Paix v Novacoal Australia Pty Ltd

[2019] NSWDC 51

District Court

New South Wales

Medium Neutral Citation:

Paix v Novacoal Australia Pty Ltd & Another [2019] NSWDC 51

Hearing dates:

27, 28 September 2017 (Newcastle) 3 – 5 October 2017 (Sydney)

Date of orders:

18 March 2019

Decision date:

18 March 2019

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

I make the following orders:
(1) I make an award for the first defendant

 

(2) I make awards for the plaintiff against the second defendant for:
(a) $3,175.20 for 6% impairment of the neck, and
(b) $4,762.80 for 6% impairment of the back

 

(3) I make an award for the second defendant in respect of the plaintiff’s claims for:
(a) loss of efficient use of the right arm at or above the elbow;
(b) loss of efficient use of the left arm at or above the elbow;
(c) loss of efficient use of the right leg at or above the knee;
(d) loss of efficient use of the left leg at or above the knee;
(e) loss of efficient use of the right leg below the knee;
(f) pain and suffering; and
(g) expenses under section 60

 (4) I order the second defendant to pay the plaintiff’s costs of establishing the two claims upon which he has been successful. I certify one qualifying fee.

Catchwords:

COAL MINERS WORKERS COMPENSATION – CLAIMS FOR LUMP SUM COMPENSATION – 7 different claims under s66 of Workers Compensation Act 1987

 

At age 17 plaintiff joined the Army – Saw active service in Vietnam (“war service”) – 6 years enlistment – Plaintiff a coal miner 13 December 1978 to 9 March 2001 – Conflicting claims to DVA for pension benefits and to employers for workers compensation

  No reports from treating doctors on causation – Opinions of qualified doctors based on incorrect, incomplete or erroneous histories – Need for experts to explain their opinions and the factual basis on which those opinions based

Legislation Cited:

Evidence Act 1995
Uniform Civil Procedure Rules 2005
Workers Compensation Act 1926
Workers Compensation Act 1987

Cases Cited:

Brown v Barnard & Brown Pty Ltd (1998) 17 NSWCCR 275
Clymer v Roads and Traffic Authority (NSW) (1995) 13 NSWCCR 187
De Gracia v NSW (1993) 13 NSWCCR 23
KB Hutcherson Pty Ltd v Correia (1995) 183 CLR 50; 11 NSWCCR 213
Stokes v Brambles Australia Ltd & Anor (1994) 10 NSWCCR 515

Category:

Principal judgment

Parties:

Raymond Paix (Plaintiff)
Novacoal Australia Pty Ltd (First Defendant)
Coal & Allied Operations Pty Ltd (Second Defendant)

Representation:

Counsel:
Mr PM O’Rourke (Plaintiff)
Mr TM Rowles (Defendants)

  Solicitors:
Whitelaw McDonald (Plaintiff)
Sparke Helmore (Defendants)

File Number(s):

RJ 490/15

Publication restriction:

Nil

Judgment

Curia advisari vult

1. The plaintiff was a coal miner. He commenced working in the coal mining industry on 13 December 1978, when he joined the employ of the first defendant. He formally left the industry on 9 March 2001. He claims lump sum compensation under Workers Compensation Act 1987 section 66 (as it operates for coal miners) for the following:

1. 30% impairment of the neck

2. 25% impairment of the back

3. 35% loss of efficient use of the right arm at or above the elbow

4. 40% loss of efficient use of the left arm at or above the elbow

5. 45% loss of efficient use of the right leg at or above the knee

6. 20% loss of efficient use of the left leg at or above the knee

7. 40% loss of efficient use of the right leg at or below the knee

He also claims a consequential lump sum for pain and suffering resulting from those impairments and losses and a general order under section 60 for the payment of his hospital, medical and like expenses.

2. During the hearing, the plaintiff abandoned other lump sum claims and also a claim for weekly payments from 9 March 2001 to date.

3. The plaintiff’s claims are not straightforward. There are only 90 pages of transcript but the working copy of the exhibits occupies 3 lever arch binders. The medical evidence is dated between 14 June 1966 and 17 June 2016, a period of 50 years. However, it is not in a satisfactory state to enable decision making.

Plaintiff’s early history

4. The plaintiff was born in Parkes in 1949. At the time of giving oral evidence he was 68 years old and is now 69 years old. His father was a railway fettler who was tragically killed in a train accident when the plaintiff was 2 years old. His mother remarried, to a farmer. His family moved to Orange. He had a good relationship with both his mother, a housewife, and his stepfather. He had 3 brothers and 2 sisters. Dr Frank Lumley, a consultant psychiatrist who interviewed the plaintiff on 17 October 2001, obtained this history of his education:

“He described a good childhood but had considerable difficulty once he commenced school. He said frequently because of his inappropriate behaviour he was stood out in the corridor and learned very little. His schooling ended when he reached Seventh Grade and he continued to have problems with both reading and writing.”

The plaintiff told me that he left school at the age of 15, perhaps in 1964.

5. The plaintiff told me that he then was a labourer for a few years, doing fruit picking. The same history was given to Dr AVB Isaacs, an orthopaedic surgeon, who examined him on 17 June 2016. However, more contemporaneous records indicate he was a welder.

Service in the Australian Army

6. The plaintiff applied to join the Australian Army and was accepted. He completed an “Entry History Questionnaire” on 14 June 1966 and was examined on the same day by two medical practitioners, Drs B Roberts and WG Taylor. He was then 17 years old. He was passed fit, “Class 1”. The only abnormality noted by the doctors was a “scar 6 inches long [on the] anterior aspect of the right lower leg”. The plaintiff stated in the Questionnaire that his then occupation was a welder. His enlistment was for 6 years commencing on 27 June 1966. After his basic training he was assigned to the Royal Australian Engineers as a sapper. Perhaps that was because he had been a welder. He was posted to the 23rd Construction Squadron.

7. On 25 May 1967 the plaintiff went on sick report with a diagnosis of “bruised calf muscles left leg”. A Treatment Card made at the 2nd Camp Hospital records this:

“Kick left leg – outer side. On examination: swollen left lower leg. Local tenderness lower third left fibula. For X-ray. No evidence of fracture.

Rx:   Strapping

Elevation left leg

Sedentary duty only.”

A handwritten radiological report dated 31 May 1967 made at the 2nd Camp Hospital says:

“No fracture demonstrated in the fibula. There appears to have been an old injury to the internal [i.e. medial] malleolus.”

The football that the plaintiff played in the Army was Rugby. His position was breakaway.

8. On 15 June 1968 the plaintiff’s right ankle was kicked and twisted. He reported this to a medical officer who noted on examination that the ankle was swollen and bruised. The plaintiff was sent to the 2nd Military Hospital for an x-ray and treatment. The x-ray was reported on 24 June 1968 as showing that “no bony injury is detected”.

Service in Vietnam

9. The plaintiff was “emplaned” at Sydney on 13 January 1969 and “deplaned” in Saigon on the following day. In a document signed by the plaintiff on 21 September 1995, he listed his duties in Vietnam as these:

“Rifleman, Sentry, Plant Operator, Convoy Shotgun, Land Clearance, Fire Support Bases, Hygiene Duties, Clear Patrols.”

He was first posted to Nui Dat. There is also reference to his serving at Vung Tau. The plaintiff’s service was in 17th Construction Squadron and First Field Regiment, i.e. at some times he was a sapper and at other times an infantryman. On 30 January 1996 the plaintiff saw Dr James Nichols, a consultant psychiatrist. Part of his history is this:

“Raymond was exposed to multiple traumatic events in which he experienced, witnessed or was confronted with events that involved actual or threatened death, of serious injury or threat to the physical integrity of self or others viz:-

1. “Laying in a paddy field all night, with a bloke along side of me crying his eyes out, that worried me a lot” “That (memory) never goes away”

2. Raymond was responsible for land sweeping in a bulldozer with large chains attached to the front of the machine, that is in clearing mine fields.

3. One of his comrades was hit and injured by an 80 pound bomb, though not killed he is still disabled.

4. The uncertainty with the lifestyle was stressful.

“Stress every day there, are you going out next?”

Raymond did patrols in the jungle up to six weeks at a time.

“The battalion out in front of us, they copped it”

There were times then when Raymond’s response involved intense fear, helplessness and horror.”

On 11 May 2000 the plaintiff came under the care of Dr Leonard Lambeth, another psychiatrist. His history includes these events:

1. a colleague was blown up whilst driving a bulldozer,

2. another colleague was hit by a land mine, which almost blew his leg off,

3. being stuck in tunnels whilst looking for food and ammunition,

4. accidentally running over two children whilst driving a truck which he veered off the road to avoid a personnel carrier that had stopped suddenly; he was under fire at this time

10. The plaintiff has given histories of sustaining physical injuries whilst serving in Vietnam, but there is no contemporaneous complaint evidence, e.g. medical records. Dr Philip Furey, Occupational Physician, examined the plaintiff on 22 November 2001 and recorded this history in his report of 23 November 2001:

“Whilst in Vietnam he had a forklift accident where he drove the forklift on the back of a float truck and it came off the other side, falling to the side and forwards, pinning him. Levers had to be moved to remove him from the pinned position. He remembers lying there with his head fully flexed and his body jack-knifed being compressed by parts of the forklift mechanism. As he recalls it, he injured his neck at the time but it was only a burning sensation.” (My emphasis)

The plaintiff told me of this forklift roll-over event. He told me he was pinned “for probably 20 minutes” (T6.36). He said he jarred both his neck and his back. He said these symptoms were transient.

11. Part of the history recorded by Dr Nichols on 30 January 1996 is this:

“It is noted that he suffers pain in the shoulders and elbows which date in time from when he played grid iron with American forces in Nui Dat and Vung Tau. He also had difficult with his hearing and a skin condition.” (My emphasis)

The plaintiff told me about playing gridiron in Vietnam (T50). His comments about our allies’ playing ability were “colourful”.

12. On 14 January 1970 the plaintiff was “emplaned” in Saigon and “deplaned” in Sydney.

Further Army service in Australia

13. On his return to Australia, the plaintiff was again posted to the 23rd Construction Squadron. On 30 June 1970 he obtained the formal Trade Qualification of a Plant Operator Grade 1. On 25 May 1971 he obtained his Plant Operator Grade 2 qualification. On 1 January 1972 he was posted to the First Field Engineering Regiment.

14. On 14 May 1972 the plaintiff reported to a medical officer. The notes made are:

“Twisted right ankle and kicked on right leg 3 months ago – ankle has been weak and giving way. On examination: local tenderness and swelling over fibula approximately 3 – 4 mms above lateral malleolus. Right ankle no swelling bruising etc. ? laxity of lateral ligament. For (1) crepe bandage and rest ankle [for one week]. (2) x-ray.”

The medical officer (a Captain) in fact ordered x-rays of both ankles. The report is this:

“Both ankles: There is abnormal laxity of the lateral ligaments of the right ankle permitting excessive widening of the lateral parts of the joint.

There is a separate ossicle at the medial malleolus of the left ankle. It may be the result of some previous un-united fracture.”

The appearance on the left ankle seems to me to be similar to that recorded in the x-ray of 31 May 1967, following the injury of 25 May 1967, i.e. again referring to a left ankle injury prior to 25 May 1967.

15. On 28 June 1972 the plaintiff was playing football and was “driven into ground on right shoulder”. This might now be called a form of “spear tackle”. He presented to the Medical Officer on the following day. The Captain found on examination: “generalised muscle tenderness over the right deltoid region. Extension painful beyond 90°.” He diagnosed a muscular contusion. He ordered an x-ray, the application of icepacks and rest of the (dominant) right arm. On 30 June 1972 the x-ray was reported as showing no bony or soft tissue abnormality.

16. On 26 July 1972, the plaintiff’s initial 6 year enlistment ended and he sought and obtained an honourable discharge. The plaintiff completed a pre-discharge medical questionnaire on 17 July 1972. The only problem he identified was a skin disease, described thus: “Rash in Vietnam still breaks out in warm weather.” The only abnormality found by the two medical practitioners who examined him on that day was the scar on the right lower leg noted at the time of the plaintiff’s enlistment.

