O'Reilly v Elcom Collieries Pty Limited

[2024] NSWDC 685

District Court

New South Wales

Medium Neutral Citation:	O'Reilly v Elcom Collieries Pty Limited [2024] NSWDC 685
Hearing dates:	20-22 August 2024
Date of orders:	22 August 2024
Decision date:	22 August 2024
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	See pars [95]-[100], [106] and [108].
Catchwords:	WORKERS COMPENSATION – COAL MINERS - Lump sum claim for permanent impairment of neck and back, the loss of efficient use of right leg, left leg and right arm – s 67 lump sum claim pain and suffering - Statutory norm applied to find 10% of each loss removed to account for underlying non‑compensable condition of disease of gradual process.
Legislation Cited:	Workers Compensation Act 1987
Cases Cited:	Nil.
Texts Cited:	Nil.
Category:	Principal judgment
Parties:	Plaintiff: Brian James O’Reilly First Defendant: Elcom Collieries Pty Ltd Second Defendant: Powercoal Pty Ltd Third Defendant: Centennial Newstan Pty Limited Fourth Defendant: Centennial Mandalong Pty Limited
Representation:	Counsel: Plaintiff – Mr McMahon, S. Defendants – Ms Compton, N. Solicitors: Plaintiff – McDonald Whitelaw Lawyers. Defendants – Sparke Helmore Lawyers.
File Number(s):	2023/00126926
Publication restriction:	Nil.

Judgment

Claim

1. HIS HONOUR: The plaintiff is a former coal miner. He claims lump sum compensation for the permanent impairment of his neck, the permanent impairment of his back, the loss of efficient use of his right leg at or above the knee, the loss of efficient use of his left leg at or above the knee, and the loss of efficient use of his right arm at or above the elbow. He also claims a consequential lump sum for pain and suffering pursuant to s 67 of the Workers Compensation Act 1987 as it operates for those who have worked in or about a coal mine.

Work History

2. The plaintiff brings his claim against his four employers in the coal mining industry.  Although he had four employers in the coal mining industry, he only ever worked at two underground collieries.  The first was the Newstan Colliery where he worked between 10 August 1981 and 20 December 2006.  At that colliery he had three different employers.  His first employer was Elcom Collieries Pty Ltd by whom he was employed between 10 August 1981 and 11 October 1992.  On 12 October 1992, he passed into the employment of Powercoal Pty Ltd and remained its employee until 2 February 2020.  Although he stayed on at the Newstan Colliery, his employer changed again and on 3 February 2020 he became an employee of Centennial Newstan Pty Ltd.  He remained in that employ until 20 December 2006.

3. On 23 December 2006, he commenced working at the Mandalong Colliery and the employer was Centennial Mandalong Pty Ltd.  His employment with that company formally ended on 30 November 2022.  However, the last day he physically worked appears to be 28 May 2021.

4. The plaintiff was born in 1961.  He is currently 63 years old.  He completed year 10 at the Booragul High School in 1976, obtaining the School Certificate.  He then commenced an apprenticeship in 1977 with BHP as a mechanical fitter.  He completed that apprenticeship in 1980.  In 1981 he was employed by BHP as a tradesman in the Rod and Bar Division of that company as a millwright.  He worked for six months in that job.  On 10 August 1981 at the age of 20 the plaintiff started working in the coal mining industry at the Newstan Colliery.  That is where he worked for many, many years.  He worked initially as an underground fitter.

Injuries

5. There are before me a large number of reports of injury.  The plaintiff had a large number of injuries over his almost 40 years working underground, and it is not surprising at all that he had to be reminded of many of those injuries by reading the report forms for them. 

6. The first injury which befell him was on 12 August 1986.  He was taking the cover off a shearer when a lump of mud stone fell between the chocks and hit him on the helmet jarring his neck.  That occurred on long wall number 3 at the Newstan mine.  Like many injuries, that was merely reported and there was no time lost.  However, the plaintiff often after such injuries would perform restricted or light duties for some period of time before returning to normal duties.

7. The next relevant event that happened was an injury to the left elbow on 13 February 1987, but that is not relied upon in these proceedings.

8. On 127 September 1990, the plaintiff strained the left side of his back.  According to the report form, it was the "middle left side back", probably meaning the thoracic area.  He did that when he was lifting a 60 kilogram drum of oil onto an Eimco.

9. The plaintiff has attended for many years on the Glendale Medical Practice.  Its notes commence in 1999.  There are records compiled at the front of those notes outlining the plaintiff's height and weight from time to time.  I am pleased to note that the plaintiff's height has been at all material times 169 centimetres.  His weight was first recorded on 17 March 2009 as being 62 kilograms.  His weight was last recorded as being 61 kilograms on 5 February 2022.  His weight has alternated between 60 and 62 kilograms over a lengthy period of time; in other words, has been constant.  Lifting an oil drum of 60 kilograms by a man who might have been 61 kilograms at the time indicates a very hardworking man who was given much to do.  That would have easily strained his body.

10. The next event relied upon is an event on 1 June 1992 when the plaintiff reported having a sore back after changing a traction motor on the shearer.  He was leaning over the AFC holding the motor when he felt a sharp pain in his lower back.  That again occurred on long wall 3 at the main gate N.

11. On 27 April 1993, he again reported a sore neck.  He was standing beside the miner when a piece of the wall of the mine, or the rib, fell from the top of the seam and hit the plaintiff on the top of his safety helmet and knocked him to the ground.  That, again, was only a report of an injury.  There was no time lost.

12. On 25 March 1994, he reported having pain in his left shoulder blade.  Of course, he would not have felt pain in the bone itself, the scapula, but, rather, in the area overlying it or underlying it.  He sustained that sensation when he was putting the conveyor belt together and felt a pulling sensation in his left shoulder.

13. The next event relied upon was on 15 February 1996 when he was lifting oil drums up onto the miner and turned to throw an oil drum up onto the miner.  His foot slipped and he felt pain in his back.

14. The next event that occurred was on 22 October 1997.  He was carrying his tool bag to the coal face when he walked past a shuttle car.  He slipped on a piece of stone and felt pain in his back.  The reported accident form has been endorsed "More care to be taken", but that seems surprising when one is merely walking and slips on a piece of stone.  The stone may have been mud stone from the rib or roof, or it may have been a canch of coal itself.

15. The next event that occurred was on 3 August 1998.  He was wearing his tool belt while doing a s 103 inspection and as he left the driver's seat, his belt caught causing him to strain his lower back.  That resulted in his being advised not to wear his belt whilst driving a shuttle car.  That may have been somewhat difficult to comply with.

16. On 29 June 2000, the plaintiff complained of suffering pain in his right knee, especially in the patella area.  He slipped on a slippery AFC pan striking his right knee on a flight bar.  The report of injury form was not dated until 1 September 2003, some three years and three months later, but that was because a later event was thought to be a recurrence of this event.  The claim for compensation was not, in fact, made until 11 August 2003.

