr Kumar himself used. The opinion expressed in the first paragraph I have quoted is completely insupportable. The doctor assumes that the ACL disruption must have been caused traumatically, and the only trauma to which he can point is that of 27 September 2014 which was hardly the type of event likely to give rise to a tearing of an ACL reconstruction. That requires at least a twisting injury. There is no evidence of any twisting injury on 27 September 2014. Furthermore, what the doctor says about what happened in 2011 is not supported by any evidence. As I said, there is no evidence of a twist, other than his history, and where the doctor got it from I know not.

  2. Dr Kumar then proposed that it was reasonable to consider revision ACL reconstruction. Furthermore, he could not find any medical reason why the plaintiff could not return to his pre-injury duties. The plaintiff returned to see Dr Kumar on 10 February 2016 and asked him to consider doing the ACL reconstruction surgery, and Dr Kumar agreed to do so at the Lingard Private Hospital on 2 March 2016. That operative treatment was performed by Dr Kumar on that day at that hospital. The plaintiff was reviewed by Dr Kumar on 15 March 2016, and on 26 April 2016 when he found the plaintiff had a full range of motion, no pain, and a stable knee. Further X-rays were performed showing an anatomical tunnel alignment and stable fixation. Dr Kumar reviewed the plaintiff on 21 June 2016, four months after the ACL reconstruction. The doctor noted that the plaintiff was performing all his normal activities at home, including going up and down the stairs of his two storey home and working on unstable surfaces. He went on to say this:

"From my point of view, I can see no clinical reason to stop him from going back on pre-injury duties. As such, I will be happy to clear him for pre-injury duties from now."

The defendant relies very much on that opinion of Dr Kumar. In that respect, Dr Kumar is supported by other practitioners.

  1. On 27 June 2016 Dr Gurudoss certified the plaintiff as being fit for his normal duties. That is confirmed by Dr Gurudoss in a letter, exhibit 12, which bears the date 1 July 2016, and which the doctor confirms the plaintiff did not require any further treatment and that he was fit to resume his normal duties. The plaintiff was also sent to see Dr Maurice Harden at the Hunter Industrial Medicine Clinic in Maitland. After referring to the second ACL repair carried out by Dr Kumar, the doctor's report continues thus:

"Dr Kumar was reportedly 'very happy' with the surgical procedure and Kenneth reports that the knee 'feels great' and he feels confident about returning to his normal duties. Kenneth has finished formal physiotherapy. Kenneth reported that his orthopaedic surgeon, general practitioner and physiotherapist all agreed that he is fit to return to his normal duties. Kenneth provided a clearance to return to normal duties to his employer, and this clearance has then treated this assessment of his fitness for work."

The doctor then sets out the plaintiff's current symptoms and function, and his findings on examination. They are all worth quoting but I shall not, because I am running out of time. The doctor in his summary said this: "Today his knee function was essentially normal and he is fit to return to his normal duties." The doctor was asked a number of specific questions and he maintained the plaintiff was fit for his normal duties, and that the plaintiff's left knee was asymptomatic. In answer to a specific question, the doctor said this:

"Kenneth is able to perform his normal duties, including the repetitive negotiation of steps and uneven ground, operation of heavy mobile equipment, and the complete range of maintenance activities in CHPP. He is likely to remain fit for these activities for the foreseeable future."

Return to work and redundancy

  1. The plaintiff did return to work. According to his evidence in chief, that was in August 2016. He did not return to his normal duties but to restricted duties which he again referred to as "shuffling paper" and other office tasks. He did those from Monday to Friday on day shift. He appears to have been performing those restricted duties until 15 September 2014 when he was made redundant. He was laid off with 44 other workers from the Stratford Mine, including at least five others from his own section, that is five others who worked in the "washery".

  2. The plaintiff did not look for further work straight away, but he started looking for work in late November. He found work with One Key Workforce Pty Ltd working for that contractor at the Mt Owen Colliery. The plaintiff worked there in the job that he did for the defendant as a washery operator. He did that work between 9 January 2017 and 9 April 2017. The plaintiff, whilst doing that work, learnt of other work that might be available to him, and because he was experiencing problems with his left knee he decided to take up the other work for which he had applied. That other work was with WorkPac working for it at the Bengalla Mine near Singleton.

