Nie v Big Rim Pty Limited

[2014] NSWDC 293

District Court

New South Wales

Medium Neutral Citation:	Nie v Big Rim Pty Limited [2014] NSWDC 293
Hearing dates:	20 – 21; 25 – 26 November 2014
Decision date:	26 November 2014
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	Award for the defendant
Catchwords:	WORKERS COMPENSATION – Coal miners – Claim for total incapacity – Inconsistent findings upon medical examination – Plaintiff’s claim not proved on balance of probabilities
Legislation Cited:	Workers Compensation Act 1926 Workers Compensation Act 1987
Category:	Principal judgment
Parties:	Shaohua Nie (Plaintiff) Big Rim Pty Limited (Defendant)
Representation:	Counsel: Mr D Benson(Plaintiff) Mr B Odling (Defendant) Solicitors: Higgins (Plaintiff) Sparke Helmore (Defendant)
File Number(s):	RJ12/2013

Judgment

Ex tempore

1. HIS HONOUR: The plaintiff Mr Shaohua Nie claims weekly payments of compensation from 22 March 2011 to 21 July 2014 and a lump sum under s 66 of the Workers Compensation Act1987 for 15% permanent loss of efficient use of his right leg below the knee, together with a consequential lump sum for pain and suffering, anxiety and distress resulting from that loss, pursuant to s 67 of the Workers Compensation Act1987, as it is preserved for workers employed in or about a coal mine.

2. The plaintiff was employed by the defendant as the operator of coal crushing plant near Lithgow. There is no dispute that on 22 March 2011, the plaintiff twisted his right ankle. However, there are many issues in dispute between the parties.

3. The plaintiff was born in Southern China on 14 June 1968. According to history obtained by Dr David O’Keefe, the plaintiff grew up in Southern China between Shanghai and Canton. In his native land, the plaintiff obtained the degree of Bachelor of Electrical Engineering in 1989. He then worked in China as an electrical engineer. In 1996, he migrated to New Zealand. When in New Zealand, the plaintiff studied and obtained the degree of Master of Computing Science. That degree was awarded by the Massey University at Palmerston North. The plaintiff’s studies were between 1998 and 2001. The evidence does not disclose what work the plaintiff did in New Zealand. The plaintiff migrated to Australia in 2001 or 2002. Whilst in New Zealand, he had obtained citizenship of that country and he moved to Australia before a change in the law which prevented New Zealanders obtaining permanent residency when they moved to Australia. In other words, the plaintiff pre-empted a change in the law by moving to Australia to obtain permanent residency here.

4. It would appear that the plaintiff was largely based in Australia in Victoria. His former wife lives there, together with his son. His son is now 15 years old. The plaintiff supports him by paying child support. When the plaintiff came to Australia, he obtained work after a couple of months as an electrical tradesman installing switchboards. He told me that that was for a company based at Hornsby in New South Wales. He did that work for less than a year and then entered the construction industry as a labourer to earn his livelihood. Between 2004 and 2007, he obtained work as a forklift technician. The plaintiff was then unemployed for some time.

5. The plaintiff told me that on or about 9 July 2010, he commenced working for the current defendant. Exhibit L indicates that the plaintiff’s employment commenced with the defendant on 1 July 2010 but he had a pre-employment medical with Coal Services Health at Lithgow on 9 July 2010. It therefore seems likely that he did not start working for the defendant until on or shortly after 9 July 2010. The plaintiff obtained work with the defendant because of a fortuitous meeting with the managing director of that company Mr Tony Leo in a shop owned by a friend of the plaintiff which sold parts for Harley Davidson motorcycles. The plaintiff told Mr Leo that he needed work and Mr Leo offered him work for the defendant on the Lithgow coalfields. The plaintiff told me that in the pre-employment medical check, he was required to squat, to kneel, to lift weights of about ten kilograms and walk up and down stairs. The plaintiff passed that medical examination.

6. The plaintiff was required to work as the operator of a coal crushing plant at either the Invincible Colliery or the Cullen Bullen Colliery near Lithgow. In order to do that work, the plaintiff took accommodation at the Royal Hotel in Cullen Bullen. However, according to exhibit L, the plaintiff gave as his home address 25 Chittenup Road at Sydenham in Victoria. Photographs of two coal crushing plants similar to the ones on which the plaintiff worked are exhibits 7 and 8. At the commencement of the coal crushing plant is a hopper into which coal to be crushed is fed by front end loaders. A conveyer then takes the coal to the top of the crushing box where it is crushed and another conveyer takes the coal from the bottom of the coal crushing box to a third conveyer, which has been described as a stacker, whence it is discharged into piles to be picked up by front end loaders and loaded into trucks to be taken to, I infer, in the Lithgow coalfields, to coal burning power stations.

7. The extent of the physical activities required of the plaintiff is one of the matters in dispute. In dispute is the amount of shovelling that the plaintiff was required to do as the coal crusher operator and the extent that he was required to do maintenance such as greasing and the number of times that he was required to walk up and down stairs to various parts of the coal crushing plant. Also in dispute is the number of times that the coal crushing plant would in essence stop or break down because of either a mechanical failure or because of a jamming of coal in the coal crushing box.

8. On 22 March 2011, the plaintiff commenced work at 6am. The plaintiff’s accident occurred around 11.30am. I take that time from exhibit 11, the employer’s report of injury to its insurer. The plaintiff’s claim form is exhibit O. That mistakenly shows the date of the accident as 23 March 2011 but there is no dispute that it was in fact on 22 March 2011. According to that claim form, the plaintiff’s accident occurred between 11am and noon, so the time shown on the employer’s report of injury form would appear to be likely. The plaintiff inserted in exhibit O the following narrative:

“After finishing clean-up under the number 3 belt, I closed [the] gate and walk out. Then start to walk beside crusher and try to get to the other side. [I] may [have] stepped on a coal or uneven floor, on the crushing side of Invincible [crusher] and the right-hand ankle twisted.”

