Robinson v Endeavour Coal Pty Ltd

[2015] NSWDC 91

District Court

New South Wales

Medium Neutral Citation:

Robinson v Endeavour Coal Pty Ltd [2015] NSWDC 91

Hearing dates:

30 March 2015

Date of orders:

30 March 2015

Decision date:

30 March 2015

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

Award for the plaintiff

Defendant to pay the plaintiff's expenses under s 60

Defendant to pay plaintiff’s costs

Catchwords:

WORKERS COMPENSATION – Coal miners – Whether plaintiff’s injury caused by pleaded event during course of employment or degenerative disc disease – Immediate precipitant of pain irrelevant if pain was due to a condition that has been substantially caused by the type of work performed for defendant

Legislation Cited:

Workers Compensation Act 1926

Cases Cited:

Calman v The Commissioner of Police (1999) 19 NSWCCR 40

Category:

Principal judgment

Parties:

Ian K Robinson (Plaintiff)
Endeavour Coal Pty Ltd trading as West Cliff Colliery (Defendant)

Representation:

Counsel:
Mr D Benson (Plaintiff)
Mr B Odling (Defendant)

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

File Number(s):

RJ341/2014

Publication restriction:

No

Judgment

1. HIS HONOUR: The plaintiff, Mr Ian Kenneth Robinson of Shellharbour, claims weekly payments of compensation from 17 January 2014 to 27 March 2014 for either total incapacity or partial incapacity to be treated as total, pursuant to s 11(2) of the Workers Compensation Act 1926, as preserved in its operation for workers who are employed in or about a coal mine. The plaintiff relies upon an event which occurred on 10 January 2014. It is alleged in the statement of claim that the plaintiff developed pain in his neck and right arm when he and a colleague were removing the belt from a conveyor belt.

2. As the evidence has unfolded, the plaintiff noticed the onset of some pain in his right upper arm shortly after completing work on dismantling a conveyor belt structure and packing its component parts into a pod to be taken aboveground from the defendant's underground coal mine near Unanderra. In the statement of claim, the plaintiff also relies upon repeated bumping of his head during the course of his employment as a coal miner and alleges that the "nature and conditions of his employment" caused, accelerated, exacerbated or precipitated injury to the plaintiff's neck.

3. The plaintiff was born on 21 November 1963. At the current time, he is aged 51. During all relevant times, he was 50 years old. He has dependent upon him for support his wife and his younger child, a son who is currently 13 years old and appears to have been 12 years old in January 2014. After completing his education at Warilla High School, the plaintiff obtained an apprenticeship as a motor mechanic and completed that apprenticeship. All told, he worked as a motor mechanic or apprentice for nine years. He then worked for the West Cliff Colliery for ten years, but ceased working as a coal miner because the employer was laying people off during a downturn in the coal mining industry. Between 1999 and 2002, the plaintiff worked as a truck driver for a firm or company in Sydney.

4. In January 2002, the plaintiff returned to working in the coal mining industry. Initially he worked for a contractor at the Appin Colliery, but his employment was transferred by that contractor to the West Cliff Colliery and on 28 October 2002, he became an employee of the owner of the West Cliff Colliery, which appears to be BHP Billiton or one of its subsidiaries. The parties must tell me the exact legal identity of his employer before I make any award in this matter.

5. It can be seen that up until the time of the commencement of the present incapacity, the plaintiff had worked as a coal miner for ten years, when he was roughly between the ages of 26 and 36, and then rejoined the industry in 2002 when he would have been about 39 and worked on for more than 11 years until he reached his 50th anniversary, before the present incapacity arose. In other words, the majority of the plaintiff's working life had been spent in the coal mining industry. He worked as a coal miner for some 21 years and outside that industry for some 12 years.

6. In his claim for compensation - that is, the document delivered by him to his employer - the plaintiff denied that he had previously suffered any similar related injury or condition and he essentially has told everybody that the onset of symptoms in his right upper arm, extending into the whole of his upper limb, which are clearly radicular problems from the neck, are the first symptoms of neck pain that he has experienced. In that regard, the plaintiff's recollection is inaccurate.

