Maxwell v Centennial Mandalong Pty Ltd

[2017] NSWDC 416

District Court

New South Wales

Medium Neutral Citation:	Maxwell v Centennial Mandalong Pty Ltd [2017] NSWDC 416
Hearing dates:	30 November – 1 December 2017
Date of orders:	01 December 2017
Decision date:	01 December 2017
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	Award for the plaintiff as listed commencing at [50] below  Defendant to pay the plaintiff’s costs
Catchwords:	WORKERS COMPENSATION – 28 year old coal miner injured left ankle – Whether film exposed one month later proved plaintiff had recovered – Claim for a closed period during which plaintiff underwent surgery – Claim for lump sum compensation – Claim for pain and suffering – That claim is not “once and for all” as in a common law action; only actual pain etc resulting from the loss – If the loss increases in the future, the award under s67 can be reconsidered and a further award made
Legislation Cited:	Workers Compensation Act 1926 Workers Compensation Act 1987
Category:	Principal judgment
Parties:	Andrew Joseph Maxwell (Plaintiff) Centennial Mandalong Pty Ltd (Defendant)
Representation:	Counsel: Mr P O’Rourke (Plaintiff) Mr B Odling (Defendant)   Solicitors: Shine Lawyers (Plaintiff) Sparke Helmore (Defendant)
File Number(s):	RJ 303/16
Publication restriction:	Nil

Judgment

1. HIS HONOUR: The plaintiff, Mr Andrew Joseph Maxwell, was employed by Centennial Mandalong Pty Ltd as an underground coalminer. The plaintiff claims weekly payments of compensation between 8 January 2015 and 17 July 2015 for either total incapacity, partial incapacity or partial incapacity deemed to be totalled pursuant to s 11(2) of the Workers Compensation Act 1926 as its operation is preserved for coalminers pursuant to Workers Compensation Act 1987, Schedule 6, Part 18. The plaintiff also claims his expenses under s 60 for treatment of an injury which he sustained in the course of his employment on 15 October 2014. The plaintiff also claims a lump sum under s 66 for 32.5% loss of use of his left leg below the knee and a consequential lump sum under s 67 for pain and suffering and anxiety and distress resulting from that loss.

Plaintiff’s background

2. The plaintiff is a young man. He is currently 28 years old. He has dependent upon him his de facto wife, Ashleigh, and three children; a step son, Jai who is currently 12 years old; a son, Riley who is currently eight years old and a daughter, Claudia who is currently three years old.

3. The plaintiff was "born and bred" in Parkes. He left Parkes High School at the end of year 11 at the age of 17. He worked at the North Parkes Gold and Copper Mine for between six and 10 months. He then moved to Brisbane where he was engaged in construction work for about 12 months. He then moved to Newcastle where he worked for Carnivale Contractors for about two months before joining the coal mining industry on 6 December 2009.

4. Initially he was employed by Coal Mine Services to work at the Mannering Colliery underground. Later on, he was taken on by the collier to work at that colliery but shortly before Christmas 2002 was transferred by the owner of the Mannering Colliery to work for the current defendant, Centennial Mandalong Pty Ltd at the Mandalong underground colliery.

Injury on 15 October 2014

5. There is no dispute that on 15 October 2014, although it is sometimes referred to as 14 October 2014, the plaintiff injured his left ankle. The incident happened between 1am and 2am and one can understand therefore sometimes the date being given as 14 October and at other times the date being given as 15 October. The plaintiff had been driving an Eimco underground when he stopped and stepped out. Unfortunately, he stepped out onto a cobble of coal and rolled over on his left ankle. The toes of the plaintiff's left foot were inverted, that is turned towards the mid line of the body and the plaintiff rolled outwards over his left ankle; he fell to the ground. He felt severe pain in the left ankle, particularly on the lateral side. He lay on the ground for about 10 minutes before managing to get back into the Eimco and then driving to the surface to seek attention and to report the incident.