17. The event which appears to have prompted the late making of the claim for compensation was an event on 25 July 2003, when the plaintiff was walking downstairs and felt pain and discomfort in his right knee.  For that he was treated by "ICE", which is really an acronym for the application of ice and the exercising of rest and care.  By this stage the plaintiff was listed as being a control room operator.  He advanced his job in the mine.

18. In 2010, the plaintiff had become an underground deputy.  He told me, and I made a note, but I cannot find it quickly, that he had qualified to be a deputy in about 1986 but was not formally appointed as a deputy until 2010.  He has subsequently advanced in the hierarchy of the mine to become what can be referred to as a "mining supervisor".

19. The next event that happened to the plaintiff was after he had been formally made an underground deputy on 25 February 2012.  The plaintiff was attending a meeting in the operations meeting room.  The formal report of injury is this:

"Whilst sitting at table in operations meeting room during under manager's morning briefing, the day‑shift engineer entered the room, accidentally kicking a steel framed plastic chair.  The seat section of the chair struck me on the knee, underside of kneecap.  Inflammation and swelling occurred."

As I understand it, this was really a blunt blow to the right patella.

20. The next event which is documented occurred on 30 March 2016.  Again, it was an injury to the right knee which can be described as a hyperextension injury.  The formal report is this:

"During my routine belt inspections, I walked from the designated walkway to the conveyer belt to tag a faulty roller when I slipped on the wet slippery concrete, hyper extending my knee."

21. On 19 June 2018, the plaintiff reported that he had injured his right arm and, in particular, his biceps muscle.  The reported injury is this:

"While cleaning blocked pump delivery line with screwdriver, as the mud started to ooze out, the stored energy released causing the pump line to recoil with force while still being held in right hand, causing a muscle strain to right upper arm.  Attempted to bleed the pressure at pump before disconnected pump."

It was the action of trying to control the pressurised hose that caused the injury in question.

22. Another reported injury was on 16 December 2017, and it was a twisting and jarring of the lower back.  The reported injury is this:

"Instructed by under manager to investigate irregular high CH4 gas reading in 7 heading, return 111E to 112E, when I stepped from airlock to 7 heading roadway, the stone canch my left foot was on gave way causing me to fall, approximately, 1 metre."

23. Another event was on 14 September 2019.  Again, that event is described in this fashion:

"Brian and Todd Grainger were carrying a replacement 2‑inch water pump from 57E x 5 heading Cooranbong to 51E x 1 heading, green seven‑day roadway (cold workings).  After notifying control and isolating ER02 belt, the pump was lifted onto the conveyor belt and over to the offside.  A 4‑inch drill steel was placed between the two pump handles to assist in carrying and sharing the weight while climbing over a pile of stow at 53E4 to 3 heading.  As Todd stepped over the top of the stow, the pump came into contact with the stow causing Brian to overbalance.  His right foot slipping on steep surface causing Brian to fall, striking his right knee on the stow, twisting and jarring his lower back."

24. The next event occurred less than a week later on 22 July 2019.  Again, this was an injury to the right knee.  The description of injury is this:

"After kneeling down to clean under buried R/roller using swan neck O, Brian stood up and stepped away from conveyor belt when he slipped on the wet, greasy sloping floor, twisting his right knee causing pain and swelling."

For that he attended first aid, and an ice pack was applied.

25. The next event occurred on 19 August 2019.  The description of the injury is this:

"While walking the Cooranbong conveyor belt system, performing the daily statutory inspections, Brian felt pain and swelling in his right knee". 

Walking the length of the conveyor was a daily task, as I understand it, for any underground mining deputy.  The Cooranbong system was, in fact, the longest, as I understand it, and was some 10 kilometres long.  Again, ice was applied to the plaintiff's knee.

26. The next event that occurred was on 1 March 2020.  Again, it was an injury to the plaintiff's right knee.  The description given in the accident form is this:

"B O'Reilly reported that while attempting to remove the dust sphere from the empty bulk stone dust bag, he stepped back and overbalanced falling backwards landing on his backside twisting his right knee.  The area was wet clay and mud and his boots got stuck when attempting to move."

27. The next event occurred on 3 March 2021.  The plaintiff on that occasion injured both his lower back and his right shoulder.  The description contained in the claim form submitted by the plaintiff was this:

"When completing belt inspection when I slipped on loose coal spillage, grabbing one 1‑inch hose to prevent my fall in rib line above shoulder, reaching right shoulder and twisting lower back."

28. The final event referred to is one that occurred on 17 April 2021.  It is significant.  The description of the event reported in the incident report is this:

"Brian was sitting in the very rear seat of (underground transport) driving from TG301 7T to 16T when the rear wheel struck a pothole causing the rear step to impact the stone floor with significant force causing jarring to Brian's back and suffer extreme discomfort and pain from the lower back to his neck."

29. The report form goes on to point out that the pothole was, approximately, 200 millimetres in depth, and the location of the pothole was then recorded to indicate that it should be rectified.  When describing that event, the plaintiff became labile.  That was the event which took him from underground work at the coal mine to aboveground work in the coal mine.  It was not the event itself that brought tears to Mr O'Reilly's eyes, but it was the fact that it was that event that stopped him working underground thereafter.  What distressed him was the fact that he could no longer work underground.  That reaction spoke very strongly to his like of the work that he did and his intention to persist in it for as long as possible.

30. The next event which is of significance was also one that made the plaintiff labile.  On 28 May 2020, the plaintiff was called to the office of Mr Steven Mudford, an undermanager at the mine.  He was described as well by the plaintiff as being the health and safety superintendent.  Mr Mudford told the plaintiff that he had two active workers compensation certificates and as a result of that, he was required to leave the site immediately.  As instructed by Mr Mudford, the plaintiff did so. He was never able to return to work because his employer sent him home and elected to pay him workers compensation payments on which he remains to this day.

31. That also upset the plaintiff. He pointed out that after almost 40 years of loyal service to the coal mining industry, to essentially the workplace, the second mine in which he had worked over almost 40 years, he had to go home. His work for almost 40 years went unrecognised and Mr O'Reilly did not believe that he was ready to retire at that time.  Indeed, one sitting through this case could only form the view that had the plaintiff not been sent home on 28 May 2021 but been allowed to continue doing restricted work at the mine aboveground, he would still be there now doing it.  As I mentioned earlier, the plaintiff's services have been dispensed with by the fourth defendant, but the plaintiff remains in receipt of weekly payments of compensation.

Medical Reports

32. The medical reports before me commence on 13 April 1999.  However, there are medical records before me, the first from the Glendale Medical Practice, commencing, as I earlier said, on 13 October 1999.  The first relevant attendance recorded in those notes was on 31 October 2007.  Clearly, the records I have are computerised records and there are probably handwritten records kept by that practice before 13 October 1999.  The first medical report is a letter from Dr Peter McGeoch to Coal Mines Insurance bearing date 13 April 1999.  The first paragraph of that letter is this:

"This patient presented to me on 5 August 1998 with a history of lower back pain which originally affected him in November 1997 after lifting at work.  He aggravated it in mid‑July 1998, again lifting.  His pain had not entirely settled after the original injury and he was getting dull pain at the end of his shift."