Civilian employment prior to joining coal industry

17. The plaintiff made use of the trade qualifications he had obtained in the Army. According to the plaintiff’s document of 21 September 1995 this was his subsequent employment:

From	To	Type of Work	Employer
1972	1974	Plant Operator	Campbell’s Earthmoving, Orange
1974	1977	Plant Operator	Thiess Bros, Canberra
1977	1979	Plant Operator	White Industries, Canberra

However, the plaintiff told me that his job in Orange was as a fitter/welder and his jobs in Canberra were as a fitter or plant operator. Quite frankly, the record made in 1995 is more likely to be accurate than the evidence the plaintiff gave 22 years later! The plant operator jobs in Canberra were in construction and road building. The plaintiff’s general practitioners (if any) were not identified and there is no medical evidence from this period.

Plaintiff joins the coal industry

18. The plaintiff joined the employ of the first defendant on 13 December 1978. He underwent a pre-employment medical examination for the Joint Coal Board before taking up that employment. Clearly, he was certified fit. To work for the first defendant, the plaintiff had moved to live in Singleton. He had married on 14 March 1970 (Army records) and a daughter was born in 1972 and a son in 1974. His job was as a fitter/welder. The first defendant at this time operated the Howick Open Cut Mine at Ravensworth, in the upper Hunter Valley. Workers from this pit would sometimes work in the Foybrook Open Cut Mine which was “just over the road” from the Howick pit and under the control of the first defendant, according to the plaintiff. The ‘road’ is the New England Highway.

19. The plaintiff took a considerable time telling me about the nature of his duties, stressing his long hours of work and the demands placed on his body because of the size of the plant and machinery on which he worked. He told me that his normal hours were 38 per week but that he would do “the same again in overtime”. An incident occurred on 18 May 1996. In the seven days preceding that day the plaintiff’s hours were:

DAY	1	2	3	4	5	6	7
HOURS	off	off	8.5	16.5	14.5	off	17

So, in that week he worked 56.5 hours. Another incident occurred on 27 October 1997. In the seven days preceding that day the plaintiff’s hours were:

DAY	1	2	3	4	5	6	7
HOURS	14.5	8.5	14.5	off	8.5	8.5	8.5

So, in that week he worked 63 hours. There may be some hyperbole in the plaintiff’s evidence, but I accept that he did work long hours each week, doing much overtime.

20. The plant and machinery in any open cut mine is massive. Haul trucks are often 300 tonnes. Bulldozers and loaders are huge. Some pieces of plant are so large that not only are ladders provided to enable workers to enter the driver’s cabin but also some have lifts to enable the worker to reach the cabin. The plaintiff estimated that the drag buckets which rip up the coal from the beds are large enough to hold six motor vehicles. The larger the piece of plant, the larger its component parts. Working on such plant is heavy work and can require a person, such as the plaintiff, to work in confined and awkward spaces. The plaintiff estimated that his tool box alone weighed 30 kgs not including tools that he needed from time to time such as crow bars and sledge hammers. When plant broke down within the pit, the plaintiff, to effect repairs, had to work in the field, in rough and uneven terrain.

21. The plaintiff gave evidence that about half of his work was done at night. The plaintiff was examined by Dr Millons, a general surgeon specialising in orthopaedics, on 3 June 2015 for the defendants. He took this history:

“Mr Paix was on permanent dog watch for a time, often working on his own in areas in and around the mine. He then went 15 years [sic, scil. either ”for” or “after”] onto the rotating roster, day, afternoon and dog watch.”

Working night shift (or ‘dog watch’) increases the worker’s rate of pay.

22. At least initially, the plaintiff was well regarded by his employer. He was a leading hand within 7 months of starting work with the first defendant.

Incidents working for the first defendant

23. On 1 July 1979 at 5.15 am the plaintiff injured his right ankle. He was then working at the Foybrook pit. He had been repairing the 480W dragline. As he stepped down from the machine, he placed his foot on a rock which rolled over, causing the plaintiff to twist his ankle. In his claim for compensation he said his right ankle was completely normal before this event, but did not answer the next question, whether he had any physical deficit or infirmity prior to this event. According to the employer’s report of injury form, a “disability” began on 2 July. The plaintiff told me in chief that he had “a couple of days off”. According to Dr Millons, who had a copy of the records of Coal Mines Insurance (‘CMI’), the plaintiff returned to work on 5 July 1979. The plaintiff thought he may have returned to work on light duties for a period of time (a usual practice). Both the contemporaneous documents and the plaintiff’s evidence tell me that he saw a general practitioner, Dr Pifelet, at this time, but there is no evidence tendered from that doctor. There was no mention made at this time to the right ankle injuries of 15 June 1968 and 25 May 1972.

24. The plaintiff gave this evidence as to an ongoing problem with his right ankle:

“Q. Then after you got back to your full duties, were you still having problems with your ankle, or not?

A. Yeah. Yes.

Q. What problems were you having?

A. Again, the ankle would – I had to be very careful that it wouldn’t roll again because – well, it did. I had trouble with it and that’s how I started to strap it up trying to keep the bloody ankle upright all the time.

Q. Do you recall now – and please say if you don’t – but do you recall now how long it was after that incident that you started strapping your ankle?

A. Forever, even today. I still do it. Now I’ve had the operation on the ankle, the ankle is still not right.”

One might think from that evidence that the plaintiff started strapping his right ankle in 1979. At T28.16, the plaintiff gave this evidence:

“Q. Were you doing anything else to look after it [right ankle] by the time 2000 came around?

A. Well, probably the only thing that I would … try to do, other than I always had an elastic bandage on it, and I did buy a guard to put on the ankle … I got it from the foot people and that helped to keep it upright and stop it from falling over.”

It would seem, then, that the “strapping” was an elastic guard which was either replaced by, or enhanced with, a guard. However, the evidence strongly suggests that the plaintiff only had podiatry provided to him after he left the coal industry and obtained a “Gold Card” from the Department of Veterans Affairs (‘DVA’).

25. When the plaintiff saw Dr AVB Isaacs, orthopaedic surgeon, at the request of his own solicitors on 17 June 2016, he gave the doctor this history:

“In the last 3-4 days of Mr Paix’s employment, he strapped his right ankle prior to each shift. Despite this, his ankle would still be painful and swollen at the end of each shift.”

As I shall later show, the plaintiff last worked in January 2001. When did the plaintiff start strapping his ankle – from 1979 or January 2001? The doctor who operated on the plaintiff’s right ankle is Dr James O’Sullivan. He does not have any history of the plaintiff having to strap his right ankle daily at any period of time. The plaintiff’s evidence in this regard is quite unreliable.

26. On 2 March 1981 the plaintiff commenced to see Dr Peter Lee, a general practitioner, at the Singleton Heights Medical Practice. I have the records of the plaintiffs general practitioners from this time onwards. On that day, Dr Lee recorded this:

“Complaint of osteoarthritis of Right Shoulder. For x-ray. Trial of Naprosyn i b.i.d. See [again in] 2 weeks.” (My emphasis)

At this time the plaintiff had made no complaint to anyone at the first defendant of any problem with his right shoulder, let alone having injured it at work. It is clear the plaintiff complained of osteoarthritis – the doctor did not diagnose it. The question “who had?” cannot be answered, but it seems probable that it was a doctor the plaintiff had seen in the past, perhaps before joining the coal industry. I do not know whether the x-ray was performed. There is no report of it before me. I do know, however, that the plaintiff did not return to see the doctor two weeks later. The complaint may have been of transient symptoms, speedily remedied by the naprosyn and the plaintiff elected not to undergo the x-ray.

27. The plaintiffs next attendance on Dr Lee was not until 10 July 1985, over 4 years later. The first reason for this attendance was this:

“Complaint of pain in right shoulder since injury at footie 3 weeks ago. ? sprung acromioclavicular joint. Rx Naprosyn.” (My emphasis)

The second reason for this attendance was to obtain a “cab licence”. In cross-examination, the plaintiff said he could not remember this event, but that it could have happened. At this time of his life the plaintiff was playing “tip football” which I understand to be also called touch football or tag football.

28. On 11 (or 18) June 1992, the plaintiff attended Dr Lee with four complaints. The first two complaints are irrelevant. The third complaint is this:

“Chest and back rash since Vietnam”

Dr Millons read the word “rash” as “pain” and so did Counsel (perhaps relying on Dr Millons) but I am confident that the word is “rash”. It is borne out by the subsequent diagnosis of “? [indecipherable] Allergic Rash” in the same entry. I bring this up only to identify that misreading. The fourth complaint is this:

“Increasing bilateral should pain” (My emphasis)

No treatment appears to have been provided for that complaint. When cross-examined about that entry, the plaintiff admitted that he had never made a formal complain to his employer in the coal industry that he had injured his left shoulder.

Application to DVA

29. On 21 September 1995, the plaintiff completed a “Claim by a Veteran … for Disability Pension and Medical Treatment.” At the end of the document the plaintiff made this declaration:

“I declare that the information I have given in this form is complete and correct. I am aware that there are penalties for deliberately making a false or misleading statement.”

After providing details of his service in the Army and his service in Vietnam (“war service”), the plaintiff was asked to provide details of any accidents, injuries or illnesses he suffered during service which related to his claim. He then provided a long description of how he perceived he had developed Post Traumatic Stress Disorder (‘PTSD’). He was then asked to list his disabilities. He itemised them as:

1. PTSD and drinking problems,

2. Hearing loss and ringing in the ears,

3. Pains in shoulders and elbows,

4. Stomach and bowel and heart burn

5. Skin problems

The plaintiff was also asked “how did service cause this disability” for each disability. For (3) pains in shoulders and elbows, the plaintiff wrote:

“Football injury in Vietnam, constant lifting, twisting and bending while carrying heavy loads, forklift accident”

30. DVA had to investigate these claims. For the PTSD claim the Department relied upon the assessment of Dr James Nichols which I have already quoted in part. Dr CJ Thursby, consultant physician, was qualified to report on the plaintiff’s gastrointestinal complaints. He went on to carry out gastroscopy. Radiological investigations were arranged of the plaintiff’s shoulders and elbows and the plaintiff was sent to see Dr David Chapman, orthopaedic surgeon. An audiogram was also arranged on 1 July 1996. The plaintiff was examined by a dermatologist, Dr Geoffrey Watt. Only the plaintiff’s orthopaedic complaints are relevant to the current proceedings.

31. X-rays were performed on 30 January 1996 by Dr Hugh Scotton. His report is this:

“BOTH SHOULDERS

There is a little pitting and sclerosis of the greater tuberosity and adjacent anatomical neck of the humerus on the right side. Minor sclerosis is present on the greater tuberosity on the left. There is also cyst formation in the region of the lesser tuberosity in the right shoulder.

Minor degenerative changes are present in both acromioclavicular joints. The glenohumeral joints are normal in width.

There is no radiographic soft tissue abnormality.

CONCLUSION: There are moderate rotator cuff degenerative changes present on the right side and minor changes on the left. Minor changes of osteoarthritis are present in the acromioclavicular joint. There is no evidence of glenohumeral arthritis or calcific tendonitis.

BOTH ELBOWS

There is no evidence of old or recent bone injury.

There are small bilateral olecranon spurs, larger on the right than the left. Bone structure and density otherwise are normal.

The elbow joint space on each side is normal in width. There is no evidence of loose body.

Surrounding soft tissues are normal.

CONCLUSION: Small bilateral olecranon spurs, larger on the right than the left. There is no evidence of arthritis or other joint abnormality.”

32. The plaintiff was seen by Dr Chapman on 22 February 1996. The substance of his report is this:

“He served in the Army in 1966 to 1972 in a field construction unit. During his service he sustained injuries to both shoulders playing football. Following his discharge from the Army he has had various jobs driving trucks and other plant. He is currently employed as a plant operator at an open cut mine.

He has continuing symptoms in both shoulders. They tend to lock, particularly if he works with his arms above shoulder level. He also experiences some vague discomfort. He has never required any treatment.

His general health is otherwise good.

On examination today I note deformity in the right shoulder consistent with a subluxation of the right acromio-clavicular joint. He has a full range of movement of his shoulder but mild crepitus can be felt.

There is no deformity on the left side but there is some crepitus to be felt here too.

X-rays of his shoulders confirm the presence of mild degenerative change.

This man has degenerative change affecting both shoulders. Mild disability has resulted. This is worse on the right than the left. It is not sufficient to seriously interfere with his day to day activities and he seems to be undertaking normal duties at the mine. No treatment is indicated.”

It is to be noted that the plaintiff gave no history of having suffered any injury to either of his shoulders or elbows whilst working for the first defendant.

