Stanberg-McCrae v Liddell Coal Operations Pty Ltd - [2017] NSWDC 461

District Court

New South Wales

Medium Neutral Citation: Stanberg-McCrae v Liddell Coal Operations Pty Ltd [2017] NSWDC 461
Hearing dates: 6, 7 November 2017
Date of orders: 08 November 2017
Decision date: 08 November 2017
Jurisdiction: Civil
Before: Neilson DCJ
Decision:
For those reasons I make an award for the plaintiff for $983.50 per week, from 1 September 2014 to 25 November 2014, and for $1,008.35 per week from 26 November 2014 to 28 February 2015, and $386.90 per week from 1 March 2015 to 18 March 2015. The award is under s 9 of the 1926 Act up until 26 October 2014 and from 27 October 2014, is under s 11(2) of the same Act.

I order the defendant to pay the plaintiff s 60 expenses in respect of that period but not including the MRI scan of the low back performed on 28 January 2015.

I order the defendant to pay the plaintiff's costs.

In respect of the claims under s 66 and 67 of the Worker's Compensation Act 1987, I make an award for the defendant.
Credit to the defendant for any payments made by it to or for on behalf of the plaintiff during the period the subject of the award.
Catchwords: COAL MINERS WORKERS COMPENSATION – Claims for continuing weekly payments, lump sum compensation and hospital and medical expenses – Plaintiff injured in in MVA in Qld on 15 September 2000 at age 18 – Major injury was to the neck – Symptoms persisted for at least 6 years – Plaintiff recovered damages – Commenced employment with the defendant on 1 April 2000 initially as a maintenance fitter and then as a plant operator in open cut mine – Spinal symptoms commenced in early 2013 – Variable symptoms at different times in cervical, thoracic and lumbar spines – Frank injury on 27 January 2014 – Dispute as to what areas of body injured – Consideration of medical evidence – Plaintiff last worked on 1 September 2014 – Surgery to law back practiced by Dr YAE Ghabrial on 8 September 2015 and 13 January 2016 – Whether need for surgery resulted from any injury arising out of or in the course of employment – Whether undoubted impairments and loss work-related
Legislation Cited: Workers' Compensation Act 1926
Worker's Compensation Act 1987
Category: Principal judgment
Parties: Rebecca Stanberg-McCrae (Plaintiff)
Liddell Coal Operations Pty Ltd (Defendant)
Representation:
Counsel:
Mr D Benson (Plaintiff)
Mr T Rowles (Defendant)
Solicitors:
Whitelaw McDonald (Plaintiff)
Sparke Helmore (Defendant)

File Number(s): RJ 230/2015
Publication restriction: Nil

Judgment

HIS HONOUR: The plaintiff, Rebecca Jane Stanberg‑McCrae, claims weekly payments of workers compensation from 1 September 2014 to date and continuing for either total incapacity, partial incapacity or partial incapacity to be treated as total pursuant to s 11(2) of the Workers' Compensation Act 1926 as it is preserved in relation to persons injured in or about a coal mine within this State. The plaintiff also claims lump sum compensation under s 66 as it operates for coal miners for 45% impairment of her back, 20% loss of efficient use of her right leg at or above the knee, and 20% impairment of her neck. She also claims a consequential lump sum under s 67 for pain and suffering, anxiety and distress resulting from those impairments and loss. The plaintiff also seeks a general order under s 60 for the cost of her hospital, medical and like expenses, which from what I shall describe in these reasons, would be substantial.
The plaintiff commenced working with the defendant on 1 April 2010. The position for which she applied was that of a maintenance fitter and she started working for the defendant as a maintenance fitter. Part of her work as a maintenance fitter required her to work as a trainer and assessor of other workers in the defendant's open cut coal mine. She was a trainer and assessor for those applying for any of the qualifications that the plaintiff herself had. In order to gain greater experience in the defendant's Liddell open cut coal mine the plaintiff started working as a plant operator. The evidence does not tell me exactly when the plaintiff started working as a plant operator but it clearly would have been in 2013.

Prior MVA

The plaintiff grew up in Queensland, her native town appears to be Maryborough. She gained an apprenticeship with the Princess Alexandra Hospital in Brisbane, which commenced in 1999. The apprenticeship was to be a mechanical fitter and engineer. Whilst working in the Princess Alexandra Hospital the plaintiff was involved in a motor vehicle accident. That eventually led to her commencing proceedings in the Supreme Court of Queensland. A statement of claim filed in that Court at Maryborough on 4 September 2003 contains this plaint:

"At approximately 4.45pm on the 15th day of September 2000, a collision occurred at the intersection of Newmarket and Wilston Roads, Newmarket, in the State of Queensland, between the... Honda CRX motor vehicle which the defendant was then driving along Newmarket Road in an outbound direction and was in the process of attempting to turn to her right into Wilston Road and a Toyota Corona motor vehicle, which the plaintiff was then driving along the Newmarket Road aforesaid in the opposite direction."

Essentially it was alleged by the plaintiff in those proceedings that the defendant failed to give way to the plaintiff's vehicle which was on the defendant's right‑hand side. This form of motor vehicle accident is often called a "T‑boning".

Paragraph 5 of the statement of claim contains this allegation:

"As a result of the said collision the plaintiff sustained bodily injuries including trauma to the head, low grade vestibular damage on the right side, and soft tissue whiplash‑type injuries to her cervical spine and right shoulder region, abrasions and bruising."

Particulars filed in the Supreme Court proceedings bearing the date 22 October 2003 state that on 22 September 2000 the plaintiff consulted a doctor in Maryborough and at the time she was having ongoing pain in her right shoulder, her neck, the upper section of her back and headaches. A number of medical reports generated in Queensland following upon that motor vehicle accident have been put before me.

There is a report of Dr Noel Saines, a neurologist, who examined the plaintiff on 30 November 2004. He obtained a history that the plaintiff initially experienced ongoing headache and neck pain and that the symptoms worsened with time leading her to be referred to Dr R Dalton, a physician, who diagnosed vertigo, to Dr B Black, an ear, nose and throat specialist, who found a 10% reduction of hearing in the plaintiff's right ear on audiological examination as a result of vestibular trauma, and that she was also treated by Dr M Weidmann, a neurosurgeon who did not find any significant abnormality. Dr Saines's history also tells me that the plaintiff was referred for vestibular rehabilitation under Ms Meg Richards and that helped resolve a problem that the plaintiff had with vertigo and giddiness. When examined by Dr Saines on 30 April 2004 the plaintiff still had mild soreness in her neck but that was intermittent and responded to Bowen therapy which the plaintiff was then undergoing every few weeks. The plaintiff was still taking pain-killers but was not at that time complaining any longer of any shoulder discomfort. By 30 April 2004 the plaintiff's giddiness had settled down but the plaintiff was still aware of a reduced hearing in her right ear and was suffering from frequent tinnitus in that ear.
Dr Saines's history confirms that the plaintiff was able to finish her apprenticeship at the Princess Alexandra Hospital and that she then obtained work as a fitter in a business at Acacia Ridge but she had to give that work away because of the diagnosis of epilepsy. At the time the plaintiff saw Dr Saines she was setting up her own mechanical service business, but the plaintiff told me that that business failed and she did not get any work from her attempt at self‑employment.
On 25 February 2005, or shortly prior thereto, the plaintiff was examined by Dr Don Todman who is also a neurosurgeon. Dr Todman's report contains the following list of the sequence of symptoms with which the plaintiff presented to him:

"Ms Stanberg has continued to suffer from symptoms from this accident.
There has been persisting neck pain. The pain is continuous and bilateral in the cervical spine but worst on the right side. It extends to the right shoulder girdle and upper part of the right arm.
Neck pain is present at rest but is aggravated by neck movements and postures. Pain occurs at night and her sleep patterns are disturbed.
Headaches are a frequent accompanying feature. There is a constant daily headache, worse on the right side. More severe headaches occur at least once per month and are behind the right eye on the right side of head. The more severe headaches include a throbbing sensation, nausea and photophobia.
...
There was a continuing problem with vertigo and gait unsteadiness. She feels off balance but this is less frequent than it was originally. It may happen about once per week when bending or lifting."