6. He drove to the control room and was treated in the control room by the controller. His long lace up boot was cut from his foot and his left leg was elevated and ice was applied. The under manager came and was told what happened largely by the control room hand. The plaintiff was offered the option of being taken by ambulance to hospital but said that he would drive himself. He was driving an automatic car. He drove to the hospital.

7. An X ray was performed at 7.30am at the John Hunter Hospital. The clinical history noted by the radiologist was of a "inversion injury". No fracture or dislocation was seen on plain X ray. On 16 October 2014 he went to the Charlestown Medical Centre and saw Dr Jason Hart. Dr Hart took a history that the plaintiff rolled his left ankle at work on the preceding day. Dr Hart thought there might be an avulsion fracture although he noted the plaintiff had been to the John Hunter Hospital Emergency Department and that the X ray was reported as showing no fracture or dislocation. Dr Hart noticed a severe swelling of the left ankle on the lateral side, that is on the outside of the ankle. He noted the plaintiff was walking with a limp. He diagnosed a "ankle sprain". He referred the plaintiff to the Hillsborough Road Physiotherapy and Injury Prevention Centre.

8. There the plaintiff came under the care of Jaclyn Allen, a physiotherapist. The plaintiff saw the physiotherapist on that same day, 16 October 2014. Ms Allen's report of 17 October 2014 tells me this:

"On examination Andrew had a large amount of swelling. His ankle range of movements was significantly restricted in all directions. Anterior drawer testing was positive in increased excursion, a suction sign and pain. Talar tilt testing was also positive with pain and a small increase in excursion. Syndesmosis testing was normal. Deltoid ligament testing was positive with pain reproduction. Mid foot testing was normal. Peroneal testing was normal. Tenderness was palpated through his ATFL, CFL, PTFL and a small amount through his peroneal sheath and antero lateral joint line. Andrew's signs and symptoms are indicative of a grade III ATFL rupture and a grade II CFL tear."

The ATFL is the anterior talo fibular ligament and the CFL is the calcaneo fibular ligament. Ms Allen's initial treatment consisted of taping the ankle to seek to reduce the swelling and the fitting of a CAM boot for immobilisation. A CAM boot is better known in the vernacular as a moon boot. Ms Allen indicated that the plaintiff would require the CAM boot for up to four weeks and she hoped that full recovery might occur within eight weeks.

9. However, the plaintiff did not settle as expected. Another medical practitioner at the Charlestown Square Medical Centre, Dr Tullio Savio sent the plaintiff to have an MRI scan of his left ankle on 23 October 2014. The radiologist, Dr Singh summed up the investigation thus:

"Features of recent inversion injury and lateral ligament injury with full thickness tears of the ATFL and proximal, CFL. Typical bone marrow contusion pattern. No talar dome osteochondral lesion or other significant findings."

It is to be noted that Ms Allen's opinion as to damage to the two ligaments mentioned was correct. Dr Savio referred the plaintiff to Dr James O'Sullivan, an orthopaedic surgeon practising at the Newcastle Orthopaedic Foot and Ankle Clinic at Lambton. One infers, and I infer, that Dr O'Sullivan's speciality is the lower leg. The plaintiff could not get to see Dr O'Sullivan until 27 November 2014. In the meantime, he stayed under the care of the doctors at the Charlestown Square Medical Centre and under the physiotherapist, Ms Allen.

Film in November 2014

10. The plaintiff was sent by the insurer of the defendant to see Dr Leon Kleinman, an orthopaedic surgeon on 19 November 2014. Whilst the stationary used by Dr Kleinman indicates that his rooms were in Mosman in Sydney, the plaintiff, in fact saw Dr Kleinman at rooms at Broadmeadow near Newcastle. The plaintiff presented to Dr Kleinman wearing the CAM boot. Film has been exposed of the plaintiff's arriving somewhere near the rooms at Broadmeadow by motorcar. The plaintiff was not permitted to wear the CAM boot whilst driving a motorcar. He is seen to leave the drivers' door of his motorcar and stand next to it to smoke a cigarette. He then went to the other side of the vehicle and put on his CAM boot and walked to Dr Kleinman's surgery. It is clear that he had the CAM boot on when he saw the doctor. He returned to his vehicle again wearing the CAM boot and had another cigarette before entering the vehicle. He entered the car at the drivers' seat but then did not take off for a while because he was removing the CAM boot before driving off. There is nothing sinister about the plaintiff's activities on that day. He told me firstly, antecedent to being cross examined about it, that he was not permitted to drive wearing the CAM boot and that he decided to wear the CAM boot to the doctor's surgery because he did not know how far it was he would have to walk before he arrived at the doctor's rooms.

