Ockers v Westcliff Colliery trading as South 32 (No 2)

[2018] NSWDC 213

District Court

New South Wales

Medium Neutral Citation:

Ockers v Westcliff Colliery trading as South 32 (No 2) [2018] NSWDC 213

Hearing dates:

23 - 24 November 2017, 28 March 2018

Date of orders:

06 April 2018

Decision date:

06 April 2018

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

I make an award for the Plaintiff for:
1) $831.20 pw from 9-01-17 to 8-07-17;
2) $548.90 pw from 9-07-17 to 30-09-17; and
3) $553.40 pw from 1-10-17 to 6-11-17 (pursuant to s9).

 

Defendant to pay Plaintiff’s expenses under s 60 for the treatment of the right shoulder condition.

 I order the D to pay the P’s costs, excepting the costs of:
1) arranging for the attendance of Dr Leicester at Court by AVL on 28 March 2017; and
2) the costs of 28 March 2018.

Catchwords:

COAL MINER’S WORKERS COMPENSATION – Claim for weekly payments following upon a frank, acute rupture of the supraspinatus tendon in the rotator cuff joint in the right shoulder – Acute rupture happened out of work hours – Whether rupture and consequent need for medical treatment work-related – Conflict in medical evidence as to nature of pathology pre-existing rupture – Whether claim governed by s15 or s16 of Workers Compensation Act 1987

Legislation Cited:

Adoption Act 2000
Workers Compensation Act 1926
Workers Compensation Act 1987

Cases Cited:

Calman v The Commissioner of Police [1999] HCA 60; (1999) 19 NSWCCR 40

Category:

Principal judgment

Parties:

Nathan Alexander Goulding Ockers (Plaintiff)
Westcliff Colliery t/as South 32 (Defendant)

Representation:

Counsel:
Mr D Benson (Plaintiff)
Mr M Joseph SC (Defendant)

  Solicitors:
Slater & Gordon (Plaintiff)
HWL Ebsworth (Defendant)

File Number(s):

RJ 188/2017

Publication restriction:

Nil

Judgment

1. HIS HONOUR: The plaintiff, Nathan Alexander Goulding Ockers, claims weekly payments of workers compensation from 9 January 2017 to 6 November 2017 for either total incapacity, partial incapacity or partial incapacity deemed to be total pursuant to the provisions of s 11(2) of the Workers Compensation Act 1926 as its operation is preserved for those who work 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 referrable to the treatment of his right shoulder, at least during the period in question.

2. The plaintiff relies upon a right shoulder condition which I shall, in due course, describe. He relies upon an event that occurred "in or about 2006" when the plaintiff injured, in an unspecified way, his right shoulder in the course of his work: the mechanism of that injury is unspecified in the statement of claim. The plaintiff also relies upon an event which occurred on 7 May 2011 when he was pulling a heavy chain when he was seeking to attach a trailer onto a train to take the trailer underground, and when pulling the chain, he sustained an injury to his right shoulder. The plaintiff also alleges that "the nature and conditions" of his employment caused, accelerated, precipitated or exacerbated an injury to his right shoulder.

3. The plaintiff has been working underground at the Westcliff Colliery since the year 2000. However, he only brings a claim against his current employer, Endeavour Coal Pty Ltd, also known as South 32, which trades as the Westcliff Colliery. Exhibit 12 tells me that Endeavour Coal Pty Ltd has been the owner and operator of the Westcliff Colliery from at least 25 May 2015 and probably prior to that time. However names appear to change from time to time. For example, there is evidence of the mine having been operated at one stage by BHP Billiton Limited, but it may indeed have been operated by one of its subsidiaries. There is also evidence it was operated at some stage by Illawarra Coal Pty Ltd but that appears to be another name used by Endeavour Coal Pty Ltd. The constant thing is that the mine has been insured throughout by Coal Mines Insurance Limited.

4. There is really no dispute that the plaintiff was incapacitated for work during the period of his claim because, on 8 January 2017, he experienced an acute rupture of the supraspinatus tendon in his right shoulder, a part of the rotator cuff of the shoulder. On 8 January 2017, the plaintiff was on leave from his employment. He was attending an event called the Summernats at the National Exhibition Centre off Northbourne Avenue in Canberra in the Australian Capital Territory. The plaintiff had taken leave from 1 January 2017 and that leave was to conclude on Sunday 8 January 2017. He was due to return to work on 9 January 2017. The plaintiff had gone to the Summernats with other members of his car club. He referred to them as "15…blokes with cars". On the morning of Sunday 8 January, the plaintiff was packing up to return from Canberra to his home in Thirlmere. He gave this evidence:

"Q. Now, at the Summernats on Sunday, 8 January, did something happen?

A. Yes.

Q. What happened?

A. I injured my right shoulder.

Q. How?

A. Lifting an empty esky into the back of the car.

Q. Where was the esky before you've put it into the car?

A. On the ground.

Q. How did you lift it from the ground to put it in the car?

A. Do you want me to show youse?"

The plaintiff then attempted to demonstrate what occurred to him as well as giving a description. The car into which he was seeking to place the esky was on a car trailer. The plaintiff lifted the esky with one hand on each side of it. His left hand stayed near his body as he lifted the esky onto the rear seat of the car on the car trailer. It is clear that the plaintiff abducted his right arm from the side of his body to 90 degrees, and when that happened he "just heard it go crunch and, bang, it fell by [his] side".

5. That, according to Dr Roger Rowe, an orthopaedic surgeon qualified by the defendant, is a common mechanism of the rupturing a supraspinatus tendon. One might think in such circumstances that the plaintiff's claim should fail. However, there are many more considerations. In a report bearing date 30 November 2017, Dr Andrew Leicester, an orthopaedic surgeon, said this:

"I'd anticipate that the question for the Court relates to the attributability of his employment to his rotator cuff tear. I would make a number of points in this regard. Firstly, it is very unusual for a healthy 44 year old man to have sustained a full-thickness rotator cuff tear with an injury such as lifting an esky. For this to happen, there would probably be some underlying vulnerability, some of which I would attribute to the heavy physical nature of his work. Mr Ockers' employment involved a lot of overhead work and heavy lifting and he described at least two injuries to his shoulder at work. It is not uncommon for such employees to have impingement of the shoulder. This means that the rotator cuff is constantly being pinched between the acromion and the humeral head. This can lead to chronic damage to the supraspinatus, and ultimately to a tear to the rotator cuff at a younger age than normal. It is for this reason that I felt that his employment as a coal miner was a substantial contributing factor to his rotator cuff tear. If not for his employment as a coal miner and his associated work activities, I doubt that he would have sustained a rotator cuff tear with relatively simple activities such as lifting an esky."

