Nyrhinen v Dendrobium Coal Pty Ltd

[2017] NSWDC 467

District Court

New South Wales

Medium Neutral Citation:	Nyrhinen v Dendrobium Coal Pty Ltd [2017] NSWDC 467
Hearing dates:	21 November 2017
Date of orders:	22 November 2017
Decision date:	22 November 2017
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	Orders at [37]
Catchwords:	WORKERS COMPENSATION – COAL MINER – Claim for weekly payments for a right wrist injury – Whether aggravation of pre-existing degenerative condition ceased, prior to partial fusion of the wrist
Legislation Cited:	Workers Compensation Act 1926 Workers Compensation Act 1987
Category:	Principal judgment
Parties:	Lauri Nyrhinen (Plaintiff) Dendrobium Coal Pty Ltd (Defendant)
Representation:	Counsel: Mr D Benson (Plaintiff) Mr B Odling (Defendant)   Solicitors: Slater & Gordon Lawyers (Plaintiff) HWL Ebsworth (Defendant)
File Number(s):	RJ 533/2016
Publication restriction:	Nil

Judgment

1. HIS HONOUR: The plaintiff claims weekly payments of compensation from 29 July 2016 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 its operation is prereserved for those working in or about a coal mine, pursuant to Sch 6, Pt 18 of the Workers Compensation Act 1987. The plaintiff also claims his expenses under s 60. The actual claim for weekly payments is modified somewhat by exhibit W, but is not necessary for me to comment about that at this stage.

2. The plaintiff has an impressive resume. That resume includes his educational qualifications and his industrial history. The plaintiff was born in Australia on 20 December 1969. He is currently 47 years old. He grew up in the Illawarra and obtained a Higher School Certificate at the end of his secondary schooling, at the Oak Flats High School in 1987. He then undertook both work and studies to become an electrician. His initial employer was BHP at the Port Kembla steel works. He worked for BHP as both as an apprentice electrician and as an electrical fitter and mechanic once he qualified as an electrician, for a period of over 10 years, from January 1988 to June 1998. He then worked in his trade for a private company for a short while, which was involved in commissioning certain works for BHP. When plaintiff left BHP he was offered a voluntary redundancy, because the BHP steel works at Port Kembla were downsizing. Nevertheless, when he left BHP, he worked for it indirectly through an electrical contractor, who had obtained work commissioning some plant for BHP.

3. When that work ran out, the plaintiff worked for a while as a bar attendant at the Albion Park Bowling Club, and concurrently as a residential care worker for the Department of Community Services, and also as an electrician. Between August 1999 and June 2001, the plaintiff was employed by Port Kembla Copper as an electrical and instrumentation maintenance officer. His duties involved the repair and maintenance of copper smelting and refining plant at the Port Kembla Copper works. In October 2013, the plaintiff commenced working as a design and technology teacher at his alma mater, Oak Flats High School.

4. This takes me back to the plaintiff's educational qualifications. After obtaining his basic electrical trade certificate, the plaintiff did a large number of courses to advance his electrical qualifications. These were mainly through the Illawarra Institute of Technology. However, he commenced a degree of Bachelor of Education in Design and Technology, which he was awarded by the University of Newcastle in 2003. Fortunately for the plaintiff, most of his studies were conducted in Wollongong. That led to his obtaining work as a high school teacher. He worked as a high school teacher from October 2003 to April 2005. He gave up that work because it was not as lucrative as work in his trade, especially when one considers what was available to him in the coal mining industry.

5. When he left full-time teaching, he obtained work with BHP Billiton at the Dendrobium coal preparation plant, where he was working in the washery, doing maintenance and breakdown repair of electrical equipment in the washery. He then obtained work as an electrician in Queensland.

6. The plaintiff and his wife have four children. Their youngest child, a daughter, Kia, was born on 30 August 2007. However, at that time, the plaintiff and his wife became estranged. The plaintiff's four children continued to live with their mother. They moved to Queensland. The plaintiff followed. When in Queensland, he found work doing electrical maintenance and repairs at a soft wood timber mill near Maryborough. However, his wife and children decided that they preferred the Illawarra to Queensland, and returned there, which led to the plaintiff's taking up work at the Metropolitan Colliery at Helensburgh, shortly after his return from Queensland in July 2008. The plaintiff worked at the Metropolitan Colliery doing surface electrical maintenance until finding work with the present defendant in March 2009.