7. Exhibit D is a summary of incidents reported by the plaintiff to the coal mine's insurer, the statutory insurer of all collieries in this State. On 21 January 1997, he reported a neck strain for which he lost no time from work, but payments amounting to $409 were made. That suggests that he may have incurred some medical expenses at the time. On 19 May 1998, he reported a strain of his right shoulder and incurred medical expenses of $449. On 24 May 1994, he reported a neck strain at the West Cliff Colliery. Further neck strains were reported on 30 January 1995, 31 October 1995, 3 May 1996, and 11 September 1996. All of these earlier neck strains have fallen out of the plaintiff's recollection. However they are consistent with the general proposition, given in the evidence by the plaintiff, that it was not uncommon for him to strike his head whilst wearing a hardhat in the West Cliff mine. He told me he had knocked his head on numerous occasions when travelling in EINCO cabins and in cabins of other pieces of machinery, and also on roof structures, including roof supports and perhaps things like roof bolts.

8. The plaintiff's work was undoubtedly heavy. In his more recent period of employment at the West Cliff Colliery the plaintiff has worked on the long wall. The employer categorises the plaintiff as a "longwall operator". His duties involve driving the shearing mechanism along the face of the longwall; hosing the face of the longwall; moving spoil; smashing up rocks with a sledgehammer; moving monorails as the longwall itself moves, or, as the plaintiff said, "as we retreat"; moving conveyor belts, dismantling them so that they can be re-erected elsewhere; and the heaviest job was moving cables used in mining to provide power and water, air and perhaps hydraulics.

9. When moving monorails, the plaintiff works with his hands above head height, dismantling monorail components and then packing them into a pod by which they are moved. The fresh monorail is generally erected by contractors or by special shifts. He did not volunteer that he was involved in erecting monorails, but he did involve himself with dismantling them. Working moving conveyor belts required him, with a workmate, to dismantle sections of conveyor belt and pack its pieces into a pod so that the pieces could be taken aboveground in order, no doubt, for perhaps renovation before they are used again elsewhere in the main. The weights involved, which the plaintiff and his colleague lifted together, could amount to some 30 kilograms. This was pretty constant, everyday work.

10. It was shortly after doing work dismantling a section of conveyor belt and packing its pieces into a pod that the plaintiff was walking back towards the longwall when he noticed pain in his right upper limb, which he described as a burning pain. The plaintiff was candid. He told me that he remembers it was only a very slight pain at the time. It did not prevent him completing his shift on Friday, 10 January 2014. Whether that was a 10 hour shift or a 12 hour shift, the plaintiff did not tell me. However, he worked on Saturday 11 and Sunday, 12 January 2014. Each of those was a 12 hour shift commencing at 6am and the plaintiff had no symptoms.

11. On Monday, 13 January, the plaintiff was sitting on his couch with his son and daughter, watching videos or films, and noticed a recurrence of the pain in his right upper arm, and he also noticed pain in his neck at that time. The pain worsened on the following day, causing him to contact his general practitioner, but he could not see his general practitioner until later on Wednesday, 15 January 2014.

12. The plaintiff saw Dr Euan Bulcraig at 2.43pm on 15 January. The notes recorded by Dr Bulcraig at that time are these:

"Right arm pain. Started Friday, 10 January, morning at around 0800 whilst at work. Works underground in coalmine. Not reported at time. Right shoulder, right arm pain - radicular from neck, some tingling, numbness. Better after mowing. Not known neck problems. Coalminer. No acute injury."

The Doctor's findings on examination then follow. He noticed reproducible neck pain. There was no shoulder tenderness and a normal range of movement. The Doctor noted "no acute injury". He prescribed physiotherapy, Lyrica for nerve pain, and prescribed an MRI of the cervical spine, which was eventually carried out on 18 January 2014. Initially, Dr Bulcraig sent the plaintiff to see a physiotherapist, Mr Justin Castelli, but the plaintiff could not get in to see him quickly and instead went to see another physiotherapist, Ms Kerry O'Riley. Later, the plaintiff saw an exercise physiotherapist, Mr Nick Kontopoulos, whose ministrations appear to have been more effective than Ms O'Riley's. On 22 January 2014, Dr Bulcraig referred his patient to Dr Michael Davies, a neurosurgeon.