  3. The plaintiff started working at the Bengalla Mine during the week commencing 16 April 2017. He is still working there. His job there is as a truck driver in the open-cut mine. Essentially the work requires the plaintiff to sit for long periods of time. There is no lifting, there is no carrying, there is no crouching, and there is not repeated climbing of staircases and repeated descent of staircases. The plaintiff has to get in and out of his vehicle about four times each day, and the distance he climbs up or climbs down is six stairs. This is much more convenient work for the plaintiff's left knee.

Consideration   

  1. It ought be clear from what I have already said that I cannot be satisfied on the balance of probabilities that in any of the four pleaded frank injuries did the plaintiff either tear his residual medial meniscus, or tear or otherwise frankly injure the ACL reconstruction that had been performed by Dr Sage back on 26 August 1986. It appears to me that those "tears" were part of the natural progression of the degenerative process in the plaintiff's left knee. However, it is clear to me that the plaintiff was having problems with his left knee since probably 2002 or thereabouts, and that the left knee was gradually getting worse.

  2. The plaintiff was predisposed to problems with his knees. Dr Myles Coolican has taken a history, which enables me to exclude any familial inheritance as a likely cause of the plaintiff's osteoarthritis. However, there could well be some constitutional factors involved because of the plaintiff's bilateral genu varum. That, if not constitutionally determined, might be determined by the plaintiff's weight, which is commented on in a number of occasions by a number of the specialists. I do not need to repeat that. Equally, it appears to have escaped the practitioners who provided opinions to him, that one of the plaintiff's legs is shorter than the other. The plaintiff's right leg is 874 millimetres long and the plaintiff's left leg is 878 millimetres long. That is shown in the long leg alignment studies of each leg performed on 30 November 2015 by Dr Colin Walker, which is part of exhibit M. Such a difference of leg length is constitutional and invariably causes problems with legs, and more particularly hips, but here we are not concerned with hips. However, it must be a predisposing factor.

  3. As far as the plaintiff's left knee is concerned, the problems have been certainly made worse by the injuries the plaintiff sustained in 1983 and 1986, and the need for treatment in 1986, and by the events that occurred that led to the plaintiff's undergoing further surgery in 1994. The plaintiff then appears to have been relatively symptom free until the beginning of the current millennium, and then he suffered from problems which progressively became worse.

  4. One of the allegations made in the statement of claim is this:

"During the plaintiff's employment with the defendant he has been exposed to:

Regular whole body jarring and vibrations as a result of operating various plant equipment over full shifts over rough roads and dumps.

Excessive use of stairwells in the washery.

The work activities referred to above have caused, aggravated, exacerbated and/or accelerated his injuries and conditions.

The plaintiff, as a consequence of his work contracted a disease, namely degenerative disease of the left knee, to which such work was a contributing factor - s 4(b)(i). Alternatively, or in addition, the said disease was aggravated, accelerated, exacerbated and/or caused to deteriorate by the plaintiff's work s 4(b)(ii)."

  1. The plaintiff's work did not require jarring of his whole body and expose him to vibrations as a result of operating plant, which he drove over rough roads and dumps for full shifts. That is an allegation that might be referable to a plant operator in an open-cut mine itself, which the plaintiff was not. That appears to be a wholly misconceived allegation. However, the plaintiff's work did involve his using staircases and repetitive climbing. The evidence also discloses the plaintiff's work might in other ways also be described as heavy, because it required heavy lifting and carrying, and sometimes work in confined and awkward spaces.

  2. Dr Peter Berton in a medico-legal report of 22 December 2016 said this:

"It was pleasing to see that by 21 June 2016 that Mr Maurer was on track for clearance for pre-injury duties and that he had excellent range of motion, no pain and no instability.