It can be seen from that narrative that the plaintiff was unsure whether his twisted ankle was caused by stepping on a piece of coal or stepping on an uneven surface. That is confirmed by exhibit K in which it is also reported by the plaintiff that he may have stepped on a piece of coal or on an uneven floor surface. An endorsement made on exhibit K by Mr Ian Moseley, the defendant’s occupational health and safety coordinator, is that the plaintiff was unable to determine exactly what he stepped on but Mr Moseley believed it was possibly a piece of coal and he annexed to exhibit K a photograph which is exhibit G and on which a circle has been placed around a cobble of coal.

9. It is noteworthy that in exhibit G, there is depicted a square mouthed shovel of small size which is the type of shovel that the plaintiff said he used when he was required to shovel coal which had accumulated by way of spillage under conveyor belts or had otherwise accumulated if, for example, there had been a breakdown in the plant machinery. It was established relatively early in the plaintiff’s oral evidence that although he worked full time, his employment was casual. However, exhibit L, the employer’s report of injury form, indicates that his employment was not casual but permanent.

10. Certain actions of the defendant clearly indicate to me that the defendant may have considered the plaintiff to be a permanent employee, because for example, it gave the plaintiff notice of termination of the services and paid him wages in lieu of his serving out the period of notice. Such is not necessary if the employment be casual. Following upon the plaintiff’s injury, he was given first aid treatment and then taken to Lithgow Hospital by Mr Moseley. The plaintiff was seen by the triage nurse at 11.56am. The presenting information is this:

“Rolled right ankle at work. Obvious swelling to lateral aspect of right ankle. Patient says minimal pain. NV intact. Nil other apparent injuries.”

The clinical notes indicate that the plaintiff’s ankle was swollen and he had pain over the right lateral malleolus. He was provided with Tubigrip, analgesia and crutches and sent for X-ray. X-ray is reported as showing significant soft tissue swelling over the lateral malleolus. There was no avulsion injury. The radiologist, Professor John Magnussen, noted an incidental finding of a vascular calcification. The doctor in the emergency department, Dr Girish Dave, provided the plaintiff with a WorkCover certificate indicating that he was fit for light duties commencing on 22 March 2011 and continuing until 25 March 2011.

11. There is no dispute that the defendant provided the plaintiff with suitable duties on the following day. According to the plaintiff’s timesheets, which are exhibit 1, the plaintiff’s light duties were “training”. He was working in an office dealing with paperwork. The parties have approached the matter on the basis that the restricted duties given to the plaintiff were real duties and were appropriate. The plaintiff re-attended the Lithgow Hospital on 28 March 2011 at 9.29am. This was for a follow-up consultation. The plaintiff had no general practitioner in the Lithgow area. The plaintiff complained of ongoing pain and swelling in his right ankle and difficulty in full weight bearing.

12. On examination, it was noted the plaintiff’s ankle was swollen and he was tender on the lateral side and that he was unable to fully weight bear. The plaintiff was sent for a CT scan of his right ankle. That is reported in this fashion:

“No fracture identified. No significant soft tissue swelling is seen.

There is a tiny two millimetre to three millimetre well-corticated bone fragment at the inferior aspect of the calcaneus in the region of the subtalar joint, which is probably an ossicle or due to old injury. There is no evidence of a significant ankle effusion, however, the anterior talar fibular ligament is thickened and this could be due to disruption. This could be better evaluated on ultrasound or MRI scan.”

13. Dr O’Keefe told me that the well-corticated bone fragment was a long standing condition and was probably a congenital condition. The ossicle identified was therefore a normal anatomical variant and did not indicate necessarily that there had been an earlier trauma to the plaintiff’s right ankle. On that day, the emergency department doctor at the hospital gave the plaintiff a further light duties certificate for the period from 28 March 2011 to 4 April 2011. However, two days later, the plaintiff attended at the hospital again on 30 March 2011 at 7.03pm. According to the emergency department records, the plaintiff presented asking for a work clearance following his ankle injury.

14. The plaintiff was examined by the doctor at the hospital, Dr Mark Freeman, who still found slight swelling remaining but thought the plaintiff’s ankle was stable. He issued a certificate indicating the plaintiff was fit for his pre-injury duties commencing on 31 March 2011. The plaintiff was provided with light duties on 31 March 2011 but on Friday 1 April 2011, returned to his pre-injury work as a crusher operator. That is confirmed by the plaintiff’s own timesheet which is part of exhibit 1. The plaintiff worked for 11 hours on 1 April between 6am and 5pm.

15. During the week commencing Monday 4 April 2011, the plaintiff’s timesheets indicate that he worked on the Monday to Thursday doing both work operating the crusher and cleaning up, and on Friday 8 April 2011, the timesheets indicate the plaintiff worked as a crusher operator for five hours and then for four hours checking, I infer paperwork, for its expiry date.

16. There is an issue as to why the plaintiff returned to the hospital on 30 March 2011. Was it, as he said, at the behest of Mr Moseley to get a clearance to make things “better” for the defendant with regard to its workers compensation insurer and implicitly, its experience of time lost claims? Or was it done by the plaintiff of his own accord, as Mr Moseley said it was?