33. The plaintiff was cross-examined about the representations he made to Dr Chapman. When the first paragraph of the history I have just quoted was put to him, the plaintiff’s answer was vague: “Yeah, I can’t recall. Yeah” (T64.07). Later, he conceded that he “possibly” told Dr Chapman that he had injured both his shoulders playing football (T65.12). A little later he admitted that he had “minor injuries” to his “leg and shoulders” (T65.37). At T76.48 this evidence was given:

“Q. Do you remember telling Dr Chapman that you had continuing symptoms in both your shoulders?

A. Well, it was from football. It wasn’t a great concern anyway but that – yeah, I could have told him that there were problems in the past, yeah.”

Mr Rowles’ next question was objected to, and this exchange occurred:

“HIS HONOUR:

Q. What he’s saying to you, Mr Paix, is that in 1996 when you saw this Dr Chapman for Vets’ Affairs you told him that you had problems with each of your shoulders ever since you played footy for the Army. Is that so?

A. Yeah, well, that past – being hurt but at that stage there was no major problems with my shoulder. I might have said past injury but –

Q. Yes, but the history suggests that what you told Dr Chapman is that ever since you injured your shoulders playing football you had problems, probably on and off, with your shoulders ever since?

A. Yeah, well, right. Yeah. Yeah, right-o. Yes.”

That final admission, made so positively, is a major one.

34. A delegate of the Repatriation Commission (Mr Lawrence Rigon) made a decision on the plaintiff’s claim on 6 September 1996. He succinctly stated the law he was applying thus:

“The law states that for a claim to be accepted the disability must be relation to operational war service.

When consideration operational [war] service I must accept the claim if there is a reasonable hypothesis connecting the disability with this service.”

The Delegate accepted the plaintiff’s claims for the following:

1. PTSD,

2. psychoactive substance abuse or dependence [alcoholism],

3. bilateral sensorineural hearing loss,

4. gastro-oesophageal reflux disease,

5. tinea versicolor [the diagnosis of the plaintiff’s skin disease],

6. hiatus hernia, and

7. irritable bowel syndrome

However, he refused the plaintiff’s claims for:

8. osteoarthritis of both shoulders, and

9. olecranon spurs both elbows

He granted the plaintiff a pension at 50% of the General Rate with effect from 26 June 1995 (3 months prior to the lodgement of the claim).

35. The plaintiff does not advance in these proceedings any claim based on olecranon spurs. However, he does rely on the condition of each of his shoulders. The Delegate gave these reasons for rejecting the plaintiff’s claims concerning his shoulders.

“Your contention

In your claim you have contended that osteoarthritis of both shoulders was caused by a football injury in Vietnam, constant lifting, twisting and bending while carrying heavy loads, and a fork life accident.

I find that:

Constant lifting, twisting and bending are not factors listed in the Statement of Principles for osteoarthritis. Therefore osteoarthritis of the shoulders cannot be related to service by these factors:

Trauma to a joint

Trauma to the shoulders can lead to the onset of osteoarthritis.

In this case there is a history of trauma in the area of the right shoulder as a result of a football injury on 28 June 1972. This injury occurred during a non-eligible period of service. There is no history in the service medical documents of any other trauma in the area of the shoulders. Therefore osteoarthritis of both shoulders cannot be related to operation service by this factor.

Prisoner of war

There was no service as a prisoner of war.

Other factors

The evidence before me indicates that the other factors that can cause osteoarthritis of both shoulders, contained in the Statement of Principles, do not apply in this case.

Osteoarthritis of both shoulders can only be aggravated by factors that are due to service if the symptoms or signs of osteoarthritis of both shoulders developed before the end of service covered by the Veterans’ Entitlements Act. In this case, as osteoarthritis of both shoulders developed after service covered by the Veterans’ Entitlements Act, aggravation of osteoarthritis of both shoulders cannot be considered. Only causation of osteoarthritis of both shoulders by service can be considered.

The circumstances of this case do not satisfy the Statement of Principles issued by the RMA in respect of osteoarthritis of both shoulders. As a result I find that all the evidence does not raise a reasonable hypothesis connecting osteoarthritis of both shoulders and operational service. I am therefore unable to accept it as war caused.”

The Delegate obviously did not accept the non-contemporaneous history given by the plaintiff to Dr Nichols of injuring his shoulders playing gridiron with American forces in Vietnam.

Further incidents working for the first defendant

36. On 21 January 1996 (the second number of the day is unclear), the plaintiff attended upon Dr Lee. The doctor’s notes appear to be:

“Well.

Going for claim – Repatriation

for PTSD plus drinking problems [and] hearing

Lots of ringing in ears

Pains in shoulders and elbows

Stomach and bowels and heartburn”

This appears not to be a list of current problems but a list of the claims the plaintiff had made to the DVA. Dr Lee’s only action was to make a requested referral to Dr Nichols, who examined him on 30 January 1996.

37. On Saturday 18 May 1996 the plaintiff commenced work at 7 am in the Howick mine. He reported an injury that occurred at 7.30 am to his neck. He was involved in replacing a pin in a dragline bucket. The “pin” was between 12 and 18 inches long (30 to 45 cms) and weighed between 40 and 50 kg (T19). The plaintiff bent over to pick up the pin and felt a sharp pain in his neck. He reported to the first aid attendant at 9.30 am. He was treated with “RICE”, rest and ice, and later metsal cream was rubbed into his neck. Both the contemporaneous document made by the employer and the plaintiff’s evidence (T50.35) state that he lost no time from work.

38. On 29 May 1996 (for exact date see exhibit WW) the plaintiff saw Dr Lee. The first matter recorded by the doctor concerned the plaintiff’s being examined by Dr Thursby for DVA (gastroscopy) and the result of the gastroscopy mentioned in [30] above. That led Dr Lee to prescribe an appropriate medication for the plaintiff’s internal problems. The second matter discussed concerned Workers Compensation and the plaintiff’s neck injury. The doctor noted recurrent stiffness, tenderness from C4 to C6 and decreased movements. He ordered an x-ray. The x-ray report is not before me, nor has it been seen by either of Dr Millons or Dr Isaacs, who both record radiological reports to which they had access.

39. The plaintiff returned to see Dr Lee on 8 July 1996. The x-rays had been made and the doctor’s note is that they showed degenerative changes between C4 and C6. He discussed that with the plaintiff. The doctor then recorded a history of what had occurred on 18 May but the history is confused: he has the plaintiff lifting the bucket of the drag line (a physical impossibility – see [20] above) rather than a pin for the dragline bucket. The doctor then recorded that the plaintiff still had pain in his neck. The doctor’s certificate of 8 July 1996 certifies that plaintiff as fit for suitable duties for 9 July to 31 July 1996 because of his neck injury. The plaintiff was to avoid lifting weights greater than 15 kgs. The plaintiff told me that he drove a water cart for the rest of that month (T20.29). The plaintiff attended Dr Lee again on 9 August 1996. He made no complaint then about neck pain.

40. On 29 August 1996 Dr Lee completed a large number of questionnaires that had been sent to him by the DVA. One of those questionnaires concerned “osteoarthritis of both shoulders and olecranon spurs both elbows”. The first question asked and answer given are:

“Does Mr Paix experience any symptoms as a result of any of the above disabilities?

Intermittent arthralgia of both shoulders and elbows – he has to keep rolling over in bed to change positions. He cannot hold both his shoulders [high] for long without pain in both shoulders.”

“Arthralgia” merely means pain in the joint. The first question and its answer are:

“Do any other disabilities affect the function of his upper limb?

Cannot use both upper limbs effectively.

Cannot hold both arms above his head for long without invoking pain in both shoulders.”

When asked to describe movements of the shoulders and elbows Dr Lee diagnosed a minor loss of movement of each shoulder and each elbow.

41. On Friday 17 January 1997 the plaintiff injured his low back. He had commenced work at 7 am. The injury occurred at 8.30 am. The plaintiff was lifting a safety rope onto the rear of a trick when he felt pain in his lower back. The injury was reported on the following day at 7 am, when the first aid attendant massaged the plaintiff’s back using metsal cream. This was originally considered a “no time loss” injury. The “rope” was in fact made of steel and was 4 inches thick. The “truck” was a 240 tonne dump truck. The plaintiff felt the pain at his belt line (usually L4-5) centrally. The plaintiff did not consult Dr Lee until 3 February 1997. To explain his delay in seeking treatment, the plaintiff wrote a letter on 18 March 1997 to this effect:

“The delay [in reporting] my back injury till the next day was to me at the time, a minor muscle strain, nothing more. After awakening the next morning I found my lower back was very painful.

I returned to work and reported it to the OC [scil. OCE, Open Cut Examiner] and filled out the paper work that had to be done. I did apply ice packs to the area, it didn’t seem to help. [I] also started using metsal cream and it seemed to be helping.

The soreness never seemed to leave me completely so some two weeks later I thought I had better follow it up, so I then made an appointment with Dr Peter Lee. He sent me for a back x-ray.

My back has not been a worry to me before this. My past 19 years record will show that.”

42. On 3 February 1997, Dr Lee recorded a consistent history of the plaintiff’s injury. He noted continuous low back pain since 17 January. There was no complaint of sciatica. If my reading of the doctor’s notes be correct, he recorded this:

“Hard to stand

Has to lie flat on floor at home

Difficulty in climbing up trucks”

The doctor then noted tenderness over L4, L5 and S1. Straight leg raise was 90° bilaterally, i.e. normal. He diagnosed a low back strain. X-ray was performed at Singleton Hospital on 4 February 1997. Dr Lav’s report, exhibit EE, is this:

“LUMBOSACRAL SPINE

There is mild degree degenerative change in the lumbar spine with spur formation and minimal narrowing of the disc space at L3/4. The pedicles are intact. No structural lumbosacral instability. Facet and SI joints show no obvious abnormality.

BOTH HIPS

Alignment of the hip joints is normal. No demonstrable bone or joint abnormality.”

43. The plaintiff returned to see Dr Lee on 6 February 1997 with the x-rays. He issued a certificate for restricted duties commencing on 6 February 1997 until 13 February 1997 and expressed a tentative view that the plaintiff might be fully recovered by 2 March 1997. The doctor wanted to see the plaintiff again in three weeks’ time, but that did not occur. The plaintiff’s next visit was on 17 March, for removal of a skin lesion. The plaintiff then complained of sleeping difficulties for which he was prescribed Normison. The inference to be drawn is that the plaintiff recovered from this low back strain by the end of February 1997.

44. On Good Friday, 28 March 1997, the plaintiff commenced work at 7 am. At 5.45 pm he injured his right shoulder. He was working in the workshop at Howick pit with a fitter from a contractor, Gough and Gilmour. They were working on an axle from a 992 loader. They were lifting it to place it in the planetary of the loader. The axle was heavy. The plaintiff referred to the task as “a three man job”. He was carrying one end of the axle on his right shoulder, which was overloaded. It was suspected by the first aid attendant that the plaintiff had dislocated his shoulder. As this event occurred on Good Friday, the plaintiff was unable to see his doctor until the following Tuesday. On that day, 1 April 1997, the plaintiff saw Dr Lee who obtained a consistent history. On examination he noted tenderness on the outer aspect of the right shoulder, crepitus, decreased movements and tenderness over a group of muscles whose name I cannot decipher. He reached the diagnosis of an acute ligamentous tear. He sent the plaintiff for x-rays.

43. Dr Joseph Ashcroft, radiologist at Singleton Hospital, issued this report on 3 April 1997:

“RIGHT SHOULDER

The gleno-humeral joint appears within normal position as does the acromio-clavicular joint and there is no dislocation seen.

There is a defect in the region of the bicipital groove and a further defect in the inferior aspect of the humeral head medially. Overall bony density appears normal and there is no evidence of recent fracture.

COMMENT

Appearances suggest old injury to the humeral head and rotator cuff but no definite recent injury is seen.”

When might this old injury have been? On the material before me, this could only be the event of 28 June 1072, when the plaintiff was in the Army.

46. Before that report was formally made, the plaintiff returned with the x-rays to Dr Lee on 2 April 1997. He recorded: “No fractures seen. Mild degenerative changes.” The doctor prescribed four modalities or treatment but I can only decipher one of them, a prescription for Feldene. The plaintiff did not return to see Dr Lee until 23 June 1997. The plaintiff’s claim form of 9 May 1997 tells me that he lost no time off work as a result of this event. He gave evidence (T61.41) that he performed restricted duties for two weeks.

