Stait v Centennial Coal (Angus Place Colliery)
[2016] NSWDC 137
•14 April 2016
|
New South Wales |
Case Name: | Stait v Centennial Coal (Angus Place Colliery) |
Medium Neutral Citation: | [2016] NSWDC 137 |
Hearing Date(s): | 13-14 April 2016 |
Date of Orders: | 14 April 2016 |
Decision Date: | 14 April 2016 |
Jurisdiction: | Civil |
Before: | Neilson DCJ |
Decision: | Award for the plaintiff for: $1,130 from 14 November 2014 to 10 April 2015; for $391.90 per week from 11 April 2015 to 30 September 2015; for $395.10 per week from 1 October 2015 to 31 March 2016; and for $400.40 per week from 1 April 2016 to-date and continuing |
Catchwords: | CIVIL – Workers compensation coal miners claim – Claim for weekly payments from the date of voluntary, early retirement and section 60 expenses for, inter alia, undoubtedly injured right knee |
Legislation Cited: | Workers Compensation Act 1926 |
Category: | Principal judgment |
Parties: | Kerry Stait (Plaintiff) |
Representation: | Counsel: |
File Number(s): | RJ73/15 |
Publication Restriction: | No |
JUDGMENT
HIS HONOUR: The plaintiff, Mr Kerry Edward Stait, is a former coal miner. He claims weekly payments of compensation from 14 November 2014 to date and continuing pursuant to s 11(1) of the Workers Compensation Act 1926, as it is preserved for the benefit of coal miners by the Workers Compensation Act 1987. He also claims his expenses under s 60.
The plaintiff is currently 61 years of age. He grew up in Portland and attended the Portland Central School until the age of 15. In 1972 he commenced an apprenticeship as a fitter at the Portland Cement Works. He completed that apprenticeship in 1976. Upon achieving his tradesman's certificate he joined the Electricity Commission of New South Wales and worked in his trade at the Wallerawang Power Station. On 23 March 1981 the plaintiff entered the coal mining industry and commenced working at the Angus Place Colliery. He worked there for various employers until taking a voluntary early retirement on 14 November 2014.
The plaintiff relies upon a frank injury which befell him on 19 May 2006 and the type of work he did in the coal mining industry between 23 March 1981 until his redundancy in 2014. Immediately prior to the redundancy the plaintiff was on annual leave. I do not know exactly on which day the plaintiff last worked. The plaintiff relies upon injuries to his right leg and particularly his right knee, and also to his neck and back. Originally the plaintiff also claimed lump sum compensation under s 66 and s 67 but that claim was withdrawn because it is proposed that the plaintiff soon undergo further surgery on his right knee.
Very much in issue between the parties is the question of the causation or aggravation, acceleration, exacerbation or deterioration of degenerative conditions in the plaintiff's lumbar spine and in his cervical spine. I need to make no finding in regard to those conditions as it is patently clear that the plaintiff's incapacity for work, which is undoubted, results from the injury to his right knee which occurred on 19 May 2006.
There is a dispute between the parties as to whether a pre-existing osteoarthritis in the right knee was caused by the plaintiff's work or aggravated, accelerated, exacerbated or made worse by his work, but I need not decide that issue either, because it is patently clear in the opinion of both the plaintiff's doctors and the defendant's doctor that the event of 19 May 2006 made the plaintiff's right knee worse and is the effective cause of his incapacity for work.
On 19 May 2006 whilst working underground the plaintiff trod on an irregularity on the mine floor and twisted his right knee. The mine was a wet mine and the mine floors were mud. That mud extended in general to the level of the top of the plaintiff's boots, essentially to knee level. Ambulating through the mine was a problem even without an injured knee.
After the event of 19 May 2006 the plaintiff came under the care of Dr Mark Roebuck at the Bowenfels Medical Practice. Dr Roebuck referred the plaintiff to Dr Pavitar Sunner, an Orthopaedic Surgeon at Penrith. Dr Sunner also has rooms at the Community Specialist Centre on the Great Western Highway at Lithgow.