13. The plaintiff has been challenged on two matters of the history. The first is a history that the plaintiff awoke on Friday, 10 January 2014, with pain in his right shoulder and right arm. That history is, in fact, a history stated by Dr Bulcraig in his letter of referral to Mr Justin Castelli, which letter bears date 15 January 2014. However, a history consistent with the clinical notes made on 15 January 2014 is contained in a referral letter by Dr Bulcraig to Dr Davies of 22 January 2014, and is also stated in a report made by Dr Bulcraig "To whom it may concern", which bears date 25 April 2014. The plaintiff denied waking with right shoulder and right arm pain on the morning of 10 January 2014. I accept the plaintiff in that regard. It appears to me that Dr Bulcraig has given a mistaken history in his letter of referral to Mr Castelli and the history recorded in his clinical notes is the history actually given by the plaintiff and subsequently, Dr Bulcraig has consistently reported the originally taken history.

14. Each of the histories given by Dr Bulcraig - that is, both in his notes and in the three letters to which I have referred - state that the plaintiff noticed that his condition was "better after mowing".The plaintiff told me that on Tuesday, 14 January, he attempted to mow his lawn. When pressed in crossexamination, he told me that he started up his “whipper snipper” but was unable to continue with it, presumably because of the vibration it may have caused. He said he had his wife complete whatever it was he was going to do with the whipper snipper, which was generally the edges of his lawns or where, for example, his lawn abuts a fence and the grass growing up against the fence cannot be reached by an ordinary motor mower. The plaintiff said that after he stopped using the whipper snipper, his condition did get better. The import of what the plaintiff asked me to accept was that the mowing that he attempted, which was slight, made his condition worse but it soon ameliorated. The initial history given by Dr Bulcraig in his notes could be so read and I am quite happy to accept what the plaintiff told me in that regard.

15. The present case raises a common problem. When a person experiences pain after something occurs, the reasoning involved is that of the common fallacy, post hoc ergo propter hoc. A plaintiff who falls down a staircase in a building or trips over whilst going through a shopping mall and wakes up with pain in his back on the following day generally attributes it to the fall down the stairs or the trip and fall in the shopping complex rather than the insidious onset of pain from, for example, some degenerative condition affecting the low back. However, it is also common for doctors to accept that there can be some time delay between an event which might cause, say, pain in the neck or pain in the low back and the onset of symptoms. This is a problem which cannot be solved by application of some general principle. Each case must depend on its own facts. To me, the answer to the present inquiry can be answered by a study of the medical evidence available.

16. The first hard piece of medical evidence is the MRI scan of the cervical spine made on 18 January 2014. That shows straightening of the normal cervical lordosis. At C3-4 there is a mild discovertebral bar resulting in mild to moderate central canal narrowing with indentation and flattening of the left anterior aspect of the spinal cord. However, there is no abnormal cord signal present. There was also found to be uncovertebral osteophytic lipping at that level, resulting in mild foraminal narrowing, but severe left foraminal narrowing. Again, at C4-5, C5-6 and C6-7 there is a mild discovertebral bar indenting and flattening the anterior aspect of the thecal sac but no signal from the disc or cord and bilateral uncovertebral osteophytosis resulting in moderately severe foraminal narrowing. Sometimes it is on the left side, sometimes on the right side and sometimes bilaterally. The final comment made by the radiologist is this:

"Multilevel cervical spondylotic change with multilevel foraminal narrowing most severe at the C4-5 and C5-6 levels on the right side and C3-4, C4-5 and C5-6 on the left side."