7. The plaintiff was employed by the defendant as an electrician. However, he was also trained to be a multi‑skilled mine worker. He worked in a crew, or team. That crew usually comprised an electrician, a fitter, and up to eight other multi‑skilled mine workers, whom he described as "operators". The plaintiff spent about 40% of his time doing electrical work, and the remaining part of his working time was spent doing the usual duties of a multi‑skilled mine worker. There is no doubt that the work was arduous, demanding, and involved the use of his hands. The plaintiff usually worked weekday day shifts, but on 18 November 2012 moved from weekday day shift to weekend day shifts. The weekend day shifts were between 6am and 6pm on Fridays, Saturdays and Sundays. Doing such shifts permitted the plaintiff to obtain casual employment during four days of each week as a schoolteacher.

8. He commenced doing casual work as a teacher in 2013. The plaintiff told me that he did work at the Albion Park High School, the Campbelltown Performing Arts High School and at Keira Technology High School. He was teaching the subject, which he had been trained to teach, Design and Technology. He also has taught Engineering Studies, Technical Drawing, Industrial Arts and Electronics. It is of moment to note that in addition to his earnings as a coal miner the plaintiff was earning substantial amounts of money as a casual school teacher. In the financial year ending 30 June 2015 his average weekly earnings as a school teacher were $466.79 per week and in the financial year ending 30 June 2016 his average weekly earnings as a school teacher were $600.98 a week.

9. The plaintiff injured the wrist of his dominant right arm on 8 April 2016. The injury occurred at approximately 2.30 pm. There is a bland narrative contained in exhibit A. His supervisor was Steve Gillen. Both the plaintiff and Mr Gillen signed exhibit A, an event report on 8 April 2016 the day of its occurrence. There is some detail given in the evidence about this occurrence but it was not challenged by the defendant. I say that because there is a little bit of evidence, which suggests that the incident may not have occurred. That is an entry made by a physiotherapist in a note made on the succeeding day. The note was made by Mr Patrick Weston and is this: "Lauri presented with left wrist pain, which developed during shift yesterday. He does not recall an exact mechanism but was lifting at various times throughout the shift." However, the plaintiff was not cross‑examined about that history at all, and I shall ignore it. Especially is that so, when on the preceding day both the plaintiff and his supervisor completed a contemporaneous report of injury form, although it bears not that name. There was really no dispute as the case was presented about the occurrence of the injury in question.

10. As ought be clear from what I have just said the plaintiff returned to the mine on Saturday 9 April 2016 but was sent to BaiMed Physiotherapy. It was there that he is seen by Patrick Weston. After seeing the physiotherapist he returned to the mine where, on exhibit A, it was noted that the plaintiff presented with a swollen hand. And after going to physiotherapy he was given the remainder of the weekend off work as a restriction had been placed upon him that he was not to lift anything at all.

11. On Monday 11 April 2016 the plaintiff went to see his general practitioner. The plaintiff generally consulted the Dapto Medical and Dental Centre where he came under the care of one of a number of medical practitioners. On Monday 11 April 2016 he came under the care of Dr Charles Obinwanor. Dr Obinwanor has a consistent history of the injury. He noted that the plaintiff had a very tender wrist, the tenderness being over the styloid process and the plaintiff had a restricted range of movements. Dr Obinwanor organised for the plaintiff to have a CT scan of his right wrist and provided the plaintiff with a certificate for light duties. The X‑ray was performed later on that day. There was found to be joint space narrowing between the capitate and lunate bones. There was also slight joint space narrowing in the distal radioulnar joint. The radiologist, Dr Derek Glenn, noted that there was a small effusion present in the wrist joint, an obvious sign of organic problems. As well as noting the narrowing of joint spaces, Dr Glenn pointed out that there were degenerate changes present in the wrist joint, with a subchondral cyst formation most conspicuous at the mid‑carpal joint.

12. As I understand it, the plaintiff went to work on the following weekends and was given light duties. The plaintiff told me that on 3 May 2016, he was given a certificate for a trial of his ordinary duties. However, he was not 100% pain‑free. He went to work with his wrist taped. He had problems with both flexion and extension of his wrist. On Saturday 14 May 2016, the plaintiff sustained a further insult - if I may use that word - to his right wrist when he was taking a miner plug DCB - a distribution control box, something like a fuse box - when the plug twisted as he was seeking to extract it and caused a rapid rotation of his wrist to the right, leading to a similar sharp pain that he had felt after the event of 8 April 2016. In case one reading these reasons might think that the plug of a miner cable was something like the plug of a normal household appliance, I must point out that the plug of a miner cable weighs 10 kilograms or greater. We are dealing with very large, very heavy and very awkward electrical fittings. Again, the plaintiff had to apply ice to his wrist. He was unsure as to whether he worked on the following Sunday, 14 May 2016 being a Saturday.