One will note that Dr Saines took a history that the neck symptoms were intermittent but Dr Todman's history indicates that the neck symptoms were continuous.

On 19 February 2007, more than six years after the motor vehicle accident, the plaintiff was examined by Dr John Corbett, another neurologist. According to Dr Corbett, the plaintiff had a number of residual symptoms. The first was, "extreme impairment of memory and concentration". There were headaches which were described as bifrontal and bicipital and occurring daily. There was still daily neck pain which the plaintiff told Dr Corbett was gradually worsening with the passage of time. There were also vestibular symptoms. The plaintiff told the doctor that she felt "dizzy" with sudden head and neck movements such as bending down and standing up suddenly. The plaintiff also complained of intermittent paraesthesiae of her right hand and at times she had associated pain in her right shoulder. According to Dr Corbett the plaintiff's sensory impairment was in a classic right median nerve distribution and he was able to elicit a positive Tinel's sign, a positive Phalen's sign and a positive reverse Phalen's sign on testing.
The plaintiff also had ongoing symptoms of anxiety, anger and depression which had been improved somewhat in then recent times by the taking of an antidepressant and antianxiolytic drug. The plaintiff also complained to Dr Corbett of insomnia ever since the motor vehicle accident which was of some interest to Dr Corbett as he had some expertise as a sleep physician. Dr Corbett did not think the plaintiff had any epilepsy and that epileptic‑type symptoms were likely due to an emotional cause. He noted the plaintiff had been seen by Dr Donald Grant, a psychiatrist, who had provided the diagnosis of adjustment disorder with mixed anxiety and depressed mood.
The plaintiff's proceedings in the Supreme Court of Queensland settled on 10 June 2008 with the plaintiff agreeing to accept $193,500 plus costs in full settlement of her claim for motor accident damages. One can see that the plaintiff's cervical symptoms following upon the motor vehicle accident persisted for at least six years, probably longer, until probably the time of the settlement to which I have just referred.

Subsequent employment

The work at Acacia Ridge which the plaintiff needed to give away was probably the work that she had with BG Crane which was work as a service fitter. That job ceased on 18 August 2003. In the middle of 2004 she had a very short period of employment of about two weeks with Eastern Crane Servicing. Later in that year she had some casual employment with an apiarist. On 7 September 2005 she commenced working for the RSL Club at Maryborough as both a bar lady and as an administrative officer. In March 2006 she obtained work with Tema Engineers Pty Ltd as a branch coordinator and later worked for Bylaser Australia as a laser cutter. In April 2007 she returned to working as a mechanical fitter, both in Brisbane and, later in 2008, in Rockhampton.
She then started working in or about coal mines in Queensland basically as a fitter, before applying to join the defendant's workforce, whose job was advertised. For the purpose of obtaining work with the defendant, the plaintiff travelled down from Queensland to undergo a lengthy employment process. Prior to commencing work with the defendant the plaintiff would have had to have completed and did complete satisfactorily a pre‑employment medical. That pre‑employment medical was with Ethos Health and forms part of the documentation in exhibit D.

Onset of symptoms

In 2013 the plaintiff had a conversation with her occupational health supervisor, Mr David Nowak. She discussed certain symptoms that she had experienced when she got out of bed. He offered her assistance. She was referred to Mitchell Physiotherapy. The plaintiff first went to Mitchell Physiotherapy on 11 March 2013. The relevant records are exhibit E2. The records say this about the onset of symptoms:

"Woke up with lower back pain one week ago. Settled a little today. Pain mostly down right side of low back. Constant pain."

There is an anatomical diagram on the initial assessment form kept by Mitchell Physiotherapy. The anatomical diagram indicates the plaintiff was experiencing pain on the right side of her body from approximately the L4‑5 disc space down to the middle of her right buttock, which would be down towards the lower end of the sacrum. The record of the physiotherapy practice tells me that the plaintiff's occupation was then a "operator", meaning that she is driving plant and machinery in the open cut coal mine. Aggravating factors were lifting, sitting on hard seats and bending.

The plaintiff returned to the physiotherapist on 13 March 2013. She told the physiotherapist that she was much better, that she was still carrying out her full duties and she had slight tightness when getting out of her truck. She then came "good" with stretching exercises. The plaintiff returned to see the physiotherapist on 18 March 2013. She had spent a 12 and a half hour shift in a large truck which was causing her concern. The plaintiff told the physiotherapist that otherwise she was going well with her stretching exercises. The notes record this: "Niggles here and again. Feels good today." The plaintiff did not return to see the physiotherapist in 2013.
On 9 July 2013 the plaintiff underwent a health assessment for Coal Services Health. There is a history recorded of glandular fever in 1997, the fracture of two ribs on the right‑hand side in 1998, of a need for tonsillectomy and adenoidectomy in 2009, of thumb surgery due to having some timber penetrate into her tendon in 2012, and also of a gynaecological procedure in 2012. There was no history given of the motor vehicle accident. Part of the medical assessment was about musculoskeletal problems. The plaintiff told the examiner that she was an operator of machinery in an open cut coal mine. When asked had she had any significant pain or discomfort during the last year that lasted for a week or longer, she said she did. She said it was caused by driving heavy plant over rough surfaces. The part of her body affected was her lower back. She told the examiner that the pain had resolved. A number of questions were not answered. One which was not answered was, which word best described her symptoms, for example, whether it was aching, burning or cramping, or stiffness. The plaintiff did not answer the question, how long the symptoms lasted, but she did say that she had received treatment for the condition. She also pointed out that she had lost no time from work but had been on restricted duties for a period of between one and four weeks.
The inference to be drawn is that this low back complaint is the low back complaint for which the plaintiff sought treatment at Mitchell Physiotherapy commencing on 11 March 2013. She was still obtaining treatment from that physiotherapy practice on 18 March 2013 and the pain had started a week prior to presentation so that the pain seems to have lasted for roughly three weeks, perhaps a little longer. However, it clearly had gone away by 9 July 2013.
The plaintiff was asked to describe a number of the tasks that she performed and as to the frequency that she did such tasks. She said that the work constantly involved driving heavy plant, climbing stairs, ramps and ladders, which are clearly part of the plant, walking on uneven ground, which is what open cut coal mines consist of, and maintaining a fixed posture for extended periods of time, that is the fixed posture of the driver of a piece of plant. She said that using a keyboard or screen for extended periods was an infrequent occurrence as were lifting objects over 20 kilograms, dragging hoses or cables and working with her arms above chest height. She said that she was never required to operate powered tools. She also said that she was exposed to vibration and when asked which source did she find the most uncomfortable as far as vibration was concerned, she said that it was using bulldozers. A comment made was that the plaintiff found machinery "not uncomfortable", meaning perhaps that the seating arrangements and the like within the cab of the piece of plant were satisfactory. The plaintiff's answer to the question about vibrations does not mean that she was only exposed to vibration when driving bulldozers, but it is common for the drivers of all pieces of machinery in opencut coal mines to be exposed to vibrations and to be exposed to the jolting of driving over rough or uneven ground.

Injury on 27 January 2014

The plaintiff was involved in an incident on 27 January 2014. On 7 March 2014 the plaintiff submitted a claim for workers compensation for this injury. The event occurred at approximately 5.30pm. The plaintiff had started work at 7am that morning. The details of the injuries supplied by the plaintiff are these:

"I backed under excavator 113 at a 45 degree [angle], as the digger slewed around to put the first bucket in the tray, the digger bench gave way and the digger bucket landed in the tray. Causing me to hit my head a couple of times and be thrown about. As the digger operator asked me to drive out, the bucket caught the tail of the tray causing it to go up to 100° and slam back down to nil° causing me to be thrown around and hit my head a few more times."

The same document tells me that at the time the plaintiff was driving a Hitachi EH5000 electric drive dump truck. In the document the plaintiff said that she injured her "neck, back". The nature of the injury was described by her as, "sprains and strains of joints and adjacent muscles." A major issue tendered in these proceedings is what area of the plaintiff's back was injured in this event. The plaintiff worked on. As I have indicated, she did not lodge a claim for workers compensation until 7 March 2014. On 14 March 2014 the defendant's insurer accepted liability "on the basis of partial incapacity" and agreed to pay the plaintiff's treatment expenses. It would appear that the plaintiff needed to submit the claim for compensation because she went back to seek treatment from Mitchell Physiotherapy.