Second application to DVA

47. On 10 June 1997 the plaintiff made a second claim to DVA. He sought to add two further disabilities to those already accepted. The first was “high blood pressure” which he claimed was a consequence of his PTSD and alcoholism and the second was “problems with right ankle” which he claimed he injured during training. The second claim was supported by this statement of Dr Lee:

“Degenerative Joint Disease. Ligamentous weakness in right ankle. Now wearing ankle support at all times so he can carry on working.”

Both claims were rejected on 30 July 1997 by the Delegate of the Repatriation Commission, Mr Nigel Bunn. The Delegate said this about the plaintiff’s right ankle condition:

“In your claim you have contended that degenerative joint disease of the right ankle is due to injuries during your service. I have carefully examined your medical service records, and I have found no record of any injury during your service in Vietnam. Your medical documents do record injuries to your ankle, but these occurred in 1972, after you had returned from Vietnam, and this service cannot be considered under the VEA. Therefore, although your degenerative joint disease of your ankle may have been caused by injuries during training, I cannot accept this for the purposes of awarding compensation under the VEA.”

48. Whilst his second claim was before DVA, the plaintiff saw Dr Lee on 23 June 1997. The first matter the doctor dealt with was to endorse his comments on the plaintiffs application to DVA dated 10 June 1997. The second matter was to note increasing right shoulder pain, for which Naprosyn was prescribed.

Further incident working for the first defendant

49. On Monday 27 October 1997, the plaintiff commenced work at 7 am. At 10 am, he was using an impact gun tightening loose bolts on a bulldozer blade when he experienced lower back pain. He reported to the first aid attendant and was given RICE treatment. This was another no time loss incident, as both the contemporaneous documents and the plaintiff’s evidence (T59.24) establish.

50. The plaintiff saw Dr Lee that day. He recorded an incorrect history, “lifting a tool box”, which has caused some mischief. It was pleaded as a relevant injury and Mr O’Rourke sought to lead it, but it was established, through the plaintiff, that it was an incorrect history. Dr Lee recorded that the plaintiff could not straighten up and was unable to lie down flat. He notes tenderness at L4-5 and, on this occasion, a mild reduction in straight leg raising: Right 70°, Left 80°. He prescribed Naprosyn and restricted duties. The plaintiff returned to see Dr Lee on 3 November 1997. He said he still had low back pain and that there had been little response to Feldene. The doctor proscribed acupuncture which he himself administered. The plaintiff gave this evidence:

“Q. You continued to see Dr Lee on a number of occasions from 27 October 1997 up until 15 December 1997. You saw him about 11 times. Do you remember what treatment you were getting over that period of time?

A. Yes, being a Chinese doctor he loved his acupuncture, mate, everything was going to get better.

Q. And did it?

A. No.”

Nevertheless, the plaintiff continued to do his normal work.

51. Dr Lee’s records record attendances of one type or another between 12 August 2008 and 14 December 2009, but none of them are relevant to the present matter.

52. On 1 November 1999, the plaintiff underwent a Health Assessment by the Joint Coal Board. The only musculoskeletal problems noted were:

“lower back pain niggles frequently, x-ray on back - arthritis. Does exercises. 1997 right shoulder tore ligaments. No lost time. Locks up.”

The plaintiff was cleared to continue his normal duties.

Change of employer and other developments

53. On 29 February 2000 the plaintiff’s contract of service was novated to the second defendant, Coal and Allied Operations Pty Ltd. That employer took over the Howick and Foybrook pits and combined them under the name Hunter Valley Open Cut (T26 – T27). However, “nothing important changed” (T27.31).

Third application to DVA

54. On 9 February 2000, the plaintiff made a third application to DVA. On this occasion he sought to add the disability “Tinnitus”, ringing in the ears. He had included this complaint in his initial application but it was not dealt with at that time. On 4 October 2000, the Delegate, again Mr Nigel Bunn, accepted this claim. He decided to increase the plaintiff’s pension to 80% of the General Rate.

55. On 6 December 2000, the plaintiff made an application to review that decision. He wished to receive the 100% rate. He indicated in his application that he would be attending the St John of God Hospital at Richmond in the new year for treatment for 6 weeks. DVA received that application on 12 December 2000. On 4 January 2001, Ms Ruth Ratcliffe, Delegate of the Repatriation Commission decided to increase the plaintiff’s pension to 90% of the General Rate. There was an appeal from that decision, but I shall deal with that later, after considering intervening events.

Further events

56. On 11 May 2000, the plaintiff came under the care of Dr Leonard Lambeth, a psychiatrist. According to Dr Lambeth, he saw the plaintiff “regularly” from that time. It is unclear as to who referred the plaintiff to him, but it might have been Dr Brockman of Cessnock (see application to DVA dated 9 February 2000). There is a comprehensive report from Dr Lambeth dated 4 September 2001, but it is impossible to discern when certain representations were made by the plaintiff to the Doctor. However, the tenses used by the Doctor suggest that most of the relevant history was taken before the plaintiff left the coal industry. After reciting the plaintiff’s history, the Doctor said this:

“During his waking hours he has many flashback and intrusive and distressing thoughts. Reminders cause him to stress. He displays avoidance behaviour with respect to thinking and talking about his service, Anzac Day and reunions. He has lost interest in work and social activity. He feels a loner and he has a very constricted affect. He sees his future as poor. He told me that the company has asked him to leave work because he does not fit in. He is a fitter.

He suffers from initial and middle insomnia, irritability, poor concentration, hypervigilance, and an exaggerated startle response.

Basically, he cannot sleep, he is fatigued during the day, he has problems at work, both in concentrating and with fatigue, he has very poor concentration, and episodes of dissociation. As he is often working with high voltage electricity, it can be seen that his disabilities, and the symptoms, can be quite dangerous. It is therefore not any wonder that he has been told that he should consider leaving work.

I note that he has not had prior psychiatric treatment but did see John Nichols once five years ago. His symptoms have been present ever since his service in Vietnam.”

The Doctor diagnosed PTSD and Substance Abuse (Alcohol).

57. The plaintiff changed general practitioner to Dr Aubrey Yeh of Beresfield. The plaintiff first saw him on 7 June 2000.

58. On 2 November 2000 the plaintiff saw Dr Lambeth. On 8 November 2000, Dr Lambeth wrote to Dr Yeh. He said:

“Raymond has arranged to be admitted as an inpatient to the St John of God Hospital at North Richmond in either January or February 2001. This is for a program in order to help him stop drinking and treat his PTSD.

Unfortunately, in the meantime, his symptoms continue.”

Dr Lambeth on this occasion had changed the plaintiff’s medication for his psychiatric condition.

59. The plaintiff was an inpatient at that Hospital from 18 January 2001 to 23 February 2001. The Discharge Summary signed by Dr John Westerink, consultant psychiatrist and medical director is this:

“He was admitted to the Xavier Unit for detox and treatment of his massive alcohol habit. He was referred by Dr Lambeth, his psychiatrist in Newcastle. He presented with nightmares, poor sleep, flashbacks, anger, intolerance of his superiors, numbing, impaired intimacy, avoidance. He had a stormy slow time recovering from his intoxicated state and had a mild delirium lasting two or three days. His alcohol habit was in the region of 20-30 drinks a day.

When his mental state cleared he became quite keen to do the Post Traumatic Stress Disorder programme and at the time of his discharge he had improved considerably. His Post Traumatic Stress Disorder was so severe and his alcohol a habit to the extent that he could not go to work before having several drinks. It was decided that he was not capable of going back to work. he is booked in for a closed programme in April.”

Why the plaintiff left the coal industry

60. The plaintiff’s employment with the second defendant ceased on 9 March 2001. In cross-examination this evidence was given:

“Q.  Indeed you continued to do that work up until it looks like 9 March 2001.

A.  Yes, that's right.

Q.  You gave up work on 9 March 2001 at which stage you had developed that Post Traumatic Stress Disorder.

A.  Yes, that's right.

Q.  That was what effectively put you off work at that point in time.

A.  That helped.  I had to make it‑‑

HIS HONOUR

Q.  Did you resign, Mr Paix?

A.  No, I walked out.

Q.  You walked out?

A.  I couldn't take anymore.  Mix them both together, between the pain and my problems, plus the PTSD, I thought, no, I can't go on anymore.  So a week without any pay at all ‑ nothing.  I had nothing.”

I regret to say that this evidence is quite misleading.

61. The truth is that the plaintiff went on sick leave on Friday 12 January 2001 until his services were terminated for “invalidity” on 9 March 2001. On page 351 of the records of DVA is a calendar prepared by the second defendant. It shows that the plaintiff was on sick leave from Friday 12 January until Saturday 24 March 2001. There is “supporting documentation” on pages 309 to 349 (the pagination is backwards). The “Employee Termination Advice” can be found at page 307, clearly showing “invalidity” as the reason for termination. That is understandable in that Dr Westerink recorded in the discharge summary that the plaintiff was not capable of returning to work. There is also a letter from Dr Westerink to the Hunter Valley Mine dated 19 February 2001 stating that the plaintiff “is no longer able to work because of his PTSD, from 11/1/2001”

62. There were other considerations as well. DVA sent the plaintiff to see Dr Frank Lumley, consultant psychiatrist, on 17 October 2001. The doctor made a report on the following day. That contains this matter:

“The reason that he stopped work seven months ago was that he was unable to cope with the responsibilities of work and found it increasingly difficult to be told what to do. He told me that he has always had problems taking orders from people, but the problem has become increasingly difficult for him to manage. In addition he has become increasingly fearful of doing something wrong and getting into trouble. In addition he has had increasing problems with interpersonal relationships at work, frequently getting into arguments with people and he describes himself as being irritable with most people and now he tends to avoid people remaining at his own home in Singleton for most of the time.

…

He told me that he has wanted to leave work for the past ten years. He has always found it difficult to be at work mainly because of the limited education that he received and the fact that he could never properly read or write and hence experienced difficulty following any written instructions. He has always managed to bluff his way through. This was at a considerable cost, and that cost was the tension and anxiety that he experienced. In order to deal with this he continued to drink heavily consuming up to twenty schooners of beer each night on his return home and then he resorted to drinking prior to going to work. However the mining industry has become increasingly cautious about employees who drink and he became afraid of being found out. About a year ago he was responsible for several hundred thousand dollars damages to a large mining truck simply because he had not replaced the oil filter properly according to instructions, and the truck blew up. From that point on he was afraid, that because of his mistakes, he might cause harm to other employees and hence the increasing need to drink to deaden his anxiety. Throughout the years of his employment he felt that he had to continue to work simply because he had to support a wife and two children.”

63. To suggest, as the plaintiff did, that he left work because he could no longer tolerate his musculoskeletal problems and that he used alcohol to cope with those problems is completely inconsistent with the contemporaneous evidence. Unfortunately, the plaintiff cannot be accepted as a reliable witness.

Further treatment

64. The plaintiff was again admitted to the St John of God Hospital at North Richmond on 19 April 2001 and was discharged on 17 June 2001. Exhibit M is a handwritten Discharge Summary. The final diagnoses provided are:

1. PTSD

2. Alcoholism

3. History of peptic ulcers

4. Osteoarthritis of shoulders

That Discharge Summary contains this matter:

“Patient complained of much pain in his shoulders. This responded to a certain extent to Paracetamol. He requested Celebrex, but I was very loathe to prescribe this in view of his history of peptic ulcers and the product information for Celebrex.”

The plaintiff’s work had stopped on or before 11 January 2001. If he had shoulder pains during that admission, such pain could hardly be a reaction to the work he had been doing on or before 11 January 2001. It bespeaks an underlying condition.

65. After this time there was correspondence between Dr Westerink and Dr Nelly Zwartzka, Senior Medical Advisor to DVA, expressing his view that the plaintiff was totally and indefinitely unfit for any form of work because of his PTSD. Dr Nichols and Dr Lambert both agreed with that view. Dr Frank Lumley, qualified by DVA, said the same in his report of 18 October 2001. DVA also qualified Dr Philip Furey, occupational physician, who examined the plaintiff on 22 November 2001 and reported on the following day. Dr Furey said this:

“DIAGNOSIS

ALCOHOLISM WITH ASSOCIATED CHRONIC PTSD AND CHRONIC GASTROESOPHAGEAL REFLUX DISEASE

In answer to your specific questions:-

1. Express an opinion on the veteran’s ability to work on the basis of his accepted disabilities alone.

It is my opinion that Mr Raymond Paix is unfit to continue working in his previous and present occupation.