13. He was then sent for an MRI scan, which was performed by Dr Chris Chu at Wollongong Private Hospital on 17 May. There are many abnormal findings recorded by the radiologist. One interesting finding, from my point of view, is the fact that there was a small DRUJ effusion, which suggested to the radiologist some minor synovitis. Again, an effusion is evidence of some organic disability or injury to the wrist joint at that time. Dr Chu commented that there was severe lunocapitate degeneration with full thickness chondral tear and subarticular marrow oedema and cystic change. In other words, the bone was rubbing on bone in the wrist. There was also said to be moderate degenerative change of the articulation of the hamate and lunate bones, again with minor subarticular marrow oedema. Again, bone was rubbing against bone. Another interesting finding is of a heterogeneity of the TFCC, suggesting that there had been a sprain of those cartilages.

14. In the meantime, the plaintiff was still having physiotherapy from BaiMed Physiotherapy. I note that on 16 and 20 May 2016, the plaintiff was attended to by Mr Paul Wiedersehn. On 20 May 2016, Mr Widersehn recommended that the plaintiff be reviewed by a hand specialist. The plaintiff, in fact, got back to work for two weeks after 14 May 2016 on light duties. However, his light duties were then changed to record that he could only work for three hours per day for three days per week. When he presented that certificate the defendant said that such light duty work was no longer available to him. The plaintiff was in fact paid weekly payments of compensation to 31 July 2016. The document evidencing that can be found in exhibit 2 at p 12, or p 12 of the defendant's exhibit bundle. All told he was paid compensation from 20 May to 31 July 2016, a period of some seven weeks.

15. The plaintiff was referred by Dr Obinwanor to Dr Stuart Jansen, an orthopaedic surgeon specialising in upper limb and trauma surgery. His letterhead can be found in exhibit G. After telling me that he specialises in upper limb and trauma surgery, there is mention specifically of the shoulder, elbow and hand. Like every other medical practitioner Dr Jansen has a consistent history of injury. Dr Jansen expressed this view:

"Lauri has significant mid-carpal arthritis which has been made worse with his two injuries at work. I recommended a rigid thermoplastic splint and a cortisone injection into the mid-carpal joint. Surgical options include total wrist fusion and partial fusion if Lauri's pain fails to settle in the longer term."

The plaintiff did have a mid-carpal cortisone injection under the care of a radiologist but it provided him with no relief. In response to a letter sent to him by the insurer of the defendant, Dr Jansen expressed the view that the plaintiff was fit for light duties and then specified 5-10 kg, that the plaintiff could not lift more than 10 kilograms but he was to wear a brace on his wrist. The doctor could not say when it was the plaintiff might return to his pre-injury duties and said that it was possible for the plaintiff to undergo a wrist fusion if his pain failed to settle.

16. The defendant sent the plaintiff to see Associate Professor Dickinson, an orthopaedic surgeon. Dr Dickinson saw the plaintiff on 29 July 2016. Dr Dickinson has a consistent history of injury. He tells me that the mechanism of the injury was hyperpronation of the right hand. He also has a history of the second event which I have described. Under the heading "Past Medical History": the doctor recorded this:

"He told me he had been a hockey player from the age of 11 until 2012. He said that he had been selected in the Australian team to go to England but could not do this because of family needs. This was in 2011.

He has had a number of muskuloskeletal injuries including bilateral knee arthroscopies, anterior cruciate ligament reconstruction of his left knee, right Achilles tendon debridement and he also had his left ankle debrided."

17. The plaintiff told me of his playing field hockey. He freely admitted the injuries recorded by Prof Dickinson and also told me that in addition he had suffered from fractured ribs and fractured fingers from playing field hockey. He denied that he has suffered any injury to his right wrist whilst playing hockey. I have no hesitation in accepting Mr Nyrhinen's evidence in that regard. He freely admitted to a number of injuries from a sport that carries many risks of injury but I accept that he did not injure his right wrist.

18. The plaintiff also told Dr Dickinson that he played water polo till he was 21 years old and he played golf until 2012 which he gave away when he started to do the weekend day shift work. The plaintiff told Dr Dickinson that he never had any trouble either holding a golf club or a hockey stick or indeed using either of those implements.