The plaintiff attended Mitchell Physiotherapy on 29 January 2014. The "onset" of the plaintiff's symptoms was recorded as being three days previously, but nothing hangs on that, other than the fact that the physiotherapist may have counted inclusively like an ancient Roman. The description of the event is consistent with the plaintiff's claim form and what the plaintiff told me in her oral evidence. The physiotherapist on 29 January noted that there was no loss of consciousness but there was an immediate head injury, if I read the entry correctly. The plaintiff told the physiotherapist that she completed her shift one hour later but then had a migraine headache. The following day was a rostered day off and that she had worked on 29 January and there had been an increase in her symptoms. There was then a brief description of the motor vehicle accident when the plaintiff was 18 years old, that is in the year 2000. The anatomical diagram indicates the plaintiff was suffering pain on the posterior aspect of her body on each side of the spinal column from just below the ears to just below the scapulae. It appears the plaintiff's symptoms were the entire length of the cervical spine until about the sixth thoracic vertebra. Other notations made at the consultation on 29 January 2014 indicate that the pain probably did go down as far as T6.

The plaintiff went back to the physiotherapist on 30 January 2014 and 31 January 2014. A note made on 31 January indicated the pain went as far as T7. The plaintiff returned on 3 February 2014 and again the notes indicate symptoms as far as T7. The plaintiff attended on 5 February and on 7 February. On that date symptoms appear to have gone as far as T10. There were further attendances on 10 February and 12 February, on 14 February and 19 February, on 22 February and 25 February, and doing the best I can, it appears that those consultations were all about the neck and/or thoracic spine.
The next consultation after 25 February is difficult to read but appears to have been on 28 February. The entry is this:

"No work on trucks since last session. Only mild tight [indecipherable] post‑work on [indecipherable]. Discussed with patient no formal [treatment] today but to do all activities of daily living and out of work activities with no restrictions and to rebook after next shift work on trucks."

There is then a reference to a conversation with, I assume, somebody from the plaintiff's workplace. The first word which I have said is indecipherable, I first read as meaning thoracic, then I thought it may have been throb, but then it could be a code word or acronym containing the letters TWOSP. The second word which I have stated was indecipherable looks a bit like clutter, but I am completely unaware of what is referred to. The word I have translated as "treatment" is the Latin abbreviation for “recipe” as used in writing prescriptions by doctors.

The next entry in the notes is for 11 March 2014 and records a telephone conversation between the physiotherapist and the plaintiff. The plaintiff explained that she was working nightshifts and that she was doing well at work working two hours on and two hours off on a truck, clearly some form of restricted duty. The next attendance at the physiotherapist was on 18 March 2014 and it appears that at that time symptoms went as far as T11. The plaintiff went back on 25 March 2014 and again it appears the symptoms went as far as T10.
On 1 April 2014 the physiotherapist notes merely state "sore in back". There is then a reference that appears to me to be a reference to the lumbar spine: "L/Sp". This is the first time that I have managed to find an entry directly related to the lumbar spine since the event of 27 January 2014. The plaintiff returned to the physiotherapist on 3 April 2014 and on this occasion the notes say this: "Feeling better but sore in upper back". The reference on this occasion is to pain as far as T10. On 9 April there is reference to soreness in the neck which had lasted for three hours on one shift. Treatment appears to have been afforded to the cervical and thoracic spines on that occasion. On 16 April 2014 the plaintiff complained of tightness in her upper back and there is reference in the notes the thoracic spine only.
The next consultation was on 29 April 2014 and there is reference both to the thoracic spine and the lumbar spine. The final handwritten entry for the practice of Mitchell Physiotherapy is dated 7 May 2014 and refers to "feeling tight in lower back", and there is reference to the lumbar spine on this occasion. No one from Mitchell Physiotherapy was called to explain how treatment was afforded to the plaintiff and what the various records indicate. For example, sometimes an area of the body could be treated which was asymptomatic. I have sought some elucidation from the notes of the plaintiff's general practitioner but they elucidate nothing. The general practitioner is Dr Raj Joshi of Maitland.
Dr Joshi first saw the plaintiff on 12 March 2014. On that occasion Dr Joshi recorded the plaintiff had been injured in January at work and had been seeing Mitchell Physiotherapy. He recorded that the plaintiff was thrown around in her truck and had injured her "neck and back". The doctor then records immediately beneath the fact the plaintiff injured her neck and back the words "shoulder blades and upper torso" and beneath that "upper section". He then records the date of the accident as being 27 January. He recorded that the plaintiff had a whiplash injury in 2000 caused by a motor vehicle accident and the plaintiff, "has had little pain since that injury of the neck." If that is a history that the plaintiff told the doctor, that she had little pain after a whiplash injury in 2000, then the history was grossly inaccurate. Dr Joshi recorded that the reason for the plaintiff's visit was "neck pain". He arranged for X‑rays to be taken of the plaintiff's cervical spine.
The X‑rays reported by Dr Allan Aho were made on 15 March 2014. There was a minor scoliosis of the cervical spine with convexity towards the right. The radiologist expressed the view that that could be due to pain or muscle spasm. There was moderately severe narrowing of the C5‑6 disc associated with mild osteoarthritis. There was mild bony encroachment upon the exit foramina at that level but no foraminal canal stenosis. The rest of the cervical spine was considered to be normal. Dr Aho expressed the view that the disc space narrowing at C5‑6 was associated with mild osteoarthritis. In other words, there was some form of disc disease at the C5‑6 level which could be due to an underlying congenital degenerative process or could refer back to the motor vehicle accident of 2000 when the plaintiff was only 18 years old.
The plaintiff returned to see Dr Joshi on 25 March 2014. The reason for the visit according to Dr Joshi's notes was "neck pain". He also records that the plaintiff was also getting pain in the thoracic area. The plaintiff returned to see Dr Joshi on 4 April 2014. He noted osteoarthritis of the neck and related pain, and made a note that something had been effected, presumably physiotherapy. The next consultation was on 7 May 2014 and the reason for that was "neck pain". Apparently there was a discussion about the plaintiff’s returning to normal duties but the doctor wanted to wait a further month. There was a consultation on 30 May 2014 about a completely unrelated medical condition.
On 28 March 2014 Dr Joshi had sent the plaintiff for an MRI scan of both her cervical spine and her thoracic spine. The radiologist was Dr Thong. Dr Thong commented on there being posterior disc bulging and posterior osteophytes at C4‑5, C5‑6 and C6‑7 with mild foraminal narrowing at C5‑6 and C6‑7 due to osteophytosis of the uncovertebral joints. Those appearances suggest widespread degenerative disc disease in the neck. The MRI of the thoracic spine was said to reveal no abnormality.
There are notes made by Dr Joshi on 12 June 2014 but it appears that the plaintiff may not have presented at that time, only that it was necessary to print out some documentation to be sent to the insurer of the defendant. In a report addressed to Coal Mines Insurance dated 13 November 2014, the doctor said that on 12 June 2014 he issued to the plaintiff a final certificate indicating that she was able to resume normal work. In that report Dr Joshi said that when he initially saw the plaintiff she had "thoraco‑lumbar back pain". In the next paragraph of his report he said this:

"Accordingly I prioritised the area of greatest pain, that of her neck, for further follow up. Her back pain, at the time, was deemed to be of such a low level, that it was considered resolved, and on the 12 June 2014 I issued her with a final certificate indicating that she was able to resume normal duties."

I am not persuaded on the balance of probabilities the plaintiff ever complained to Dr Joshi about lumbar back pain prior to 12 June 2014. There is reference to the back, but of course that can mean the thoracic spine or the lumbar spine or both. However, Dr Joshi did have radiological investigations of the cervical spine and the thoracic spine, but none of the low back. His notes do not indicate any lumbar complaint.
However, that does not deny the fact that the plaintiff was complaining to the physiotherapist about some lumbar symptoms from about 1 April 2014 intermittently until 7 May 2014. The notes after 7 May 2014 have been computerised. On 29 May 2014 there appears to have been treatment of both the glutei maximi and the lumbar spine as well as areas of the thoracic spine. The next consultation was on 16 July 2014 when the complaint recorded is this:

"Gotten really tight over last two weeks. Wanted to come a week ago but couldn't from work."