17. On returning to normal duties, the plaintiff said that he asked to be relieved from shovelling work because he had difficulty doing that. He said he showed his still swollen ankle to Mr Moseley and asked to be excused from shovelling. However, the plaintiff was not. There is a dispute as to whether the plaintiff asked Mr Moseley to be excused from shovelling work or not. In his evidence-in-chief, the plaintiff did not mention any particular discussion with Mr Moseley on Friday 8 April 2011. He said that on the Monday of the following week, 11 April 2011, Mr Moseley sent the plaintiff home because of his complaints and told him to stay at the Royal Hotel where he was living and that the company would pay him for the time that he spent in the hotel.

18. He told me that Mr Moseley took him to the hotel. He told me that he stayed there until he left for China. This was a pre-arranged holiday. It appears to be common ground that the plaintiff left Australia via Sydney airport on Saturday 16 April 2011. He stayed away in China for four weeks. He told me that one of his sisters was a medical practitioner who arranged for him to see a surgeon and that he was treated by having his ankle exposed to ultraviolet radiation. The plaintiff told me that during the period in China, he was getting much, much better. He told me that he returned to Sydney on 8 May, which was a Sunday, but it may well be that he returned to Sydney on Saturday 7 May.

19. The plaintiff told me that when he arrived back in Australia, he called Mr Moseley to tell him that he had returned from China and that he was ready to return to work. The plaintiff told me that his ankle was much better than it had been but was still “not normal”. The plaintiff told me that in this telephone call with Mr Moseley, he was told that there was no work available at that time. He told me that on the following day, Monday 9 May, he visited his workplace and went to see the general manager, Mr Tony Leo, in his office. The plaintiff said that he asked Mr Leo what had happened and Mr Leo replied that there was no work for him. The plaintiff said that whilst Mr Leo was telling him that, Mr Leo was looking at the plaintiff’s right ankle and foot.

20. He told me that on the following day, Tuesday 10 May, he was visited at the Royal Hotel at Cullen Bullen by Mr Moseley. It is now likely that Mr Moseley visited the plaintiff on Monday 9 May 2011 at the Royal Hotel and that Mr Moseley was in company with Mr Leo. The plaintiff acceded in cross‑examination to the visit to him at the hotel possibly occurring on the same day as the day that he visited Mr Leo at the worksite and the plaintiff accepted that Mr Leo accompanied Mr Moseley on the visit to him at the Royal Hotel.

21. The plaintiff told me in his evidence-in-chief that Mr Leo offered him money which the plaintiff believed was between $1,000 and $1,200 and that it was similar to one week’s pay and that Mr Moseley would pay it into the plaintiff’s account. It is now common ground that the defendant paid to the plaintiff wages for one week commencing on Monday 9 May 2011 and that the money was paid into the plaintiff’s nominated bank account. According to the plaintiff, the first time he knew that his services were no longer required was on Monday 9 May 2011. However, there is an issue about that.

22. The plaintiff went on in his evidence-in-chief to tell me about the owner of one of the collieries at Lithgow or perhaps the owner of both the collieries at Lithgow at which he worked, Invincible and Cullen Bullen, looking for staff. The plaintiff told me that he tried to obtain a job with the colliery owner but was unsuccessful. After a number of days, he left Cullen Bullen and went to Sydney where he stayed with friends looking for jobs. In August 2011, the plaintiff obtained work with Linde Materials Handling Pty Ltd working at Blacktown. The plaintiff’s application to Linde is dated 7 August 2011. He had attended a pre-employment medical on 3 August 2011 for that company.

23. It seems likely to me that the plaintiff’s work with Linde started on 7 August 2011. However, the wages schedule indicates that the plaintiff commenced earning money with Linde on 9 August 2011. That wages schedule is exhibit N and was agreed, although it clearly contains a gross mathematical error. The plaintiff worked for Linde Materials Handling Pty Ltd as a forklift technician. He worked in the field. He was transferred by Linde to work in Melbourne at Christmas 2012 and commenced a new job, also as a forklift technician, with Hyundai Forklifts on 22 July 2014 and it is at that time that the plaintiff’s claim for weekly payments closes.

24. The plaintiff’s evidence is that he continued to have problems in his left ankle and indeed, continues to have problems in his left ankle doing his work as a forklift technician, and it has been submitted on behalf of the plaintiff that he would be unfit to do the full work that the plaintiff himself described that he was required to do as a coal crusher plant operator. In essence, the plaintiff by his counsel asks me to accept his evidence and to accept him as a witness of truth. I have been asked by the plaintiff to reject the evidence of Mr Moseley insofar as it is inconsistent with the plaintiff’s evidence. I must come back to that issue in due course. However, it is convenient at this time that I return to discuss the medical evidence that is before me.

25. The plaintiff makes no claim under s 11(2) of the Workers Compensation Act 1926, as it is preserved for coal miners. Such a claim is not made either in the statement of claim or in the submissions that have been put to me. It is common ground that the plaintiff made no complaint to either Mr Leo or Mr Moseley on either 7, 8 or 9 May 2011 of having any ongoing symptoms or being unable to perform his normal work as a coal crusher plant operator. On Thursday 12 May 2011, presumably when the plaintiff was still staying at the Royal Hotel at Cullen Bullen, he consulted Dr Tan, a general practitioner at Lithgow. Dr Tan’s report, exhibit E, says this:

“On examination, range of movements of his Right Ankle were limited by pain. No X-ray was ordered. Soft Tissue Injury to his right ankle was diagnosed. No treatments were given and he was advised to progressively increase moving and using his ankle which would eventually be healed.”