This suggests that the cause of this gentleman's deteriorating clinical picture was the result of a tear of his anterior cruciate ligament graft that had successfully stabilised his left knee for many years, complicated by the tearing of the part of the medial meniscus, with his work injuries, that had not been previously removed.

It has been suggested that the cause of this gentleman's problem may have been walking up stairs at his home.

I cannot see how the occasional walk up and down a flight of stairs can compare to repetitive climbing in a work setting where I understand individuals may have [to] climb the equivalent of 5-6 storey buildings, 20-30 times a day, often carrying equipment which increases the load on the knees.

The Medical Journal of Australia, in 2004, has summarised factors that can affect osteoarthritic onset of progression and one of the occupational factors accepted to accelerate arthritic wear is repetitive climbing:

'The strongest association with occupational activity has been shown with OA of the knee in men. It is estimated that up to 30% of all knee OA is attributable to occupational activity that involves repeated knee bending, kneeling, squatting or climbing. These activities increase the risk two to fourfold and, if combined with heavy lifting of more than 25 kg on a regular basis, increase risk fivefold.'

On p 7 of Dr Panjratan's report there is a comment that the requirement for any surgical intervention attributable to the underlying condition of osteoarthritis. Dr Panjratan does not appear to be aware that the chief pathology in Mr Maurer's knee was a tear of the anterior cruciate ligament graft and not osteoarthritis."

  1. As I pointed out, what is regarded as a traumatic tear of a structure such as the anterior cruciate ligament reconstruction or a meniscus can be the result of the degenerative process, of wear and tear, of attrition. The osteoarthritis in the plaintiff's medial knee compartment clearly results from the surgery practised on the medial meniscus by Dr Sage in 1986 and 1994. There is no doubt about that. Equally, there was the ACL reconstruction. I can accept that what remained of the medial meniscus deteriorated further with the passage of time, and that the reconstructed anterior cruciate ligament also would degenerate with the passage of time, and repeated wear and tear.

  2. The epidemiological information extracted by Dr Berton from the Medical Journal of Australia published in 2004 clearly suggests that osteoarthritis of the knee in men can be attributable to occupational activities, required climbing, squatting, bending and kneeling. The plaintiff's work did require him to climb and descend stairs. It also required him to kneel and to squat when he was servicing machinery. Dr Berton annexes to his report certain epidemiological material which confirms what he wrote in his report.

  3. One of the alternatives proposed by Dr Kumar in his medico-legal report of 20 April 2017 is this:

"Based on Mr Maurer's full-time work in the coal washery, I do feel that the work requirements in his full-time employment at the coal washer would have significantly contributed to the progression and deterioration of his left knee. It must, however, be noted, that the degenerative changes pre-dated this work related deterioration and would be as a direct consequence of the post traumatic degeneration that occurred after ACL reconstruction as a teenager."

That, in my view, ties into the thesis advanced by Dr Berton, and I accept it.

  1. I do not, however, accept an earlier opinion expressed by Dr Kumar in the same report of 20 April 2017, which I must quote to point out the errors in it. On the first page of that report the doctor said this:

"I have read in full Dr Berton's assessment dated 2 September 2015. I do agree with Dr Berton that there was an injury that occurred both in 2011 and 2014. In 2011 he described a twisting injury to his knee which settled down without incident. At the time there was no documentation and no imaging performed, therefore it was impossible to draw conclusions as to whether the injury in 2011 resulted in ACL disruption. The injury that occurred in 2014 was a more significant one where he had an acute instability episode to his knee whilst walking down some stairs. At that time he stated that his vision was impaired by some fogged safety glasses. As a direct consequence of his injury in 2014 he developed significant instability as well as locking and catching symptoms. It is worth noting that between 2011 and 2014, he returned to essentially normal function. Imaging performed after 2014 confirmed a near complete disruption of his previous ACL graft, which was performed back at the age of 16 years. Based on the evidence available, and the evidence given to me by Mr Maurer, I can only conclude that the ACL disruption is a consequence of the injury in September 2014."