When the plaintiff first saw Dr Leicester on 27 January 2017, Dr Leicester made this observation:

"Coal miners often have impingement of the shoulders and this has been the case for Nathan. Once he has been given approval for workers compensation treatment, I suggest that he see Vera Kinzel. Vera's a shoulder surgeon who works in our practice and she performs arthroscopic rotator cuff repairs. I perform a limited open repair with the arthroscopic repair is less invasive and often gives a quicker recovery. I look forward to Vera's opinion".

6. Dr Vera Kinzel, like Dr Leicester, is one of the orthopaedic surgeons who beneficially own Bong Bong Orthopaedics Pty Ltd. Dr Kinzel did, in fact, take over the plaintiff's treatment, and he underwent surgery at the Southern Highlands Private Hospital on 24 February 2017. The surgery was to repair the full-thickness tear of the supraspinatus tendon. Dr Kinzel reviewed the plaintiff on 10 March 2017, by which time the plaintiff's wounds had healed and there was no sign of infection, and Dr Kinzel then prescribed a course of physiotherapy.

7. Ultimately, Dr Leicester gave oral evidence. He told me that it was very unusual for a man who was only 44 at the time to tear his rotator cuff. He told me that a large amount of overhead work leads to pinching of the rotator cuff between the acromion and the head of the humerus. In Dr Leicester's experience, 50% of patients with a tear of the rotator cuff are aged 80 or more. He told me the average age which he saw patients for rotator cuff tears was 60 years of age. I am quite happy to accept that epidemiological evidence based on Dr Leicester's experience as an orthopaedic surgeon. There is nothing, even in evidence by Dr Rowe, to gainsay the opinion that the age of 44 is a young age in which to experience a tear of a thing such as the supraspinatus tendon in the rotator cuff, and the mere fact of its occurrence indicates that there might have been some underlying pathology which was involved in the tearing procedure.

8. What is referred to as the “esky” is the subject of a number of photographs which form exhibit C. There are in fact five images. Exhibit C1 is a photograph of the "esky", which I would describe as an ice chest. Exhibit C2 tells me that the height of the ice chest is 45 centimetres or 18 inches. Exhibit C3 tells me that the width of the ice chest is 16 inches or 42 centimetres. Exhibit C4 shows that the length of the ice chest is 24 and a half inches or 63 centimetres. Exhibit C5 is a photograph of the ice chest placed on a set of scales. The scales give a reading of 8.8 kilos. However, the defendant did not admit that the scales accurately weighed the ice chest, but then again, the defendant did not ask any question of the plaintiff about the accuracy of the scales. In the circumstances, I am happy to accept that the ice chest weighed 8.8 kilograms.

9. For an underground coal miner, a weight of 8.8 kilograms is a small one, as I shall seek to show. For the lifting of such a weight to cause a rupture of the supraspinatus tendon indicates to me that the supraspinatus tendon must have been the site of major pathology prior to the relatively minor event that occurred on 8 January 2017. And, I hasten to add, the medical evidence tells me that it was the site of major, pre‑existing pathology.

10. The plaintiff was born in 1972. At the time of the event now in question, he was 44 years old. He is a married man. His wife and their adopted son have been totally dependent upon him for support since 8 May 2017. The plaintiff left school, namely the Picton High School, at the end of 1988 when he was 16 years old. He obtained an apprenticeship as a fitter mechanic with Brook Crompton Betts Electric Motors at Revesby. He worked for that company until 1995. He then worked in his trade with Bradken Rail from 1995 until applying to join the coal mining industry. For that purpose, he underwent an examination by the Joint Coal Board on 21 June 2000, and was certified fit to work as an underground coal miner.

11. His first employer was not a collier but Walters Constructions Pty Ltd, which was a contractor at the Westcliff Colliery where the plaintiff worked for Walters Constructions. The Westcliff Colliery is east of Appin on the Appin to Bulli Tops Road. The plaintiff worked for Walters Construction Pty Ltd for about 18 months until he was offered a permanent position by the then operator of the Westcliff Colliery, BHP Billiton. The plaintiff has worked ever since at the Westcliff Colliery for its various owners.

12. The Westcliff Colliery is a longwall colliery. In the first few years, the plaintiff worked underground. He worked on what he described as the "development panel". He was part of a team using a mining machine, which required him to either drive the mining machine and, at the same time, do rib bolting, or to do rib bolting on the left-hand side of the machine, or to do roof bolting on either the back right-hand side or the back left-hand side of the mining machine.

13. Roof bolting involves a number of procedures, all requiring work above shoulder height. The person carrying out roof bolting must guide a drill to a position where it can drive a shaft into the roof of the mine. When the shaft has been drilled, the roof bolter inserts a tube of chemical into the shaft and then presses it home by placing a roof bolt into the shaft. The mining machine is then engaged to take the weight of the roof bolt and to drill it or screw it or push it into place in the roof of the mine. The roof bolter has to hold the bolt in position for a number of seconds prior to the machine taking over the job. Normal roof bolts weight about 8 and a half kilograms, but also used are mega-bolts, and they weigh a substantial amount more. In other cases that I have heard, I was told that they weigh in excess of 30 kilograms.

14. Rib bolting is not as demanding as roof bolting. The plaintiff sometimes referred to rib bolting as rib dowelling. A "rib" is the side of mine shaft. Bolts must be driven into the wall of the mine shaft on each side, that is on the left and right-hand side. One rib bolt is driven in at about the level of the operator's waist, and another rib bolt is driven in at about the height of the operator's head, and that can require abduction of the arm above shoulder height.

15. The plaintiff also told me that other than operating the miner and doing rib and roof bolting, he was involved in panel advance, which required the moving of belts and cables and supplies to the longwall. When asked to what extent that required him to work at or above shoulder work, the plaintiff said that it required that to be done "constant". He also gave evidence of working at or above shoulder height with not only bolts but miner cables and car shuttle cables, and with ventilation tubes. There is also evidence that the work also required heavy lifting of equipment including cables, vent tubes and, for example, bags of stone dust. The plaintiff commenced that work clearly when he first commenced working at the Westcliff Colliery in the year 2000.