11. This is not one of those cases where a witness says that he or she can never go out in public without wearing a cervical collar, but the cervical collar is only donned when the patient is about to see a medical practitioner. As I said, there is nothing sinister in what happened as far as the plaintiff's footwear is concerned on 19 November 2014.

12. On examination Dr Kleinman found that the plaintiff was, "a bit tender to palpation over the talar-fibular ligament." The doctor noted the findings of the MRI scan. Dr Kleinman thought the plaintiff was recovering from a severe sprain of his left ankle, he thought it would take possibly another six or eight weeks before the pain in the plaintiff's left ankle settled down. He thought the plaintiff was fit for suitable light duties only, not involving walking on rough or sloping ground and he thought the plaintiff would probably not be able to return to his pre injury duties as an underground coalminer before the beginning of 2015. When asked what Dr Kleinman recommended for treatment and management, Dr Kleinman said this:

"He needs to continue under the care of a physiotherapist or an exercise physiologist, performing wobble board exercises to strengthen the evertors of his feet to rebalance his left foot as the ligaments heal."

13. After making that assessment Dr Kleinman was shown some film exposed of the plaintiff on 14, 15 and 19 November 2014. I have seen that film; it became exhibit 3. But a short amount of film was taken on 14 November 2014, about 20 minutes of film was exposed on 15 November 2014 and about seven minutes of film were exposed on 19 November 2014. The film exposed on 19 November 2014 is largely what I have already described; the plaintiff's arriving in his car somewhere near Dr Kleinman's Broadmeadow rooms in his car then putting on his CAM boot then walking to the doctor's rooms, his returning from the doctor's rooms wearing the CAM boot, his then entering the vehicle and removing the CAM boot before driving off. There is nothing sinister, unusual or anything of that nature about that film. The film taken on 14 November 2014 merely shows the plaintiff smoking a cigarette in the garden of his then home. One part of it is consistent with the plaintiff’s having ongoing problems. He leans against a tree, putting the weight of his body on his left palm which is held at 90 degrees to the tree, thereby relieving his body weight from his left leg.

14. On 15 November 2014 the plaintiff and his family were moving house. Up until 15 November 2014 the plaintiff and his family were living in rented accommodation at Mt Hutton. They had been successful in buying their first home which is situated at Tingira Heights. They were excited about the move but the process of buying a new house had put funds in short supply. The plaintiff and his wife were unable to pay for removalists to remove their furniture and other belongings and they had to try to do that themselves. Furthermore, there was a "hiccup" in the process because they had to leave their home at Mt Hutton on 16 November but could immediately move into their new home at Tingira Heights but had to spend the meantime, a week, with the plaintiff's de facto wife's family at Teralba. In the meantime, they moved their belongings to a storage facility near Belmont.

15. The film exposed on 15 November shows the plaintiff and his wife loading the family station wagon with some items from their home and also the box trailer which was attached to the station wagon, with other items of furniture. The plaintiff does so wearing strapping on his left ankle. The heaviest item carried was carried between him and his wife, a flat screen television. The other heavy item appeared to be a cabinet which may have been the cabinet which normally contained the flat screen television. It took his wife and the plaintiff to carry it.

16. There was nothing in the film inconsistent with the plaintiff still having a problem in his left ankle and there's nothing in the film which suggests the plaintiff was fit to do underground work as a coalminer for shifts of 12 hours. There is nothing in the film itself which, in my view, is inconsistent with the findings on examination that Dr Kleinman himself made when he saw the plaintiff on 19 November.