The event of November 1997 is probably that of 22 October 1997, and the event of mid‑July 1998 is probably that of 3 August 1998.  The letter goes on to say that the plaintiff had been receiving physiotherapy since November of 1997. 

33. The doctor's report goes on to say this:

"On examination he had pain over his L5 and L5‑S1 disc space, with pain at hyper extension.  He is a well‑muscled fit man with good posture and normal range of lumbar movement.  His straight‑leg raising was normal with a negative slump test.  I did an extra to exclude significant pathology.  The X‑ray was reported on 5 August 1998 by Hunter Valley Imaging, Dr G Long did the report.  The comment was that there was evidence of early degenerative spondyloarthropathy.  No focal bony lesion was identified.  He had vertebral end plate lipping and sclerosis noted at T12, L1, L2 and L4 levels."

34. The radiological appearance at which Dr McGeoch commented upon indicates to me that in the late 1990s the plaintiff had degenerative disc disease in both his thoracic and lumbar spines.  If that were the case, it is also likely that he had degenerative disc disease in the cervical spine.

35. The next paragraph of the doctor's report says this and clearly it contains an error:

"He further complained when reviewed on 2/9/98 and again on 10/3/98 that his back tended to get a bit stiff in the mornings with occasional flare‑ups being described as being a discomfort rather than a significant pain.

I believe this man will need periodic physiotherapy for his lower back pain, but he is fit for all duties.  I anticipate that he should do well on the long term as he is a very fit, well‑muscled and generally he is very careful in looking after his back care."

The error in the penultimate paragraph, which I have quoted, is the date "10/3/98".  It appears to be an error and, perhaps, should be referring to 10 October 1998, or it might be referring to 10 September 1998.

36. The next medical report before me is from a physiotherapist, Mr Chris Norgard, and bears date 21 July 1998.  It clearly confirms what was said by Dr McGeoch in his report, that the plaintiff had been receiving physiotherapy since November 1997.  In the report of 21 July 1998, the physiotherapist, Mr Chris Norgard, said this:

"This fit, 37‑year‑old man, presented to me today complaining of lower back pain.  He was seen here at JCB Health last November for treatment of an acute back pain episode.  He did recover from this acute episode, but has had intermittent pain since."

The report goes on to point out that the plaintiff had pain at the end range of extension of his low back and was also tender over L5.  However, most other tests were within the normal range.

37. On 25 August 2023 the plaintiff was seen by Dr Bruce Caldwell, an orthopaedic surgeon, to whom he had been referred by Dr McGeoch. The referral to Dr Caldwell was because of the plaintiff's right knee condition. Dr Caldwell said this:

"About three years ago he sustained a direct blow to the anterior aspect of his knee in a work‑related accident.  He was working as an engineer/fitter at the time.  Since that time he has had intermittent problems with anterior knee pain, particularly at the distal pole of the patella.  He has recently moved to work in the central control room.  This position, however, requires him to ascend and descend three/four stairs on a regular basis.  This has been causing some aggravation to the distal pole of the patella.  He notes no swelling, clicking, catching or giving way but has sharp pain at the distal pole of the patella with prolonged sitting and squatting.

On examination today he had an entirely normal knee apart from tenderness at the distal pole of the patella.  I suspect he may have some tendinosis in this area.

Direct blow injuries to the anterior aspect of the knee can cause an indolent persistent syndrome I call 'dashboard knee'.  Rarely is pathology identified which is treatable.  However, Mr O'Reilly does demonstrate marked tenderness at the distal pole of the patella and I think we need to exclude patella tendinosis."

38. The doctor referred the plaintiff to have an ultrasound of the knee.  The reference to "About three years ago" at the commencement of that quotation could be a reference to any one of a number of injuries.  They include that of 14 July 2019, 22 July 2019, 19 August 2019, 17 September 2019 and 1 March 2020.  The ultrasound of the right knee did not describe any abnormality.  Again, Dr Caldwell when he saw the plaintiff again on or about 9 September 2003 confirmed his diagnosis of "dashboard knee” and thought that on that occasion there was some minor crepitus behind the patellofemoral joint.  He thought that that could, indeed, be due to a direct blow.  Such crepitus in the knee behind the patella generally leads to a diagnosis of chondromalacia patellae.  Dr Caldwell then arranged the plaintiff to have an X‑ray of his right knee which showed "minimal fluid is noted in the suprapatellar bursa".

39. On 23 September 2003, Dr Caldwell thought that his symptoms would persist, but he did not think that that would lead to any significant arthritis in that knee joint.  Unfortunately, that expectation has not been realised.

40. On 17 August 2012, some nine years later, Dr McGeoch sent the plaintiff to have an MRI scan of his right knee.  The radiologist, Dr Lynn Smith, reported these conclusions:

"1.  The lateral meniscus and lateral collateral ligaments are intact.  There is no evidence to suggest an injury to the posterolateral corner.  There is a small amount of fluid within the popliteus bursa.

2.  Degenerative changes at the patellofemoral articulation.

3.  Tiny Baker's cyst."

41. Again, he was sent to have physiotherapy, which on this occasion was provided by Coal Services Health.  A physiotherapist, Ms White, sent an email to Mr Mudford:

"I have seen Brian today with painful right knee now five weeks post‑injury.  Definite bone bruising plus now maltracking patella.  Has responded well to taping and I have supplied Brian with some for the next few days.  I've ordered him a suitable support to wear while he builds up the VMO again and he will pick this up from CS Health in a few days...

Brian practised some suitable exercises today and he's pretty confident he knows what he has to do ‑ but I've asked him to come over again (don't leave it) if he doesn't respond and will take him step‑by‑step through a program to build up the quads again in balance around the kneecap."

Clearly, the inference to be drawn from that is that the plaintiff had some wasting of the quadriceps muscle around the knee.

42. A further MRI scan of the right knee was performed on 16 June 2016 at the request of Dr McGeoch.  That diagnosed severe chondromalacia patellae of the right knee.  In particular, the report refers to minor degenerative fraying noted at the free edge of the medial meniscus, a full thickness chondral fissuring, juxtacortical sclerosis and oedema.  The small Baker's cyst was also again noted.

43. The next medical report is, again, from a physiotherapist at Coal Services Health reporting on treatment for the plaintiff's right arm after the event with the hose.  That occurred on 19 June 2016.  In connection with that injury Dr McGeoch sent the plaintiff for an MRI scan of the right elbow and the right shoulder.  Again, abnormalities were noted.  As far as the right elbow was concerned, there was a partial supinator tear, a low‑grade sprain of the brachialis insertion, mild bicipitoradial bursitis and an intrasubstance tear of the common extensor origin.  As far as the shoulder was concerned, there was found to be subcortical bone marrow oedema and geodic changes spanning 20 millimetres deep to the subscapularis insertion into the lesser tuberosity.