16. The plaintiff told me that he noticed some problem in his right shoulder "around 2006". He was then involved in both rib bolting and roof bolting. He told me that he had pain in his shoulder at the time because he was working above shoulder height. He told me that he was lifting his arm and pushing and pulling drill steels and roof bolts and rib bolts. He told me that he was then working under a deputy, Serge Pincham on 504 panel. When he complained of pain in his shoulder, ice was applied to it, obviously in a crib room, but he did not take any time off work or seek any other form of treatment. The plaintiff indicated that his complaint was recorded on the "deputy's sheet" but there is a dispute about what that actually means. In any event, whatever record may have been made has not been put before me and, if any such record were made, it may well have been lost with the effluxion of time. The plaintiff told me that thereafter, he noticed that he had a sore shoulder but he did not say that it was constantly sore, so I assume that it may have been intermittent soreness or soreness related to activity.

17. In 2007 the plaintiff commenced to see Mr Phillip Morphew, a chiropractor, at the Macarthur Chiropractic Centre at Camden. The records of that practice are before me: they are exhibit L. As a new patient, the plaintiff completed a questionnaire which he dated 5 June 2007. The plaintiff was asked to circle any of a number of things which he may have experienced, and there follows a large number of complaints which I presume the chiropractor thought that he might be able to treat. Included in this list of symptoms is "cloudy thinking" which might be a symptom for all of us at some stage. However, the plaintiff has indicated that he had the following problems, amongst irrelevant complaints:

neck ache;

back ache;

lower back ache;

shoulder pain;

knee pain.

18. The first treatment was provided, according to the notes, on the same day the plaintiff first attended there, on 5 June 2007. It was noted at that time the plaintiff underwent an examination and X-rays and a "scan". None of the results of those procedures are before me. The plaintiff attended upon Mr Morphew on a large number of occasions in 2007, 2008, 2009 and 2010. The attendances appear to be almost bimonthly. There were further attendances in 2011. None of the attendances on or prior to 22 March 2011 appear to concern the plaintiff's right shoulder.

19. On 5 April 2011 Mr Morphew noted that the plaintiff had a problem with his right shoulder. Mr Morphew has then written "pulled/strain rotator cuff". The plaintiff attended again upon Mr Morphew on 3 May 2011 and the notation made appears to indicate that there was a "general spinal check-up" and, according to a clinical shorthand abbreviation and description guide, that included pelvic balancing, spinal muscle release stretching, mobilisation of the spine, a cranial release and ankle mobilisation. The plaintiff was next due to see Mr Morphew on 17 May 2011 but that attendance was cancelled because the plaintiff was then undergoing physiotherapy which was due to last for some six weeks.

20. On 7 May 2011 the plaintiff reported an incident at work. Exhibit 4 is an event report showing the event occurred on 7 May 2011 at 10.30am and was reported by the plaintiff a half hour later. The description of the event given in exhibit 4 is this:

"Pulling chain through A frame on trailer, to secure onto flat top [rail car], to be taken underground. Chain became caught on something, my arm stopped but my body weight kept on going and jarred my right shoulder."

Under the question "Immediate actions taken", the plaintiff recorded this:

"Stopped what I was doing, received first aid, returned to work."

The first aid was rendered by Mr Tony Mulhern.

LUNCHEON ADJOURNMENT

21. Following upon the event of 7 May 2011, the plaintiff also made a claim for workers compensation. The claim for workers compensation was made on 11 May 2011 and a copy of it is exhibit B. The description of the incident given by the plaintiff is consistent with that contained in exhibit 4. However, one of the questions asked in the claim for compensation was this:

"Was the part affected or injured by this accident normal before this accident?"

The plaintiff has answered that question "Yes". That is blatantly untrue. The plaintiff had complained about his shoulder to the chiropractor, Mr Phillip Morphew, on 3 April 2011. Furthermore, the plaintiff had told Mr Morphew when he first saw him on 5 June 2007 that he had experienced, in the past, shoulder pain. The defendant maintains that this is one of a large number of "credit issues" which must cause me to entertain a number of real doubts about the reliability and honesty of the plaintiff's evidence.

22. I shall find it very difficult to forget the plaintiff, merely from the fact that he wore the most stunning mullet that I have ever seen in my courtroom, let alone my witness box. He was described in a number of ways by learned senior counsel for the defendant and learned counsel for the plaintiff himself. I would describe him as a "rough diamond". He also did not appear to me to be overly gifted with intelligence, and the view I formed was that the thrust of his evidence was reliable, even if the details of it were not reliable. Furthermore, he was challenged about a number of matters which to him may not have the significance they have for a lawyer. I shall in due course refer to a number of those things.

23. On this very issue however, it is important to bear in mind this: when the plaintiff first saw Dr Leicester on 27 October 2017, the plaintiff told Dr Leicester of a "injury" in 2006 and a more significant event in 2011. Mr Joseph SC, for the defendant, was keen to point out to me that these proceedings were commenced by a statement of claim filed on 19 May 2017. Originally no injury in or about 2006 was pleaded. Documents were produced on subpoena by the chiropractor, Mr Morphew, on 17 May 2017 and then an amended statement of claim was filed on 21 July 2017, and on Mr Joseph's submission, it was only filed to try to obviate a discrepancy arising from the production of Mr Morphew's records because they clearly indicated the plaintiff had a problem with his shoulder before 7 May 2011, and hence it was necessary to plead an injury in or about 2006. That is an interesting chronology but it completely overlooks the fact that the plaintiff had told Dr Leicester of a problem in 2006 and in late January 2017, well before Mr Morphew's records were produced on subpoena.

22. Mr Joseph SC submitted that I would have more regard to contemporaneous evidence than the plaintiff's subsequent oral description of events particularly given in evidence. That is my usual method. Here, however, it is clear the plaintiff did have problems prior to 7 May 2011, in particular, he first mentioned such problems to Mr Morphew when he first saw Mr Morphew on 5 June 2007 and he also mentioned it to Mr Morphew in particular on 5 April 2011. Those contemporaneous complaints indicate to me that the plaintiff was having troubles in his shoulder from about 2006 onwards. As I said, the submission put to me by the defendant completely ignores the fact that the plaintiff told Dr Leicester about a problem in 2006 when he first saw Dr Leicester on 27 January 2017.

