Skyrm v Coal & Allied Operations Pty Ltd fka J&A Brown & Abermai Seaham

[2022] NSWDC 733

District Court

New South Wales

Medium Neutral Citation:	Skyrm v Coal & Allied Operations Pty Ltd fka J&A Brown & Abermai Seaham & Ors [2022] NSWDC 733
Hearing dates:	13 December 2022
Date of orders:	13 December 2022
Decision date:	13 December 2022
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	I approve the redemption. By consent orders in accordance with the short of minutes of order which I initial and place with the papers.
Catchwords:	WORKERS COMPENSATION – REDEMPTION – Whether ankle conditions attributable to work as coal miner – Whether redemption appropriate.
Legislation Cited:	Workers Compensation Act 1987 (NSW)
Cases Cited:	Nil.
Texts Cited:	Nil.
Category:	Principal judgment
Parties:	Plaintiff – William Skyrm First Defendant – Coal & Allied Mining Services Pty Ltd fka Charlton Employment Company Pty Limited Second Defendant – Mount Thorley Operations Pty Limited Third Defendant – Elcom Collieries Pty Ltd Fourth Defendant – Hunter Valley Energy Coal Pty Ltd Fifth Defendant – Labour Co-operative Ltd Sixth Defendant – Powercoal Pty Ltd Seventh Defendant – Donaldson Coal Pty Ltd Eighth Defendant – Centennial Awaba Pty Limited Ninth Defendant – Centennial Coal Company Limited Tenth Defendant – Yancoal Mining Services Pty Ltd Tenth Defendant – Yancoal Australia Ltd
Representation:	Counsel: Plaintiff – Mr Benson, D. Defendants – Mr McMahon, S. Solicitors: Plaintiff – Whitelaw McDonald Defendant – Sparke Helmore
File Number(s):	2022/00162383
Publication restriction:	Nil.

Judgment

1. HIS HONOUR: Currently before me is a redemption application in the sum of $75,000. The Plaintiff's rights to weekly payments of compensation have now ceased. He has reached the age beyond which weekly payments of compensation are no longer payable; however, he may be able to recover any hospital, medical, or like, expenses that he may sustain in future, that are causally related to his employment.

2. The Plaintiff has not been paid any lump sum compensation under s 66 or s 67 of the Workers Compensation Act 1987, as those rights exist for those who work “in or about a coal mine”. On a conservative basis, I have assessed the Plaintiff's entitlement to lump sum compensation under s 66 to be approximately $50,000. In doing that, I have ignored the assessments of the loss of efficient use of the Plaintiff's left leg and the Plaintiff's right leg, either at or above the knee or below the knee and including the foot of each of those legs.

3. On one calculation, the Plaintiff is entitled to above 20% of the efficient use of his right leg at or above the knee, if one accepts the assessments of Dr Hopcroft, and perhaps a similar assessment of the loss of efficient use of his left leg at or above the knee, if one accepts assessments of Dr Hopcroft and Dr Bodel of the 25% loss of efficient use of the left leg below the knee. These are hotly disputed in the medical evidence. The reason why is clear.

4. The only injury that the Plaintiff ever reported to either of his ankles, occurred on 8 March 1983. A pipe fell on his left ankle. He attended the Wallsend District Hospital and was declared unfit for three days. He resumed work in the underground coal mines on the Ides of March 1983 and continued to work in underground coal mines until 28 April 2016. The Plaintiff's subsequent complaints about his ankles can be ascertained from the synopsis of complaints recorded by Dr Neil McGill, on pp 5 and 6 of his primary report of 6 April 2022.

5. On 15 February 2013, some 30 years after the injury to his left ankle, the Plaintiff complained to a General Practitioner of pain in the right ankle which had been present for over a month, and the pain was in the area around the tendo Achilles. The general practitioner questioned whether the cause of that pain was gout. On 20 February 2013, it was noted that the Plaintiff's urate level was high, but not sufficiently high to diagnose gout. The GP's plan was to aspirate the ankle under ultrasound control and inject with cortisone if it was thought appropriate.

6. On 13 March 2013, the same practice recorded a diagnosis of right plantar fasciitis but made no mention of whether the ultrasound guided aspiration had been carried out. On 1 April 2013, the right plantar fascia were injected. On 10 October 2013, six months later, the Plaintiff presented with a swelling and pain in his left ankle, which had been present for three days. The notes record "Nil injury. [The Plaintiff] was limping. There was moderate swelling and minimal redness. Colchicine was prescribed." I understand that to be an anti-gout medication.

7. On the following day, it was recorded that gout was thought to be the cause of the left ankle problem. Colchicine and Celecoxib were prescribed on 8 July 2014, some ten months later, by the same practice, and I understand that both of those are prescriptions to control gout.

8. On 1 October 2014 the Providence Medical Centre at Warners Bay recorded that the Plaintiff's right ankle was inflamed. Again, Colchicine and Celecoxib were prescribed. On 6 May 2015, the practice recorded a three-day history of a painful ankle, but the ankle in question was not described at that time. However, on 20 May 2015, there was an MRI of the left ankle, and that is recorded as showing degenerative disease.