17. Nevertheless, when shown the film Dr Kleinman said this:

"Having reviewed the surveillance DVD, I can find no reason why he should not return to work, walking on flat ground and climb up and down a ladder into the cab of a machine."

Presumably, by "a machine" Dr Kleinman was referring to the Eimco out of which the plaintiff stepped when he injured his left ankle on 15 October 2014. However, unsurprisingly, the underfoot surface of an underground coalmine, the floor or the ground is hardly flat and is notoriously rutted, potholed and at different levels and often obstructed by things such as cobbles of coal, patches of mud and the like. Really, that opinion of Dr Kleinman does not mean the plaintiff could return to working as an underground coalminer fulltime, working three 12 hour shifts a week.

18. The insurer of the defendant asked Dr Kleinman some further questions and that led him to express the view that the plaintiff could return to his pre injury duties without any restriction, "immediately". Dr Kleinman expressed that view in a report of 17 December 2014. That led Coalmines Insurance to reject the plaintiff's claim for weekly payments of compensation on 7 January 2015 on the basis that he had "recovered" from his work injury.

Specialist treatment

19. The plaintiff saw Dr O'Sullivan on 27 November 2014. Dr O'Sullivan noted the plaintiff walked with a limp. He could walk on his tip toes and although he had functional movement and strength in the peroneal tendons, he was weak as far as those tendons were concerned. Dr O'Sullivan noted that the plaintiff was tender both antero medially and antero laterally. When he reviewed the plaintiff's, MRI scan he was of the view that the plaintiff had severe bone bruise of the medial malleolus and the medial talus consistent with impaction. He thought the plaintiff was going to take "months to settle" and thought the plaintiff's was probably fit for pit top duties only.

20. The plaintiff told me that all the certificates he had obtained from his doctors said that he had a capacity to do some form of light work. Those certificates are exhibit L. All of the certificates, as the plaintiff told me, state that he was fit for suitable duties. Nevertheless, the plaintiff was not, at that time, being provided with suitable duties but was being paid compensation as if he were totally incapacitated.

21. In a report to the insurer of the defendant dated 4 December 2014 Dr Savio said that the plaintiff's work tolerances had changed, and his lifting should be limited to 5 kilograms, his standing should be limited to 10 minutes, but he was not required to wear the CAM boot underground. It is not clear when the plaintiff received the letter from Coalmines Insurance of 7 January 2015 declining liability, but one assumes he would have received it on the following day or shortly thereafter. It was addressed to his new home.

22. On 12 January the plaintiff went to see Dr O'Sullivan again as had earlier been arranged. The plaintiff told Dr O'Sullivan that he had been much improved, but he still had difficulty getting his work boot on. The doctor noted the plaintiff now had a normal gait but when he was required to walk on the tips of his toes he had a limp. The plaintiff also had difficulty hopping on his left ankle. Dr O'Sullivan then thought the plaintiff would experience "discomfort" for a number of months yet. He believed that he should certify the plaintiff as being unfit for work.

23. The plaintiff returned to see Dr O'Sullivan on 23 February 2015. By that time the plaintiff had returned to working underground. The plaintiff told Dr O'Sullivan that he was managing his duties but with some catching pain in the anterior aspect of his ankle. Dr O'Sullivan thought the plaintiff probably had some synovitis thickening causing problems and on 23 February 2015 he injected the ankle with steroid and local anaesthetic to try to ease the plaintiff's symptoms. Unfortunately, that injection did not give the plaintiff any great assistance. Dr O'Sullivan said that he thought the plaintiff should work nine hours a day for four days a week at outbye work which means working above ground away from the coal face.

24. The plaintiff returned to Dr O'Sullivan for review on 10 March 2015 and on that occasion the doctor said that he would allow the plaintiff to return to normal duties at work as an underground coalminer, but he wished to review the plaintiff two months later.