In his first report Dr Kumar had a history of the event in 2011, and an injury on 27 August 2014, although he said it was 27 September 2014. In the second report, the one I have just quoted, he transferred the event of 8 February into the event of 27 August 2014. The doctor's opinion is flawed by an inaccurate history drawn from a number of sources, and based upon an assumption that the "tears" were all the subject of a traumatic event. I cannot accept those opinions of Dr Kumar.

  1. What do the defendant's doctors tell me about this same issue? The short answer is: very little different. Dr Panjratan examined the plaintiff for the second time on 24 September 2015. It is probably following upon this assessment that Coal Mines Insurance Pty Ltd denied liability for the plaintiff's claim. At the time that Dr Panjratan saw the plaintiff he was working full-time at his pre-injury duties. On p 6 of his report, Dr Panjratan said this when discussing fitness for work:

"He is managing his normal duties. He is fit for his normal duties but is vulnerable to aggravation.

However, the work environment as told to me is not ideal, taking into consideration he has osteoarthritis in the knee, especially the use of stairs. There is a likelihood of aggravation of pre-existing osteoarthritis due to minor twists or strains while going up and down stairs, or even sudden strain on walking. In his present state he should not be doing such work as it is likely to become a work related aggravation. This could happen even with sedentary duties."

In other words, what the doctor is saying is that if the plaintiff remained performing his normal duties in the washery, he was likely to have a work related aggravation. When asked about causation the doctor said this:

"I do not consider the current symptoms are related to Mr Maurer's employment.

He has had an ACL repair 20 years ago. He is a big boy and has played soccer after that. Obviously this has contributed to the failure and it is 20 years down the track in any case. On the other hand, the nature of his work is going up and down the steps and doing heavy work. However, that work environment is not unique to him but common to all workers, and should affect all workers equally. Theoretically, the nature and conditions could have contributed, but practically it is extremely doubtful. I would say the degeneration is due to the pre-existing ACL injury and not work related."

In other words, although he accepts that continuing to do the work would cause aggravation, he seems to be rejecting the proposition, albeit that he raises it himself, that the work caused him aggravation antecedent to his stopping work on or about 27 August 2014. The two opinions are inconsistent. The better view is, in my opinion, that if the work post-2015 might cause aggravation, the work before 2015 would also have caused aggravation.

  1. The same inconsistency or illogicality can be found in the opinion of Dr Myles Coolican. On p 6 of his report he answers a number of questions. When discussing the plaintiff's capacity for employment he said this:

"Mr Maurer has indicated that he is fit to work at present. However, he returned to work five and a half months following his ACL reconstruction, on or around 21 August 2016, initially working part-time four hours per day, and he did this work for approximately three weeks before being made redundant on 15 September 2016. Accordingly, it is clear that Mr Maurer has not been able to work at the same level as he did prior to his injury and surgery. He has osteoarthritis of his left knee, as shown on his imaging studies, and whilst he may be able to return to full duties in the future, he will develop progressive osteoarthritis in his left knee and will one day require knee replacement. Accordingly, it would be appropriate to place significant restrictions on his work, and in particular he should avoid prolonged standing and lifting, or carrying loads more than 20 kg. He will eventually develop medial compartment osteoarthritis in the knee that will prevent him from working."

When asked to comment upon future treatment, Dr Coolican said this:

"Mr Maurer will require knee replacement to treat the osteoarthritis of his left knee at some stage in the future. It is difficult to be certain of the likely rate of progression. This will depend on the patient's weight, occupation and recreational pursuits, along with his own innate resistance to arthritis. However, he has had an old ACL injury with two reconstructions and he has lost his medial meniscus, and will undoubtedly come to arthroplasty at some stage in the future. However, the need for arthroplasty is a consequence of patient's ACL injury of 1983, and subsequent meniscal tear."

The doctor is therefore accepting that the rate of the degenerative process can be affected by the plaintiff's occupation, by the sort of work he might do in the future. If that be so in the future, so it may have been in the past.