19. On examination, Dr Dickinson found that the plaintiff's right wrist was generally irritable, that there was half the normal range of flexion, extension and both radial and ulnar deviation. Power was slightly weakened in the right hand compared to the left but there was no sensory change nor any swelling. The diagnosis offered by Dr Dickinson was of osteoarthritis of the right mid‑carpal joint. He thought the osteoarthritis was particularly evident in the lunate capitate joint but he thought that the other changes were "minor". Dr Dickinson said that the plaintiff had sustained a "temporary aggravation of the underlying condition by the event of 8 April 2016". However, he went on to express the view that the aggravation "would have caused discomfort for two or three weeks". He thought that any ongoing symptoms were referrable to the underlying condition.

20. With the utmost respect, there is little logic in Dr Dickinson's opinion. On examination, the plaintiff had organic problems with his wrist which could not have pre‑existed the event of 8 April 2016. Up until that time, the plaintiff had been able to do underground work as both an electrician and a multi‑skilled mine worker without any problem with his dominant right hand. Furthermore, Dr Dickinson then went on to point out that the plaintiff was not fit for his pre‑injury duties and he did not think that the plaintiff would be able to return to his pre‑injury duties because of the current state of his wrist. He went on to suggest surgery. He pointed out that the likelihood of the plaintiff's having much relief from conservative measures was poor and the plaintiff should have surgery. He thought the best form of surgery was a partial wrist fusion because that gave him the best chance of still being able to use his wrist. A total wrist fusion would maximise symptomatic recovery but would minimise functional recovery. Before 8 April 2016, the plaintiff was fit for his pre‑injury duties. As at the time of Dr Dickinson's assessment, he was still unfit for his pre‑injury duties and that doctor thought he would never return to his pre‑injury duties unless he underwent surgery. To suggest that, in those circumstances, the aggravation was temporary is, in my opinion, risible.

21. However, based on Dr Dickinson's opinion, the insurer of the defendant, Coal Mines Insurance, denied liability for the plaintiff workers compensation claim, leading to the cessation of payments on 31 July 2016 and the commencement of the claim on 1 August 2106 and leading obviously to the commencement of this litigation.

22. In a medico-legal report of 21 October 2016, Dr Jansen expressed these views:

"Lauri is likely to have increasing pain, loss of range of motion and worsening function as a consequence of his mid‑carpal arthritis in his right wrist. My impression is Lauri will come to a wrist fusion in the next six months to the next year or two.

Lauri has a significant reduction is his capacity to work using his right hand. Lauri is also experiencing more pain in the left wrist due to overuse. In at least in the short mid-term without intervention he is unlikely to return to heavy manual work. Without treatment of the right wrist Lauri is likely to return to heavy manual work. A wrist fusion may give Lauri some capacity to return to heavy manual work but he will have some stiffness in the wrist."

23. The plaintiff was then placed by Dr Jansen in the hands of specialist hand therapists practising at Longueville. He saw there either Mr Brett Haig or Ms Nicole Ekman. A number of reports from those physiotherapists are before me. They are exhibit E. In an email sent by Mr Brett Haig to a rehabilitation provider, Mr Haig pointed this out:

"I have been discussing with him regularly regarding the options re this surgery. I will continue to discuss with him the pros and cons of these surgeries as I see them, if he proceeds them to considering the full fusion option then I would suggest to them that we put him in a cast or distal radius fracture brace full time to stimulate a wrist fusion to see how his symptoms are and how he copes with activities and his wrist in this position. It may also be worth him seeking a second opinion from a hand surgeon."

24. Indeed, a second opinion from a hand surgeon was sought. That was from Dr Peter Scougall. Dr Scougall examined the plaintiff on or about 14 September 2016. On examination, Dr Scougall found the plaintiff's right wrist was swollen and tender, particularly over the midcarpal joint. He noticed a midcarpal click, that is crepitus, and a painful midcarpal hypermobility. He noted that the wrist was stiff, with extension being limited to 50 degrees and flexion to 40 degrees, and that his grip strength was 13 kilograms on the right side compared with 40 kilograms on the left. One must ask rhetorically whether a man with such a wrist could be deemed to have a wrist that he normally had prior to 8 April 2016. Dr Scougall expressed this opinion:

"Surgical include wrist fusion, either partial or total. Mr Nyrhinen would prefer to preserve some wrist motion if possible, so the preferred option is a partial fusion. I have discussed recovery, risk and benefits of that procedure with him."

However, before proceeding further, Dr Scougall thought it prudent to obtain an opinion from a rheumatologist because the plaintiff had some problems with gout.