23. I accept that what the plaintiff said in the claim form is inaccurate but the real question is whether he really understood the question. For example, there is another discrepancy according to exhibit 4 and exhibit B, as to whether the plaintiff stopped work. According to exhibit B, the plaintiff did not stop work as a result of the injury and the same is said in exhibit 4. The discrepancy is not between the documents but between the plaintiff's oral evidence and the documents, and clearly the contemporaneous documents are correct and the plaintiff's recollection of the events given some six years later in evidence is unreliable. However, nothing really turns on that.

24. Following upon the event of 7 May 2011, the plaintiff saw Dr Michael Jamieson, a medical practitioner retained by the defendant itself to care for its injured employees. Dr Jamieson saw the plaintiff on 10 May 2011. He certified the plaintiff had been fit for suitable duties commencing on 10 May 2011 for two weeks. He prescribed non-specific anti-inflammatory drugs and provided a referral for physiotherapy. The records of that consultation can be found in exhibit 11. The diagnosis made by Dr Jamieson is of a right shoulder rotator cuff strain.

25. The plaintiff was seen again, on behalf of Dr Jamieson I infer, by a locum, Dr Richard Ng, on 1 June 2011. The record of that consultation can be found in exhibit 11, but also a record of it is contained in exhibit A, a manuscript short report under Dr Ng's hand of 1 June 2011. The notes made by Dr Ng are these:

“History: pulling a chain through A frame on trailer (at shoulder height), chain jammed and he developed acute pain in right shoulder. Has been at physiotherapy. Prescribed Ibuprofen. Pain has improved. Still sore. Now working light duties. Ten kilo lifting restriction. Working at pit bottom, assisting pit bottom on‑setter.

Past history: Minor right shoulder injuries at work. No sports but does box fit and gym.

Examination: Right shoulder some deltoid flattening. Good range of movements, right shoulder equals left shoulder. Still positive impingement. Negative biceps irritability.

Provisional diagnosis: Right shoulder impingement.

Prescription: Continue current restrictions. Physiotherapy prescribed, exercises and review in two weeks."

I do not know whether the plaintiff was reviewed two weeks later but the plaintiff told me he went back to performing normal duties.

28. The only other record made by Dr Jamieson or someone on his behalf is a note made on 11 January 2013, over 18 months later. That refers to the incident on 7 May 2011 and that incident being a sprain or strain of the right shoulder. The record, which is both contained in exhibit 11 and exhibit 2, certifies the plaintiff as fit for his pre-injury duties.

29. The plaintiff returned to his pre-injury duties and, on any view of it, worked assiduously for the defendant, or to put it in blunt terms, he worked hard. He had been working hard for the defendant even prior to the event of 7 May 2011. For example, his general practitioner's notes for 2 June 2010, when it appears the plaintiff attended for a check-up by Dr Daniel Ho, that the plaintiff was "throwing himself into work - six days a week".

30. On 25 November 2011 the plaintiff was given a notice by his then employer concerning "Failure to Comply with Fatigue Management Procedure". The first part of the letter says this:

"It has come to my attention that you have worked an average of 61 hours over a two-week period which is above the permitted average hours per fortnight; for the period ending 12 November 2011. As per the Managing Personal Fatigue Procedure, there are control limits on the hours we spend at work and to exceed these hours requires a documented fatigue challenge. This is in place for the safety of you and those who work with you. The fortnightly acceptable limit is an average of 60 hours unless otherwise authorised. Our records indicate that the appropriate documentation has not been completed to permit your excess hours at work.

A copy of the 'Fatigue Management Work Plan' is attached as required to be completed by Westcliff's Fatigue Management Procedure. On each occasion the person exceeds the daily or fortnightly overtime limit, this form must be completed."

In other words, the plaintiff was being reprimanded for working longer than he was permitted to do.

31. What happened after the plaintiff's return to his pre-injury duties in mid-June 2011? A guide can be found in the records of the chiropractor, Mr Morphew. The plaintiff attended upon Mr Morphew and complained about his right shoulder or right upper arm on 21 June 2011, 5 July 2011, 26 July 2011, a date in August 2011 and 23 August 2011. The next complaints about the right shoulder or associated areas are on 21 February 2012, 6 March 2012, 17 April 2012, 8 May 2012. There was then a gap in attendance upon Mr Morphew until 31 March 2015. It is noteworthy that during that gap, the plaintiff saw Dr Jamieson on 11 January 2013 and he clearly made no complaint of ongoing problems at that time.

32. When the plaintiff "recommenced" with Mr Morphew on 31 March 2015 another questionnaire was completed. The plaintiff indicated that since he last attended the clinic, he had a work injury but what it was is not specified. Furthermore, no injury of any nature as far as I am aware was reported between 8 May 2012 and 31 March 2015. The plaintiff complained of physical discomfort/pain/loss of mobility and also of a "aggravation of old injury". When asked to describe in which areas of the body he was feeling these symptoms, he indicated his neck and his shoulders.

33. The records of Mr Morphew tell me that the plaintiff complained about his right shoulder or right scapula or right upper arm on 14 April 2015, 28 April 2015, 26 May 2015, 21 July 2015, 3 August 2015, 18 August 2015 and then again on 29 September 2015. The entry for 29 September 2015 is recorded at the top of a new page of the chiropractor's stationery. Before the listing of the date of the consultation and the treatment provided, there are some headings. The heading at the top of this page is this:

"Right shoulder complex strain/ongoing work injury".

34. The plaintiff complained, as I said, of shoulder pain on 29 September 2015, and then on 13 October 2015 and 24 November 2015. Complaints about the shoulder were also made on 28 January 2016, 22 February 2016, 7 March 2016, 4 April 2016, 9 May 2016, 23 May 2016, 6 June 2016, 11 July 2016, 26 July 2016, 8 August 2016, 22 August 2016, 19 September 2016, 7 November 2016, 28 November 2016, 12 December 2016 and the next recorded complaint was on 16 January 2017 after the plaintiff had ruptured the supraspinatus tendon in his right shoulder. The final entries which I have just quoted appear on another page of the chiropractor's stationery which again contains a heading "Chronic right shoulder complex work injury".