44. The radiologist, Dr Janke, went on to comment that there were moderate degenerative changes in the acromioclavicular joint.  These things are to be noted because some of the medical evidence relied upon at the current time by the defendant suggests that these problems have not existed, and moderate degenerative changes do not disappear.

45. There is an email from the physiotherapist at Coal Services Health, Katrina Evans, which contains this statement:

"I am happy for him to continue with normal duties as an underground deputy, but have suggested he not engage in any manual handling, or heavy use of tools/hoses, et cetera, at this stage.  Brian can modify his work tasks as he sees appropriate, and is keen to remain at work."

That email was sent on 29 June 2016.

46. However, the plaintiff's knee problems were still persisting, and on 20 September 2016 the plaintiff was referred by Dr McGeoch to Dr David Dewar, an orthopaedic surgeon, specialising in hip and knee surgery.

47. Dr Dewar saw the plaintiff on or about 25 October 2016.  I intend to cite most of Dr Dewar's report because it paints a picture, not mainly of the plaintiff's knee problem but it paints the picture of the plaintiff himself and his attitude to his injury and to his work, and to the extent to which the plaintiff has been seeking to preserve his health and working strength.  The report is this:

"Many thanks for your referral of Brian O'Reilly to see me.  He is a 55‑year‑old underground coal miner who has been really physically active in his life.  He told me he has run a 33‑minute 10 kilometre, which is better than my best ever 10 kilometre by a couple of minutes.  We had a long discussion regarding our favourite running races that we've done.

He came to see me because of a non‑painful click behind his patella.  He works as an underground coal miner and tells me he regularly does up to 50 kilometres a week.  He is here to see me mainly because he is worried about doing damage to his knee.  He is otherwise healthy, he rides a bike, swims and is a healthy weight.  He occasionally takes an anti‑inflammatory tablet.

He brought in an MRI which generally looks pretty good.  He has retro patella chondromalacia and there is potentially a loose cartilage flap behind his patella.  However, his menisci looked in good condition and I do not think his click is from his meniscus.

We had a long discussion regarding his options.  His non‑operative options include maintenance of his physical activity and maintaining his weight and using targeted non‑steroidal anti‑inflammatories.  I discussed arthroscopic examination of his knee and removal of any loose chondral flap behind his patella.  He is pretty keen to avoid surgery and I am happy that he is not doing any significant damage by choosing a non‑operative course of management.  I suspect in the long term his arthritis would likely progress, however, at the time cause for this would be very variable.

At this stage I have made no further appointments to see him.  I am happy for him to return to running as he feels able.  I would happily see him again at any stage if he were to have any pain in his knee."

48. On 21 December 2017, the plaintiff commenced a course of physiotherapy at the request of Dr McGeoch with the Rathmines Physiotherapy practice at Rathmines.  The first appointment there was on 21 December 2017, and the final appointment was on 6 February 2018.  A letter from that physiotherapy practice reports that at the last consultation the plaintiff was performing his full duties at work without issue and had returned to all his usual activities without pain.  The course of seven physiotherapy sessions was certainly of utility.

49. The plaintiff was sent back to see Dr Dewar by Dr McGeoch.  His referral letter bears the date 25 July 2019.  Dr Dewar organised for the plaintiff to have a radiological investigation on 18 September 2019.  Both knees and the pelvis and left hip were scanned.  The report of the plain X‑ray is this:

"Both Knees:

There is patellofemoral and medial tibiofemoral joint space loss at both knee joints, slightly more pronounced on the right.

Pelvis and Left Hip:

The morphology of the proximal femora raises suspicion of chronic femoroacetabular impingement.  There is mild marginal joint space changes at both hip joints."

50. Dr Dewar saw the plaintiff on the same day.  His report is this:

"I interviewed Brian O'Reilly in my rooms on 18 September 2019.  He has been getting increasing pain in both of his knees and in his left hip.  He describes it as a deep dull ache and he is still getting some minor clicking in his right knee.  His function is still incredibly good.  He walks between 40 and 50 kilometres underground over the course of four days on loose and uneven surfaces which he manages with Celebrex.  I have arranged for him to have updated X‑rays and we will see him later this morning with those [results].

In addition, Brian has returned with his updated X‑rays.  His X‑rays are really interesting.  They show mild progression of osteoarthritis in both of his knees.  It is predominantly patellofemoral in nature on the right with osteophyte of the posterior aspect of the patella.  The X‑ray of his hips also demonstrates left hip osteoarthritis.  It is really consistent to have contralateral hip and knee osteoarthritis.

He is here today to see me because the underground walking has been aggravating his knee which [sounds] very reasonable.  He tells me he avoids underground walking.  His knee feels a bit better.  In the long term, clearly, he is going to come to knee replacement.  However, he doesn't feel his knee pain is bad enough to consider that yet, but I very much expect it in the long term his knee will progress and he will come to require knee replacements.  The timing of this is up to him and I have advised him to do his best to maintain his physical activity and strength for as long as possible and to avoid surgery until he feels ready.

As per his report, he tells me he has been underground working for 38 years and he enjoys his job.  He is keen to continue working."

51. It is to be borne in mind what Dr Dewar said about the plaintiff's condition in that report and what the radiological investigations made on the same day confirm when it comes to dealing with the quantum of the plaintiff's claim for the loss of his efficient use of his right leg at or above the knee.

52. On 30 March 2021, the plaintiff saw Dr Nabil Shamsuddin at the Glendale Medical Practice where he is normally seen by Dr McGeoch.  The doctor's notes are these:

"60M [? 60‑month history] with shoulder injury for past four weeks after heavy lifting as coal miner.

BG [? background] of existing chronic recurrent shoulder pain (rotator cuff syndrome).

Shoulder pain.

Previous rotator cuff syndrome.

Re‑injury about one month ago, 3 March 2021.

Burning pain overlying deltoid.

No [paraesthesia] or numbness.

No dermatomal pain.

Spurlings's [test] negative.

Lift off test positive.

Neers's negative.

Empty can test negative.

No cervical vertebral tenderness.

Shoulder range of movements intact.

No tenderness of biceps tendon.

No pain on resisted supination.

Paxinos test negative.

Impression:  subscapularis +/‑ subdeltoid bursitis."

That led him to refer the plaintiff for further investigations and to refer the plaintiff to Dr Ben East.

53. An ultrasound of the right shoulder was made on 31 March 2021, and reported on the following day.  Its conclusion was this:

"Subscapularis and supraspinatus tendinopathy without evidence of discrete tear.  Subacromial/subdeltoid bursitis.  This is [amenable] to percutaneous if clinically indicated.  The tendon of the subscapularis has a bulky hypoechoic appearance in keeping with underlying tendinopathy.  No discrete tear is identified."

54. The plaintiff was also referred for physiotherapy to the Rathmines Physiotherapy and Sports Injury Centre.  He attended on 12 separate occasions between 12 April 2021 and 3 September 2021.  During that period, he had an MRI scan of his cervical spine, which is said to show moderate narrowing of the C6‑7 disc and mild facet joint arthritis on the left at C2‑3 and C4‑5.  The radiologist, Dr Ken Thong did not believe that there was any problem in the lower back that was of any significance, as far as he was concerned.