25. In fact, the plaintiff returned to see Dr O'Sullivan on 20 April. He had swelling in the ankle as well as pain. Dr O'Sullivan decided that the plaintiff needed arthroscopic debridement. He arranged to perform that at the Newcastle Private Hospital on 21 May 2015. In a letter of 20 April 2015, Dr O'Sullivan pointed out that the plaintiff would need to be off work for six to eight weeks after that procedure. In a letter of 28 April 2015, Dr O'Sullivan, who had sent a copy of his letter of 20 April to Coalmines Insurance, wrote to Dr Savio and said:

"It is unbelievable but unfortunately Coalmines Insurance has not accepted liability and, so I am treating Andrew as a private patient at this time."

Dr O'Sullivan's unbelief reminds me of a refrain of my late colleague, his Honour, Judge John Williams, QC: "Son, if you live long enough, you'll see everything." Dr O'Sullivan may have thought that the declining of liability by Coalmines Insurance was not believable but unfortunately things of this nature do occur.

26. Dr O'Sullivan was quizzed by the rehabilitation provider retained by Coalmines Insurance about what would happen after the surgery. The doctor said the plaintiff would be unfit for work for at least a month and up to three months, but he might be able to do office work only two weeks post surgery. He thought it could take up to three months for the plaintiff to be fit for full duties as an underground coalminer.

27. Surgery was performed at the Newcastle Private Hospital on 21 May 2015. The doctor found anterior gadosynovitis was excised. He also found scar tissue antero laterally and that was excised as well as some synovitis in that area. The syndesmosis was found, fortunately, to be stable. The doctor thought that the articular surfaces were "normal". After the surgery, which was a day procedure, the plaintiff was reviewed regularly by Dr O'Sullivan.

28. On 10 June he noted the plaintiff was improving and thought that he would allow the plaintiff to return to work on office duties or light duties for four days a week commencing on Monday, 15 June. Again, another form was completed by Dr O'Sullivan on 18 June which expressed the view the plaintiff was fit for office work or surface duties as at 15 June and he would continue to be fit for such work until 7 July. He intended to review the plaintiff on 7 July and he thought that it might be possible the plaintiff would return to his normal duties then. That questionnaire was completed on 18 June.

26. Suffice to say, the plaintiff was not offered any light duty work. On 7 July Dr O'Sullivan saw the plaintiff and expressed the view that he was happy for the plaintiff to return to work "next week as a coalminer". There was then a further form sending, and form filling and the doctor said that the plaintiff was fit for full duties as a coalminer commencing on 8 July 2015.

27. The plaintiff told me he returned to work on 9 July 2015 but was not permitted to perform his normal duties because he first had to pass an assessment by Coal Services Health. The advice of the expert was ignored, and the plaintiff had to undergo the defendant's usual medico bureaucratic procedures. Fortunately, he was returned to full duties on 18 July 2015 and has been working normal duties as an underground coalminer ever since.

28. In a report to the plaintiff's solicitors dated 24 August 2015 Dr O'Sullivan expressed the view that the plaintiff only had minor discomfort when working as an underground coalminer and he only had minimal discomfort carrying out the activities of daily life and that he could do "light impact sports if he wished." The plaintiff returned to see Dr O'Sullivan for review on 7 October and he told the doctor that he continued to be irritated by his ankle, mainly in the antero-lateral aspect. Fortunately, he was able to continue with his job.

29. Because the plaintiff was having further symptoms Dr O'Sullivan arranged for a further MRI scan of the ankle to be performed on 9 December 2015. The radiologist, Dr Colin Walker summed up that investigation thus:

"There is confirmation of abnormal synovium in the ankle joint but mainly antero medial and to a lesser extent antero-lateral gutter. ? PVNS or scar tissue. This extends over a 30mm region."

Following upon that investigation Dr O'Sullivan reviewed the plaintiff on 16 December 2015. The doctor's report of that date says this:

"His recent MRI scan shows inflammatory synovitis in the anterior aspect of his left ankle and some thinning of the cartilage suggestive of some early arthritis. Certainly, the lateral ligaments have been injured but look to be present. Peroneal tendons are intact.