35. It has been submitted on behalf of the defendant that there was no corroboration for the plaintiff having ongoing problems in the period between 5 July 2011 and 8 January 2017. That submission must be rejected. There is clear contemporaneous records made by the chiropractor. The chiropractic treatment has been dismissed as being unhelpful by both Dr Leicester and by Dr Rowe. That might be so. All one can say is that the plaintiff appears to have attended regularly upon Mr Morphew so he must have been obtaining perhaps symptomatic relief from Mr Morphew's ministrations/manipulations. However, the fact remains that the plaintiff had a large number of complaints of right shoulder pain between 2011 and 12 December 2016.

36. The defendant maintains however that there was no complaint about the plaintiff's right shoulder to his GP at the Picton Family Medical Centre in Margaret Street, Picton. The plaintiff first went there on 22 February 2010. The plaintiff first went there to consult a doctor because the plaintiff and his wife were having problems begetting children. That led to matrimonial difficulties and the need for some psychological assistance. True it is that there is no complaint about the right shoulder to any of the doctors at the practice prior to 8 January 2017. However, the plaintiff was not regularly attending upon the practice and most of the attendances concerned the problem I have just mentioned, plus, for example, sinusitis and the like.

37. The plaintiff did attend upon Dr Hakam on 15 February 2016 in order for the doctor to complete a form to enable the plaintiff and his wife to adopt children under the Adoption Act 2000. Dr Hakam indicated that Mr Ockers did not suffer from any incapacity of his limbs or any form of rheumatism or locomotive disorder and he certified the plaintiff had the normal use of all his limbs. Dr Hakam thought the plaintiff was physically and mentally fit to adopt a child. One can easily forgive any man or woman for making a misrepresentation to a doctor in the process of trying to adopt a child when the couple is infertile. I do not assign to the representation made to Dr Hakam on 15 February 2016 any inveracity which would cause me to reject the plaintiff's evidence.

38. In 2016 the plaintiff needed to obtain a medical clearance to drive a "road train". For that purpose he attended upon Dr Simon Howell at the Picton practice on 4 November 2016. The only untoward thing noted by Dr Howell in his clinical notes was a problem in the plaintiff's right ear canal. The fitness to drive medical assessment is exhibit 3. The plaintiff denied to Dr Howell any musculoskeletal disorder or any neuromuscular disorder and obtained a clearance by Dr Howell satisfying the medical criteria for an unconditional licence. The plaintiff made a declaration on that document on 21 March 2016 that what he told the doctor was correct but I am persuaded that it was incorrect. I should indicate that the road train medical, according to the computer-generated records, was on 4 November 2016 but the document itself bears dates endorsed by Dr Howell and by the plaintiff on 21 March 2016. Why this discrepancy arises, I do not know.

39. Overtime at the Westcliff Colliery had been reduced, and in order to maintain his high level of earnings, the plaintiff took on truck driving commencing in early 2006 to augment his income to make up for the overtime that was no longer available at the Westcliff Colliery. That was the reason he undertook the medical assessment for fitness to drive a road train. In other words, this was misinformation being provided by the plaintiff, not only to Dr Howell, but also to Roads and Maritime Services, so that the plaintiff could get a licence to drive a truck to keep his income up to the desired level. The plaintiff is attacked by the defendant for doing that. Clearly the plaintiff ought not to have made a false or misleading statement to the RMS. He did; it was a matter done in self-interest but in understandable self-interest. It was mendacious but I doubt the plaintiff himself realised the extent of the mendacity and the way in which it might be used against him. However, the short answer to the defendant's submission that the plaintiff has not complained to his doctor about his shoulder is the fact that he has complained to the chiropractor about it. He was seeing the chiropractor much more regularly that he had seen any doctor at the Picton Family Medical Centre.

40. I have said that the plaintiff was doing heavy work, and in particular a lot of work, working at or above shoulder height and work requiring heavy lifting which threw stress on his right shoulder. The plaintiff's description of his work was never challenged by the defendant. The work of underground coal miners is notoriously hard. The plaintiff is right-handed. I could not find that readily in the transcript but the plaintiff gave that history to Dr Roger Rowe who first examined him on 8 August 2017. His report of 18 August 2017 as part of exhibit 6. One would expect a right-handed man who is doing heavy work to throw more stress on his right arm and right shoulder than on his left arm and left shoulder.

41. The key, I believe, to what has happened here is disclosed in a radiological examination performed on 10 January 2017. After returning from the Summernats in Canberra, the plaintiff attended upon Dr Hakam at the Picton Family Medical Centre on 9 January 2017, the Monday. The doctor's notes are these:

"Was lifting esky to his car. Felt a crack and pain in right shoulder. History of recurrent right shoulder injury at work. Never been investigated but reported it and they sent him to physio. No ultrasound, no MRI done. On examination: tender right shoulder, limited abduction, external rotation."

Dr Hakam organised for the plaintiff to undergo an MRI scan and for the plaintiff to be reviewed after that was done.

42. The MRI scan was reported by Dr Denise Lee. These are the findings recorded by Dr Lee:

“Subacromial-subdeltoid bursa:

Moderate subacromial bursal effusion, consistent with bursitis.

Supraspinatus tendon:

Signal heterogeneity of the tendon, consistent with tendinopathy. Partial width, full-thickness tear. This involves the anterior portion of the tendon and measures 10 millimetres in the sagittal plane. Retraction of the torn tendon fibres resulting in a tendon gap of 8 millimetres in the coronal plane. The torn end of the tendon appears truncated and tendinotic but is of reasonable calibre. In the mid to posterior portion of the tendon, there is low-grade partial thickness tearing along the articular surface fibres. No significant fatty atrophy of the supraspinatus muscle. Subcortical bone marrow oedema and intra-osseous cystic changes in the greater tuberosity, deep to the tear.

Infraspinatus tendon:

Signal heterogeneity of the tendon, consistent with tendinopathy. Mild fraying along the articular surface fibres in the anterior portion of the tendon. No evidence of high grade tear.

Subscapularis tendon:

Mild signal heterogeneity and thickening; consistent with mild tendinopathy. No discreet tear.