55. Dr Benjamin East is an orthopaedic surgeon specialising in shoulder and elbow surgery.  Dr East's report of 1 June 2021 contains this:

"Brian was walking underground on 3 March 2021 when he slipped and fell in wet conditions.  He reached out with his right arm and grabbed on to one of the hoses in the 'rib of the wall'.  He had instant pain in the shoulder and felt a grabbing sensation.  He finished the shift but was unable to do too much with the shoulder.

Since then he has had pain in the right deltoid.  He complains of no pins and needles or numbness and does not [cite] any previous shoulder injury.

Before being a mining supervisor, he was a fitter engineer, working underground for the last 40 years.  He has been seeing Rathmines Physiotherapy for strengthening and range of motion exercises.  He is currently doing belt inspections on limited duties, partly because of his knee and lower back injury also.

On examination, he had some hypertrophy of the right acromioclavicular joint with no pain to palpation.  There was no pain in palpation anywhere around the shoulder region.  He had full range of internal and external rotation with normal power, full forward elevation with normal Jobe's tests and no impingement signs.  Overall he had good strength in the shoulder.

He has had an ultrasound performed at In Focus demonstrating some tendinopathy without a major tear in the shoulder, with some bursitis present.  He has had a corticosteroid injection six weeks ago with a good result.  His ultrasound in addition demonstrates some tendinopathy of the subscapularis and supraspinatus.

My impression today is that Brian has made relatively good recovery from this injury with a corticosteroid injection.  With ongoing range of motion and strengthening exercises, hopefully he can avoid any surgery.  As the steroid injection wears off, however, he may have a recurrence of pain and if this persists, then I'll be happy to see him again with the results of an MRI to more accurately define the rotator cuff.  Otherwise, I am happy for him to have his duties upgraded on a progressive basis, starting with 5‑10 kg of lifting close to the body and 2‑5 kg away from the body, and gradually progressing things from there.  It would be the same for pushing and pulling capacity.  His driving capacity is unlimited."

56. On 22 June 2021, the plaintiff had an X‑ray of his right shoulder.  The X‑rays reported as showing a little sclerosis and cystic change in the region of the greater tuberosity of the right shoulder.  There is also said to be mild degeneration in the acromioclavicular joint.

57. On 25 June 2021 at the request of Dr McGeoch the plaintiff saw Dr Anthony Schwarzer.  Dr Schwarzer is a consultant physician in rheumatology and also a pain specialist.  There are two reports from the doctor bearing the date 25 June 2021.  One is addressed to Dr McGeoch and another is addressed to Coal Mines Insurance.  After giving a short history in the report to CMI, Dr Schwarzer said this:

"Currently, Brian reports constant central and bilateral low back pain without buttock or lower limb pain.  He reports tight right paraspinal muscles.  The pain is worse with bending or other physical activity.  There is relief with constant movement.  Brian also reported a constant bilateral neck pain without arm pain.  He also reported pain in his right shoulder, worse with elevation.  He reports constant dull bilateral knee pain, right worse than left, and worse when walking up and down stairs.  He has experienced increased pain in the region of the left hip.  He also reports pain in the right shoulder and has documented rotator cuff tears.  He had an injection into the right shoulder which helped.

Brian suffers significant intrusive neck and back pain.  He tries to keep reasonably fit.  However, by the very nature of his work as an underground coal miner, he is prone to suffering injuries which result in exacerbations of neck and low back pain.  I discussed the conservative management of this pain.  He may benefit from interventions from a physiotherapist...I also suggested that he could benefit from fluoroscopically‑guided blocks to determine the source of his pain...

I will see Brian again in a couple of months.  He should avoid any further injury."

58. On 22 July 2021 the plaintiff saw Dr Dewar again.  The report is this:

"I reviewed Brian O'Reilly in my rooms on Thursday, 22 July 2021.  It has been quite a while since I have seen Brian, though he is still getting significant pain in his right knee, specifically underground walking on loose or uneven surfaces.  Coal Mines Insurance has accepted his claim as being related to workers' compensation.

I have arranged for him to have X‑rays of both knees and both of his hips.

In addition, Brian has returned from having his new X‑rays done.  He has been off work recently due to a work‑related back injury.  Since he has been off work and away from underground mining, his knee have[sic] improved a little bit.  As mentioned above, I arranged for Brian to have updated X‑rays of both knees and both hips as since returning to work underground he has been getting ongoing knee pain.  Both of his knees are developing knee osteoarthritis, related to the 40 years of underground coal mining.  Brian's right knee has been accepted as a work‑related injury and in the long term, he is very likely to progress to knee replacement on both sides, related to this underground work.  The timing of knee replacement is personal and I think that he would be able to delay surgery if he were able to modify his work activities.  I have recommended that Brian does not work underground or on loose or uneven surfaces, as it precipitates pain in his knees and probably will accelerate his underlying arthritic conditions.  I think that Brian is doing exactly the right things with swimming, riding a bike and being physically active.  He is doing an excellent job of maintaining a healthy body weight and I personally think that he is doing as much as he can to improve his knee function, which I commended him on.  I am happy to facilitate knee replacements for him when he feels ready and I did my best to answer all his questions."

In signing that report, Dr Dewar added to his qualifications that he was now the conjoint associate professor of surgery at the University of Newcastle.

59. There is a further report from Dr Schwarzer, an updating report bearing the date 30 July 2021.  The only thing I need to note from that is a history the plaintiff gave that he takes Panadol Osteo for pain rather than the Celebrex prescribed to him because the Celebrex causes "epigastric discomfort".  The remainder of the medical reports before me are essentially medico‑legal, and they all address the issue of the quantum of the plaintiff's claims for lump sum compensation.

Submissions on Degree of Impairment

60. As far as the claim for the neck is concerned, the range of assessments is between a 20% loss and a 5% loss. As far as the back is concerned, the range of assessments is between 30% loss and a 3% loss. As far as the plaintiff's claim for the loss of efficient use of his right arm at or about the elbow is concerned, the range of assessments is between 25% and 0. As far as the claim for the right leg is concerned, the range of assessments is between 30% and 2%, and as far as the claim for loss of efficient use of the left leg is concerned, the range of assessments is between 30% and 0.  One might think that two sets of doctors were examining two different men.  They were, however, not doing that.

60. The assessments relied upon by the plaintiff are from Dr James Bodel, an orthopaedic surgeon, and from Dr Schwarzer, who on this occasion saw the plaintiff to make a medico‑legal report on 11 December 2023.  The defendant relies upon assessments made by Dr Roger Pillimer, an orthopaedic surgeon, who examined the plaintiff on 14 February 2023 and by Dr Loretta Reiter who examined the plaintiff on 18 July 2023.  The relevant area of expertise is, of course, orthopaedics rather than rheumatology.