My reason for this is that his alcoholism, for which attempts have been made to treat, is a predominant factor affecting his disability.

The alcoholism, I feel, is related to the post-traumatic stress disorder which is a direct result of his wartime traumas.

He also has problems with gastroesophageal reflux disease and hiatus hernia which are accepted conditions but there are not the main factors preventing him from maintaining employment.

The two preventative factors are intertwined and inter-related and they are the post-traumatic stress disorder and the substance abuse/alcohol problem.

For as long as he maintains his abuse of alcohol he is permanently impaired from any form of work activities. In reality he was impaired for years before he finally ceased his employment but was able to cope by subterfuge and abusing the system. Now this is impossible for him to do and it is therefore impossible for him to find employment as a result.

2. If there is contribution from his non-accepted condition/conditions, please provide their degree of contribution to his work incapacity.

I don’t believe that any of his non-accepted conditions are affecting this impairment and I believe the total impairment is related to accepted disabilities.”

Further DVA claims

66. On 19 February 2001, the plaintiff made an application to DVA for a temporary incapacity allowance for the period 18 January 2001 and 23 February 2001, his first period of hospitalisation. That was granted on 2 March 2001.

67. On 13 March 2001, the plaintiff made an Application for Review of the decision of Ms Ratcliffe made on 4 January 2001. That went before the Veterans Review Board on 3 August 2001, where it was adjourned “pending further investigation”. On 1 March 2002, the Veterans Review Board decided to set aside the decision of 4 January 2001 and to substitute its decision that the plaintiff’s pension be assessed at 90% of the General Rate from 11 November 1999 until 9 March 2001 and at the Special Rate from 10 March 2001. I understand the Special Rate to be “TPI”, Totally and Permanently Incapacitated – see DVA records, page 376. That decision also overruled a decision made by a Delegate of the Repatriation Commission, Mr Andrew Dickinson, on 13 June 2001 that the plaintiff was not entitled to such a pension, which was set aside on 18 December 2001 and was to be reassessed.

68. On 9 November 2012, DVA accepted a claim made by the plaintiff for ischaemic heart disease with effect from 24 July 2012.

Further relevant complaints and treatment

69. After leaving the coal industry, the plaintiff attended his general practitioners, initially Dr Yeh and later Dr Cecil Ford, frequently. Only occasionally did he make any relevant complaint. I record here only relevant complaints. However, one cannot overlook the fact that on many, many occasions, the plaintiff did not make a relevant complaint: cf Evidence Act 1995, section 69(4).

70. On 23 February 2002, the plaintiff complained to Dr Yeh of a possible swelling of his mid neck on the left. He also complained of tightness in that region. The doctor’s note seems to indicate that he could find no local tenderness. No treatment was provided.

71. On 4 November 2002, the plaintiff complained to Dr Yeh of chronic pain in his shoulders. The doctor ordered an ultrasound. The plaintiff also mentioned that his brother had prostate cancer. The doctor stopped many medications, but prescribed Celebrex “for arthritis pain”. The plaintiff returned to see the doctor on 10 December 2002 and again complained of shoulder pains, the left being more sore than the right. The plaintiff also had hayfever. Celebrex was stopped but Vioxx was prescribed for joint pain. Plain x-rays of both shoulders were made on 13 December and reported on 16 December 2002 by Dr Williams of Singleton Hospital. The report is this:

“BOTH SHOULDERS

Some cystic changes are seen in the head of the humerus on each side. No other bony abnormality is seen. Mild joint space narrowing is seen in the acromioclavicular joint on both sides. Each glenohumeral joint appears normal. There is no evidence of narrowing of the subacromial space. There is some calcification seen in the rotator cuff on the right side.”

According to Dr Hopcroft’s report of 15 September 2015, an ultrasound of the left shoulder performed on 16 December 2002 showed:

“Large full thickness tear through the supraspinatus tendon with associated acromial bony spurring and soft tissue impingement and bony impingement on abduction.”

A “tear” is not necessarily traumatic – such can occur as part of a degenerative process.

72. The plaintiff presented to Dr Yeh again on 14 January 2003. The doctor, no doubt assisted by earlier investigations, diagnosed tears of tendons in each shoulder. He referred his patient to Dr Stephen Kemp, a hand and upper limb surgeon. The plaintiff first saw Dr Kemp on 28 February 2003. Dr Kemp reported that the plaintiff was 33 years old when, in fact, he was 53 years old. Dr Kemp’s history is this:

“Fifteen years ago he developed intermittent shoulder pain worse over the antero lateral aspects of both shoulders. Anti-inflammatory medication has resulted in partial benefit. At the present time he complains of ongoing pain reaching and lifting. He has numbness and tingling in the left arm which radiates distally as far as the hand for the last two months and is worse towards the end of the day and does not cause much trouble at night. Nevertheless, Ray can’t lie on that shoulder and is waking frequently due to shoulder pain from both sides.” (My emphasis)

The recent onset of some symptoms suggests an on-going, progressive disease process. Dr Kemp went on to diagnose “well compensated rotator cuff tears on both sides.” He also raised the possibility of a carpal tunnel syndrome (CTS) but that diagnosis quickly fades from sight. As the plaintiff’s complaints were worse on the left side, he proposed surgery on that side.

73. “Fifteen years ago” takes one back to about 1987, 1988, but nothing happened in those years. There were complaints about the right shoulder on 28 June 1972, 2 March 1981, 10 July 1985 and about both shoulders in June 1992. “Fifteen years ago” is clearly some estimate not based on recollection.

74. Nerve conduction studies were carried out at Dr Kemp’s request on 28 March 2003. The very abnormality detected was “mild median nerve entrapment of the right wrist”. On 10 June 2003 at Hunter Valley Private Hospital, Dr Kemp performed a left arthroscopic acromioplasty and rotator cuff repair. He transferred the infraspinatus forwards, with the defect being a little larger than expected. The plaintiff was in hospital for 5 days. After surgery there was a complication: an infection. On 3 July 2003 Dr Kemp noted that the plaintiff had erythema around his repair wound “in the last couple of days”. Antibiotics were commenced. Dr Yeh saw the plaintiff for his infection on 9 July 2003. On 23 September 2003 Dr Kemp noted that, 3 months post-surgery, the plaintiff was “doing really well”. He was still undergoing physiotherapy. The doctor said this:

“He is going to work on the strengthening exercises over the next three to six months and will let me know if he is having trouble with the other side during that time.”

The plaintiff does not appear to have returned to see Dr Kemp.

2004

75. On 28 April 2004, the plaintiff complained to Dr Yeh about a sore neck, “aggravated by sneezing today”. He also had a sore throat. No treatment was afforded to the neck.

76. On 3 September 2004, the plaintiff complained to Dr Yeh about his shoulders. The notes record this:

“right shoulder playing up now

Even the left one (post op) not that good.”

The doctor prescribed painkillers.

2006

77. The next relevant complaint was on 7 July 2006 to Dr Peter Wong at Dr Yeh’s practice. The notes are:

“Right shoulder still troubling patient

Left shoulder doing well since operation”

Again, painkillers were prescribed. Thereafter painkillers were prescribed for “arthritis pain”.

2008

78. The next relevant complaint was on 29 January 2008 when the “reason for visit” contains this list:

“Insomnia

Tinea

Rhinitis – allergic

Diarrhoea

Osteoarthritis”

The plaintiff was referred to Dr James Patterson, but that was for investigation of the plaintiff’s concerns about his prostate gland, given a family history of prostate cancer.

79. On or about 13 May 2008, the plaintiff suffered an acute myocardial infarction. Dr Yeh’s typewritten record of 21 May 2008 says it occurred in Darwin, but handwritten notes made on 12 August 2008 say it occurred in Cairns. However, the manuscript notes continue thus: “DVA wanted to send him down to Adelaide, but he insisted that he be transferred to Singleton.” One would imagine a money cautious DVA sending a patient from Darwin to Adelaide for treatment but Cairns to Adelaide seems unlikely – more likely would be Cairns to Brisbane or even Sydney. These handwritten notes were made by Dr Cecil Ford, who first saw the plaintiff on 12 August 2008. In any event, on his transfer back to the Hunter Valley, the plaintiff came under the care of Dr Sukumaran Thambar, a cardiologist at New Lambton Heights. According to Dr Yeh’s notes, Dr Thambar inserted two stents on 20 May 2008, at Lake Macquarie Private Hospital. On 27 June 2008, Dr Thambar noted that the plaintiff was “stable after his infarct” and that he was “travelling quite well”.

80. On 26 August 2008, Dr Cecil Ford of the Burdekin Park Medical Practice at 90 George Street, Singleton requested Dr Yeh to send to Dr Ford a copy of Dr Yeh’s records relating to the plaintiff. Dr Yeh did so. The reason to transfer to Dr Ford appears to have been a practical one: the plaintiff was living in Singleton, Dr Ford was practising in Singleton and Dr Yeh was at Beresfield, about 60 kilometres away. However, the plaintiff did still see Dr Yeh from time to time, the last record I have from Dr Yeh is dated 28 August 2015. However, there was no relevant complaint to Dr Yeh after 29 January 2008.

2009

81. On 17 February 2009, the plaintiff first consulted Dr Ford in preparation for a trip to Indonesia, including Bali and Borneo, where he wished to see orangutans. This required certain immunisations. The plaintiff told Dr Ford that in 2008 he had visited Vietnam. The plaintiff returned to Australia after his Indonesian trip by 6 April 2009.

82. On 20 April 2009, the plaintiff complained to Dr Ford about left hip pain and pain in his back, which were worse at night. The doctor ordered x-rays. Dr Richard Lees of Hunter New England Imaging reported x-rays made on 23 April 2009. The report of the x-ray of the lumbosacral spine is this:

“There is a scoliosis convex to the right.

There is disc degeneration from L2 to L3/4 with L3/4 being the worst. The discs have lost height and osteophytes have formed.

There is no bone injury.

The zygapophyseal and sacroiliac joints appear normal.

Conclusion:

1. Scoliosis

2. Disc degeneration”

Dr Ford saw the plaintiff with the x-rays on 30 April 2009. His view was that they showed lumbar degenerative changes. He discussed this with the plaintiff. Panadol Osteo and Celebrex were prescribed.

83. On 9 July 2009, the plaintiff left Australia for a 3 week visit to Vietnam, hardly surprising for a Vietnam Veteran. He required malarial prophylaxis.

2010

84. On 17 February 2010 the plaintiff told Dr Ford that a gate fell on top of his right forefoot which was slightly bruised. The plaintiff complained of back pain. Painkillers were prescribed.

85. On 4 June 2010 the plaintiff saw his cardiologist, Dr Thambar complaining of recurrent chest discomfort. The doctor wanted further investigations. On 2 July 2010 Dr Thambar expressed the view that the plaintiff had symptoms consistent with ischaemia, albeit a recent thallium scan did not show that. Further surgery was then practiced. The plaintiff was admitted to Lake Macquarie Private Hospital on 6 July and angioplasty was performed and a stent inserted into the left anterior descending artery (LAD). The plaintiff was discharged from hospital on the following day. Dr Ford followed the plaintiff up on 13 July 2010.

86. On 25 November 2010 the plaintiff complained to Dr Ford about his right shoulder. His notes are:

“Right handed. Right shoulder joint pain for 15 years… related to part and parcel of his work as a fitter. Had left shoulder repaired 5 years ago; had right arthroscoped … ? result.

Pain now worse, there all the time. Cannot lie on that side. 3 panadol osteo not helpful, referred down to elbow.

On examination: abduction 30°; external rotation 80% impairment; internal rotation to L2. Tenderness biceps enthesis, upper trapezius tenderness.

Management:

Discussion and Explanation: … rotator cuff/frozen shoulder syndrome.

… will try to find out previous arthroscopic [surgeon].”

Obviously, the plaintiff had forgotten that his left shoulder had previously been treated by Dr Kemp. Again there is the “fifteen years” I commented upon at [73] above, reinforcing the conclusion I reached at that time.