The notes then refer to both the lumbar spine and areas of the upper, that is thoracic, spine and appear to have included complaints concerning the glutei maximi and having an anterior pelvic tilt as well as problems with the flexors of the hip. In other words the consultation on 26 July 2014, like the consultation on 29 May 2014 contains complaints about both the low back and the thoracic spine.

Hospital attendance on 1 September 2014

The one thing that is certain is the plaintiff returned to performing her normal duties on or about 12 June 2014. She continued to drive plant in the defendant's open cut coal mine. She did so up until 1 September 2014. On the evening of that day she reported to the Maitland Hospital. She presented to hospital shortly before 8.30pm. She presented to the triage nurse, Mr Michael Sager. He compiled this entry:

"Female aged 32 years, nine months[,] presents with Pain‑Chronic and Intractable, patient complaining of low back pain, states had back injury in January and pinched nerve at L4‑5, was cleared in May but has reaggravated injury but cannot remember specific aggravating incidents, patient moving with stiff gait, has not taken analgesia and reluctant to do so due to drug testing at work. Complaint of pain down both legs and numb feeling in feet."

The discharge notes indicate that the plaintiff had had back pain of increasing intensity over the last four days and that the back pain had been "an issue" since the event of 27 January 2014, although the date of that event is not included in the notes. The examiner noted that there was no neurological deficit and the plaintiff was otherwise well. There was no history of any further trauma. The diagnosis was of back pain without neurological deficit and the plan was that the plaintiff be given analgesia and discharged home when pain free, and that she was to be given adequate pain control at the time of discharge. The records indicate that the plaintiff was given the opiate Endone as well as diazepam. Endone was initially prescribed at 9.35pm and then again at 10.40pm but the timing of entries is not clear to me. In any event, the plaintiff was given two doses of Endone and one of diazepam at about the time of discharge as well as another Endone. The plaintiff was provided with a certificate of incapacity for work for two days, 1 and 2 September 2014, and that was signed by Dr Christian Pathak who elsewhere is described as a registered nurse.

Clearly that was a complaint of major low back pain which had been coming on over a period of four days and required strong pain-killing medication. However, the evidence is completely silent as to who may, in the past, have diagnosed a "pinched nerve at L4‑5", and up until this time on the evidence before me there had been no radiological investigation of the lumbar spine which might allow even a physiotherapist to diagnose such a condition.
The plaintiff went back to see Dr Joshi on 3 September and told him that she had increased neck and back pain and that the pain was "getting worse and worse". The doctor diagnosed both back pain and muscle spasm and made a further prescription of Endone and Norflex and issued a certificate of incapacity for work. The plaintiff re‑attended upon Dr Joshi on 4 September but that was for dermatitis. On 11 September the plaintiff saw Dr Joshi again and obtained a further referral for physiotherapy. The plaintiff saw Dr Joshi on 17 September and told him that she is still getting "a lot of pain". The plaintiff also told the doctor that she was using a TENS machine but was still getting pain even using that machine. She appears to have indicated that the TENS machine may have leased muscle spasm. The presenting complaint on that occasion was not neck pain, but back pain.
On 23 September 2014 the plaintiff saw Mr Tim Paine, a physiotherapist at the Mitchell Physiotherapy. Mr Paine wrote a letter to Dr Joshi. According to that letter the plaintiff was then complaining of "mid‑back pain". Mr Paine recorded that on examination he found spasm in the upper and mid back and spasm in the abdominal muscles and pain with flexion and extension of the back. Unfortunately he does not indicate where her pain was when the back was being flexed and extended. The notes made by Mr Paine on that day do not really assist. The plaintiff went back to see Mr Paine on 25 September and on this occasion told him that she was "still feeling pinch in lower back with flexion and extension". The notes indicate that the plaintiff was treated both for problems in the lumbar and thoracic spines.
On 30 September the plaintiff saw a different physiotherapist, Mr Ryan Kennedy. He records complaints in the lower thoracic and upper lumbar spines. There is reference to an exercise program going as low as L5 and sharp bilateral spasm between L2 and L4 indicating a low back complaint. However, on 2 October the plaintiff returned to see Mr Paine and she told Mr Paine that her pain was "a bit better", but she was still sore in the "mid‑back". Again, treatment appears to have been given to the thoracic spinal area. The plaintiff returned to see Mr Tim Paine on 9 October 2014 and he noted that the "pain has gone". However, it appears that the areas of plaintiff's body that he worked on included the plaintiff's hips and her sacroiliac joints. The plaintiff returned to see Mr Paine on 14 October 2014 and the plaintiff complained of some symptoms in her upper back, but otherwise that she was feeling well. There was a further consultation of Mr Paine on 22 October and the doctor noted that the plaintiff "went back to work", but there is no evidence to that effect other than that entry. Again, the complaint is not recorded but I do know that inter alia Mr Paine worked on the plaintiff's hip flexors which would indicate a problem in the low back. On 27 October 2014 the plaintiff told Mr Paine that she still had pain "in lower back" and clearly the lumbar spinal area was treated. On the next occasion, 31 October 2014, the complaint was centred on the mid‑back and there was treatment of the thoracic spinal area. On 5 November 2014 the plaintiff attended Mitchell Physiotherapy for the last time. On that occasion she saw Mr Tim Paine again. The notation is this:

"Still in a lot of pain in lower back. Going away for a few weeks."

The notes then refer to treatment of the lumbar paraspinal area and make reference to a pelvic tilt which of course would be referrable to some low back condition. It appears the plaintiff was going back to Queensland to visit her family.

Thus far I have concentrated on the plaintiff's complaints to the physiotherapist since 1 September 2014. I return to Dr Joshi's notes. On 22 October 2014 the plaintiff told Dr Joshi that she was getting a lot of pain all the time. The pain, according to Dr Joshi was in the thoracic spine. The notes of Dr Joshi then indicate that he was transferring his records concerning the plaintiff to the Family Medical Practice in Maryborough which the plaintiff had attended when she was living in that town.

Dr R Rowe – 18 December 2014

The picture before me is made more complex because in December and January the plaintiff consulted two other medical practitioners. On 18 December 2014 she consulted Dr Roger Rowe, an orthopaedic surgeon, to whom she had been referred by Coal Mines Insurance. The plaintiff described the event of 27 January 2014. The plaintiff told Dr Rowe that immediately she felt soreness in her head and a little tightness "in the back". She went on to tell the doctor that on the day after she felt tightness in the trapezius region bilaterally and tightness and soreness in the middle of the back which she indicated was around the bra strap level. The plaintiff told the doctor that on 1 September 2014 she experienced a recurrence of her back pain whilst driving at work. The plaintiff clarified that she didn't suffer any further accident or injury, the pain simply returned when she was driving. I accept that to be likely.
The problem with the history recorded by Dr Rowe is that he has the recurrence of the pain being not in the low back. The plaintiff told Dr Rowe that she had been off work since 1 September 2014 apart from three shifts, each of six hours on light duty. There is accordingly some evidence to suggest the plaintiff had returned to work for a short period of time after 1 September 2014. The plaintiff told Dr Rowe that she stopped attending physiotherapy because CMI had not been paying for it. She denied any previous problem in her back, that is she denied a problem in her back prior to 27 January 2014. That denial is erroneous, but it may be that the symptoms the plaintiff had in 2013 were of insufficient duration for the complaint to have stayed in the plaintiff's memory. She gave a history of the motor vehicle accident of September 2000. She went on to tell Dr Rowe that there had been no change in her condition since September 2014.
The plaintiff made a number of complaints to Dr Rowe about the backache which she was experiencing. She told him that the discomfort was in the middle of her back in the thoracic region around the level of her bra strap. The doctor said this about his physical examination:

"Examination of the back revealed the ache to be sited at around the bra strap level with tenderness localised to the T7, T8 and T9 region of the thoracic spine. Back alignment was normal. There was no spasm. She was able to bend forward to touch the upper shin level. Back extension and rotation were of full range. Straight leg raising 60 degrees bilaterally with negative sciatic stretch tests. There was no neurological deficit.
Examination of the neck revealed no abnormality. Specifically there was no movement or position of the neck that reproduced her mid‑thoracic discomfort."