The only relevant finding on examination was a limitation of movement due to pain. That is not an objective sign of organic disability. It is a subjective complaint only. Dr Tan indicates in exhibit E that he expected the plaintiff to resume his pre-injury duties one week after he examined him on 12 May 2011. Dr Tan issued a certificate of fitness for suitable duties from Thursday 12 May to Wednesday 18 May 2011. The plaintiff did not return to see Dr Tan. That is explicable, of course, by his moving back to live with friends in Sydney. On 20 July 2011, the plaintiff was assessed by Dr John Watson, an orthopaedic surgeon, for the insurer of the defendant. Dr Watson noted that the plaintiff was not undergoing any treatment at the time he first saw the plaintiff. The doctor’s findings on examination are these:

“He walked with a normal gait. He could stand and walk on his tip toes and heels.

He could stand on each leg independently. He could squat and he could kneel. He appeared to have full plantar flexion in this position. Sitting on the side of the couch, he appeared to have full dorsiflexion, full plantar flexion and full subtalar joint movement.

In the supine position, he had some minor tenderness over the anterior talofibular ligament and minor tenderness over the anterior capsule of the ankle. Again, minor tenderness was demonstrated involving the posterior talofibular ligament, but he had no tenderness over calcaneofibular ligament and minimal tenderness over the deltoid ligament.

He had no effusion and no clinical signs of instability. He had full dorsiflexion and full plantar flexion and subtalar joint movement comparing left and right. He does not appear to have any clinical signs suggesting ongoing pathology.”

An effusion, for those who are not familiar with the term, means swelling. Dr Watson found no swelling. Dr Watson diagnosed a minor soft tissue injury of the right ankle which had resolved and thought the plaintiff was fit to resume his old job with the defendant. He noted that the plaintiff’s employment with the defendant had been terminated on 13 May 2011. Where the doctor got that information from is unclear. It may be that those were his instructions from the insurer of the defendant.

26. Eight days later, the plaintiff was seen by Dr David O’Keefe at the request of his solicitors. Dr O’Keefe has rooms in Lithgow. The plaintiff’s solicitors are in Lithgow. The plaintiff gave Dr O’Keefe a history of slipping “on some uneven ground”. The plaintiff told Dr O’Keefe that he was able to walk for six kilometres or so, but if the plaintiff did so, his ankle was stiff and painful. The plaintiff also told the doctor that his ankle problems restricted “other activities to a degree”. The doctor’s findings on clinical examination are these:

“With regard to his ankle, it is still slightly swollen with no discolouration or bruising. Dorsiflexion is the same as the uninjured left ankle but he has lost 50% of plantar flexion and 50% of inversion. He exhibited generalised ligamentous laxity elsewhere and also complained of a right tennis elbow.”

One will note that the limitation of plantar flexion and inversion and a slight swelling were not found by Dr Watson eight days earlier, nor were they found by Dr Tan on 12 May 2011.

27. Six days later, the plaintiff was examined by Dr Vincent Chin at the Pacific Medical Centre at Blacktown. This was the pre‑employment medical examination for work with Linde Material Handling Pty Ltd. Dr Chin indicates that he found no abnormality in the plaintiff’s ability to kneel, crouch and climb. The form which he completed also indicates that there was no detectable predisposition to muscular or ligamentous injury. He also states that the plaintiff told him that he had no current workers compensation claim. The last statement is patently untrue. By that stage, the plaintiff had consulted solicitors in Lithgow who had qualified Dr O’Keefe. The plaintiff explained this anomaly in two ways. The first was that his claim had not been accepted by the defendant’s insurer and therefore the claim was not current. But to me, that argument was sophistic. The plaintiff also said that if he had told the doctor about his current workers compensation claim, he may have failed to pass the medical examination and failed to obtain the job with Linde Material Handling. There is more merit in that reason for making the misrepresentation which he did to Dr Chin. However, it is significant that Dr Chin makes no mention of any problem that the plaintiff had on his examination of him in the plaintiff’s right ankle.

28. The plaintiff’s application to Linde Material Handling is exhibit 4. Again, there was a denial of the plaintiff’s ever having made any claims for workers compensation. This Court and its predecessor have for decades excused workers misrepresenting their workers compensation history because of a tendency of employers to reject applicants for jobs if they give a history of a compensable injury. However, it must be noted the plaintiff is prepared to tell untruths if it assists him.

29. Before going on to discuss the medical evidence further, I should indicate that when the plaintiff was examined by Dr O’Keefe, the doctor suggested that the plaintiff undergo further investigation by way of an MRI scan.

30. Here commences a medley of medical mistakes and a litany of lawyers’ laxity. Dr O’Keefe gave to the plaintiff a referral for an X-ray of his left ankle. The plaintiff went to have that investigation performed at Castlereagh Imaging at Westmead Hospital on 13 August 2012. Exhibit 5 is a patient questionnaire completed by the plaintiff for Castlereagh Imaging and a “foot and ankle questionnaire”. The plaintiff has indicated on the foot and ankle questionnaire by circling parts of his ankle that what was required to be scanned was his left ankle. The plaintiff told me that as his left ankle was about to be scanned, he pointed out to the radiographer that it was the other ankle that needed to be scanned and his right ankle was in fact scanned.