87. On 30 November 2010, Dr Ford ordered an x-ray of the right shoulder. On the following day, 1 December 2010, two events occurred: one was the making of an ultrasound of the right shoulder, the other was an accident involving the same joint. It appears to me that the accident happened first. “Delayed notes” appended to those of 30 November state this:

“Urgent consultation: arrived with no appointment … acute right shoulder pain caused by use of electric drill which jarred and twisted shoulder … broke out swearing from pain … accompanied by wife … overly concerned ‘could be another heart attack’. No chest pain … holding/supporting right hand; found lying in room 3 perspiring profusely.

Cor: normal … lungs clear

ECGQ-waves in I and II and VI (old)

Management: re-assured not heart, collar and cuff which provided immediate relief; for panadeine forte”

88. The ultrasound was performed at Muswellbrook on 1 December and is reported by Dr John Rouse thus:

“Findings: There is complete disruption of supraspinatus with associated fluid and significant subacromial/subdeltoid bursa. There is also complete disruption of infraspinatus with large intramuscular tear involving infraspinatus with a haematoma filling the defect measuring 7.6 x 1.3 x 1.9cm. No other focal finding.”

Dr Ford’s other note for 1 December 2010 is this:

“Urgent appointment … had diagnostic ultrasound at Muswellbrook today … came in because of pain not responding to panadeine forte … also bruising over triceps has emerged.

Management: for Panadol osteo 2 tds, MS Contin 30 mg and endone for breakthrough pain … written instructions given. For coloxyl/senna which wife says has at home. Review of x-ray right shoulder joint: rotator cuff degeneration.”

89. The plaintiff returned to see Dr Ford on the following day, 2 December. The doctor’s notes again tell the story:

“Good response to narcotics as prescribed yesterday. Review of ultrasound of right rotator cuff is complete disruption of supraspinatus with significant fluid in sub-acromial bursa; large tear of infraspinatus with haematoma.

Has made appointment with [Dr Daniel] Posel [orthopaedic surgeon] on 17/12/10.

Management: Discussion and explanation of pathology … that muscle tear should heal … for consideration of ultrasound; then steroid infiltration top [sic, ? ‘stop’] bursitis whilst awaiting orthopaedic opinion re ? acromioplasty.”

Dr Ford injected the plaintiff’s right shoulder on the following day with celestone chronodose under ultrasound. Further treatment of the recent injury was provided by Dr Ford on 6 December, 8 December and 13 December.

90. On 17 December 2010, the plaintiff saw Dr Posel. Dr Posel obtained this history:

“Many thanks for referring Ray with his acute right shoulder long head of biceps tendon rupture on the background of a chronic rotator cuff tear for which I have recommended an expectant approach.

Ray is 61 years of age and right handed. He has returned from Vietnam. He worked as an open cut coal miner until retirement ten years ago. Ray has been diagnosed as having PTSD. He also has hearing problems. Ray is on Astrix, Imdur, Lipitor, Minax, Plavix and Valpro. He has recently been commenced on a course of Endone for his right shoulder and he has MS Contin in view of back pain. Ray enjoys his gardening and caravanning as well as building radio controlled model aeroplanes.

Three weeks ago Ray was using an electric drill which got stuck. His arm was spun around. He reports a sensation of tearing in the right shoulder and upper arm and developed significant bruising over the biceps. Initially he had difficult in abducting the shoulder more than 90°. Ray does report an injury to his right shoulder almost two decades ago. He was advised he had “torn tendons”. No surgery was performed and Ray explained he regained good movement in his shoulder but not a full recovery with weakness with overhead activities. Ray reports an ongoing ache in the shoulder and occasionally the shoulder locks up.”

After examining the plaintiff, Dr Posel expressed this view:

“Ray gives a history of rotator cuff tearing almost two decades ago and, more than likely, this tear has gradually increased in size. The rotator cuff tear may well have been of the abrasion type in association with the subacromial spur. A rotator cuff repair is not feasible here. Ray remains on long term anticoagulants (Plavix) and thus with the acute long head tendon rupture there has been a reasonably significant bleed in the shoulder. This has now begun to settle. A long head of biceps tenodesis shouldn’t be required here. Ray is already 61 years of age.

I did show Ray how to strengthen his shoulder in forward flexion regaining good active deltoid function. He can now commence strengthening his shoulder in active abduction “from the top down”. Ray shouldn’t require much in the way of physiotherapy input to his shoulder. He should be able to regain his deltoid strength himself.

I have asked Ray to return for review if there is still discomfort in his shoulder in a few months.”

The plaintiff did not return to see Dr Posel.

2011

91. The plaintiff returned to see Dr Ford on 19 January 2011. They discussed Dr Posel’s report. Dr Ford told the plaintiff that there was no need for surgery. The plaintiff then discussed with the doctor a proposed trip in October 2011 to Italy, Turkey and Paris. This proposed trip was the subject of a number of subsequent visits to Dr Ford. On 28 September 2011 the plaintiff told the doctor that he was leaving in two weeks initially to Dubai, then Paris. The plaintiff told the doctor that his shoulders were “playing up” a bit but “not too bad”. Such pains did not inhibit the plaintiff’s trip – he returned to see Dr Ford on 24 November 2011 after his five week trip, complaining of weight gain and a breathing problem. Prescriptions were also supplied for “arthritis”.

2012

92. On 7 May 2012, the plaintiff complained to Dr Ford of intermittent low back pain “over past two months” (my emphasis). There was pain in the right buttock radiating as far as the knee. The pain was described as a dull throbbing pain, worse when driving a car. The plaintiff also said that his “back plays up a bit” if he walked for 100m. There was no pain at night. On examination, the doctor found a restricted range of movements, but little else. The plaintiff said he had resumed ingesting Celebrex three weeks earlier and the doctor suggested he add Panadol Osteo. Further investigations were ordered. Plain x-rays taken on 11 May 2012 were reported by Dr Colin Walker thus:

“There is advanced disc space reduction at L3/4 and moderate disc space loss diffusely from L1 to S1 at the other levels. There is moderate anterior spurring and posterior spurring at L3/4 and mild anterior spurring at all the other levels at the disc edges. There is a minor convex right upper lumbar scoliosis and moderately severe facet OA of the lower two segment bilaterally. Both sacroiliac joints are moderately degenerative. There is no osteolytic lesion.

Comment: Disc degenerative changes maximal at L3/4 as described.”

A CT scan of the lumbosacral spine was also carried out. The radiologist, Dr Lynn Smith, summed up that study thus:

“1. Lumbar spondylosis with a mild scoliosis convex to the right.

2. Posterior spurring at L2-3 and L4-5, more right sided causing an early compromise to the neuroforamen. There is also an early compromise to the left neuroforamen at the L3-4 level. Significant neural compromise is not suspected.

3. No significant canal stenosis.

4. Face joint arthropathy is most marked at L5-S1 on the left but the foramina are not compromised.”

93. The pain appears to have abated. The plaintiff saw Dr Ford again on 29 June 2012. He sought to renew his medications for 12 weeks, to be placed in webster packs because he was going to spend “12 weeks in the Gulf territory”. On 3 September 2012, the plaintiff told the doctor he had just returned from the Northern Territory after 10 weeks in which he was fishing. He complained to the doctor on this occasion of hip pains (trochanteric bursitis). X-rays of the plaintiff’s hips made on 5 September 2012 were reported as normal for a man of the plaintiff’s age. The plaintiff again complained of hip pains on 13 December 2012.

2013

94. On 10 January 2013, when consulting Dr Ford about his PTSD, the plaintiff said that in 6 weeks’ time he was going on a 3 month cruise from Southampton to the Panama Canal. The plaintiff did not see Dr Ford again until 14 August 2013.

95. On 10 July 2013 the plaintiff was taken by ambulance from his home to John Hunter Hospital Emergency Room. The history recorded on a discharge summary is this:

“… sudden onset central chest pain 13.55 hours whilst lopping trees, associated diaphoresis ++ [perspiration], shortness of breath and dizzyness …” (My emphasis)

The pain was sharp and radiated from the chest to the shoulders, arms and back. The plaintiff had sustained an Anterior Myocardial Infarction. The “expected discharge date” was 13 July 2013 but it is not clear whether that was the actual discharge date. At the hospital, the plaintiff came under the care of Dr Peter Hayes, a consultant cardiologist. In a report to Dr Ford of 2 August 2013, Dr Hayes said that in the cardiac catheter lab it was found that there was an 80% stenosis at the distal aspect of the LAD stent and there was a further intervention with a drug eluting stent. In that report, Dr Hayes expressed the view that the plaintiff was recovering well but he could not adequately explain a complaint of nocturnal sweating. The plaintiff was then on a rehabilitation program and Dr Hayes suggested further testing in October 2013. However, the next report I have from Dr Hayes is dated 23 July 2014.

96. On 14 August 2013, the plaintiff consulted Dr Ford about his right ankle. This then became his major musculoskeletal complaint. Dr Ford’s history was:

“Worsening right ankle pain especially with weight bearing … had ‘good think about welding my ankle’ … not keen.”

This appears to have been a consideration of fusion of the ankle joint, which eventually occurred. Dr Ford diagnosed ankle arthritis and injected the joint with kenacort. When seen by the doctor on the following day, the plaintiff admitted a 50% improvement since the injection. The plaintiff saw the doctor on the day after that, 16 August, and said that both his medial and lateral malleoli were tender and troublesome, whereas the area injected, the anterior aspect of the ankle, was much improved. The doctor suggested a further injection “in about 2 weeks”. That appears to have occurred on 4 September 2013 when the doctor saw the plaintiff in addition for other reasons. A note made by Dr Ford on 25 September 2013 says that the plaintiff was still going to a gymnasium 3 times weekly.

97. On 23 October 2013, Dr Ford noted that the plaintiff had attended Singleton District Hospital with left shoulder and arm pain. This appears, from the tests conducted, to have been a “heart attack scare”. The plaintiff told the doctor he was “working ‘putting up a door’” and the doctor thought there may have been an aggravation of the plaintiff’s left rotator cuff syndrome. The doctor provided the plaintiff with dietary advice. Similar advice was given on 15 November 2013 and 17 January 2014.

“I believe his work and the nature and the duties undertaken in the coal mining industry have contributed significantly to the aggravation, acceleration and exacerbation of the disease processes indicated.

I believe on the balance of probabilities that his patient’s work in the coal mining industry has been the substantial contributing factor to his injuries and conditions as detailed.

He is suffering from severe cervical spondylosis and lumbar spondylosis, osteoarthritis of the right knee and left knee, rotator cuff tears of both shoulders leading to frozen shoulders bilaterally, and severe injury to his right ankle which has gone on to part fusion and which will in the future require fusion of the tibiotalar articulation and removal of the failed prosthesis, and osteoarthritis of his left ankle.

His prognosis is poor as he will inevitably see a slow deterioration in his ability to function, requiring increasing services of commercial assistance in the maintenance of his home, and in the supply of help with transport and all other activities of daily living.”

Now, if the plaintiff’s work duties contribute significantly to the aggravation etc of a disease, if follows that the disease was not work caused. If the work was “the substantial contributing factor”, it means that there was some other factor. If after leaving the coal mining industry in January 2001, slow deterioration can be expected after 2015, then the disease must be acting on its own, progressive course. This is a clear concession that there is an underlying genetic/developmental/constitutional condition. Dr Isaacs has, to use the Australian vernacular, “a bob each way”. He says that the plaintiff’s disabilities “are directly related to his work or incidents described above” and that they are caused by “a disease of gradual process” but also says that they are caused by an aggravation, acceleration or exacerbation of a disease process.

142. Degenerative change/osteoarthritis affects the plaintiff’s cervical and lumbar spines. It may also affect his thoracic spine, but that has not been the subject of any investigation. It also affects both the shoulders, his elbows, his knees, his ankles and, perhaps, his hips: x-rays of the hips made on 5 September 2012 are reported as showing an irregularity around the greater trochanters, particularly on the left. On 3 September 2012, Dr Ford referred the plaintiff to Dr Jorgen Hellman because the plaintiff had “bilateral outer hip pains: has features of greater trochanteric bursitis especially on the left” and the plaintiff was seeking an opinion re hip surgery. This was the consultation with Dr Ford after the plaintiff returned after 10 weeks in the Northern Territory fishing. The widespread nature of the plaintiff’s osteoarthritis does indicate an underlying endogenous disease. I therefore accept Dr Millons’ opinion on this issue and accept, so far as the neck and back are concerned, that half of the impairment results from the underlying condition: only Dr Millons has a complete history.