On examination today, Andrew is walking with a normal gait. He does have some stiffness of his left ankle compared to the right, but it is structurally sound with a negative anterior drawer and strength in the tendons around the ankle.

I have moved to reassure Andrew that his ankle should be fine for the next 5 to 10 years and not require major surgery. I feel he is fine to do full duties as a coalminer. I will leave him to your care at the moment but if things change please send him back to see me again.”

As ought be obvious from what I have just quoted, the report was addressed to Dr Savio at the Charlestown Square Medical Centre.

33. The plaintiff thought he ought obtain a second opinion. He saw a Dr Ul Abadin at Mt Hutton and was referred by him to Dr Peter Lam, an orthopaedic foot and ankle surgeon practising at Chatswood. On examination Dr Lam found mild ankle swelling. He found tenderness over the antero-lateral aspect of the ankle. There was a mild restriction at the end range of ankle dorsiflexion. The plaintiff told the doctor that he had pain when he squatted. The doctor went on to say this:

"Clinically Andrew appears to have ongoing anterior ankle soft tissue impingement pain which was confirmed by the recent MRI scan. I think given the fact that there was no evidence of PVNS on his original MRI scan, the changes seen on the more recent MRI scan are most likely post surgical scarring rather than PVNS. I recommended Andrew to have a left ankle arthroscopy to debride the soft tissue impingement. If at the time of surgery, there appears to be PVNS then I will take a specimen for histopathology."

In other words, Dr Lam was proposing a further arthroscopic procedure similar to the one performed by Dr O'Sullivan. That carried with it no guarantee of success. The plaintiff thought about it and declined to undergo the further surgery. He cannot be criticised for that. However, what it does show is the plaintiff had ongoing organic problems in his left ankle.

Incapacity

34. The remaining medical reports before me are medico-legal and I shall shortly go to them. Suffice to say that I reject the opinion of Dr Kleinman that as at 19 November 2014 the plaintiff had nothing wrong with his ankle and was fit to do his former work as an underground coalminer. Clearly, there were ongoing problems which led to the surgery practised by Dr O'Sullivan on 21 May 2015. The plaintiff, fortunately, was able to return to his normal duties on 17 July 2015.

35. It appears to me that the appropriate finding is that at all material times until the surgery performed on 21 May 2015 the plaintiff was partially incapacitated for his pre injury work. The defendant well knew that the plaintiff was only partially incapacitated and on numerous occasions failed to provide the plaintiff with suitable employment.

36. Even when the plaintiff was certified as fit to perform his normal work commencing on 8 July 2015 he was not provided with his normal work until 18 July 2015 and during that period the plaintiff was treated as being partially incapacitated by the defendant who is not able to both approbate and reprobate.

37. The plaintiff clearly ruptured two ligaments in his left ankle. Those ruptured ligaments have not been repaired. The ankle still appears to be deficient in that regard. There appears to be ongoing damage. I note that Dr O'Sullivan did not believe that the articular surfaces were damaged when he carried out his arthroscopy but his belief that there was some early arthritis shown up on the second MRI suggests that there was some form of intra-articular damage. That may be due to ongoing synovitis or the development of scar tissue.

38. I accept the plaintiff has ongoing problems with his left ankle as he has deposed. There is really nothing in the evidence before me to suggest that the plaintiff is, in any way, trying to mislead this Court or somehow to maximise a minimal condition. Further film of the plaintiff was exposed on 16 January 2015 showing the plaintiff and his wife and their neighbours and their neighbour's children working on the front lawn of the plaintiff's new residence at Tingira Heights. The plaintiff is not wearing any strapping on his foot and, indeed, appeared in this film to be barefooted. However, there is nothing in the film itself which is inconsistent with the plaintiff’s having ongoing symptoms from time to time and this was at a time very shortly before the plaintiff returned to working in the mine on 22 January 2015.