In the conclusion of his report Dr Rowe pointed out that there was no mention of any low back symptoms by the plaintiff nor any mention of any investigations of the low back. He went on to say that the diagnosis was of mid‑thoracic pain for which no specific pathology had yet been demonstrated. He believed that at the time of his assessment there was no evidence that her symptoms were arising from the cervical spine and the plaintiff did not have any lumbar spinal symptoms. The doctor went on to say this:

"It does appear that Ms Stanberg‑McCrae recovered from the injury in January by around May of this year. It was around three or four months later that she experienced a recurrence of the mid‑thoracic symptoms in the absence of any accident or injury. It is difficult to be definite in regard to Attributability in the absence of a specific diagnosis. At this stage the history is that her symptoms occurred while she was driving the dump truck at work and thus I have accepted that her condition is a result of her employment on 1 September 2014. It does not seem to be related to the earlier injury on 27 January 2014 given the somewhat confusing nature of her symptoms and the apparent resolution of this earlier injury."

He went on to express a view that the plaintiff was then unfit to return to her pre‑injury duties as a dump truck driver but could not express any concluded view as to the prognosis.

Later Dr Rowe was sent the records of the Maitland Hospital. He noted that they referred to low back pain rather than mid‑thoracic pain. He was also sent a copy of a nuclear bone scan performed on 13 January 2015. Of that he said this:

"The nuclear bone scan does not provide a clear diagnosis but it does exclude the presence of any underlying facet joint fracture. It referred to sacroiliitis which may be the result of underlying systemic inflammatory arthritis. This needs further investigation by her local doctor, especially given her age of 33 years."

Prof T Coyne – 22 January 2015

On 22 January 2015 the plaintiff saw Professor Terrence Coyne, a neurosurgeon, on referral by her general practitioner in Maryborough. The plaintiff was accompanied to that consultation by her parents. The plaintiff gave a history of the event of 27 January 2014. The plaintiff told the doctor that after that incident she was aware of pain in her neck and her thoracic spine. She went on to tell him that on the following day she had more noticeable cervical and thoracic spine pain. She told the Professor that her thoracic spine pain in particular was severe. She told Professor Coyne that as a result of her complaints she was prescribed Endone, although as far as I can make out, Endone was only prescribed from 1 September 2014. When seen by Professor Coyne the plaintiff was taking two tablets of Endone per week and Norflex a number of times each day. The plaintiff went on to say this about her symptoms at the time of her consultation with Professor Coyne:

"Ms Stanberg‑McCrae said her most severe persisting symptom is mid‑low thoracic spine pain. She said this is more noticeable on the right. She said she periodically experiences thoracic spine muscle spasms. She said her pain is constant, and is aggravated by 'everything', including walking, standing, sitting, lying and driving. She said her thoracic spine pain can radiate towards her right scapular region. She said she can experience paraesthesia in her hands after mowing... She said since her injury she has also periodically had low back pain and neck pain."

The use of the pluperfect tense in the last sentence which I have quoted clearly indicates that as far as Professor Coyne was concerned the plaintiff's experience of low back and hip pain was in the past, not current.

The plaintiff went on to tell Professor Coyne about the motor vehicle accident in 2000. She told him that that was a whiplash‑type injury that caused her to have neck pain for "3-6 months". That is a gross underexaggeration. In fact, it is positively misleading. The plaintiff had symptoms about which she complained for at least six years. The plaintiff said that her memory of the events of the past was very bad because of various conditions and that the history may have been given by her parents. She said that when cross‑examined about the history recorded by Professor Ghabrial who examined the plaintiff for medico‑legal purposes on 29 May 2015. According to that history after the motor vehicle accident in 2000 the plaintiff was treated and it took "about a year or so" before her symptoms completely settled down. That history is repeated in Professor Ghabrial's opinion where he said that the plaintiff had no problems after the motor vehicle accident for 13 years until the incident involving, inter alia, her neck in 2014. The plaintiff's parents were present when she was examined by Dr Ghabrial and that is when she said the history was given by her parents. Again there was a gross underestimate of the period that the plaintiff was incapacitated or afflicted by her neck symptoms from the motor vehicle accident of 2000. The plaintiff clearly cannot be accepted as being a reliable witness.
I return to the examination of the plaintiff by Professor Coyne. He found tenderness to palpation over the plaintiff's thoracic spine. There was mild restriction of cervical spine extension. Otherwise the cervico‑thoracic spine movements were within normal range. However, the doctor did note that straight leg raising was mildly restricted bilaterally by low back and hip pain. Accordingly, although the plaintiff did not complain to Professor Coyne about low back symptoms, when he examined her he found that there were some symptoms caused in the straight leg raising procedure. Neurological examination of both upper and lower limbs was normal. The plaintiff's gait was normal. Professor Coyne did not believe the plaintiff had any neurological problem, that her only problem was musculoskeletal and that any management of her symptoms should be "non‑surgical".

Further investigations

In the meantime the plaintiff had seen Dr Joshi on 12 January 2015. He organised the bone scan of 13 January 2015. On 19 January 2015 Dr Joshi requested a further investigation, an MRI scan of the lumbar spine and the sacroiliac joints because of "? sacroiliitis", that is, it appears to me that Dr Joshi when he saw the bone scan thought some of the plaintiff's symptoms might be coming from her sacroiliac joints and hence the need for the MRI scan of the lumbar spine. That was performed on 28 January 2015. The radiologist was Dr Stuart Slater. At L4‑5 Dr Slater found that the disc had a loss of signal but was normal in shape. There was a minimal annular fissure noted on the left side. At the L5‑S1 level the disc was found to be degenerative with a broad based small to moderate sized protrusion in the mid‑line with an annular fissure. The canal and the intervertebral foramina appeared to be normal. There was nothing to suggest that there was sacroiliitis.
Armed with that investigation the plaintiff returned to see Professor Coyne on St Patrick's Day 2015. The doctor's report is quite uncomplimentary. The doctor pointed out that on 17 March the plaintiff said that her right‑sided low back pain radiating to the posterior right thigh had become her principal symptom although her thoracic spine problem continued. The doctor thought that this was a different history from the one that he first obtained. It clearly was, but it merely indicates the symptoms on this occasion were symptoms that the plaintiff did not have on the former occasion. The doctor quotes the MRI scan but appears to have been sceptical about an "annular tear" at the L5‑S1 level. Dr Slater did not refer to an "annular tear" but to an "annular fissure" which means a groove within the annulus fibrosis of the disc. However, he thought that there was no neurological compromise, that is that if there was a small central disc protrusion of the L5‑S1 disc, it was not impinging on the theca, nerve root or spinal cord. The Professor went on to express this view:

"There remains no surgical therapy to offer Ms Stanberg‑McCrae likely to be of benefit. It is possible her work‑related incident of January 2014 may have contributed to the degenerative change noted on her lumbar spine imaging, but it is impossible to know if this is the case, or if so to what extent there had been a contribution. It is difficult to offer a reason why currently right‑sided low back pain is her worst symptom whereas two months ago thoracic spine pain was her worst symptom."

He believed that spinal surgery would be of no benefit to the plaintiff.