143. This leads me to the next issue, referred to by Dr Millons as “pre 30 June 1987 and post that time”. The applicable law and principles were discussed by me at some length in Brown v Barnard & Brown Pty Ltd (1998) 17 NSWCCR 275 and that represents the law applicable to coal miners. The discussion is so lengthy that I shall not quote it here. Compensation for impairment of the back, neck and pelvis may only be awarded for events occurring after 4pm on 30 June 1987 i.e. the work the plaintiff performed prior to that time is to be ignored, as no compensation was payable under Workers Compensation Act 1926, s 16, for impairment of the back, neck or pelvis. Attritional changes effected by the plaintiff’s work before 4 pm on 30 June 1987 must be disregarded. Between 13 December 1978 and 30 June 1987 are 8.5 years. Between 1 June 1987 and 11 January are 13.5 years, a total of 22 years. Work done after 4 pm on 30 June 1987 represents 60% of the plaintiff’s work in the coal mining industry. He is accordingly entitled to an award of 60% of the 10% i.e. 6% impairment of the neck. The monetary sum is $3,175.20.

Impairment of the back

144. This is very similar to the impairment of the plaintiff’s neck. The diagnosis is degenerative disc disease of the lumbar spine/lumbar spondylosis/osteo-arthritis of the lumbar spine. There is no neurological deficit: Dr Ghabrial, primary report of 13 January 2015, p2; Dr Hopcroft makes no remarks about an examination of the plaintiff’s back; Dr Millons, primary report of 4 June 2015, p 8; Dr Isaacs, p 8. The plaintiff injured his low back on 17 January 1997 – see [41]. The plaintiff appears to have recovered from that injury in early March 1997. There was a further lower back injury on 27 October 1997 but the plaintiff lost no time off work – see [49]. The next recorded complaint of back pain was on 20 April 2009 – see [82]. There was a further complaint of low back pain on 17 February 2010 – see [84]. The next complaint of low back pain was on 7 May 2012 with a history of intermittent low back pain “over the past two months” – see [92]. It is significant, in my view, that the plaintiff did not date his pains back to his service as a coalminer. There was then a complaint of back problems to Dr Ghabrial on 23 July 2014 – see [107].

145. These are the assessments of the impairment of the back:

Dr Ghabrial   20%

Dr Hopcroft   25%

Dr Millons   20%

Dr Isaacs   25%

Again, if the plaintiff had a true disc protrusion at a low lumbar level, e.g. L5-S1 or L4-5 requiring laminectomy and fusion I might allow a 25% impairment of the back. The plaintiff’s impairment is less. I therefore find a 20% impairment, that agreed to by Dr Ghabrial and Dr Millons, a particular rara avis.

146. For the same reasons given is [140] to [142], there must be a deductible proportion for non-work related matters and again the impairment must be reduced by half. For the same reasons given in [143] that 10% impairment must be reduced to 6% to account for attrition occurring before 30 June 1987. The monetary sum is $4,762.80.

Loss of the right arm at or above the elbow

147. On what is this claim based? In his primary report of 13 January 2015, Dr Ghabrial refers to both the plaintiff’s right shoulder and the right elbow. He pointed out that x-rays performed on 23 September 2014 showed evidence of mild to moderate osteoarthritic changes with some ossification of the olecranon. In his secondary report, quantifying the impairments and losses he makes no mention of the conditions he has taken into account. Dr Hopcroft said this:

“He has a permanent percentage loss of efficient use of the right arm at or above the elbow due to the injury to his neck and/or right shoulder arising in the course of his employment in the coal mining industry of 35%.”

Dr Isaacs diagnosed osteoarthritis of both shoulder joints and rotator cuff tear with impingement, i.e. problems in the shoulder itself. Later in his report he said there was a loss of use of the right arm “due to injury to the neck and right shoulder.”

148. Dr Millons said this in his primary report of 4 June 2015:

“In regard to the right shoulder, there was a history of a shoulder strain at work in March 1997 which does not appear to have caused any major disruption. There was radiological evidence of some possible history of injury prior to that time.

An ultrasound of the right shoulder performed in December 2010 showed disruption of the supraspinatus tendon with bursitis. I would have thought it more probable than not that those issues were constitutionally based rather than specifically relate to his work.

There is clearly restriction of movement at both shoulders as a result of his subacromial impingement issues.

Mr Paix has a prominent spur on the tip of his right olecranon. His right elbow exhibits a good range of movements and I do not believe that that is of any particular significance.”

Later in this report Dr Millons expressed the view that the plaintiff’s chronic rotator cuff problems in each shoulder were probably constitutionally based. In his report of 14 June 2016, Dr Millons said this:

“Problems at both shoulders appear, again, to relate to his time in the Service, being initiated following sporting injuries. He has degenerate changes in both rotator cuffs. That on the left has been repaired. That on the right has not. The nature and conditions of his work may have caused some aggravation of the changes in the rotator cuffs but then so would the normal activities of daily living since he left work and there appear to have been episodes of aggravation of those changes recorded on his file.”

149. I accept that there is a loss of efficient use of the plaintiff’s right arm at or above the elbow because of osteoarthritis of the shoulder joint itself and chronic rotator cuff damage. The four doctors appear to agree on that. I do not accept that the condition of the plaintiff’s neck contributes to any such loss: there is no neurological deficit, no compression of the nerves innervating the right arm in the spine, no referred or radiating pain. I cannot accept that the condition of the right elbow contributes to any such loss as:

1. no elbow injury is pleaded and par 2 of either Schedule in the Statement of Claim;

2. the plaintiff reported no elbow injury whilst working for either defendant;

3. in his first application to DVA on 21 September 1995 the plaintiff solemnly averred (see [29]) that pains in his elbows were caused by football injuries in Vietnam and other activities of his Army service and the forklift roll-over: allegans contraria non est audiendus;

4. in so far as the plaintiff’s elbow(s) are arthritic , that may well be because of his underlying condition;

5. the weight of the medical evidence is against this proposition.

150. Dr Millons raises the question as to whether any loss of use of the plaintiff’s right arm is causally related to the plaintiff’s employment in the coal mining industry. This question of causation must be addressed. The plaintiff first injured his right shoulder on 28 June 1972 when playing football in the Army – see [15]. He later represented to DVA and to Dr Chapman that he injured each of his shoulders playing football when serving in the Army. He told Dr Chapman that he had continuing symptoms in both shoulders. The inference to be drawn from the representation and that history was that these symptoms continued since the plaintiff was in the Army: see [29] and [32]. On 2 March 1981 the plaintiff complained to Dr Lee about osteoarthritis in his right shoulder – see [26]. This was before he made any complaint at work about his shoulder. He also complained about his right shoulder on 10 July 1985, having injured it “playing footie” 3 weeks earlier – see [27]. On either 11 or 18 June 1992 the plaintiff complained to Dr Lee “of increasing bilateral shoulder pain” – see [28]. The next mention of shoulder pain, in the records before me, is in the application of 21 September 1995 to DVA. One must also recall the admission made by the plaintiff in his oral evidence about the history he gave to Dr Chapman – see [33]. The admission the plaintiff made to Dr Nichols about his shoulders on 30 January 1996 must also be given weight – see [11]. Dr Lee recorded the plaintiff’s symptoms reported to DVA on 21 January 1996. One must also consider what Dr Lee told DVA in the questionnaire as set out in [40]. The only injury which the plaintiff ever reported at work to his right shoulder occurred on 28 March 1997 – see [44] – [46]. The plaintiff lost no time from work but performed restricted duties for 2 weeks. This event could be described as minor. There is no evidence of an pathological change, only of symptoms which appear to have resolved, i.e. a temporary exacerbation. The Health Assessment documents from the Joint Coal Board dated 1 November 1999 contain a history that the plaintiff “tore ligaments” in that event but there is no evidence to that effect: see the x-ray reported on 2 April 1997 by Dr Ashcroft and my comments on that at [45].

151. The next recorded complaint about right shoulder symptoms was a complaint of bilateral shoulder pain at the St John of God Hospital at North Richmond during the plaintiff’s admission there, after he left the coal mining industry, between 19 April 2001 and 17 June 2001: see [64]. The next complaint recorded was of chronic bilateral shoulder pain on 4 November 2002 by Dr Yeh – see [71]. That eventually led to the plaintiff’s being referred to Dr Stephen Kemp – see [72], and the surgery practised on the left shoulder on 10 June 2003 – see [74].

152. I do not believe I need to summarise the plaintiff’s further complains about his shoulder. Suffice it to say that my analysis of the evidence concerning the right shoulder is consistent with its genesis, perhaps, in the spear tackle of 28 June 1972. The plaintiff has had intermittent symptoms with his right shoulder since that time. The only recorded event that affected the plaintiff’s right shoulder when he was at work appears to be a temporary exacerbation. Whether the degeneration process commenced at the time of the spear tackle or commenced naturally, of its own momentum, it appears to have followed the usual course of a degenerative condition, increasing and worsening symptoms over the passing years. I am not, accordingly, persuaded on the balance of probabilities that the condition of the plaintiff’s right shoulder has been permanently affected by the work he did in the coal mining industry and/or the event of 28 March 1997. I accept Dr Millons’ view, expressed in his report of 4 June 2015, assessing the loss of efficient use of the right arm at or above the elbows that that loss is not work-related, “anything that emanated out of the 23 years in the industry”. This claim fails.

153. For the record, I record the various assessments of the loss:

Dr Ghabrial   30%

Dr Hopcroft   35%

Dr Millons   20%

Dr Isaacs   30%

If it were necessary for me to make a finding, I would accept a 25% loss, but then a deductible proportion would need to be considered.

Loss of efficient use of the left arm

154. The questions about the plaintiff’s left arm are similar to those about the right arm. Dr Ghabrial in his primary report of 15 January 2015 refers to the plaintiff’s left shoulder and left elbow, but only records his findings on examination of the left elbow. His second report of the same date, quantifying the losses and impairments, does not specify whether he took into account the plaintiff’s left elbow. Dr Hopcroft does not mention the left elbow, but in making his assessment of the loss says it is “due to his neck injury and left shoulder injury.” Dr Isaacs’ assessment is also “due to injury to the neck and left shoulder.” For reasons given at [149] I do not accept that there is any loss of use of the plaintiff’s left arm because of his left elbow. For reasons also given at [149] I do not accept that the problems the plaintiff has in his neck have anything to do with the left shoulder.

155. Dr Millons does not accept that any loss of the left arm (a shorthand expression for the cumbersome “loss of efficient use of the left arm at or above the elbow”) is work-related. I turn, accordingly, to the question of causation. Whilst there is no contemporaneous evidence of it, the plaintiff solemnly averred to DVA in his application of 21 September 1995 that the pains in both his shoulders were caused by “football injury in Vietnam, constant lifting, twisting and bending while carrying heavy loads, forklift accident” – see [29]. He gave a history to Dr Nichols on 30 January 1996 that he then suffered pain in both shoulders “which dates in time from when he played grid iron with American forces in Nui Dat and Vung Tau.” See [11]. He also gave Dr Chapman a history on 22 February 1996 of continuing symptoms in both shoulders after injuring them playing football when he was in the Army – see [32]. He also made an admission in evidence to the same effect – see [33].

156. On either 11 or 18 June 1992, the plaintiff complained to Dr Lee of “increasing bilateral shoulder pain” – see [28]. DVA arranged x-rays of the plaintiff’s shoulders which were available to Dr Chapman on 22 February 1996, the x-rays of 30 January 1996. There were abnormalities on each side, the right being more severely affected than the left. There was minor sclerosis on the greater tuberosity of the left humerus, and minor degenerative changes in the left acromioclavicular joint. See [31]. There is mention of bilateral shoulder pains by Dr Lee on 21 January 1996 but that appears to me to be a list of complaints the plaintiff had made to DVA. On 29 August 1996 Dr Lee commented on “intermittent arthralgia of both shoulders” in a questionnaire sent to him by DVA, in essence, to support the plaintiff’s claim to DVA. The next record of any complaint about the plaintiff’s left shoulder was when he complained of bilateral shoulder pain in St John of God Hospital at North Richmond during his admission between 19 April 2001 and 17 June 2001, when the plaintiff had last worked as a coal miner on or before 11 January 2001. The plaintiff never reported at work that he had injured his left shoulder nor did he ever formally report any left shoulder problem at work: see T68.23.