17. Dr Davies, who first examined the plaintiff on 28 January 2014, said that examination revealed tenderness about the C5-6 level and the adjacent right paraspinal region. That would indicate perhaps a problem with the C6 nerve root. The plaintiff was seen by Dr Roger Rowe for the insurer of the defendant on 18 January 2014. Dr Rowe noted that sensation was slightly reduced over the distal phalanx of the right little finger particularly on the radial side. Whether that is a result of cervical radiculopathy is difficult to say. However, the diagnosis offered by Dr Rowe is of "aggravated cervical spondylosis with mild right-sided C6 sensory radiculopathy."

18. On 11 March 2014 the plaintiff underwent a bone scan. The findings of that are said to be consistent with mild to moderate endplate disease involving C3-4, C4-5 and left C7-T1 facet joint arthropathy. That suggests degenerative disc disease in the cervical spine which is what cervical spondylosis also suggests. However, in line with the diagnosis of Dr Rowe, I note that on 19 March 2014 the plaintiff had a CT-guided injection in which one ampule of an anaesthetic and one milligram of Xylocaine was injected at the C6 level, which is consistent with Dr Rowe's diagnosis.

19. The plaintiff clearly has widespread degenerative disc disease evidenced by the findings of cervical spondylosis on plain CT scan, on the MRI scan and also shown on the bone scan. Dr Rowe believed the cervical spondylosis was "extensive." Dr Pillemer who was qualified by the plaintiff's solicitors referred to the plaintiff's cervical spondylosis as "advanced degenerative changes at multiple levels in his cervical spine." He, like Dr Rowe, thought the distribution of the plaintiff's complaints was suggestive of some C6 nerve root irritation.

20. Accordingly, Dr Rowe talks of the plaintiff's cervical spondylosis as being extensive and Dr Pillemer talks of it as being advanced. Why is that so? There are a number of opinions in that regard before me. Dr Bulcraig in his letter of 25 April 2014 said this:

"Mr Robinson has worked as an underground coalminer for 26 years. He always wears a hardhat due to numerous head injuries encountered. This would significantly increase his risk of developed cervical spondylosis, degenerative changes, and neuralgia."

Dr Davies in a letter to Dr Bulcraig of 30 January 2014, that is in a letter not dictated for medico-legal purposes, said this:

"Mr Robinson has cervical spondylosis that is probably significantly related to the nature and conditions of his employment over many years in the mines. I believe his employment is a substantial contributing factor for the development of his recent symptoms."

That opinion is not recorded in Dr Davies' medico-legal report of 8 May 2014 in which the Doctor was asked to respond to a number of questions. It is probably because the solicitor did not bother to ask the Doctor of the relationship between the history and the diagnosis. Dr Rowe, despite his diagnosis of extensive cervical spondylosis, said that it was "consistent with age and constitutional factors," but conceded it may have been aggravated by "the reported injury" on 10 January 2014. He thought that that "incident," whatever he may mean by that, had rendered the pathology arising on an age or constitutional basis symptomatic. Dr Pillemer said this:

"As far as diagnosis is concerned, Mr Robinson has advanced degenerative changes at multiple levels in his cervical spine and in my opinion the nature and conditions of his work would have been an aggravation of his underlying problem."

Under the heading "Attributability" the Doctor says that in his view "the nature of the conditions of his work" had aggravated a longstanding and advanced degenerative condition. The Doctor does not say whether the longstanding and advanced degenerative condition had anything to do with the type of work that the plaintiff performed for the defendant. It might be capable as being so interpreted but he appears to mainly relate the onset of symptoms to "the nature of the conditions of his work."

21. One other thing which does arise is this. On 21 January 2011 the plaintiff attended upon the Shellharbour City General Practice at which Dr Bulcraig practices. On that occasion he did not see Dr Bulcraig but another practitioner, Dr Khosa. The plaintiff went to see Dr Khosa on 21 January 2011 and gave a history that he had been having a sore neck for the last couple of days and had woken up on that day with a really bad neck. He also gave a history of migraines but the pain that he was then experiencing was not as severe as migraine pain. The Doctor prescribed a painkiller and bedrest. I drew that attendance upon Dr Khosa to Mr Odling for the defendant as I was reading the medical evidence on the Bench. No application was made by the defendant to further cross-examine the plaintiff. However, that complaint of cervical pain or cervically-determined pain might be consistent with a longstanding condition of cervical spondylosis. One cannot be definitive.