Medico-legal evidence

39. I return then to the available medico-legal evidence. The first medico legal opinion is from Dr YAE Ghabrial. Dr Ghabrial examined the plaintiff on 2 December 2015; he found swelling in the ankle joint mainly on the "outer aspect" which I assume means laterally. He thought the plaintiff had no ability to dorsiflex the ankle and that plantar flexion was limited to about 25 degrees. Inversion was 5 degrees and eversion was 15 degrees. The plaintiff was able to walk on his tip toes and on his heels. He believed the plaintiff would require ongoing treatment for the left ankle but that prognosis has not been adhered to by the plaintiff himself. Dr Ghabrial diagnosed a 32.5% permanent loss of efficient use of the plaintiff's left leg below the knee. The doctor has made assessment of the correct anatomical part. However, his assessment of almost a one third loss of the leg below the knee is risible when one considers that the plaintiff is able to do his ordinary work as a coalminer and most of his other preferred activities including motorcycle riding, bicycle riding and hunting with a firearm in State forests. At the time that Dr Ghabrial made his assessment he did not have available to him the MRI scan of 9 December 2015. That did not cause Dr Ghabrial to change his opinion in any way.

40. The plaintiff was seen by Dr Kleinman again on 13 April 2016 and the plaintiff told the doctor that he had an intermittent pulling or pinching sensation in the left ankle which was not directly related to activity with the ankle. The plaintiff told Dr Kleinman that his left ankle swelled up occasionally. He also told the doctor, as he told me, that his ankle felt weak when compared to that on the right hand side. Dr Kleinman could find nothing wrong on physical examination and believed that there was no loss of efficient use of the plaintiff's left leg below the knee.

41. The plaintiff was seen by Dr AVB Isaacs, an orthopaedic surgeon, on 25 July 2017 at the request of his solicitors. The plaintiff complained of a very deep seated pain in the left ankle and also a pinching sensation at the front of his ankle. He told the doctor that the pain was intermittent, sometimes depending on activities and sometimes it came on in the act of walking. He told the doctor that certain activities did not cause pain immediately but could lead to symptoms experienced on the following day. On examination Dr Isaacs believed that the dorsi flexion was limited to one quarter of the normal range compared to the right. Plantarflexion was restricted by three quarters compared to the right. Inversion was limited to about half the normal range and eversion was limited only at extremes on the left hand side. He also found some swelling over the anterior aspect of the left ankle indicating ongoing physical problems. Dr Isaacs was unsure of the prognosis because he could not say whether the plaintiff's condition would deteriorate in the future or not. He diagnosed a "permanent impairment of his left ankle...at 25%."

42. This is of some assistance but does not answer the question before me. The question before me is what is the extent of the loss of efficient use of the plaintiff's left leg below the knee. The left leg, below the knee, of course includes the foot. The left leg below the knee includes the lower leg and, for example, the tibia and fibula and the calf musculature, in particular the gastrocnemius, all the complicated bones of the ankle joint itself; all of the metatarsal bones and all the phalanges of the toes as well as the soft tissues of the toes and the arch of the foot.

43. Clearly, I cannot accept the opinion of Dr Kleinman. Equally, as I said, the assessment of Dr Ghabrial is risible. I am assisted to an extent by Dr Isaac's assessment. If he assesses a 25% impairment of the ankle the extent of the loss of the efficient use of the leg below the knee must be less. It was argued by the plaintiff that there was a 20% loss of efficient use of the left leg below the knee and by the defendant that the extent of the loss of the efficient use of the leg below the knee was 10%. Independently of those submissions I have reached the view that I should assess the loss of efficient use of the plaintiff's left leg below the knee as being 15%.

Pain and suffering

44. I have been told by those at the Bar table that that finding entitles the plaintiff to lump sum compensation under s 67 for pain and suffering, resulting from the loss I have found. Pain and suffering is defined in s 67 as it applies to coalminers to mean actual pain or distress or anxiety suffered or likely to be suffered by the injured worker whether resulting from the loss concerned or from any necessary treatment. The terms of s 67 make it clear that the extent of pain and suffering must result from the loss.