31. The report of the scanning of the plaintiff’s ankle was entitled “MRI left ankle”. That was reported by Dr Catherine Hayter on 13 August 2012. It is a lengthy report showing a number of different pathologies in the plaintiff’s ankle. It is now common ground that the ankle actually scanned was, as the plaintiff said, his right ankle. However, Dr Hayter did not realise that or should I say, failed to pick that up. She told me that the methodology adopted at the imaging practice was to prepare records from the referral note from the referring doctor. In this case, the order for the X-ray of the left ankle by Dr O’Keefe and for the item to be scanned to be entered on the plates prior to the actual scanning by use of the computer. In other words, the labelling of the paperwork at the imaging practice and the labelling to be placed on the plates was all inserted prior to the actual scanning and they all indicated the left ankle. A long time later, Dr Hayter reviewed the scan on 20 November 2014 and confirmed that it was in fact a scan of the right ankle because one could reconstruct the ankle by placing the actual scans one on top of another, and those clearly indicate from the anterior and posterior views that the ankle in question was indeed the right ankle.

32. However, this mislabelling and the failure of Dr Hayter to pick it up caused ongoing mischief. The MRI report of 13 August 2012 was sent to Dr O’Keefe. Dr O’Keefe in a letter of 14 August 2014 confirms that the MRI scan was of the plaintiff’s “left ankle”. The findings are summarised by Dr O’Keefe and he goes on to make this comment:

“This is a much more severe injury than a simple ankle sprain and explains the persistent loss of range of movements at four months post injury when I saw him last. He is unlikely to ever fully recover and will need further surgery at a later stage - possibly even an ankle arthrodesis if his symptoms deteriorate to full blown osteoarthritis.”

The doctor went on to diagnose a 15% permanent loss of efficient use of the plaintiff’s “left leg” below the knee as a result of the plaintiff’s “accident at Big Rim”. The doctor clearly did not consult his earlier report, which would have made it clear to him that the ankle affected was not the left ankle but the right ankle. The doctor’s error is compounded in a further letter of 1 October 2012. In that letter, the doctor said this:

“Apparently it is reported as ‘MRI right ankle’; but this is obviously a typographical error because the pathology report suggests a serious injury corresponding with his clinical findings.”

The report was labelled as an MRI of the left ankle, not of the right ankle.

33. On 30 November 2012, the plaintiff was reviewed by Dr John Watson. The plaintiff told the doctor that he did tai chi for his fitness and to control symptoms in his right ankle, took hot water baths and massage but otherwise had no specific treatment. The doctor’s findings on examination are these:

“He walked with a normal gait. He could stand and walk on his tip toes and heels. In the squatting position, he appeared to have full plantar flexion.

Sitting on the side for the couch, he appeared to have full dorsiflexion, full plantar flexion and full subtalar joint movement.

In the supine position, he had some minor tenderness over the anterior talofibular ligament and some minor tenderness over the anterior ankle joint medially. There was no tenderness involving the posterior talofibular ligament and no tenderness over the calcaneofibular ligament. There was minimal tenderness over the deltoid ligament. There was no effusion. There were no clinical signs of instability.

In the prone position, there was no clinical evidence of limitation of movement and he appeared to have full dorsiflexion and full plantar flexion and no clinical evidence to suggest instability.”

Dr Watson thought the plaintiff had fully recovered and there were no restrictions on his ability to work. Under the heading “investigations”, the doctor comments on the MRI of the “left ankle” made on 9 August 2012. He commences that discussion with this matter:

“I would suggest that these films have been labelled incorrectly. It would appear to have been a right ankle MRI scan.”

That observation by Dr Watson was correct. Unfortunately, he did not persist with that view, compounding the medley of medical mistakes. The significance of the MRI, according to Dr Watson, is that it confirmed previous ligamentous injury but because the plaintiff had a very stable ankle clinically, he did not require any ongoing treatment. The doctor confirmed that the plaintiff had no permanent loss of efficient use of the right leg below the knee, even though he, like Dr O’Keefe, refers to the right leg “at or below the knee” when the statute requires an assessment of the loss of efficient use of the leg below the knee.

34. On 22 November 2013, the plaintiff’s solicitors wrote to Dr O’Keefe again. He replied on 11 February 2014 and again, the doctor had not picked up on the mislabelling of the MRI scan itself or the mislabelling of the MRI report. As far as Dr O’Keefe was concerned, the tear of the medial deltoid ligament was an old tear. He discussed that in his oral evidence and told me that there might be no symptoms from such a tear or transient symptoms and he believed it to have been of no relevant significance to the plaintiff’s injury of 22 March 2011, nor did he believe it necessarily meant that the plaintiff had a previous injury to his right ankle.

35. The plaintiff was reviewed by Dr Watson for the third time on 18 December 2013. The doctor’s findings on examination were very much the same as they had earlier been. Again, the doctor did not believe the plaintiff had anything wrong with his ankle, that he did not require treatment and he was fully fit for work and there was no loss of efficient use of his right leg below the knee. However, on this occasion, the doctor said in his report this:

“Mr Nie was subsequently submitted to an MRI on 9 August 2012, labelled as right but was in fact the left.”

Of course, the MRI was labelled as “left” but it was in the fact of the right and this caused further confusion.

36. An issue joined between Dr Watson and Dr O’Keefe is the significance of the MRI findings. Dr O’Keefe had been asked to comment on Dr Watson’s report of 18 December 2013. The comment that he made is this:

“I have viewed his report dated 18/12/13 in which he diagnoses a ‘soft tissue injury’. He actually quotes the MRI report which shows at least two major ligament disruptions and an osteochondral lesion in the dome of the talus which is consistent with a valgus impaction injury into the joint - hardly soft tissue. Also he comments on Mr Nie having a normal range of movements, which is almost certainly due to the fact that Asiatic people have generalised ligament laxity and they recover range of movement well after injury due to this.”