Dr Sunner has a history of injury consistent with what the plaintiff deposed to in his evidence. About the existence of that injury there is no dispute. Dr Sunner, on examination on 13 June 2006, found a slight varus alignment of the right knee. He also noticed mild patello-femoral crepitus, which clearly represents a long standing condition of osteoarthritis in the post patellar region, and the doctor also found a small effusion, a small swelling, of the knee, which is consistent with a frank injury occurring on 19 May 2006. There were abnormal findings on clinical examination. Dr Sunner, in his first report expressed this view:
"It is quite possible that he may just have exacerbated an underlying arthritic problem in his knee or it is possible that he may have a degenerative tear of his medial meniscus."
An MRI scan of the plaintiff's right knee was performed on 26 June 2006. It is reported by Dr Schatz of Penrith Imaging. The relevant parts of Dr Schatz’s report are these:
"In the medial meniscus there is an extensive horizontal tear through the body and posterior horn. The body of the meniscus is slightly medially extruded. There is diffuse grade 3 degenerative cartilage wear seen in the medial compartment with some focal areas of grade 4 full thickness cartilage wear over the posteromedial and over the more anteromedial surface of the tibial plateau, with associated reactive subchondral marrow oedema but no cystic changes.
At the patellofemoral joint there was a grade 3 chondral degeneration over the medial patella [sic] facet and apex, cartilage over the lateral facet is preserved. There is diffuse grade 3 chondral degeneration of the base of the trochlea in the mid line and medially, cartilage over the far left trochlear surface is intact.
There is a moderate joint effusion and a small popliteal cyst."
Clearly those appearances suggest a long-established, degenerative condition in the plaintiff's right knee together with a large tear of the medial meniscus.
The plaintiff returned to see Dr Sunner on 11 July 2006 and Dr Sunner stated that the MRI scan did confirm his clinical suspicion that the plaintiff had a very extensive cleavage tear of the medial meniscus. Dr Sunner recommended surgery. The plaintiff did not immediately agree to undergo surgery. The plaintiff returned to see Dr Sunner a year later on 21 August 2007 and told the doctor that he had come to the conclusion that he needed something done about his knee and that he had been trying to fool himself, thinking that he could cope with his knee as it was while still doing the work of a coal miner. In answer to an enquiry by the insurer of the defendant, Dr Sunner said this:
"With regards to your question as to whether this meniscal tear was a recent tear or whether it pre-existed the injury, it is impossible to answer this question. There are no signs on the MRI that can differentiate between an old tear or a new tear because a meniscus is a relatively avascular structure. All you can do is rely on the patient's symptoms and he reported that he had no trouble with his knee prior to the injury. Given his history of twisting his knee at the time of the injury, you would have to say that the injury on 19 May 2006 did cause his tear as this is a classic mechanism for meniscal tears. While you can say with certainty that the arthritic changes in his knee would have predated the injury[,] it is impossible to say whether the meniscal tear pre dated or not."
In the same regard the defendant's doctor, Dr Lloyd Hughes, expressed this view in his first report of 26 November 2014, following upon his examination of the plaintiff on 18 November 2014:
"This man is suffering from osteoarthritis of both knee joints particularly, the right knee joint. In addition he gives the history of injuring his right knee at work on 19 May 2006 which probably resulted in the torn medial meniscus which was identified in the MRI examination. It is also possible that the torn meniscus was degenerative in nature rather than traumatic. However, based on his history it is probable that the tear of the medial meniscus resulted from the incident at work although there is clear evidence on the MRI that he was already suffering from a moderately advanced osteoarthritis of the knee joint."
I have no hesitation in finding that on 19 May 2006 the plaintiff, by reason of a twisting injury, tore the medical meniscus of his right knee, that meniscus being sited in an already degenerative knee. A meniscus being a soft tissue ought not be the subject of the osteoarthritis which, of course, is a degenerative condition of bone.