25. That eventually led to the plaintiff's seeing Dr Ted Tsai, a consultant rheumatologist on or about 9 January 2017. Dr Tsai obtained a history that the plaintiff had had gout for the last ten years. He also noted that the plaintiff had some "mild mechanical‑sounding lower back pain", which is fairly typical amongst coal miners. However, relevant to the current question, the doctor pointed out that the plaintiff's right wrist condition was due to a mechanical injury, rather than gout or any other type of inflammatory arthritis. In other words, the only real treatment to be provided was surgical.    

26. Unfortunately, Dr Scougall would not perform the surgery because liability had been denied for the plaintiff's worker's compensation claim. It was pointed out to the plaintiff that he should do something quickly, lest his improvement be jeopardised. He was sent to see Dr Ian Hargreaves, who is also a hand and wrist surgeon practising both in Sydney and at Hornsby. In a report to the plaintiff's general practitioner, Dr Hargreaves said this:

"At this stage, the options are either partial or total fusion. Partial fusion preserves range of movement, which is good for electrician functions, such as working in confined spaces. It is about 70% effective in relieving pain, with about a third requiring conversion to total fusion. Total fusion, in my hands, gives superb pain relief, with 100% of patients in my published series getting adequate pain relief. However, it is irreversible, and involves complete loss of wrist movement in order to get rid of pain."

27. Dr Hargreaves proceeded to partial fusion at St Luke's Hospital in Sydney on 24 May 2017. There was a formal arthrodesis of the midcarpal joint. The plaintiff was reviewed by Dr Hargreaves on 6 June and on 4 July. On that day, the doctor said this:

"X‑ray looks excellent, with early boney union. I would be happy for him to lift up to 2 kilograms, and to work on increasing the range of motion treatment. I plan to see him again in a month with a repeat X‑ray. As far as work is concerned, until then, he would only be able to do supervisory duties or light bench work, eg soldering."

28. The plaintiff told me that he gave the certificate to that effect to the defendant, but he was not offered any work. That is completely understandable. I have never heard of any work in or about a coal mine which required either supervisory duties which did not involve use of the hand or light bench work.

29. On 15 August 2017, there was a radiological investigation as a check-up three months post‑surgery. The CTE scan is reported thus:

"Plain film findings are confirmed, a multihyphen bone arthrodesis of the second carpal row has been performed. There are no features of loosening. No collections are demonstrated. Typical relatively minor soft tissue swelling is present. Comparison with the examination obtained pre‑operatively demonstrates no significant change in alignment."

In the following month, attempts were made to get the plaintiff back to work. The rehabilitation provider sent to the plaintiff's general practitioner, Dr John Keys, essentially, a questionnaire, bearing the date 12 September 2017. Most of the questionnaire involves a description of the plaintiff's work duties, and stating whether they recurred constantly, frequently, occasionally, or never. Dr Keys said the plaintiff could do all the activities listed. One of the questions then asked of Dr Keys was whether the plaintiff was to be certified fit for pre‑injure duties, and a review to be conducted on 18 September 2017. The doctor answered that question in the affirmative. The final questions asked of the doctor were these, and I place next to those questions, the doctor's answers: "Is Mr Nyrhinen at risk of aggravating his right wrist injury, given the nature of the work that he is required to perform?" Answer: "Yes." "If yes, what recommendations can you make to enable Mr Nyrhinen to minimise this risk at work? (NB, Mr Nyrhinen's current worker's compensation claim is declined, and he would be required to fund any ongoing therapy)." Answer: "Wrist support worn at work." Dr Keys completed the questionnaire on 14 September.

30. On 22 September 2017, a functional assessment was carried out by Mr Andrew Taverner, an exercise physiologist with the rehabilitation provider. That was carried out on the premises of the Dendrobium mine. The plaintiff has said that many aspects of that examination were somewhat similar to a functional assessment carried out by Coal Services Health, which he had experienced from time to time, prior to 8 April 2016, but the tests were not identical. The plaintiff told me that Mr Taverner certified the plaintiff as being fit to return to his usual duties. The plaintiff returned to work, and worked on Friday 29 September 2017. He told me that his wrist was "coping", but at the end of the shift, it felt "fatigued".