9. From another source of medical information, a report of Dr Anthony Hopcroft of 20 January 2021, there is a report of an x-ray of the right ankle and foot made on 15 February 2013. The report, set out in Dr Hopcroft's report, says this:

"Corticated ossific densities are seen related to the tip of the medial malleolus. These are thought to represent small accessory ossicles or a manifestation of previous trauma [there was no such history]. No acute fracture lucency is seen. Alignment of the ankle joint is anatomic. The bony mortice is intact. The subtalar joints define normally. A small plantar calcaneal spur is noted. A bony spur is also seen on the posterior aspect of the calcaneus at insertion of the Achilles tendon. If there is [sic] persistent clinical concern for plantar fasciitis, an ultrasound will be of use for further evaluation.

Right Foot: No fracture is seen. Age-related degenerative changes are noted involving the small joints of the toes. No erosions or ankylosis is evident. Alignment otherwise appears anatomic."

It appears to me, doing the best I can on the evidence, that both the findings in respect of the right ankle and the right foot showed degenerative disease in both areas of the right lower limb, and therefore one could appreciate that there may be findings of degenerative disease in the left lower limb, found on the MRI scan of the left ankle, on 20 May 2015.

10. On 11 June 2015 a physiotherapist, Mr Robert Dingle, saw the Plaintiff regarding his left ankle, and he was given a history that the pain had developed "around a month ago following an irritation of the left knee." On 29 July 2015, the Plaintiff saw Dr David Nicholson, a specialist, concerning the left ankle. Dr Nicholson recorded a painful swollen knee, which apparently was the subject of bursitis, and the Plaintiff believed that the ankle problems followed upon the knee problems. When the knee problems settled down, the Plaintiff was still suffering significant ankle pain. The Plaintiff was unable to recall any specific injury to the ankle, although he had done things obviously with the ankle over previous years, such as walking on it. He also gave a history of the old injury, as I understand it, that had occurred back in March 1983.

11. The report of Dr McGill, from which I have been extensively quoting, notes further attendances upon Dr Nicholson on 12 November 2015, following upon an operation. In that operation, it was found that there was some loose cartilaginous body in the ankle joint, and crystalline deposits. Symptoms were sent for histopathological examination, but the result of the histopathological examination did not confirm gout, although that was what the doctor suspected. From what the Plaintiff has told me that has been the suspicion that the Plaintiff's doctors have had concerning the Plaintiff's ankles, that is, both the left and the right ankle.

12. As I have mentioned, the Plaintiff ceased working in the coal mining industry in April 2016. However, for example, he returned to see Dr Nicholson on 14 February 2018, with a recurrence of pain in the left ankle, and that led to a further operation in 2018 when there was another record made of crystalline arthropathy, but none was found on histopathology.

13. Dr McGill said this about the Plaintiff's left ankle:

"In about 1976, a pipe dropped onto his left ankle. He attended Wallsend District Hospital and the ankle was bandaged. No other intervention was required. It is unlikely that that event had any effect on his subsequent ankle problems.

He subsequently had problems with the left ankle due to gout. Discussed further below.

On 29 July 2015, Dr Nicholson saw Mr Skyrm in regard to his left ankle. He noted the left ankle pain had occurred 'after he developed a painful swollen left knee which apparently had bursitis.' At that time Mr Skyrm recorded no specific injury to the ankle. Dr Nicholson noted that MRI had shown an osteochondral lesion. On 12 November 2015, Dr Nicholson performed left ankle arthroscopy and noted that there appeared to be 'crystallised deposits'. The osteochondral defect was treated by resection to cancellous bone.

On 4 January 2017, Dr Nicholson reviewed Mr Skyrm because of further left ankle pain. He noted that MRI showed that the previous osteochondral defect looked better and he did not think he was the cause of the pain. In February 2018 Dr Nicholson explained that he had 'not been able to find anything that could possibly explain his pain.' He arranged a repeat MRI. He performed repeat ankle surgery on 26 April 2018 at which time he detected extensive fibrosis and synovitis. The osteochondral defect was covered with fibrocartilage. He again noted appearances consistent with crystal arthropathy. On 9 May 2018, Dr Nicholson recorded no crystals were found on histopathology. The official report was not available. Standard processing of specimens in formalin causes dissolution of urate crystals and can result in failure to detect crystals when they were present prior to processing."

14. A subsequent heading in Dr McGill's report is "Gout", and again the doctor there outlines what were probably complaints related to gout in various joints of the body, between June 2010 and 18 May 2020. Dr McGill's comments concerning gout are echoed by Dr Dan Posel, an orthopaedic surgeon, in his various reports of 3 March 2020. The issue is really not addressed by Dr Hopcroft or adequately explained by Dr Bodel and Dr Browne in their reports. Considering the only injury reported, being to the Plaintiff's left ankle on 8 March 1983, and concerning the progress of the complaints, it appears to me that the condition of the Plaintiff's ankles and feet are not causally related to the work which the Plaintiff did as an underground coal miner, but are related to gout, which is not a compensable condition.

15. In the circumstances, I believe that sum proposed for redemption is adequate. I approve the redemption. By consent orders in accordance with the short of minutes of order which I initial and place with the papers.

Decision last updated: 27 April 2023