Assoc. Prof. NW McGill – 18 March 2015

On 18 March 2015 the plaintiff was seen by Associate Professor Neil McGill, a rheumatologist, at the request of the defendant. I trust that Associate Professor McGill will permit me to call him “Doctor” as it is easier and there are a number of practitioners in this case who have academic appointments. Dr McGill took a very thorough history. The plaintiff was accompanied to that examination by her father who was in an adjacent room when the plaintiff was being questioned and examined by Dr McGill but the door was open during the examination. The plaintiff told Dr McGill that she had experienced chronic fatigue at high school. The plaintiff told the doctor that her memory for the past was "now poor". Likewise the plaintiff told Dr McGill that her memory of the motor vehicle accident in 2000 was poor because she may have lost consciousness. However, there is nothing to suggest that the plaintiff did lose consciousness at that time, as the history that Dr McGill did obtain shows.
The plaintiff told Dr McGill about the event of 27 January 2014, although she appears to have dated it to 28 January 2014. The plaintiff told the doctor that on the day after the event of 27 January 2014 she had pain in the mid‑thoracic region on the right side radiating down to the right lumbar region. She told the doctor that her neck was only slightly sore and her legs felt normal. She went on to tell the doctor that by 5 May 2014 she was back doing full normal duties and was performing Martial Arts training for fitness. The doctor's history continues thus:

"In the period soon before 1 September 2014 she mentioned to the Occupational Health and Safety person at work that it 'was getting niggly'. On 1 September 2014 she reported to management that her pain was quite bad. She ceased work on that day. She recalled that she could not eat or drink water. She went to Maitland Hospital and was assessed in the emergency department. She was provided with Valium, an anti‑inflammatory and Endone. She then saw Dr Joshi who arranged imaging, possibly a CT scan."

Dr McGill recorded the plaintiff's then present symptoms thus:

"She experiences pain in the right low back radiating to the posterior aspect of the right thigh as far as the knee. She also has pain in the mid‑thoracic region just to the right of mid‑line radiating down to the lumbar region. She has no symptom in the neck, upper limbs or in the lower limbs apart from the posterior right thigh discomfort.
When I specifically checked as to whether she had experienced pins and needles or numbness, she explained that she does experience pins and needles in both upper limbs radiating down to both hands. She thought that symptom may have been occurring for about five months. When I checked in regard to pins and needles in the lower limbs, she thought that she had experienced some at the back of both thighs, worse on the right."

When Dr McGill examined the plaintiff she indicated that movements caused discomfort in the left lateral high lumbar and low thoracic regions. According to Dr McGill the lower limb joints were clinically normal and moved through full pain free ranges. Stressing the sacroiliac joints did not cause pain. The plaintiff reported that there was tenderness in the low back. The doctor went on to say this:

"Although the tenderness appeared to shift from site to site, it was mainly in the left low thoracic and upper lumbar region."

Neck movements were full and pain free. The doctor then referred to the investigations which had been performed thus far and to certain documents which had been provided to him by the defendant.

Dr McGill thought the plaintiff's cervical symptoms had resolved quickly after the event of 27 January 2014. They clearly appear to have gone away prior to 1 September 2014. Dr McGill went on to say this:

"The onset of low back symptoms appears to have occurred in about September 2014. There was no incident and the nature of her work duties were such that they would have been unlikely to have influenced her low back."

The diagnoses made by Dr McGill were of strains to both the cervical region and the thoracic region. He believed that those conditions had "resolved". That appears to be an a priori view ignoring what the plaintiff herself told him. As far as the low back was concerned, Dr McGill thought that there was minor degenerative disc disease in the lumbar spine which was constitutional. He found no objective signs of any abnormality and thought the plaintiff fit to carry out her normal work.

Further treatment

The next thing that occurred is that on 23 March 2015, within a week of the plaintiff's being seen by Dr McGill, Dr Joshi referred the plaintiff to Dr Anthony Schwarzer. On that occasion the doctor renewed the prescription for Endone and also prescribed Lyrica. There is no evidence before me from Dr Schwarzer. Indeed, no question was asked of the plaintiff about him and the plaintiff may not have attended upon him. If the plaintiff did attend upon him, the parties have not seen fit to put any report from him before me. That does not advance either case, but in particular does not advance the plaintiff's case.
The plaintiff had by this stage seen a solicitor, the notes of Dr Joshi tell me that he wrote a report to the plaintiff's solicitors on 28 April 2015. On 29 May 2015 the plaintiff saw Professor Y A E Ghabrial, an orthopaedic surgeon, at the request of her solicitors. He took a history that the plaintiff injured her neck and back on 27 January 2014. He also recorded that on 1 September 2014 the plaintiff had an aggravation of her neck and back pain when she was operating a dump truck over rough roads and she had increasing symptoms. Dr Ghabrial completely overlooks the problem that I face in what was meant by the word “back”. He assumes or presumes that in the event of 27 January 2014 the plaintiff injured her low back. When he examined the plaintiff on 29 May 2015 he thought that the examination of the neck showed mild muscle guarding. That is not an objective phenomenon. He noted moderate tenderness in the lower right facet joints of the cervical spine. As far as the back was concerned, he thought the plaintiff's spinal movements were markedly decreased with flexion only as low as fingertips to above the knee. He found marked paraspinal lumbar spasm on the right side and moderate paralumbar spasm on the left side. No medical practitioner had previously made any such finding. He found straight leg raising on the right was 60 degrees, and on the left was 80 degrees with a positive sciatic stretch test on the right side, again, a finding that no other medical practitioner made. He found a decrease of sensation in the right L5 dermatome, which, if correct, would indicate an L4‑5 disc lesion. He found marked tenderness between the fourth lumbar vertebra and the sacrum in mid‑line. He then referred to the radiological investigations and diagnosed an L5‑S1 disc herniation irritating the dura mater at that level of the spine. That is not proven radiologically and depends upon the accuracy of Dr Ghabrial’s findings. He thought the plaintiff may require a L5‑S1 discectomy. He went on to say that he thought the plaintiff's employment was the main contributing factor to her present clinical features. Dr Ghabrial generally provides assessments under s 66. If he made such an assessment on 29 May 2015 and forwarded to the plaintiff's solicitors, it was not put before me. However, Dr Ghabrial's clinical notes contain such an assessment. They are 35% impairment of the back, 25% impairment of the neck, of which one‑fifth was due to the event of 15 September 2000, and four‑fifths were due to the injury of 27 January 2014, and he also found a 12.5% loss of efficient use of the right leg, presumably because of symptoms referred from the back into the right lower limb.

Surgery

The next thing which occurred is that Dr Joshi referred the plaintiff to Dr Ghabrial by letter dated 7 July 2015. Dr Ghabrial saw the plaintiff on 27 August following upon that referral and expressed the view that clinically the plaintiff had right leg radiculopathy and there was some doubt about the integrity of the L4‑5 disc on the left‑hand side. After a discussion with Dr Ghabrial, the plaintiff agreed to undergo spinal surgery. That was booked for 8 September 2015. It was carried out at the Lingard Private Hospital.
At the L5‑S1 level Dr Ghabrial said that there was evidence of a disc protrusion and he performed an excision of the disc and decompression of the lateral recess and the foramen. I assume the doctor only excised part of the disc, that is the part that was protruding. He does not indicate which of the foramina he decompressed. He formed a rhizolysis of the right L5 nerve root in its foramen. He explored the L4‑5 disc but did not find any herniation there. Accordingly, there was no discectomy of any type practised at that level. The plaintiff was referred by Dr Ghabrial to Dr Tara Ball, a rehabilitation physician, under whose care the plaintiff remained in the Lingard Private Hospital until discharge on 18 September 2015. I note that during that period the plaintiff was ingesting Endone every four hours, as needed, for pain.
After being discharged at Lingard Private Hospital on 18 September 2015, the plaintiff was referred for further physiotherapy to Mr Matthew Taylor, a physiotherapist in Merewether. On 22 October 2015, Mr Taylor wrote to Dr Ghabrial, pointing out that the plaintiff was then, "Extremely happy with the results following her surgery." By that time the plaintiff was attending outpatient physiotherapy at Maitland Private Hospital and was working with a physiotherapist, an exercise physiologist and was also attending hydrotherapy.
The plaintiff was reviewed by Dr Ghabrial on 22 October and again expressed her happiness with the outcome of her surgery. Dr Ghabrial thought by this time the plaintiff was neurologically normal. However, by 30 November 2015 it had been necessary to re‑admit the plaintiff to the Lingard Private Hospital with an acute episode of left buttock pain. On that day, Dr Ghabrial noted that the plaintiff could hardly stand or walk and that she was markedly tender over the left sacroiliac joint. However, a recent CT scan did not show any change in pathology. The plaintiff was discharged from hospital and according to Dr Ghabrial at the time of discharge, she was, "almost pain free."