31. On the following day, Saturday 30 September, he received a call from another member of the staff of the rehabilitation provider, Ms Sarah Strong, who advised the plaintiff that he had, in fact, failed the functional assessment conducted by Mr Taverner, because his grip strength was inadequate. She wished to retest the plaintiff's grip strength. The next day, he was assessed by Ms Armstrong, and she said that he had failed the grip strength test, and therefore, no work was provided. On 2 November 2017, the plaintiff received a telephone call from the maintenance manager of the defendant. He asked to speak to the plaintiff before he was due to start working on the next day. Apparently, the defendant thought the plaintiff was making a claim for lump sum compensation for 20% permanent loss of efficient use of the right arm, below the elbow. The mine maintenance manager believed that if the plaintiff had such an entitlement, he was really unfit to work as a coal miner. However, the plaintiff is making no such claim. However, the fact remains that the plaintiff has not been provided with any work by the defendant since he performed work on 29 September 2017.

32. The only other medical evidence I ought mention is a medicolegal assessment made by Dr Peter Gibbon on 5 October 2016. This was clearly before surgery was practiced. Dr Gibbon diagnosed a "soft tissue injury", but without specifying what the "soft tissue" was. I accept the diagnosis that was made by Dr Jansen, and implicit in the opinions of Dr Scougall and Dr Hargreaves. The plaintiff had somehow made worse an underlying, but asymptomatic, degenerative condition in his right wrist. That is hardly a "soft tissue injury". However Dr Gibbon believed the plaintiff should undergo a surgical procedure to both diminish his pain, trying to preserve some normal wrist movement.

33. I have no hesitation in finding that on 8 April 2016, and also, on Saturday 14 May 2016, the plaintiff injured his right wrist. The nature of the injury was an aggravation of pre‑existing, asymptomatic, degenerative condition of the plaintiff's right wrist. I accept the plaintiff has been incapacitated by that condition ever since. I accept that the defendant failed to provide the plaintiff with suitable employment, with effect from the end of May 2016. I accept the plaintiff is entitled to an award under s 11(2) of the Workers' Compensation Act 1926, from 1 August 2016 to 23 May 2017. I accept that the plaintiff was totally incapacitated for work from 24 May 2017 until 4 July 2017, when he is certified as fit for light duties by Dr Hargreaves. I accept the defendant failed to provide the plaintiff suitable employment on 5 July 2017. I accept the plaintiff is entitled to an award under s 11(2) at all material times thereafter, excepting for the day he actually worked, 29 September 2017.

34. I should point out that after the event of 8 April 2017 the plaintiff did not perform teaching work. However he obtained a certificate to do teaching work at the commencement of the 2017 school year. Between the commencement of the 2017 school year and the operation, the plaintiff worked as a school teacher, sometimes working for up to five days a week. His average weekly earnings there were $1,175 per week. Since he was certified fit for light duties, the plaintiff has only advised one of the schools at which he has worked, namely Campbelltown Performing Arts High School that he is available to do casual teaching and he has done some casual teaching for that high school, but has declined some shifts for personal reasons to do with his commitments to his own children. However, the plaintiff has not yet returned to working casually for either the Keira Technology High School or the Albion Park High School.

35. I accept the plaintiff's three younger children have been mainly dependent upon him for support at all material times. Although the plaintiff and his wife are estranged and the plaintiff's children live with their mother, the three younger children are still dependent and the plaintiff provides the house in which his wife and children live and reside and the plaintiff continues to pay off the mortgage for that house. The plaintiff also has contact with his children and that is another form of support that he gives to them. They are mainly dependent upon him for support.

36. I should point out that the defendant admits via the wages schedule filed by the defendant that the plaintiff's probable earnings at all material times have been $2,674.12 a week. Therefore the plaintiff is entitled to a full award under s 11(2) and/or s 9, notwithstanding the work that he has done with the Department of Education.

37. For those reasons I make the following award: for $1,162 per week from 1 August 2016 to 12 December 2016; for $542.70 per week from 13 December 2016 to 30 March 2017; for $249.30 per week from 1 April 2017 to 23 May 2017, all pursuant to s 11(2); for $549.30 per week from 24 May 2017 to 4 July 2017, pursuant to s 9; for $549.30 per week from 5 July 2017 to 28 September 2017, pursuant to s 11(2); for $549.30 per week for 30 September 2017, pursuant to s 11(2); and for $553.80 per week from 1 October 2017 to date and continuing, pursuant to s 11(2). I order the defendant to pay the plaintiff's hospital, medical and like expenses, pursuant to s 60. I order the defendant to pay the plaintiff's costs. I grant credit to the defendant for any payments made during any period covered by the award. Mind you, I note from p 12 of the tender bundle that it appears there would be a lot of recrediting of sick leave and the like.

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Decision last updated: 02 May 2019