Long head of biceps tendon:

Located in the bicipital groove and appears intact. Mild volume of fluid in the bicipital sheath, however, this appears commensurate with the volume of the glenohumeral joint fluid.

Labrum:

Irregular high signal in the superior labrum is suspicious for a SLAP tear. Additionally, high signal extends to the anterior and anteroinferior labrum and there is apparent thickening of the anteroinferior labral ligamentous complex, suspicious for chronic injury. This suggests type V SLAP lesion morphology. No paralabral cyst demonstrated.

Acromioclavicular joint:

Mild arthropathy with bone hypertrophy and peri-articular bone marrow oedema. No subacromial enthesophyte or os acromiale. Type II acromion.

Glenohumeral joint:

Slight joint effusion. No significant chondral defect identified. No MRI stigmata of adhesive capsulitis.

Bone:

No acute fracture line or bone contusion.

Muscle:

No evidence of significant rotator cuff muscle atrophy. No evidence of acute muscle tear."

43. Both Dr Leicester and Dr Rowe, who, like Dr Leicester gave oral evidence, have commented about these radiological findings. A recent full-thickness tear of the supraspinatus tendon can be seen in the description of that tendon. There can be no doubt that that was a very recent, frank rupture. Dr Rowe in his report on 20 December 2017 said this:

"The report of the MRI right shoulder dated 10 January 2017 has been reviewed and it is confirmed that there was a full-thickness tear of the supraspinatus tendon. The radiologist commented that there was 'no significant fatty atrophy of the supraspinatus muscle'. This is significant information as it demonstrates that the tear was of acute, ie, of sudden origin and not representative of chronic pre-existing pathology. Fatty atrophy occurs in the muscle or tendon if it has been rendered non-functional for a long time. Thus if a full‑thickness tear occurs in the supraspinatus with no evidence of fatty atrophy in the supraspinatus muscle, it indicates the tear was of very recent origin."

44. Dr Leicester said that the findings concerning the subacromial subdeltoid bursa are an indication of chronic impingement syndrome. Leaving aside the findings of the tear of the supraspinatus tendon, he believed that the findings were consistent with a chronic impingement syndrome. The doctor thought that the finding concerning the subscapularis tendon was essentially normal as was the long head of the biceps tendon. He believed that the findings concerning the labrum were associated with impingement. That is the SLAP tear, but the thickening of the anteroinferior labral ligamentous complex, he thought was suspicious for another degenerative process. Dr Leicester thought that the plaintiff's type II acromion predisposed him to developing the pathology otherwise demonstrated in his shoulder. The rest of the findings indicated to Dr Leicester that there was no osteoarthritis and no adhesive capsulitis which is also known as a frozen shoulder syndrome.

45. Dr Rowe agreed there was no osteoarthritis in the plaintiff's right shoulder joint. He did believe that there was a degenerative process taking place. He pointed out that, distinct to tendinitis, there is tendinosis, which is apt to describe to describe a degenerative condition of the tendon. The word tendinopathy was, in Dr Rowe's opinion, synonymous with tendinosis. When I consulted medical dictionaries, I found that the doctor's assertion was correct.

46. There is a difference in the approach of each Dr Rowe and Dr Leicester in describing the plaintiff's problems. Dr Leicester would attribute the plaintiff's condition to the chronic impingement syndrome, as I set out much earlier in these reasons. In a report of 5 December 2017, Dr Rowe said this:

"…Dr Leicester stated that Mr Ockers had probably had chronic impingement which has contributed to rotator cuff degeneration and subsequent tear with minor trauma. Whilst there may be a contribution from chronic impingement to a degenerative change in the rotator cuff, it is also accepted that degenerative change in the rotator cuff leads to the development of symptoms of impingement and leads to a subsequent cuff tear. Dr Leicester refers to the lifting of the esky as a relatively minor trauma but I disagree that this is the case. The description of the mechanism of the injury is classic for a rotator cuff tear.

In his answer to Question 2, Dr Leicester indicates that there is no evidence of degenerative arthritis but there is of degenerative change in the rotator cuff and I agree that this is the case."

47. On Dr Leicester's own assessment, the plaintiff's type II acromion was a predisposing factor to the development of some process, either of degeneration or impingement or perhaps both. However, that is a mere underlying predisposition. If the plaintiff never worked overhead in a coal mine but worked at a desk, I am sure that his supraspinatus tendon would still be intact.

48. The plaintiff performed heavy work throwing stress and strain on his right shoulder, particularly requiring him to work at or above head height with his dominant right arm. He has developed some fairly significant pathology. It may have been initially an impingement syndrome, which I note was diagnosed back in 2011 by Dr Ng, or it may have been a pre-existing degenerative process which led to the impingement syndrome. However, after 2011 the plaintiff regularly attended upon his chiropractor and regularly complained about his upper right shoulder and the scapula and upper limb musculature. In 2015 and 2016 his complaints increased over time. Everything points to the plaintiff’s having a problem in his right shoulder, at least being made worse by the overhead work which he was required to do.

47. One difference of opinion is that Dr Leicester, if one accept his thesis that the plaintiff's problems were caused by an impingement syndrome, such may be a disease caused by the plaintiff's work. If one accepts Dr Rowe's opinion, there may have been some pre‑existing/constitutional/genetic problem which was affected by the work the plaintiff did with the defendant and therefore one can only look at the aggravation, acceleration, exacerbation or the like of the plaintiff's condition. That is, Dr Leicester's assessment would put this case within s 15 of the Workers Compensation Act 1987, and Dr Rowe's opinion would put this case within s 16 of the same statute, because Dr Rowe conceded, and very properly conceded, that the type of work that the plaintiff did as an underground coal miner would cause problems for a degenerative shoulder. Dr Rowe conceded that it is very common for underground coal miners to develop problems with their shoulders and he believed the plaintiff's shoulder trouble was consistent with the conditions of work of an underground miner. I am dealing here either with an industrial disease, a disease due to the type of work that the plaintiff did with, inter alia, the defendant, or I am dealing here with a disease which, although not caused by work, was substantially aggravated, accelerated or exacerbated by work.

48. The problem here of course is the "straw that broke the camel's back". The final slight to the plaintiff's left shoulder which caused the degenerate supraspinatus tendon to rupture was an event that occurred away from work. However, I am drawn by the epidemiological evidence and by the type of work that the plaintiff did to form the view that this was such a minor event, that it was mere demonstration of the pathology which pre‑existed the frank tearing of the supraspinatus tendon on 8 January 2016.