61. Fortunately, both counsel have made the same submission about the impairment of the plaintiff's neck and the impairment of the plaintiff's back.  As far as the neck is concerned, each of the Dr Bodel and Dr Pillimer diagnosed a 5% permanent impairment of the plaintiff's neck.  Each of Dr Bodel and Dr Pillimer diagnosed a 15% permanent impairment of the back.  I am happy to accept those submissions from counsel for each party.

62. The defendant submits that I would find an 8% loss of efficient use of the plaintiff's right arm at or above the elbow, a 25% loss of efficient use of the plaintiff's right leg at or above the knee and a 5% loss of efficient use of the plaintiff's left leg at or above the knee.

63. Mr McMahon, for the plaintiff, urges on me the assessments made by Dr Bodel of a 25% loss of use of the plaintiff's right arm at or above the elbow, a 30% loss of efficient use of the plaintiff's right leg at or above the knee, and a 15% loss of efficient use of the plaintiff's left leg at or above the knee.  In doing so, he abandons the much greater assessments made of the loss of efficient use of each of the plaintiff's legs by Dr Schwarzer, but Dr Schwarzer only diagnosed a 20% loss of efficient use of the plaintiff's right arm at or above the elbow.

64. Dr Reiter diagnosed no loss of efficient use of the plaintiff's right arm, a 2% loss of efficient use of his right leg at or above the knee and no compensable loss of efficient use of the left leg at or above the knee, but conceded that there was an 8% loss of efficient use of that limb.

Degree of Impairment – Right Arm

66. It is of moment to consider the findings on examination of Dr Bodel who, as I said, examined the plaintiff for the purpose of making his report on 3 May 2022.  On examination of the plaintiff's right shoulder, Dr Bodel found an active range of movement of flexion of the right arm at 140 degrees.  The normal range of movement is 180 degrees.  He found the extension was 40%.  The normal range of movement of extension is 50%.  Dr Bodel found adduction of 20 degrees when the normal range is 50 degrees.  He found the range of abduction to be 120 degrees whereas the normal range for abduction is 180 degrees.

67. He found that internal rotation and external rotation were both at 60 degrees, but the normal range for each of those movements is 90 degrees; in other words, Dr Bodel found that all ranges of movement were restricted.  He also noted impingement and wasting in the region of the right shoulder girdle and tenderness over the rotator cuff.

68. That is to be contrasted with Dr Pillimer's findings on examination, Dr Pillimer having examined the plaintiff on 14 February 2023, some 14 to 15 months later.  Dr Pillimer obtained this history of the plaintiff's complaint about the right shoulder:

"Mr O'Reilly feels there have been a number of incidents when he has hurt his right shoulder over the years and he feels that his shoulder has 'settled' at the moment, that he has to be very careful with lifting anything heavy and lifting above shoulder level.  He can go for long periods without any discomfort provided he is careful.  When he gets his right shoulder discomfort, he indicates the whole shoulder region as being affected with symptoms being as high as 4 out of 10 to 5 out of 10.

On re‑questioning, there was no referred pain into his other limbs."

69. The doctor went on to say this about his examination of the shoulder, "He has a full range of shoulder movement today experiencing some discomfort on the right side".

70. When commenting on the radiological investigations, Dr Pillimer only refers to some of the investigations concerning the plaintiff's knees, in particular, the right knee.  Under the heading "Diagnoses", Dr Pillimer said this:

"As far as his right shoulder is noted, he has a full range of movement with mild discomfort noted associated with this movement.

No investigations have been carried out and the most likely explanation is that he has a mechanical problem in the shoulder, but this only worries him very intermittently at the moment."

71. He went on to diagnose an 8% loss of the right arm at or above the elbow as a result of ongoing shoulder discomfort, which was intermittent.  The doctor made no measurement of the range of movements as recorded by Dr Bodel and did not see any of the radiological investigations that have been referred to earlier in these reasons. 

72. I find the assessment of Dr Bodel to be preferable to that of Dr Pillimer.  His report is more thorough and better reasoned than that of Dr Pillimer on this item.  I, therefore, accept that there is a 25% loss of efficient use of the plaintiff's right arm at or above the elbow as found by Dr Bodel.

Degree of Impairment - Legs

73. The remaining aspects are the legs.  As far as Dr Bodel is concerned, he measured the range of movements of both the plaintiff's right and left knees.  As far as the right knee is concerned, there was minus 5 degrees of extension.  The normal range for movement of the extension is 0 degrees; in other words, the plaintiff cannot straighten out his leg.  As far as flexion was concerned, the range of movement was 120 degrees where normally it is 140 degrees.  As far as the left knee was concerned, extension was normal, but flexion was reduced from 140 degrees to 130 degrees.  Bodel then quoted the X‑rays of the knees of 8 September 2019 and the MRI scan of the right knee done on 16 June 2016.  He believed that both those investigations revealed abnormality.

74. In commenting on the documentation he said this:

"Associate Professor David Dewar, an orthopaedic surgeon, indicates that he has been managing the patient's knees and hips.  He has significant arthritic change in the region of the right knee which in the next five to seven years will require a knee replacement.  The left knee and the hips are still functioning reasonably well.  He encouraged him to continue with:

Swimming, riding a bike and being physically active.  He is doing an excellent job in maintaining a healthy body weight and I personally think that he is doing as much as he can to improve his knee function."

75. He then went on to quote what Associate Professor Dewar said about the need for further treatment, indeed, about talking about knee replacement.

76. On examination Dr Pillimer found that the right knee was in 8 degree in valgus slightly and that his left knee was in 5 degrees of valgus alignment.  However, he said nothing about limitations of extension and flexion.  He then went on to say this:

"Importantly, he has a full range of hip and knee movements on the right side.  This is accompanied by patellofemoral crepitus.  The main positive finding was significant discomfort when stressing the patellofemoral joint.  The knees themselves were stable and there was no fluid in either joint."

77. That seems to suggest that the doctor did not find any limitation of flexion or extension as was found by Dr Bodel.  Degenerative conditions get worse with the passage of time.  They do not improve.  In his conclusion Dr Pillimer said this:

"His main problem at the moment is significant patellofemoral arthritis in relation to his right knee and he has also developed increased valgus alignment suggestive of some lateral compartment osteoarthritic change."

78. He accepted that the plaintiff did have a 25% permanent loss of efficient use of his right leg at or above the knee as a result of ongoing problems with the right patellofemoral joint and the development of lateral compartment osteoarthritis.  As far as the left knee was concerned, however, he only accepted a 5% permanent loss of efficient use of the left knee mainly based on "his intermittent symptoms of left knee discomfort, noting no abnormal clinical findings".  However, Dr Bodel did find abnormal clinical findings.

79. It is of moment that when Dr Pillimer examined the plaintiff's legs, he was told by the plaintiff that the plaintiff was getting discomfort in both his hips and according to Dr Pillimer, he indicated the left buttock area, but the plaintiff denied that he did so in his evidence, and Dr Pillimer believed that the left buttock pain was not from the hip but from the referred pain from the lumbar spine.  This, in my view, speaks against the reliability of the findings of Dr Pillimer.