Dr Spittaler – 3 December 2015

On 3 December 2015, the plaintiff was seen by Dr Peter Spittaler, a consultant neurosurgeon, retained by the plaintiff's solicitors. The plaintiff told Dr Spittaler, according to his report, that she had had intermittent neck pain since the motor vehicle accident in 2000 and that that intermittent neck pain was continuing from that time. Eventually he advised that there was no permanent impairment of the neck caused by anything that happened to the plaintiff in the defendant's coal mine, but she did have some permanent impairment of her neck resulting from the motor vehicle accident in the year 2000. Like Dr Ghabrial, Dr Spittaler obtained a history that in the event of 27 January 2014, the plaintiff injured both her neck and her back and likewise there was an increase in her back pain in September 2014. It appears that Dr Spittaler accepted that the plaintiff had injured her low back in those events. He merely assumed without consulting the contemporaneous records, that the plaintiff injured her low back on 27 January 2014 and that she also had low back symptoms on 1 September 2014.
On examination Dr Spittaler found reduced cutaneous sensation in the right L5 and S1 dermatomes, namely in the lateral aspect of the calf and the dorsum and sole of the foot. If those findings were accurate, that would indicate a problem not only with the S1 nerve root which leaves the body at the L5‑S1 disc space, but also the L5 nerve root, which leaves the body at the L4‑L5 disc space. It is interesting to note that Dr Ghabrial found the plaintiff to be neurologically normal on 22 October 2015, but here, on 3 December 2015, Dr Spittaler noted reduced cutaneous sensation in two dermatomes. Dr Spittaler expressed the view the plaintiff was unable to return to employment as a plant operator in an open cut mine, because of her ongoing lower back pain. There is really no dispute, and it is accepted by the defendant, that since the operative treatment performed by Dr Ghabrial, the plaintiff has become permanently unfit for work in or around a coal mine, other than the purely sedentary work that some perform in management areas. Dr Spittaler expressed the view that the plaintiff had a 20% permanent impairment of her back and a 15% loss of efficient use of her right leg at or above the knee.

Further surgery

Very shortly after Dr Spittaler' examination, the plaintiff was again admitted to the Lingard Hospital for pain management. A CT scan was performed while the plaintiff was in hospital on 8 December 2015 and according to Dr Ghabrial, showed two small post‑operative fluid collections posterior to the left L4 foramen and the right L5‑S1 lamina. A caudal block was performed on 10 December 2015 and gave the plaintiff some moderate help, that is, some moderate relief from her symptoms. She was then discharged from the hospital on 13 December 2015. On 23 December 2015, the plaintiff was reviewed by Dr Ghabrial who thought that the plaintiff was doing, "reasonably well." He recommended the plaintiff continue taking her medications which still included the opiate Endone.
On or before 13 January 2016, the plaintiff was again admitted to the Lingard Hospital with acute back pain and right sided sciatica. Dr Ghabrial noted on this occasion, sensory changes both in the L5 and the S1 dermatomes. A further caudal block was performed on 13 January 2016, but probably did not give the plaintiff much relief. Dr Ghabrial proceeded to carry out further surgery on the plaintiff's low back on 18 January 2016. He performed a right sided L4‑5 and L5‑S1 partial laminectomy, foraminotomy of the lateral recesses and decompression at each level. Both discs were inspected. On this occasion, the doctor found that the right L4‑5 disc was herniated and he said that it was excised. It may have only been a partial excision of the disc. It has to be pointed out that the time of his first surgery on 8 September 2015, the L4‑5 disc was explored but was not found to be herniated. At the L5 level, Dr Ghabrial performed a neurolysis and release of the nerve root in the lateral recess. He then performed a fusion between the L4 vertebral body and the sacrum using two rods as well as artificial bone implants.
The care of the patient was then transferred by Dr Ghabrial to Dr Tara Ball, under whose care the plaintiff remained an in‑patient in the Lingard Private Hospital until 3 February 2016. At the time of that transfer, according to Dr Ghabrial, the plaintiff had minimal pain in her back and no pain in either of her legs.
The plaintiff was reviewed by Dr Ghabrial two months after the surgery and the doctor said the plaintiff should never work again lifting weights exceeding 10 kilograms or doing any work involving excessive bending or excessive sitting. On 22 April 2016, there was a further review by Dr Ghabrial who added to the plaintiff's restrictions sitting for length periods but the plaintiff's tolerance for sitting had yet to be measured. Plaintiff's X‑ray performed on 10 June 2016, showed that the "hardware", the word used by the radiologist himself, appeared to be in a satisfactory position.
On 6 October 2016, Dr Ghabrial thought the plaintiff's recovery had been satisfactory, but he noted that she attempted to return to work, working for over 25 hour per week, that that was not successful. Professor Ghabrial restricted the plaintiff to working 25 hours per week at that time. On 29 March 2017, Professor Ghabrial noted the plaintiff was then retraining to do a reasonably sedentary job in order to avoid aggravating her back injury. Dr Ghabrial told the plaintiff that she would never be fit to return to the mining industry. On 5 April 2017, the plaintiff was reviewed by Dr Ghabrial for medico‑legal reasons. He expressed the opinion that the plaintiff had a 45% impairment of her back and a 20% loss of efficient use of her right leg at or about the knee.

Further opinions

The remaining medical evidence before me are reports of refresher examinations carried out by Dr Spittaler on 2 November 2016 and by Dr Rowe on 27 April 2017. Dr Spittaler in essence said that although further surgery had been practised on the plaintiff's low back, since his first examination of her, he believed that the degree of permanent impairment had not changed. Dr Rowe expressed the view that the plaintiff had 25% impairment of her back and 10% loss of efficient use of her right leg at or above the knee, but he did not believe that there was any causal relationship between anything that happened to the plaintiff at work in the defendant's coal mine and that impairment and loss.