45. Here there is a problem about prognosis. It appears that Dr O'Sullivan believes the plaintiff had the early onset of osteo arthritis which is a degenerative disease generally resulting from damage to an intra articular surface of a joint. If the plaintiff goes on to develop that the extent of the loss will increase and in the future, he will need treatment perhaps, after 10 years, perhaps after 15 years and he may eventually come to fusion of the ankle joint.

46. However, it would be wrong, as a matter of principle, for me to award lump sum compensation under s 67 for what might or might not happen to the plaintiff in the future. It is not the same as a common law assessment of damages. I merely rely upon what the plaintiff has experienced over the last three years and what he is likely to suffer in the future if the loss remains the same, if the symptoms resulting from that loss remain the same.

47. As I said, the plaintiff is only a young man, he is 28 years. Three years have now elapsed since he injured his left ankle. If he has a normal life expectancy and, provided he gives up cigarette smoking he will, he can expect to live for a further 57.26 years. That is a very long period of time. The authorities make it clear that more should be awarded to a younger worker than to an older worker merely on the basis that the younger worker will experience symptoms for a much greater period of time than will an older worker. Bearing in mind the nature of the loss and the extent of the symptoms but bearing in mind that all told they will have afflicted the plaintiff for some 60 years I believe that this case stands in proportion to a most extreme case in a little over 15% of a most extreme case. I believe the appropriate sum to award the plaintiff under s 67 is the sum of $10,000.

Weekly payments

48. I turn then to the claim for weekly payments. The claim commences on 8 January 2015. The plaintiff was partially incapacitated at that date. He remained partially incapacitated until he underwent operative treatment on 21 May 2016. Between 8 January 2015 and 21 January 2015 the defendant failed to provide the plaintiff with suitable employment during his partial incapacity for work. Thereafter the plaintiff worked but sustained economic loss as shown in the wages schedule, exhibit Q.

49. The plaintiff was totally incapacitated for work between 21 May 2015 and 8 July 2015 by way of necessary medical treatment for his condition. In the alternative to that finding it is clear that Dr O'Sullivan and the defendant were trying to get the plaintiff back to work on suitable employment and on my assessment of the plaintiff he would have done such work had it been offered to him, but it was not. If the correct finding is not under s 9 it is under s 11(2). The plaintiff certified fit to return to work on 9 July 2015 but suffered economic loss as a result of the defendant's behaviour until 17 July 2015, he should be seen as partially incapacitated during that period.

Award

50. For those reasons, I make the following award:

1. for $1,216.25 per week from 8 January 2015 to 21 January 2015 pursuant to s 11(2);

2. for $200.16 per week from 22 January 2015 to 23 January 2015 pursuant to s 11(1);

3. for $251.94 per week from 31 January 2015 to 13 March 2015 pursuant to s 11(1);

4. for $817.02 per week from 21 March 2015 to 27 March 2015 pursuant to s 11(1);

5. for $616.50 per week from 18 April 2015 to 24 April 2015 pursuant to s 11(1);

6. for $607.43 per week from 25 April 2015 to 8 May 2015 pursuant to s 11(1);

7. for $607.43 per week from 9 May 2015 to 15 May 2015 pursuant to s 11(1); and

8. for $317.70 per week from 16 May 2015 to 20 May 2015 pursuant to s 11(1).

I make an award for the plaintiff:

9. for $616.50 per week from 21 May 2015 to 8 July 2015 pursuant to s 9 or s 11(2);

10. for $155.22 per week from 9 July 2015 to 10 July 2015; and

11. for $579.85 per week from 11 July 2015 to 17 July 2015.

I make a general order under s 60.

I make an award for the plaintiff for $13,891.50 for 15% loss of efficient use of the plaintiff's left leg below the knee.

I make an order for the plaintiff under s 67 for $10,000.

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

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Decision last updated: 28 February 2018