Dr Watson commented upon those remarks on 10 March 2014. In that letter, Dr Watson said this:

“I note Dr O’Keefe’s report and I note his comments that there is an osteochondral lesion of the dome of the talus and he talks about a valgus impaction injury. I have no idea how he can make that judgment of a compact injury on reviewing the documentation that has been provided, especially the duty of a crush plant operator. I note the documentation of what he does and there does not appear to have been a valgus impaction injury to his ankle as a result of the incident which is documented as being 28 March 2011.”

Further in the same letter, Dr Watson said this:

“I am afraid I cannot agree with the judgment that Dr O’Keefe has made that he has a so called valgus impaction injury to his ankle. I do not believe there is any evidence on the history that has been obtained to confirm that.”

With that observation of Dr Watson, I must concur. The suggestion of valgus impaction injury is not consistent with the mechanism of the injury described by the plaintiff in his evidence or described contemporaneously in any document or medical report.

37. This matter was first listed before me in Sydney on 20 November 2014. When counsel for the parties pointed out the problems with the misdescription of the MRI scan and the confusion that it caused, I was loathe to grant any adjournment to the defendant because I believed that the matter could be easily clarified by someone looking again at the MRI scan to see whether it was of the left ankle or the right ankle.

38. Dr Hayter was asked to review the X-ray, did so and came to Court and gave oral evidence that it was in fact an MRI of the right ankle. The defendant could not challenge her evidence because the defendant needed some further instructions. I suggested that the defendant then do what ought to have been done by the parties either jointly or severally in 2012, that they send all the relevant radiological investigations to an expert radiologist to tell me whether the MRI was of the left ankle or the right ankle. The defendant arranged for the radiological investigations to be referred to Dr John Korber, one of the most respected radiologists in Sydney.

39. Dr Korber has provided a report of 24 November 2014 which is exhibit 6. He confirms that the MRI is in fact of the right ankle, thus removing any misimpression one might have from the medley of medical mistakes which I have recounted.

40. I again point out that the lawyers should have put the issue “to bed” in 2012 when the MRI was first made. Furthermore, the matter has a rather lengthy curial history and it is clear that the plaintiff has been represented by barristers with expertise in the medicolegal field for some little time and nothing was done prior to 20 November 2014 to sort the matter out. For example, the matter was listed for hearing before Truss DCJ on 12 November 2013 when Mr Baker of counsel appeared for the plaintiff and Mr David Stanton of counsel appeared for the defendant. The matter was adjourned on that occasion with an order that the plaintiff have no costs of that day. The matter was then listed for mention before me on 21 February 2014 and I set it down for hearing on 19 March. However, on 19 March, Mr Gollan of counsel appeared for the plaintiff and Mr Odling appeared for the defendant. Unfortunately, the matter was not reached at 3.07pm. I stood the matter over to the sittings commencing in Sydney on 25 August.

41. The matter was called over on 29 July and I set it down for hearing on 27 August. On 25 August, the matter was mentioned before me. Mr Odling again appeared for the respondent. However, Mr Gollan had been replaced by a reader from his floor who was clearly devilling for Mr Gollan. On the application of the plaintiff, which the defendant opposed, the hearing of 27 August was vacated. On 27 October, I set the matter down for hearing on Thursday 20 November 2014. The matter ran all day Thursday 20 November, all day Friday 21 November and took up a lot of yesterday’s hearing time here at Newcastle. All of that could have been avoided if the lawyers had done their job efficiently.

42. The only other time that the plaintiff was examined by either Dr O’Keefe or Dr Watson was when Dr O’Keefe examined the plaintiff at Court on 20 November 2014. Dr O’Keefe told me that he noticed a loss of dorsiflexion on examination. However, in cross-examination, he noted that the plaintiff’s subtalar movements were satisfactory, his plantar flexion was satisfactory, that there was no evidence of instability and noted only a complaint of tenderness on palpation of the anterolateral ligament and a posterior ligament. Again, a complaint of tenderness is a subjective rather than an objective finding.

43. I find it odd that Dr O’Keefe should notice some loss of dorsiflexion when it had never been found by Dr Watson, nor for example by Dr Tan. In more recent times, the plaintiff came under the care of Dr Wang of the Stud Road Medical Centre at Dandenong in Victoria. The plaintiff first saw Dr Wang on 7 March 2014 but for unrelated problems. The plaintiff complained to Dr Wang about his right ankle on 28 April 2014. The history recorded in Dr Wang’s notes is this:

“He has been suffering from a chronic right ankle pain after an injury one year ago. He has also had elbow and knee joints pain which affected daily life for months. There are no joints swelling but tender on the mid-sides of knees and the elbows. Accordingly, I list him in EPC program and ask him to see a physiotherapist for five sessions of opinion and management.”

One will note that Dr Wang did not find any effusion and obtained no complaint of tenderness around the right ankle. The plaintiff saw Dr Wang again about his right ankle pain on 6 May 2014 when he diagnosed muscle tendonitis but his notes do not record any findings on examination. Again, a complaint of right ankle tenderness was made on 17 August 2014 but there was no swelling in the ankle found by Dr Wang on that occasion. The final time Dr Wang’s records indicate a complaint of right ankle pain was on 12 September 2014 when the plaintiff told the doctor he had not yet had any physiotherapy. The plaintiff’s treatment by Dr Wang since then has been largely caused by an acute gall bladder problem requiring surgery. Dr Wang’s notes do not really assist the plaintiff’s case because they provide no evidence of any ongoing organic pathology.