49. Calman v The Commissioner of Police [1999] HCA 60; (1999) 19 NSWCCR 40 makes it clear that where there is a pre-existing disease process caused by a work injury or work event and there is some aggravation or the like outside of work, nevertheless, an incapacity resulting from that aggravation is compensable because the underlying condition is compensable. If Dr Leicester's opinion be correct, then in accordance with Calman, the plaintiff's period of compensation, which was the time that the plaintiff had off work, is compensable because there had been an aggravation of a work-related event, and it is immaterial whether the aggravation occurs at or away from work. If Dr Rowe's opinion be correct, then the authorities are unclear, but in my view, where there had been a substantial aggravation by the plaintiff's work to a constitutionally-based degenerative condition and the extent of the pre-existing aggravation is such that it rendered the plaintiff extremely vulnerable to a non-work event, then the same result follows: that the minor, non-work-related event does not negate the proposition that the aggravated underlying condition was responsible for the period off work.

50. The problem here is that it is almost impossible to know who be correct, Dr Leicester or Dr Rowe. However, Dr Leicester did concede that there were appearances described by Dr Lee, who made the report of the MRI, consistent with another or other degenerative processes in the plaintiff's rotator cuff. The only hard evidence of any pre-existing condition is of course the plaintiff's acromion type II. There are three types of acromion described as acromion I, acromion II and acromion III. Surprisingly, however, each is a mere anatomical variant and is certainly something that the Court should ignore; it is something that is congenital.

51. Suffice to say that in my view there are at least two processes going on in the plaintiff's shoulder: a degenerative condition which has been at least made worse or accelerated or exacerbated by the plaintiff's work, and an impingement syndrome which has been caused by the plaintiff's work. The two of them combined have left the plaintiff in a position where a minor event outside of work has led to the rupture of a tendon which had been severely compromised by the type of work that the plaintiff did in the coal mine between 2000 and 2017 and for which, under the operation of s 15 and 16 of the Act, the present defendant is, in law, liable.

52. There is no argument raised by the defendant about the period the plaintiff had off work. It was clearly a period of time in which to undergo the operative treatment, then wear a sling, then undergo physiotherapy and rehabilitate himself to be able to return to work on 7 November 2017. I believe in the circumstances, the appropriate finding is that the plaintiff was totally incapacitated during the whole of that period by reason of the underlying pathology and treatment necessary to return the plaintiff to a state where he could return to working in the coal mine.

53. I should say a few more things about the attack on the plaintiff's credit. When the plaintiff made a claim for workers compensation following upon the occurrence on 8 January 2017, it was denied by Coal Mines Insurance. The plaintiff then made a claim on an insurer who insured him for personal accident and/or sickness. A copy of the plaintiff's claim in that regard, made on 21 February 2017, is exhibit 5. When asked, the plaintiff described what happened to him on 8 January 2017. When asked whether he had previously been treated for any serious injury, the plaintiff said "No" but that may well have been correct. He was then asked, "Have you made or will you make a claim for benefits under any Workers Compensation Act or Transportation Act because of this injury?" The plaintiff answered that "No". That was incorrect. He both had made a claim for workers compensation, although it was declined, and he was intending to bring a claim for workers compensation. The plaintiff was asked to say whether he was entitled to claim benefits for the injury from any other insurers. He said that he was and he listed his private health insurer. The plaintiff agreed that what he said was incorrect and he said that he had, in essence, cajoled Dr Hakam to fill in and complete the certificate which supports that claim for accident insurance. However, the plaintiff, as I said, is a simple man. Having had his claim for workers compensation rejected, he then made a claim on the one insurer so that at least there would be income for both himself, his wife and his child. This was not mendacity to the extent that I should reject clear medical evidence, clear contemporaneous complaints and undisputed evidence about the extent of the demands of the plaintiff's work upon his body, which was unchallenged.

54. A final defence raised by the defendant was one of notice. Pleas numbered 1(d), (e) and (f) are these:

"(d) That the plaintiff failed to give notice of any injury (other than injury on 7 May 2011), including the alleged injury in or about 2006 and in relation to the alleged 'nature and conditions' injury which is denied within the time pursuant to s 254 and 255 of the Workplace Injury Management and Workers Compensation Act 1998.

(e) That the plaintiff failed to give notice of any medical or related treatment (other than for the injury of 7 May 2011) pursuant to s 257 of the Workplace Injury Management and Workers Compensation Act 1998.

(f) That the plaintiff failed to make a claim for compensation within the time specified in s 261(1) of the Workplace Injury Management and Workers Compensation Act 1998."

57. The plaintiff submitted a claim form on 23 January 2017. The claim form refers to an injury occurring on 9 January 2017 at 9am but that is clearly a reference to the event that occurred on Sunday 8 January 2017 at the Summernats in Canberra. It is said in the claim form the plaintiff reported the injury to Shannon, which is the Christian name of the control officer at the Westcliff Colliery on 10 January 2017. There was no suggestion the plaintiff did not report to the Westcliff Colliery on 10 January 2017 what had happened to him on 8 January 2017. When asked to give details of the injury the plaintiff set out in great detail what happened at the Summernats on 8 January 2017. He was asked about "previous injuries" and said that that shoulder had been treated by Dr Jamieson, but he was unable to remember how long ago it was or in what year but that it was about six or seven years previously, which of course takes one back to what happened following upon 7 May 2011.

58. On the same day the plaintiff made a statement addressed "To Whom It May Concern". The same date stamp, 24 January 2017, has been affixed to the claim for workers compensation in exhibit D and the statement, exhibit D2. The statement giving the correct date tells me what happened on 8 January 2017. It then sets out this matter. I must state that this matter is not evidence of any fact but evidence only of a representation made by the plaintiff to CMI, the insurer of the defendant:

"Since the last time I injured my shoulder, I have had nothing but pain and have had to manage the injury myself as I was trying to do the right thing by the company.

This is due to the lack of duty of care from Jamie Gass and due to the lack of investigation and on-going care of my right shoulder by Dr Jamieson.

When I was injured at work last time, I had two weeks on light duties and physiotherapy, no on-going care, no check-ups, and straight back to the face cutting coal.