  1. I accept that the type of work that the plaintiff did with the defendant, which he has described in his evidence, and as summarised by Dr Panjratan, caused aggravation and probably acceleration of the degenerative process in the plaintiff's left knee, leading to the incapacity which became manifest shortly after 27 August 2014.

  2. I accept that the plaintiff was at least partially incapacitated for work from 8 October 2015 until 1 March 2016, and that he was totally incapacitated as a result of the surgery practised by Dr Kumar from 2 March 2016 up until he was cleared by Dr Harden, retained by the defendant itself rather than the insurer, who certified the plaintiff as fit to return to his original work on 15 July 2016, so that partial incapacity recommenced on 16 July 2016. I say partial incapacity because although the plaintiff's own doctor certified him as fit for his normal work, the defendant had the plaintiff performing selected duties for a reason that probably results from the opinions expressed by Dr Panjratan, later to be confirmed by the opinions expressed by Dr Coolican on 24 October 2016. The plaintiff was partially incapacitated from 17 July 2016 until his retrenchment by the defendant on 15 September 2016.

  3. I accept the opinions of Dr Panjratan and Dr Coolican that the plaintiff remains partially incapacitated for work, heavy work such as what he did for the defendant, and work that he did for One Key Pty Ltd at the Mt Owen Mine is work that the plaintiff ought not be able to do. The plaintiff did that work for Mt Owen Mine between 9 January 2017 and 9 April 2017, but it is hard to see where there was incapacity for that work, when he was actually doing the same work. I therefore find partial incapacity continuing from 15 September 2016 until 8 January 2017. I find partial incapacity from 10 April 2017 to date and continuing.

  4. During the plaintiff's current work the parties have agreed that mathematically he is losing $530.28 per week. Had he remained in the employment of the defendant he would be earning $2,328.52 per week and with WorkPac he was earning $1,798.24 per week. However, there is a complicating factor. The plaintiff used to work overtime for the defendant. The plaintiff is not working overtime for WorkPac at the Bengalla Mine. The plaintiff accepted that there was some overtime available to him, but does not take it up because of his obligations to his daughter. Unfortunately the plaintiff and his wife are estranged and the plaintiff's daughter spends every second weekend with the plaintiff, which prevents him from working some overtime.

  5. The plaintiff's base rate with WorkPac is $43.65. However, when I consult exhibit P which contains the plaintiff's pay slips from WorkPac, I note that during the week ending 16 September the plaintiff worked 15 hours overtime. During the week ending 9 September he worked two and a half hours overtime, and during the week ending 2 September he worked two and a half hours overtime, and he worked three hours overtime in the week before that, and in the week ending 19 August he worked 15 hours overtime. I had thought, until I consulted exhibit P at length, that there should be some discounting of the amount of loss because the plaintiff was not working overtime, but it is clear that he is, despite what he himself says. The plaintiff is entitled to an award for $530.28 per week from 8 April - is that when he started with WorkPac?

[DISCUSSIONS AS TO COMMENCEMENT DATES OF VARIOUS PERIODS, AMOUNTS TO BE AWARDED AND THE CURRENT WEEKLY WAGE RATE]

  1. There will be a general order under s 60. I direct the parties to bring in short minutes of order of award pursuant to these reasons by 4pm on Thursday, 5 October 2017. Order defendant to pay the plaintiff's costs.

[ADJOURNED TO THURSDAY 5 OCTOBER]

  1. I make an award for the plaintiff for:

  1. $1,379.92 per week from 8 October 2015 to 1 January 2016 – s11(1);

  2. $440.50 per week from 2 January 2016 to 1 March 2016 – s11(1);

  3. $440.50 per week from 2 March 2016 to 31 March 2016 – s9;

  4. $446.40 per week from 1 April 2016 to 15 July 2016 – s9;

  5. $446.40 per week from 16 July 2016 to 30 September 2016 – s11(1);

  6. $449.70 per week from 1 October 2016 to 8 January 2017 – s11(1); and

  7. $455.50 per week from 10 April 2017 to date and continuing – s9.

I make a general order under s 60.

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

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Decision last updated: 08 March 2018

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