44. It appears to me, with the upmost respect to him, that Dr O’Keefe has seen fit to regard the radiological appearances of the plaintiff’s right ankle as of more significance than his findings on examination. In that regard, one must bear in mind the common observation that a doctor is required to treat a patient’s problems rather than to treat a radiological appearance. That is confirmed by Dr Korber in his report of 20 November 2014 which is exhibit 6. In that report, Dr Korber presciently says this:

“Pathology seen on imaging always requires clinical correlation.”

Shortly thereafter in the same report, Dr Korber says this:

“Possible ongoing clinical concerns might be:-

(1) ankle instability because of the two ligament injury

(2) ongoing ankle swelling because of the intra-articular osteochondral talar dome lesion

(3) ongoing lateral ankle symptoms from the peroneal tendon pathology.”

When I go to each of those matters, I find that the only suggestion of any ankle instability was at Dr O’Keefe’s first examination. The only suggestion of any ongoing ankle swelling was Dr O’Keefe’s first examination but none has been subsequently found, nor had it been found prior to that examination by Dr O’Keefe. I am not persuaded on the balance of probabilities the plaintiff had had any ankle swelling since it was last observed at Lithgow Hospital on 30 March 2011. The final matter referred to by Dr Korber is of ongoing lateral ankle symptoms but such symptoms as there are appear to be either anterior, medial or posterior and not lateral. Furthermore, the symptoms are subjective and not objective.

45. The person who is in the best position to assist me medically is Dr Watson, who examined the plaintiff on three occasions and provided comprehensive assessments following upon detailed examination. The examination of Dr O’Keefe carried out on 28 July 2011 is inconsistent with the lack of findings of Dr Tan on 12 May 2011, with the lack of findings by Dr Watson on 20 July 2011 and with the lack of any finding made by Dr Chin on 3 August 2011. However, there always remains the evidence of the plaintiff himself.

45. At first, I was perplexed by the plaintiff’s evidence because of his tendency to avoid directly answering questions by providing anecdotes which implicitly denied the question without explicitly denying the question. I thought that might be a cultural thing. However, having heard the evidence of Mr Moseley, I have come to the view that the plaintiff’s evidence is inherently unreliable. Take for example the simple question of what happened when the plaintiff was in China in April and May 2011. I have already recounted his evidence that he has a sister in China who is a medical practitioner, who arranged for him to see a surgeon and thereafter, he was treated by the use of ultraviolet lamp radiation which caused an amelioration of his condition.

46. When seen by Dr Tan on 12 May 2011, Dr Tan records that the plaintiff told him that he had “traditional treatments” for his ankle when the plaintiff was in China. When the plaintiff was seen by Dr Watson on 20 July 2011, the plaintiff told Dr Watson that he had no treatment when he was in China. When Dr O’Keefe reviewed the plaintiff on 28 July 2011, that medical practitioner obtained no history of what had happened in China. When the plaintiff was reviewed by Dr Watson on 30 November 2012, he said, contrary to the history that he had given to Dr Watson on the previous occasion, that he had physiotherapy three or four times per week whilst he was in China. None of those histories can be reconciled.

47. The plaintiff maintains that he only obtained the clearance certificate from Dr Mark Freeman at the Lithgow District Hospital on 30 March 2013 because he was asked to do so by Mr Moseley, who indicated that it would be good for the defendant because it would keep the defendant in the “good books” of Coal Mines Insurance. When that put to Mr Moseley, he denied it. Such a history was not given to Dr Tan. Dr Tan has this history:

“He was given clearance to resume pre-injury duty […] because he was going to China for pre-planned holiday.”

That suggested the plaintiff needed the clearance in order to take his annual leave and go to China. The inference to be drawn from that history is the plaintiff wanted the clearance himself for, perhaps, travel reasons. In cross‑examination, the plaintiff, as I have earlier mentioned, did his best to avoid answering questions simply and explicitly. He did admit that his main job required him to sit in the control room of the crusher and if anything went wrong, for him to leave the control room for the crusher. When asked whether he was required to inspect the belts of the crusher before commencing crushing, the plaintiff said that he was required to inspect “everything”. It was suggested to the plaintiff that he need only inspect the crushing plant at the commencement of a shift but the plaintiff replied that he had to inspect the whole of the crushing plant every half hour “according to the manual”. The plaintiff did admit that he was not constantly walking up and down beside the belts. The plaintiff was asked whether he was required to walk up and down the stairs leading to each of the high points in the crushing plant before the commencement of the crushing shift. The plaintiff agreed that he did. It was then suggested to him that he otherwise was only required to climb stairs when a problem arose.

49. The note I made is that the plaintiff made a long excursus on his duties to answer that question and by making that long excursus, avoided answering the question correctly. Further on, it was put to the plaintiff that there were no fixed times requiring him to go up and down stairs of the crushing plant. The answer given by the plaintiff to that question is this: “If you are lazy, you don’t need to go up and down the stairs at all.”

50. The inference to be drawn is firstly that the plaintiff was implicitly admitting that going up and down the stairs was strictly unnecessary but as he was a good worker, and not a lazy man, he did the opposite. In other words, the plaintiff was using that statement to boost his credibility. The plaintiff said that if the crushing plant was crushing hard coal, there could be a jamming three or four times a day. That, on the evidence of Mr Moseley, appears to be highly unlikely. If hard coal were to be crushed, it was merely necessary to adjust the jaws in the crushing box. Furthermore, it defies commonsense that the crushing plant would be jamming up so regularly and thereby impeding the work that the crushing plant had to do.