The plaintiff underwent a partial medial meniscectomy and chrondoplasty by arthroscopy on 3 December 2007 at the hands of Dr Sunner at the Nepean Private Hospital. In a post-operative report of 11 December 2007 Dr Sunner pointed out that in the long term the plaintiff would need a knee replacement but immediately after the surgery the plaintiff's knee felt quite good, according to the plaintiff. Dr Sunner, in the report of 11 December 2007 recommended post-operative treatment which appears to have been carried out. Dr Sunner reviewed the plaintiff on 14 February 2008. Dr Sunner's report of that date says this:
"He tells me that he is doing quite well. He is almost doing his normal duties, except from getting into what he calls the mud part of the mine. He does not feel confident that he can go and do that and do his duties. Otherwise he says that he is not having too many problems with his knee."
At that stage Dr Sunner made no further appointment to see the plaintiff.
In the evidence before me are certificates from the plaintiff's general practitioner, Dr Roebuck, certifying partial incapacity from 15 February and fitness for normal work commencing on 22 February 2008. However, it appears from Dr Sunner's report that the plaintiff had returned to work performing some form of restricted work prior to 14 February 2008. I have been told that the plaintiff was paid his current weekly wage rate by the defendant for six weeks, indicating that as far as the defendant was concerned the plaintiff was only off work for six weeks after the surgery practised on 3 December 2007.
The plaintiff told me that he did get back to performing normal duties underground but within months his position was changed: he went from working underground to working in the general workshop at the pit top, in essence, repairing plant used in the mine using his trade skills as a fitter. When working underground the plaintiff initially worked only in his trade but when multi skilling was involved he did both mechanical fitting work and the work of a federation miner. Clearly, the work at the pit top did not involve walking through mud up to his knees constantly. The plaintiff did go underground from time to time but he estimated that it was only about once a week when he was called to attend a breakdown of plant within the mine or to service some part of the machinery that could be not moved from its position underground.
The plaintiff was working at the pit top with the occasional underground work at the time he was offered a voluntary early redundancy. The plaintiff took the offer. At the time he was 59 years old. He had been working in this colliery since 1981, that is, for 33 years. Other coal miners at the Angus Place Colliery were being offered work in other local mines but no such offer had been made to the plaintiff. Work in other mines was offered to persons about the plaintiff's age. He referred in particular to Mr David Sewell and Mr John Watkins and to others who were about a decade younger than the plaintiff. The plaintiff mentioned Mr Greg Morley and Mr Warren Witherspoon and also some younger fellows, but one would expect that the younger fellows would be readily redeployed in other mines, the likelihood being that they were not carrying injuries.
In any event, the plaintiff thought that he should take the voluntary, early retirement rather than run the risk of being made redundant and not being able to obtain work in another pit, which would require him to pass a fitness test for the full duties of an underground coal miner. I wholly accept that the plaintiff acted in his best interest at the time and that the taking of the voluntary early retirement was not because he wished to retire from the workforce but rather because he thought it was in his financial interest to take the voluntary, early redundancy as he was unlikely to be offered work in another coal mine. The fact that the plaintiff wanted to work on is confirmed by a history recorded by Dr Daniel O'Keefe on 19 March 2009, that the plaintiff wished to continue working until age 60 or 65. It is also confirmed by a history recorded by Dr O'Keefe on 10 June 2015 that the plaintiff wanted to continue working until he was 65 years old.
That there is an incapacity due to the condition of the plaintiff's right knee is undoubted. Since the surgery practised by Dr Sunner the plaintiff's condition has deteriorated. The plaintiff saw Dr Daniel O'Keefe for the first time on 19 March 2009. Dr O'Keefe arranged for an X-ray of the plaintiff's right knee. He arranged for five view including weight bearing views. The radiologist, Dr McCormack, in his report of 19 March 2009 says this:
"There is a moderate knee joint effusion. There is complete loss of the medial knee joint compartment on the weight bearing view..."
On that occasion Dr O'Keefe recommended knee replacement surgery but after recording the history of the plaintiff's wishing to work on until age 60 or 65 said this:
"I think he urgently needs to undergo a high tibial osteotomy of his right knee which would realign his leg; re-establish the weight bearing axis and throw most of his weight on the intact lateral compartment. This may buy him five ten years of use of his knee before it collapses into varus during which period he could remain at work."