I tried to maintain my right shoulder by using exercises given by the physiotherapist, I have had acupuncture and on-going chiropractic care to help ease the pain.

So in doing so, while trying to manage the injury and doing the right thing by the company, it has cost myself and my wife thousands of dollars.

I suffer from headaches, migraines, constant shoulder pain and sleeplessness due to this work injury.

I am always aware of my right shoulder, so before I do anything at home or at work, firstly I think, can I do this without re-injuring my shoulder. At work I always think about the job before I do anything, I always use correct lifting techniques with two-person lifts if necessary, as I don't want to re-injure my right shoulder.

All it took to re-injure my right shoulder was lifting an empty esky."

59. Of course, some of what the plaintiff there said is self-serving and it must be ignored. However the fact remains that it is an averment by the plaintiff putting the defendant on notice that he had, since 2011, had continuing symptoms in his right shoulder while he was doing his work, that he did his work in a guarded fashion and that he believed that work was responsible for what occurred to him in Canberra on 8 January 2017. In other words, this is an effective notice of what, unfortunately, lawyers describe as a "nature and conditions claim" by which is generally meant the aggravation, acceleration, exacerbation or deterioration of some disease process in a part of the body. These may have been initiated by a work injury or it may be constitutionally based.

60. Absolutely no prejudice has been demonstrated. It is up, of course, to the plaintiff to negative any allegation of prejudice but it is hard to see what prejudice befalls a collier who must know what his, her or its employees are required to do in the course of taking coal out of a coal mine. It is the employer himself who ought know what his employees are doing to eke coal out of the coal face and take it to the surface of the mine so that it could be dealt with by way of being burnt in a power station or exported from our Commonwealth or interstate. Especially is that so when no challenge was made to the plaintiff concerning the nature of his work.

61. The defendant submitted, inter alia, that the plaintiff should have called the named witness to the plaintiff's injury, who is described in a number of places as Mr Danny Debono, who lives, like the plaintiff, at Thirlmere. I understand from certain statements made by the plaintiff that Mr Debono might be his brother-in-law. Even if he is not, he is one of the "15 blokes" who went to the Summernats at Thirlmere. However there was no witness. Mr Debono could easily have been called by the defendant if he could give evidence inconsistent with what the plaintiff said about the event on 8 January 2015. For example, the plaintiff was questioned about whether the esky was empty or whether it was full of ice and the contents usually kept in ice chests, often beverages often of an alcoholic nature. However it must be realised the plaintiff was packing up to come home from the Summernats and when one goes on a holiday, one generally consumes what one takes with one on the holiday before returning home. In other words, common experience indicates it is likely that the esky was empty. The plaintiff maintained that it was and I am happy to so find.

62. Another inconsistency, with which the defendant sought to impugn the plaintiff, was this: when the MRI scan was made, the plaintiff returned with it to the Picton Family Medical Centre on 12 January 2017 but was reviewed not by Dr Hakam but by Dr Joshua Stephenson. Dr Stephenson recorded this history in the clinical notes:

"Lift esky (empty) at 90 degrees abduction. Pain and crack. Weakness. MRI organised after review on Monday.

Results:

- SLAP lesion

- partial width full-thickness tear of supraspinatus

- tendinopathy of multiple rotator cuff tendons

- bursitis

- acromioclavicular joint arthropathy.

In essence, acute injury on the BG [background] of chronic shoulder rotator cuff tendinopathy and impingement. Works as a coal miner so unable to work at present. Given likelihood of likely shoulder issues contributing, is going down workers compensation path, unsure as to how this will work out."

63. Dr Stephenson went on to refer the plaintiff to Dr Agus Kadir, a specialist, presumably an orthopaedic surgeon. The referral letter of Dr Stephenson to Dr Kadir is in evidence. It is exhibit F. The substance of the letter is this:

"He is a coal miner with a longstanding history of what sounds to be right shoulder rotator cuff tendinopathy and impingement.

Most recently however, he has acutely injured his shoulder. He was lifting a heavy object to shoulder height with his right arm when he felt a crack and sudden weakness in the arm. On review he has quite an irritable shoulder. He develops pain on abduction and flexion at about 60 degrees and cannot reach 90 degrees."

Then he goes on to make his own summary of the MRI scan. The plaintiff was cross-examined to suggest that he told Dr Stephenson that the esky was heavy or the esky was full, but clearly the contemporaneous note said that the esky was empty. Considering the esky when empty weighed 8.8 kilograms, that is roughly the weight of an ordinary roof bolt, an object which the plaintiff would have handled daily in the mine, it is highly unlikely that the plaintiff himself would refer to the esky as a "heavy object". It may merely represent a misunderstanding of the plaintiff's history by Dr Stephenson or may just merely represent an error when Dr Stephenson dictated the referral letter. In any event, the plaintiff never saw Dr Kadir because he had ceased practising in Liverpool to where the referral letter was addressed. The plaintiff was then referred by Dr Hakam to Dr Leicester and the subsequent history I have briefly outlined. Again the use by Dr Stephenson of the word "heavy" in describing the esky is not consistent with the weight of the evidence before me and it clearly represents a misunderstanding or misinterpretation of the plaintiff's history as recorded in Dr Stephenson's clinical notes.

64. It is now 5 minutes to 4. Does anyone require any further reasons for judgment?

BENSON: No.

CORRY: No.

65. HIS HONOUR: I enquired of the counsel for the plaintiff and the solicitor for the defendant whether any further reasons of judgment are required. I am told that none is required.

66. For those reasons I make an award for the plaintiff for $831.20 per week from 9 January 2017 to 8 July 2017; for $548.90 per week from 9 July 2017 to 30 September 2017; for $553.40 per week from 1 October 2017 to 6 November 2017 pursuant to s 9 of the Workers Compensation Act 1926 as preserved. I order the defendant pay the plaintiff's expenses under s 60 for treatment of his right shoulder condition.

[SUBMISSIONS CONCERNING COSTS]

67. HIS HONOUR: Having heard the parties on the question of costs, I make the following order. I order the defendant to pay the plaintiff's costs excepting the costs of:

1. arranging the attendance of Dr Leicester at court on 28 March 2018 by audio link; and secondly

2. the costs of 28 March 2018.

**********

Decision last updated: 08 August 2018