22. However, it appears to me that age does cause some degenerative problems in the spine. However, heavy work can make those degenerative changes more pronounced, more extensive, more advanced and more acute. The plaintiff has performed work in the coal mining industry for a large number of years. He has reported in the past a large number of neck strains. He has had symptoms in the past, clearly. The extent of the plaintiff's cervical spondylosis is much greater than I would expect for a man who had just turned 50. I accept that the plaintiff's neck condition as at 10 January 2014 was caused by an underlying constitutional predisposition perhaps or just natural aging but made a lot worse by the type of work that the plaintiff performed as a coal miner for the defendant for 10 years until 1999 and from the 28 October 2002 until 10 January 2014.

23. In the circumstances the onset of pain due to the underlying condition need not necessarily be related to the heavy work which the plaintiff did shortly before he noticed the onset of symptoms, see: Calman v Commissioner of Police (1999) 19 NSWCCR 40, a decision of the High Court of Australia. However, bearing in mind the shortness of time between the heavy work which the plaintiff described dismantling the conveyor on 14 January I accept that the symptoms which he noted on that day were probably related to that work. It is more difficult to relate the symptoms the plaintiff experienced on Monday, 13 and Tuesday, 14 January to the work he did on 10 January but because of the reasoning of the High Court of Australia in Calman's case in my view it is irrelevant as to what was the immediate precipitant of the pain if the pain was due to a condition which had been substantially caused by the type of work the plaintiff had done for the defendant.

21. It might be objected that as I have not determined that the work was the sole cause of the cervical spondylosis, that applying Calman and noting that the initial cause might be the aging process or a constitutional predisposition I must look for some work-related aggravation. However, that ignores the fact that the condition itself can be made substantially worse and once it has been made substantially worse on a permanent basis by the type of work the plaintiff did for the defendant it matters not whether the symptoms came on merely because the plaintiff held his neck in a fixed position whilst watching television or that it got worse because of the way he slept with his neck on a pillow. If the condition has been made substantially worse by the work then any symptom arising from the condition could be seen as being a mere demonstration of the underlying substantially work-caused pathology.

22. The plaintiff was clearly and totally incapacitated until 22 January 2014 when Dr Bulcraig issued to him a certificate to perform light duties commencing on the following day, 23 January 2014. The plaintiff rang his employer and advised his employer of that certification but there were no light duties available to him. I find as a fact that on or about 23 January 2014 the defendant failed to provide the plaintiff with suitable employment during his partial incapacity. That partial incapacity extended until 28 March 2014 when the plaintiff returned to work on light duties and he was eventually cleared for his normal work some three or four weeks later and continues to do that normal work.

23. Any further reasons for judgment?

ODLING: No, your Honour.

BENSON: No, your Honour.

27. HIS HONOUR: I have inquired of counsel for the parties if any further reasons for judgment required and told none is so required. For those reasons I make an award for the plaintiff for $1,310.75 per week from 17 January 2014 to 22 January 2014 for total incapacity and for the same amount of money from 23 January 2014 until 27 March 2014 pursuant to s 11(2) of the Workers Compensation Act 1926 as preserved in respect of workers employed in or about a coal mine. I order the defendant to pay the plaintiff's expenses under s 60. I order the defendant to pay the plaintiff's costs.

ODLING: There is one further matter we can assist your Honour with.

HIS HONOUR: Yes.

ODLING: The name of the defendant is Endeavour Coal Pty Ltd.

HIS HONOUR: I amend the statement of claim and all consequential documents by showing as the correct title of the defendant Endeavour Coal Pty Ltd trading as Westcliff Colliery.

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Decision last updated: 15 June 2015