80. Having said that, however, I intend no criticism of the doctor at all.  For example, his "work history" is really an encomium of the plaintiff.  It is this:

"Mr O'Reilly is, obviously, an extremely well‑motivated gentleman and apparently did not have to take [time] off after his various injuries but simply went on restricted duties for a while and then was able to return to his normal duties.  He very proudly informs me that between 2007 and 2020 over a period of some 13 years, he did not take any sick leave, which is most unusual for underground miners.

When asked specifically why he stopped mining, he informed me that after his injury to his back in April 2021, he was put on restricted duties with a new claim.  At the same time he had a claim for his right knee.  He says that because of the two claims, he was not allowed back on the mine site and was simply told to 'Go home'.  He has not worked since then.  At that time he was on restricted duties because of his back.

Mr O'Reilly feels that this affected him significantly psychologically, noting his worth ethic over 41 years that he feels he was simply abandoned.

There is no doubt in my mind that if he would have been allowed to get back to restricted duties, he would have eventually have been able to manage with this but would have been restricted because of his right knee."

81. The first paragraph of Dr Pillimer's examination findings is this:

"Mr O'Reilly is an athletically built adult male in no obvious discomfort, who undressed and dressed without a problem, walks without a limp and is able to walk on heels and toes.  He has an excellent range of back movement, getting his fingertips as far as his ankles, inflexion and other movements are very satisfactory."

82. There is one other issue tendered by one of the opinions expressed by Dr Reiter.  In her primary report of 10 August 2023 Dr Reiter said this:

"I do not consider that his left knee pain has occurred as a consequence of compensating for his right knee condition, so his left is not due to his employment.  Harrington and Harris in their article in Journal of Bone and Joint Surgery (1994), 'Can 'favouring' one leg damage the other?'.  Consider that there is 'no scientific basis for such reasoning'.  They reference gait studies using forced plates on patients with longstanding poliomyelitis who have had a paralytic and short leg limp that confirmed the force transmitted in the affected lower extremity was reduced, but the force transmitted in the opposite limb was the same as in normal individuals.  Similar findings were seen with antalgic gait resulting from arthritis.  They also noted studies revealed that the magnitude of hip force in normal individuals varies with body and weight, stride length walking speed.  Because someone with a lower limb pain typically walks slower[sic] than asymptomatic person, shortens their stride length, and reports the injury or illness of the originally involved lower limb resulted in a marked decrease in weight‑bearing activity (steps taken each day), both the forces and the number of loading cycles on the unaffected limb are likely to be less, not higher, than before the original injury."

83. The four following paragraphs of the report continue in that theme.  However, I should point out that in his report of 20 September 2019 Dr Dewar, now Associate Professor Dewar, pointed out that the X‑ray of his hips demonstrated a mild left hip osteoarthritis.  He then continued, "It is really consistent to have contralateral hip and knee osteoarthritis".  If one has a problem in the right knee, one often develops a problem in the left hip.  If one develops a problem in the left hip, one can develop problems in the right knee.  The opinion proffered by Dr Reiter is not supported by any of the orthopaedic surgeons in this case and, accordingly, I cannot accede to her argument, an argument raised not by an orthopaedic surgeon in a question of orthopaedics but by a rheumatologist.

Accident of March 2018

84. Another event which has occupied some little time is probably yet another of those delightful creatures who inhabit most forms of litigation, the red herring.  The red herring in the current matter is an accident which befell the plaintiff in March 2018.  He was out riding his bicycle.  He was going down a hill.  He achieved the speed of 40 kph.  He was approaching a roundabout.  He entered the roundabout, but an errant motorist turned in front of him into the roundabout causing his bicycle to T‑bone the errant motorist's vehicle between the front driver's side wheel and the driver's door.

85. The plaintiff was thrown from his bicycle onto the bonnet of the vehicle, struck his helmet probably on its side on the windscreen as he was thrown across the bonnet and then he continued off the bonnet in a diving‑like fashion towards the road surface.  It was his hands that impacted the road surface and then he rolled to avoid hitting his head directly, as one would if one did a proper dive off a set of blocks at a swimming pool.  One's head will hit the water first, next after the hands, but he rolled to avoid doing that.  An ambulance was called.  He was kept in the ambulance for 40 minutes for observations and some minor scratches attended to.  The ambulance officers kept him under observations but then let him go home.

86. The plaintiff did not cause that accident.  On the plaintiff's evidence, the accident resulted from the negligence of the errant motorist.  The errant motorist was a young woman with three young children in the car.  The plaintiff felt sorry for her.  If he were taken to the John Hunter Hospital, which would be the normal protocol, the accident would have to be reported to the police.  No‑one wanted that to occur and it did not.  The end result is the plaintiff had to pay himself for the repairs to his bicycle.

87. After the plaintiff noted headaches, they were eventually investigated and thought to be vascular headaches and he was sent to see, of all persons, a cardiologist about it.  However, those problems have long resolved.

88. This event has not been mentioned to any of the doctors because, according to the plaintiff, he didn't injure any of the body parts in respect of the claim currently before the Court.  I can understand that.  One can speculate that the plaintiff may have had some increased pain or may have some increased pain in his back, but there is just no evidence to support such speculation, nor is there any denial of this event occurring, so that it is really a non‑issue on any issue that concerns the Court, that is, a fact in issue or the creditworthiness of the plaintiff himself.

Disease Provisions

89. I formed a very favourable view of the plaintiff.  He, clearly, is a man who loved his work, he loved working underground, he wanted to get at least his 40 years up at the mine, and I am confident, as was Dr Pillimer, that had he not been told to go home, he would still be working at the Centennial Mandalong Mine if it still be operating.

90. There is one issue that I raise that needs to be addressed.  Dr Bodel in answer to certain questions put to him by the solicitors who qualified him said this on page 8 of his report of 3 May 2022 in paragraph numbered 12:

"The injuries suffered to the neck, back, right knee, left knee, left hip and right arm are in part due to a diseased process of gradual onset and the disease provisions of the Act apply to this circumstance.  He clearly has had aggravation, acceleration, exacerbation and deterioration of those disease processes as a consequence of the nature of his work in the underground coal mining industry."

91. In answer to certain questions on page 10 of his report, Dr Bodel said this:

"In answer to questions 15 through to 23 inclusively I would indicate that the nature and conditions of the work and the specific items of work provided in these separate questions are a substantial contributing factor to ongoing complaints because of aggravation, acceleration, exacerbation and deterioration to the neck, shoulders, knees, back and left hip caused by the nature and conditions of these types of work underground."