Further X-ray of the right knee was performed on 2 March 2010 at the request of Dr Roebuck. The report says this:
"Comparison was performed with the film of March [2009]. There is now complete obliteration of the medial joint space. There is extensive subchondral sclerosis with osteophyte lipping. The extent of osteoarthritis has significantly progressed since March 2009. There is osteophyte lipping at the intercondylar notch. There is focal subchondral lucency abutting the medial femoral condyle. This may represent a focus of degenerative related osteonecrosis. There is a small suprapatellar joint effusion. There is severe patellofemoral osteoarthritis."
Nearly three weeks later the plaintiff saw Dr Leo Pinczewski, an orthopaedic surgeon at the North Sydney Orthopaedic and Sports Medicine Centre. A solicitor friend of the plaintiff had suggested that the plaintiff consult Dr Pinczewski. Dr Pinczewski recommended right sided high tibial osteotomy the same procedure that Dr O'Keefe had recommended a year earlier. However, the suggestion was not taken up.
Dr O'Keefe saw the plaintiff again on 24 September 2014; that is, prior to the plaintiff's being offered a voluntary early retirement. The doctor expressed the view that the plaintiff was now past the suitable age for a high tibia osteotomy and that he required a total knee replacement. He estimated that the cost of that surgery was then $42,000.
After the plaintiff took voluntary early redundancy he saw Dr O'Keefe again on 10 June 2015. Dr O'Keefe said the plaintiff would not be able to return to work as an underground coalminer or do any heavy work. Again, he only recommended total knee replacement.
The plaintiff has been seen for the defendant on a number of occasions by Dr Hughes. Dr Hughes first saw the plaintiff a few days after the plaintiff took voluntary early retirement. Dr Hughes expressed the view that due to the advanced osteoarthritis of the plaintiff's right knee joint he is not fit to perform his pre injury duties as a coalminer and was fit "only for suitable light duties." It ought be clear from what I have already said that the surgery practised by Dr Sunner on 3 December 2007 appears to have accelerated the osteoarthritis in the plaintiff's right knee. Dr Hughes saw the plaintiff again on 17 November 2015 and thought the plaintiff was "significantly disabled by pain in his right knee due to the osteoarthritis and may sooner undergo total knee replacement arthroplasty." Dr Hughes thought the plaintiff was fit only for suitable light duties not involving any significant amount of walking. He agreed the plaintiff needed a total knee replacement.
The plaintiff has very recently seen Dr Lachlan Host at Panorama Orthopaedics at Orange and that surgeon has recommended either a partial knee replacement or total knee replacement, and that it is to be carried out soon. Hence, the plaintiff's withdrawing the claim for lump sum compensation. There is no dispute the plaintiff is partially incapacitated for work, that he can only do selected duties, that he cannot work underground, that his work should be sedentary or work where he can sit or stand or move around at will. Using the plaintiff's skills as a fitter I believe he could do fitting work inside a factory or workshop but not requiring him to work in confined or awkward spaces or to kneel or the like. Bench assembly work of electrical components would appear to be something he could do.
Unfortunately the parties have not been able to put before me the award rates at the current time for a fitter. Doing the best I can it appears to me that the plaintiff could, in some suitable employment using his fitting skills, doing work in a workshop or factory, earn $1,000 a week. The difference between that and the plaintiff's probable weekly earnings but for injury is $1,130 because, according to exhibit C1, the plaintiff’s probable earnings but for injury had been for all material times $2,130 per week, which is consistent with my knowledge of the coal mining industry.
For those reasons, I make an award for the plaintiff for $1,130 from 14 November 2014 to 10 April 2015, for $391.90 per week from 11 April 2015 to 30 September 2015, for $395.10 per week from 1 October 2015 to 31 March 2016, and for $400.40 per week from 1 April 2016 to date and continuing.
I order the defendant to pay the plaintiff's hospital, medical and like expenses pursuant to s 60.
I order the defendant to pay the plaintiff's costs.
Liberty to apply on the question of costs.
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