157. The next complaint referable to the left shoulder is a complaint to Dr Yeh on 4 November 2002 of bilateral shoulder pain – see [71]. That eventually led to the ultrasound of the left shoulder on 16 December 2002 (ibid), which led to the referral to Dr Stephen Kemp on 14 January 2004 – see [72]. That led to the left shoulder surgery practised on 10 June 2003 – see [74]. On 3 September 2004 the plaintiff complained to Dr Yeh that his right shoulder was “playing up now” and that “even the left one (post op) not that good” – see [76]. The next complaint about shoulder pain was on 7 July 2006, 4 years later, when Dr Wong at Dr Yeh’s rooms recording ongoing problems with the right shoulder and that the “left shoulder doing well since operation”. From this time on, the plaintiff’s left shoulder problem fades from view.

158. At least up until November 2002, the plaintiff’s problems with his left arm appear to have been less than with his (dominant) right arm. Surgery was then practised on the left side and symptoms on this side appear to have abated and by 2006 the plaintiff had greater problems on the right-hand side. The x-rays of 30 January 1996 clearly show that the degeneration of the left shoulder was not as advanced as the degeneration of the right shoulder. One case speculate: was this because of the spear tackle of 28 June 1972? Or because of the plaintiff is right hand dominant? Or because of both? There are questions I do not need to determine. Suffice it to say that my analysis of the facts leads me to the same conclusion as Dr Millons reached: that it has not been established to the requisite standard that any part of the loss of efficient use of the plaintiff’s right arm at or above the elbow results from the work he did as a coal miner. This claim also fails.

159. I record the following assessments provided in the evidence:

Dr Ghabrial   25%

Dr Hopcroft   40%

Dr Millons   20%

Dr Isaacs   30%

Dr Hopcroft’s assessment is extravagant. He may have thought that because surgery had been practised the loss was greater, but surgery is generally practised to improve the patient’s condition, albeit that sometimes symptoms are removed but there may be stiffness or a decreased range of movements. I would have allowed a 25% loss before consideration of a deductible proportion.

Loss of efficient use of each leg at or above the knee

160. These two claims can be conveniently dealt with together. There is no allegation of any injury to either hip, so, if any such problem were taken into account, it must be ignored. Dr Ghabrial’s assessments are as a result of injury to each knee. Dr Hopcroft’s assessments are due to injury to each “knee and/or back”. Dr Isaacs also bases his assessment on injury to each “knee and back”. Dr Millons only attributes losses to degenerative changes in each knee. As I pointed out at [144] there is no neurological deficit arising from the condition of the plaintiff’s back. There is no radicular or referred pain. There is really nothing to suggest that the plaintiff’s back condition is in any way restricting the use of either of his legs. This leads me to the view that the assessments of Drs Hopcroft and Isaacs are flawed.

160. There is an obvious question of causation. The first mention that I have been able to find of any problem with either knee was on 30 May 2014 when the plaintiff consulted Dr Ford and told him that Dr O’Sullivan had told the plaintiff to have his knees x-rayed and to obtain a referral to Dr Dunkley about his knees. Dr Ford complied with his request. I had set this out at [104] and also quoted the x-ray performed by Dr Scotton on 4 June 2014. I referred to Dr Dunkley’s ministrations in [105] and pointed out the poor quality of his history. It must be remembered that all this occurred more than 13 years after the plaintiff left the coal mining industry. Moreover, the degenerative changes shown on the x-rays of 4 June 2014 are minor, ex facie the radiologist’s report itself and see Dr Ghabrial, primary report of 13 January 2015, p 2 “minor osteoarthritic changes”, and Dr Millons, primary report of 4 June 2015, p 11 “some minor osteoarthritic changes”. Dr Millons said this in his primary report:

“Mr Paix appears to have some minor osteoarthritic changes in both knees which would be constitutionally based and not work related. There may have been some aggravations as he went about his daily labours as a welder for some 23 years but, again, I noted that he has not worked for some 14 years and, under the circumstances, it is more likely than not that such problems as he may have in his knees now would reflect the normal activities of daily living playing on some attritional changes rather than specifically relate to anything that emanated out of his work.”

I accept that opinion. To suggest that minor degenerative changes were either caused or aggravated permanently by work done some 13 years earlier (at the latest) is mere speculation. Especially is that so when the plaintiff appears to have some constitutional propensity to osteoarthritis – see [140] to [142]. These two claims also fail.

162. For the sake of completeness, I record these assessments of the loss of efficient use of each leg at or above the knee.

Doctor	Left leg	Right leg
Ghabrial	20%	20%
Hopcroft	20%	45%
Millons	10%	10%
Isaacs	20%	20%

Considering the extent of the degenerative condition I would have only allowed a 10% loss of efficient use of each leg at or above the knee, but applying a deductible proportion. As I pointed out at [160] the assessments of Drs Hopcroft and Isaacs are flawed.

Loss of efficient use of right leg below the knee

163. There is undoubtedly such a loss but, again, a question of causation arises. Both when the plaintiff enlisted and was discharged from the Army, it was noted that the plaintiff had a “scar 6 inches long [on the] anterior aspect of his right lower leg” – see [6] and [16]. How the plaintiff obtained this scar is unexplained. Of course, it might be completely irrelevant. However, the plaintiff injured his right ankle (perhaps playing football) on 15 June 1968 – see [8]. After his service in Vietnam, the plaintiff again injured his right ankle (perhaps playing football) on 25 May 1972 – see [14]. The abnormality in the x-ray of the right ankle taken at that time, as set out in [14], must be noted. In his report of 14 June 2016, Dr Millons said this:

“He has had problems with his right ankle which seems to relate back to his time in the Service where he appears to have sustained a sprain. There was radiological evidence then of some abnormality of the ankle and that has clearly deteriorated with the passage of time.”

164. The plaintiff injured his right ankle at work on 1 July 1979 – see [23]. He appears to have been off work between 2 and 5 July 1979. There is no contemporaneous medical evidence. The period off work suggests that this injury was transient, albeit the plaintiff said in evidence that he had problems thereafter – see [24] to [25]. On 10 June 1997 the plaintiff made his second application to DVA. That was for hypertension and “problems with my right ankle.” That was supported by the same solemn declaration that I quoted in [29]. I discussed this application at [47]. The plaintiff then attributed the problems he had with his right ankle to being “injured during training” in the Army. In that regard he is now supported by Dr Millons. The plaintiff’s application to DVA was unsuccessful as his ankle injuries, whilst occurring during military service, were not sustained during war service.

165. I am now asked, of course, to find otherwise. However, as I said at [149], allegans contraria non est audiendus. Brown’s Legal Maxims, 10th ed, 1939 at p103 says this:

“This elementary rule of logic, which is frequently applied in our Courts of Justice, will receive occasional illustration in the course of this work. We may for the present observe that it expresses, in other language, the trite saying of Lord Kenyon, that a man shall not be permitted to “blow hot and cold” with reference to the same transaction, or insist, at different times, on the truth of each of two competing allegations, according to the promptings of his private interest.”

The learned authors then cite twenty authorities. The same principle can be seen in the maxim that a man cannot approbate and reprobate. Of course, it is always possible that a person, such as the plaintiff, may have been misguided by the medical evidence available to him, but he must have known for how long his symptoms had been affecting him and his assertion to DVA is, in fact, now supported by Dr Millons who alone, of the medical experts in this case, has had access to all the medical records. I am not suggesting that this creates some form of estoppel, but logic dictates that I must take it into account when considering the plaintiff’s evidence.

166. The next mention I could find in the medical evidence of a problem with the plaintiff’s right ankle was on 14 August 2013, 12.5 years after the plaintiff left the coal mining industry – see [96]. In early 2014, the plaintiff saw Dr Peter Mitchell who obtained a history that the plaintiff had problems with his right ankle “for twelve months or more” – see [98] and the comment I made on that history at that place. Dr Mitchell referred the plaintiff to Dr O’Sullivan and that led to the operations performed on 1 August 1994 and 26 March 2015 – see [101] to [103] and [108] – [110].

167. Dr Millons’ initial view, i.e. in his report of 4 June 2015, was this:

“He appears to have sustained a minor sprain of the right ankle in 1979 which had him off work for just a few days, perhaps not even as long as a week.

He claims to have had problems with the right ankle that gradually developed over a period of time and, certainly, he went on to develop osteoarthritic changes in the ankle joint with decreasing mobility and agility.

He came to surgery on the right ankle in July 2014.

With no clear history of any particular ankle problems while he was working from the time he rolled the ankle in 1979 until the end of his time in the industry and in the 14 years after that, it seems more likely than not that such problems as he has in his ankle would be constitutionally based rather than specifically relate to a minor sprain which only cause a very short period of incapacity.

The results of his ankle replacement were disappointing. He had ongoing symptoms which were subsequently felt to be coming from the subtalar region and, a couple of months ago, he came to a subtalar fusion and fusion of the calcaneocuboid joint. He is still in the recovery phase of that any it would be at least another six months before one would be able to assess the benefits of it.

Again, that surgery was undertaken for longstanding, constitutionally based issues and I cannot believe it specifically relates to a minor sprain of the ankle in 1979.”

What I quoted from Dr Millons in [163] was said after he had access to, inter alia, the records of the Army and DVA.

168. My analysis of this evidence ties in with the analysis of Dr Millons and I am happy to accept his opinion that the condition of the plaintiff’s right lower leg is entirely unrelated to the incident on 1 July 1979 or the type of work which the plaintiff did in the coal mining industry. That work may have caused temporary exacerbations but there is no evidence to show that such work altered the pathological course of the underlying osteoarthritic condition. Especially is that so when there was no mention of ankle problems after the plaintiff left the coal mining industry on 11 January 2001 until 14 August 2013 and then a history being given on 24 March 2014 of problems “for twelve months or more”. This claim also fails.

Other claims

169. The plaintiff makes a claim under s67 of the Workers Compensation Act 1987. The statutory threshold to s67 is 10% of the maximum amount under s66(1). That maximum is $132,300. Ten perfect of that sum is $13,230. The quantum of the awards for impairment of the back and neck neither individually or cumulatively ($9,938.00) reach that threshold. This claim, therefore, fails. The plaintiff makes a claim for a general order under section 60. There is no evidence that the plaintiff is out of pocket. All his medical and hospital expenses have been paid by DVA as he has a “Gold Card”. Section 60 is an indemnity provision: if a worker incurs a “cost” in respect of matters referred to in section 60 that empowers the Court to order an employer to pay the cost. There being no evidence that the plaintiff has incurred any cost for any compensable treatment of his back or neck, this claim also fails. Furthermore, if, in futuro, the plaintiff incur a cost for treatment of his back or neck, such treatment would result from a further deterioration of an underlying condition that is not, per se, work caused. Therefore, an order for payment of future costs would be otiose. This claim also fails in so far as it seeks an order operating in futuro.

Who pays?

170. The two awards I have determined to be made are because there has been some permanent aggravation or the like of an underlying constitutionally based degenerative condition. That is morbid pathology, i.e. disease. The compensation is payable by the last employer who employed the plaintiff in employment that carried the risk of aggravation etc of the disease. In this case that is the second defendant, the last employer in time in the coal mining industry: Workers Compensation Act 1987, section 17.

Orders

171. I make the following orders:

1. I make an award for the first defendant

2. I make awards for the plaintiff against the second defendant for:

1. $3,175.20 for 6% impairment of the neck, and

2. $4,762.80 for 6% impairment of the back

3. I make an award for the second defendant in respect of the plaintiff’s claims for:

1. loss of efficient use of the right arm at or above the elbow;

2. loss of efficient use of the left arm at or above the elbow;

3. loss of efficient use of the right leg at or above the knee;

4. loss of efficient use of the left leg at or above the knee;

5. loss of efficient use of the right leg below the knee;

6. pain and suffering; and

7. expenses under section 60

4. I order the second defendant to pay the plaintiff’s costs of establishing the two claims upon which he has been successful. I certify one qualifying fee.

172. I have only certified one qualifying fee as, in essence, Drs Ghabrial, Hopcroft and Isaacs are in the same specialty. Under Uniform Civil Procedure Rules 2005, Sch 11, cl 21, an employer is only entitled to qualify one expert in any particular field. To permit the plaintiff to qualify more than one expert in one field and then require an unsuccessful defendant to pay for such is, in my view, unjust.

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Decision last updated: 18 March 2019