92. Dr Schwarzer had also been asked to address the same issue.  Dr Schwarzer in a report of 26 May 2024 says this:

"I contend that the nature of Mr O'Reilly's work as a coal miner was such that the osteoarthritic processes are greatly accelerated.  Repeated insults on joints such as the knees will result in a greatly accelerated osteoarthritic process.  Workers in the mining industry, by the very nature of their work, are subjected to repeated traumatic episodes that may lead to such injuries.  Repetitive twisting of the knees, squatting and walking on uneven surfaces will cause repetitive trauma.  Progression to osteoarthritis is more rapid if there is internal derangement of the knee such as a meniscal tear.  There are studies to support the notion that the conditions of work in the underground coal mining industry may lead to premature osteoarthritis of the knees.  There is also very good evidence to suggest that prolonged kneeling and squatting without history of acute trauma will lead to osteoarthritis of the knees.  A systemic review by McMillan and Nichols (Osteoarthritis and Meniscus Disorders of the Knee as occupational diseases of miners:  Occupation Environmental Medicine 2005...) scored 19 papers with osteoarthritis being the condition of interest.  The aim was to determine whether kneeling or squatting for long periods was sufficiently causally associated with an increased risk of injury or degenerative disease of the knee joint as to meet the classic criteria to be considered an occupational disease for coal miners for whom these are or have been routine working postures.  They concluded that the papers reviewed 'profile sufficient evidence to conclude that work involving kneeling and/or squatting is causally associated with an increased risk of osteoarthritis of the knee.  In some more recent epidemiologically sound studies, frequent or prolonged kneeling or squatting doubles the general risk of osteoarthritis of the knees found in the general population'."

The article to which Dr Schwarzer referred is annexed to that report.

93. The problem with opinions such as that is that merely by using the words "aggravation", "acceleration", "exacerbation" or "deterioration", one is not diagnosing a work‑related disease, but, rather, the aggravation, acceleration, exacerbation or deterioration of a disease caused by work.  Degenerative disc disease in human beings is almost universal.  Osteoarthritis in human beings is also almost universal.  It is generally accepted that both are part of the ageing process.  Specifically in this case, Dr Reiter, for example, makes many allusions to that fact and discounts many of her assessments.  The evidence does not go so far as to allow me to find that, for example, the condition of the plaintiff's right knee was caused directly by any work injury or series of work injuries; rather, it is postulated on there probably being an inherent propensity to develop osteoarthritis and that being accelerated and aggravated by the type of work the plaintiff has done as an underground coal miner.  Of course, finding out what has happened would be an almost impossible task.

93. Accordingly, I will apply the statutory norm and find that 10% of each loss should be removed to account for an underlying non‑compensable condition, such as the propensities to which I have referred.

Findings

95. Accordingly, I find that the plaintiff has sustained a 5% impairment of his neck, which is to be reduced by 10%, so that the impairment becomes 4.5%.  If my mathematics be correct, which is always problematical, that results in a payment to the plaintiff of $2,381.40.

96. I find a 15% impairment of the back.  Applying the statutory deduction, that reduces to 13.5%.  If my mathematics be correct, that results in a payment of $10,716.30.

97. I find the plaintiff has a 25% permanent loss of efficient use of his right arm at or above the elbow.  I reduce that by the statutory 10%, so the plaintiff is entitled to a sum for 22.5% permanent loss of efficient use of his right arm at or above the elbow.  That results in a lump sum of $23,814.

98. I find the plaintiff has a 30% loss of efficient use of his right leg at or above the knee.  Reducing that by 10%, it becomes a 27% loss of efficient use of the right leg at or above the knee.  That entitles the plaintiff to a lump sum of $99,225.

99. I find the plaintiff has a 15% loss of efficient use of his left leg at or above the knee.  I reduce that by 10% to 13.5%, and 13.5% results in a payment of $13,395.37.

100. That means the plaintiff has crossed the threshold to entitlement under s 67 for pain and suffering, and anxiety and distress resulting from those impairments and losses.

101. It is important to bear in mind the original s 67 of the Workers Compensation Act 1987 which still applies to coal miners. Section 67(7) provides a meaning to words "pain and suffering". That definition is this:

"In this section the words 'pain and suffering' means‑

(a) actual pain; or

(b) distress or anxiety, suffered or likely to be suffered by the injured worker, whether resulting from the loss concerned or from any necessary treatment."

102. Both Dr Dewar and Dr Bodel believe that the plaintiff will come to total knee replacement on both sides. The plaintiff had recently given notice to the defendant of an intention to claim a declaration of liability to that effect. On the evidence currently before me I would not have made such a declaration. However, it is likely, that means it is probable and, therefore, it is something that can be taken into account under s 67. To do so would be to abrogate the proper working of s 67. Furthermore, it would only encourage further litigation.

103. If something happens that is not provided for in the award, then there might be further proceedings, which would necessarily not be a further claim, but, rather, a review of the original decision as to what the s 67 payment ought be. It is common ground that when, for example, a worker does have total knee replacements, the extent of the impairment may increase and that could lead to a further increased payment under s 66. However, if it were foreseeable at the time the original s 67 determination was made, then it ought to have been included then, and one really cannot come back and say, "Oh, well, his pain has increased because he has the total knee replacements" when it was quite obvious that that was likely to occur in any event. Section 67 should, if possible, be a once and for all assessment.

104. As I say, I formed a very favourable impression of the plaintiff.  There was a tendency which may have affected Dr Pillimer, that when somebody is active, keeping themself fit and healthy by things such as swimming, bike riding, boating, kayaking, surfing, to think that there must be little loss of use or little pain because the patient is so active.  However, in this case the plaintiff deliberately keeps himself active to keep himself fit and healthy to minimise, if possible, the pain that he experiences from his conditions.  In my view, it would be unjust toward the plaintiff because he was fit and healthy and active, because whether one has osteoarthritic knees or not, whether one undergoes total knee replacements or not, one experiences the pain resulting from the condition which causes the need for the surgery.  Perhaps that is obtuse.

105. It would be wrong to reduce a person's entitlement to lump sum compensation for pain and suffering, anxiety and distress, merely because they sought to avoid a pain by keeping themselves fit and active.  For example, here the plaintiff swims because that is the best way of exercising when one has a bad back.  Anyone who has done any work in this field knows that.  However, here, because of the condition of the plaintiff's right arm, he suffers a burning pain after swimming his 1500 metres and suffers for a number of days with pain in the shoulder being the result of using the shoulder in swimming freestyle.  It would be wrong, therefore, to reduce what would otherwise be payable for pain and suffering, anxiety and distress, because the plaintiff appears to be active.  However, being active can itself cause pain and suffering, which one tends to minimise, especially someone with the work ethic of Mr O'Reilly.

106. Doing the best I can and noting that the maximum payable under s 67 is $66,200, and each case must be in proportion to a most extreme case, I believe the appropriate sum to award the plaintiff is $33,100 or half of the most extreme case. Again, if my mathematics be correct, the total sums payable to the plaintiff amount to $110,197.82 albeit that the award will not say that.

107. I have inquired of counsel of any further reasons for judgment are required and am told that none are so required.

108. Other Orders:

1. I order the defendant to pay the plaintiff's expenses under s 60.

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

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Decision last updated: 08 August 2025