51. When it was suggested to the plaintiff that a jam requiring a manual cleaning out of the crushing box would only occur about twice a month, the plaintiff avoided answering the question directly. It was then suggested to the plaintiff that he was only required to shovel coal for an average of one hour per day. The plaintiff replied several hours per day but when pressed, said it was around two hours per day. It appears to be common ground now from the evidence of the plaintiff and Mr Moseley that shovelling might be required for one hour per day, perhaps for up to two hours per day.

52. When pressed about his stopping work on Friday 8 April 2011, the plaintiff avoided answering the question when it was clearly the case that he did so. A conversation between the plaintiff and Mr Moseley on Monday 11 April was then put to the plaintiff. It was suggested to the plaintiff that Mr Moseley told him that the requirements of the company for labour had changed and they no longer needed him. They had to reduce the number of staff and as he was a casual and had no competency other than to act as a crusher operator, that they needed to let him go. They didn’t need his services any longer. The plaintiff said that that did not occur. However, I accept the evidence of Mr Moseley that it did.

53. The plaintiff then became argumentative. When it was suggested to him that he knew his services had been dispensed with before going to China, the plaintiff said this:

“If I had been sacked or they didn’t need me, why would I have gone back to Lithgow from Sydney to start work. It’s a long drive.”

Those are my contemporaneous notes. I do my best to take verbatim notes but it’s often impossible to do so. This was pleading by the plaintiff. He was arguing his case. His returning to Cullen Bullen can be explained by his having left his personal effects at the Royal Hotel when he left Sydney to go to China and he perhaps went back in the pious expectation that he might obtain work either with the defendant or with the colliery company. When it was suggested to the plaintiff that Mr Moseley had told the plaintiff prior to his going to China, to give him a telephone call when he got back to Sydney as they might then have a job for him, the plaintiff denied that that was said but the evidence of Mr Moseley is that to effect.

54. When it was suggested to the plaintiff that on his return to Australia, he phoned Mr Moseley on either Saturday 7 or Sunday 8 May, the plaintiff said that the phone call must have been made on a weekday. That was clearly a reconstruction because he was back in Cullen Bullen on the morning of Monday 9 May. The evidence of Mr Moseley is that the plaintiff phoned him on Saturday 7 May when Mr Moseley was at home. The plaintiff telephoned him on his mobile phone.

55. I was left with the distinct impression, which I still hold, after hearing the evidence of Mr Moseley, that the plaintiff has exaggerated the physical requirements of his job in order to justify his assertion that he has been since 8 April 2011, unfit for the full work of a plant crusher operator.

56. If he has any symptoms, they are only minor. The less symptoms, the more likely it is the plaintiff could do his pre-injury work, hence in my view, his attempt to exaggerate the extent of the work required of him by the defendant. Furthermore, this exaggeration of work duties because of a need to establish incapacity is inconsistent with the plaintiff’s asking for his old job back, asking the defendant to return him to work in the crusher and inconsistent with his seeking work in the mining industry from the colliery owner after his services had been dispensed with by the defendant after his return from China.

57. The one matter which has excited my curiosity and concern is exhibit D. Exhibit D is a letter from the defendant to the plaintiff bearing date 9 May 2011. The letter is in the following terms:

“Due to a downsizing, we regrettably inform you that your employment with Big Rim will cease at the end of business on Friday, 13 May 2011.

Your attendance at work is not required the week commencing 9 May and the company will pay your salary for the week ending 13 May.”

The letter is signed by Mr Tony Leo, the general manager of the defendant, with whom the plaintiff clearly had an interview on the morning of 9 May 2011. Of course, that letter appears to be inconsistent with the statements of Mr Moseley, that in essence, Mr Moseley gave him notice on Monday 11 April 2011, giving him the week off to seek other work in the coalfields near Lithgow. However, Mr Moseley told me that the second period of notice was the week ending 13 May 2011, and this was a gesture of goodwill to the plaintiff because they had already given him a week off work in order to look for alternative work. This of course weighs against the defendant’s case.

58. However, the onus of proof is borne by the plaintiff, not by the defendant. The plaintiff has the onus proving on the balance of probabilities that he was incapacitated for his pre-injury work and neither the plaintiff’s evidence nor the medical evidence persuades me that that is the case. The doctor at the Lithgow Hospital, Dr Mark Freeman, found on 30 March 2011 that there was still some slight swelling of the plaintiff’s right ankle but it was stable. Such swelling was not evident when the plaintiff was examined by Dr Tan on Thursday 12 May 2011. Everything indicates to me that the plaintiff’s ankle recovered by 12 May 2011, most probably when he was in China during which period I do not know what treatment, if any, the plaintiff had.

59. The plaintiff appears to have been paid wages until he left to go to China and for a week after his return. Any payment of wages clearly covers any period of incapacity. I am not satisfied on the balance of probabilities that the plaintiff was incapacitated for work after 15 April 2011, to which date the plaintiff has been paid wages already. The remaining item is of course the claim for loss of efficient use of the plaintiff’s right leg below the knee. Here, I have the assessment of Dr O’Keefe which the doctor admitted in his oral evidence was a “educated guess” when it was pointed out to the doctor that his diagnosis was a 15% loss of efficient use of the leg at or below the knee and he was asked then to comment on what the loss was merely below the knee and the doctor said it was the same percentage, 15%.

60. However, that assessment, in my view, is based merely on the radiological reports and not any signs or symptoms of organic disability. Again, the loss is based merely on the radiological appearance rather than the clinical findings. In light of that consistent assessment by Dr Watson, I am not satisfied on the balance of probabilities that the plaintiff has any permanent loss of efficient use of his right leg below the knee as a result of the injury on 22 March 2011. I accordingly make an award for the defendant.

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Decision last updated: 05 March 2015