Issues

The plaintiff's services had been terminated by the defendant. There were two letters from the defendant on 24 March 2016. The defendant's insurer had denied liability for any ongoing problem on 27 March 2015. I infer from the letter of Coal Mines Insurance of that date, that they do not believe that there was any causal relationship, essentially, to the incapacity commencing on 1 September 2014 and the plaintiff's work at the defendant's coal mine. The extensive treatment that the plaintiff has had in 2015 and 2016, was paid for by the plaintiff herself or her private insurer. She had purchased a property in New South Wales and built on it a house when she was working in the defendant's coal mine but to pay for the surgery, she had to sell up all her assets including her home and she has moved back to live in Queensland. She is currently doing a course to qualify her as a social worker, essentially with young people.
The major issue in what my determination, of course, is the causal relationship between anything that happened to the plaintiff at the Liddell Coal Mine and the conditions diagnosed in 2014 and 2015. It is clear both from the bone scan of 13 January 2015 and the MRI scan of 28 January 2015, that the plaintiff was suffering from degenerative disc disease which was well established by January 2015. That is an opinion expressed by Dr McGill on the final page of his report of 18 March 2015. The doctor thought that the minor degenerative disc disease in the lumbar spine was, "constitutional", which means it may have been genetic, a condition to which the plaintiff was predisposed by her inheritance, or it may represent a natural ageing process which can commence in a spine once it is fully matured at about the age of 28 to 30. In 2014, the plaintiff turned 33 and would have commenced that year at the age of 32. The fact the plaintiff had a degenerative disc disease is confirmed by the opinion expressed by Professor Coyne in his report of 17 March 2015, addressed to Dr Joshi. The existence of degenerative, disc disease in the lumbar spine would explain why the plaintiff had symptoms in her low back, which required treatment in March 2015. It appears to be probable that in the course of driving heavy plant and machinery, around the defendant's open coal mine, the symptoms of degenerative disc disease were brought on or to use a technical term, or to use a term of art in the Worker's Compensation Act 1987, there was an exacerbation of a pre‑existing disease of the body, a degenerative disc disease being pre‑existing morbid pathology.
I am not persuaded on the balance of probabilities that the plaintiff injured her low back in the event of 27 January 2014. I accept that the plaintiff injured her neck and her thoracic spinal area. The diagram made by the physiotherapist on 29 January 2014, clearly shows the areas of the plaintiff's body which were then affected. From the analysis I made yesterday it appears that on or about 1 April 2014, the plaintiff's symptoms has extended and included symptoms in her low back. It is to be recorded that the plaintiff was still working at that time. I accept that there was a further exacerbation or aggravation of the plaintiff's low back condition due to the type of work that she was doing as a plant operator with the defendant. Equally, it appears that those complaints were transient ‑ it is clear from the records of the Maitland Hospital, that the plaintiff had a major increase in her low back symptoms or I should more correctly say, a return of her low back symptoms gradually over a period of four days culminating on 1 September 2014. Again, I am quite prepared to accept that in the process of driving heavy plant and equipment in the defendant's coal mine, the plaintiff's pre‑existing degenerative disc disease was rendered symptomatic again, causing the flare up of symptoms which put the plaintiff off work.
However, it appears that the symptoms also included symptoms in the thoracic spine and perhaps even in the neck. Thereafter, the plaintiff had symptoms in various parts of her spine from time to time. There clearly was degenerative disc disease in the neck, it is not necessary for me to determine whether that degenerative disc disease in the cervical spine was triggered off by the motor vehicle accident of 2000, or whether it arose of its own momentum in the natural course of the deterioration of the spine once it reached maturity. However, that degenerative disc disease of the neck could also be rendered symptomatic by insults such as the event of 27 January 2014 and also just by the jolting and jarring of the impact of driving machinery in an open cut coal mine.
I accept the plaintiff has suffered some form of thoracic spinal sprain, strain or tear which affected her on and off throughout 2014. The problem here is that the plaintiff was seen by Dr Rowe on 18 December 2014. There are a number of coal miners who might think that Dr Rowe is a, "tough doctor" and that he is exacting in determining whether somebody is fit or not. However, I have never noted him to be a poor diagnostician. When the plaintiff saw him, her symptoms were confined to her thoracic spine, localised between T7 and T9. There was no abnormality at that time of the plaintiff's neck and movements of the neck did not cause symptoms anywhere, either in the cervical spine or the thoracic spine. There was no complaint of any low back symptom to Dr Rowe nor was there any investigation made until that time of any low back problem and the plaintiff made no complaint to Dr Rowe of any problem in her low back at all.
Furthermore, his findings on examination do not indicate that there was any problem. He performed straight leg raising tests which were 60 degrees bilaterally, with a negative sciatic stretch test and there was no neurological deficit. The plaintiff was able to bend forward and touch her other shoes which must be contrasted with later findings that she was unable to reach as far as her kneecaps. The doctor noted that extension and rotation of the back were full.
The plaintiff was reviewed by Dr Terence Coyne on 22 January 2015 to whom she was sent for the purposes of treatment. Dr Coyne obtained no history of the plaintiff’s then having any low back symptoms. The history that he obtained clearly referred to back pain using the perfect tense. On examination he noted that straight leg raising was, "mildly restricted by low back pain and hip pain" but that might just be because the plaintiff had underlying degenerative disc disease.
Professor Coyne in his report of 17 March 2015, pointed out that as far as he was concerned the plaintiff was then presenting with a problem other than the problem that she presented to him on 22 January 2015. By 17 March 2015, the plaintiff had a low back pain radiating to the posterior right thigh. He said that at that time that was her principal symptom, but it was not a symptom that actually had when he examined her on 22 January 2015.
On the following day, the plaintiff was examined by Dr McGill in Sydney, who noted that the plaintiff's symptoms were variable and that the site of tenderness could move between her left low thoracic spine and her upper lumbar spine. He did not believe the plaintiff had any ongoing problem at all, but believed that the onset of low back symptoms appeared on the evidence available to him, to which I referred, in or about September 2014. Suffice to say that I do not accept that the nature of her work was such as to have been unlikely to influence her low back. I accept that the pre‑existing degenerative disc disease in the plaintiff's low back could be made symptomatic by jolting and jarring driving heavy machinery. The important thing is that as far as Dr McGill was concerned the plaintiff had recovered from any low back, cervical or thoracic problem that she had suffered at work.
There are a number of other problems with the plaintiff's case. It is postulated by Professor Ghabrial that she had on 29 May a surgically treatable disc lesion at the L5‑S1 level. The doctor made findings on examination on that day consistent with that, and his findings at operation are also consistent with it being an L5‑S1 disc problem. However, there is no suggestion of it when the plaintiff was examined by Dr Rowe, Professor Coyne and Professor McGill. It appears to have arisen sometime between March 2015 and the end of May 2015. Why might it arise? The answer to that is given by the simple fact that the plaintiff had degenerative disc disease which of its very nature increases with the passage of time.
It is clear from Dr Ghabrial's findings at the time of his first surgery that there was nothing then amiss with the L4‑5 disc. However, at the time of the second surgery, on 18 January 2016, Dr Ghabrial visualised a treatable disc protrusion at the L4‑5 level. The plaintiff's case does not tell me why there should be a disc lesion at L4‑5 in January 2016 when there was none when Dr Ghabrial performed surgery on 8 September 2015. There is no suggestion that in that period the plaintiff had any further injury. Of course, if there were a further injury, it could not have happened in the defendant's coal mine. However, the process of degenerative disc disease may have precipitated the lesion at L4‑5, especially after surgery had been practised at L5‑S1. Professor Ghabrial fused the plaintiff's low back from the L4 vertebrate sacrum in an attempt to stabilise the condition. That appears to have done so successfully. In other words, it appears to have arrested the degenerative process at L4‑5 and L5‑S1. No attempt has been made in the plaintiff's case to explain why there should be L4‑5 disc lesion in January of 2016 which did not exist in September of 2015. All that it points to is the progression of degenerative disc disease.
A critical opinion in this case was expressed by Professor Coyne in his report of 17 March 2015. It is worth repeating:

"It is possible her work-related incident of January 2014 may have contributed to the degenerative change noted on her lumbar spine imaging, but it is impossible to know if this is the case, or if so to what extent there has been a contribution. It is difficult to offer a reason why currently right‑sided low back pain is her worst symptom whereas two months ago the thoracic spine pain was her worst symptom."

Because of a lack of contemporaneous complaint, it is impossible for me to find that there was a injury to the lumbar spine in the event of 27 January 2014. I accept, however, that the type of work the plaintiff did before that time and thereafter, may have caused symptoms of in the low back, leading to, for example, the need for treatment in March 2013 and for treatment commencing on or about 1 April 2014 and again, requiring treatment and time off work by 1 September 2015. However, it is impossible to know whether it merely triggered off symptoms of the underlying degenerative disc disease or made that condition itself worse. It is mere speculation. It is not a question addressed in the medical evidence before me.
The plaintiff has the onus of proof, the plaintiff must be able to satisfy me that that condition of her low back was made worse by something that happened to her at work and that worsened condition became the subject of the need for the surgery practised on two occasions by Dr Ghabrial. The plaintiff has not discharged that onus of proof. Clearly, when seen by Dr Rowe on 19 December 2014, the plaintiff did not have symptoms referable to her low back and she did not complain of symptoms in the low back to Dr Coyne on 22 January 2015. Although she did complain of symptoms in her low back to Dr McGill on 18 March 2015, Dr McGill was unpersuaded by them. I have reached the view that the plaintiff's low back symptoms triggered off in late August or early September 2014, had subsided by the time she saw Dr Rowe on 18 December 2014. However, at that time Dr Rowe believed that the plaintiff was still affected by symptoms in her thoracic spine and was unable to express any prognosis. The plaintiff was also incapacitated to some extent by thoracic symptoms when reviewed by Dr Coyne on 22 January 2015. However, she was not incapacitated by thoracic symptoms when she was seen by Dr McGill on 18 March 2015. Accordingly, I reach the view that the effects of the work which the plaintiff did up until 1 September 2014, had subsided by 18 March 2015 and thereafter the plaintiff was left with an underlying degenerative condition affecting both her cervical spine and her low back.
On 27 October 2014, the plaintiff had discussed her working arrangements with Mr Daniel Nowak. On 30 October 2014, Mr Nowak replied to the plaintiff that the defendant was not currently in a position to offer the plaintiff meaningful work in accordance with the restrictions that were listed on her Work Cover medical certificate. According to the same communication, it was for that reason that they had withdrawn from the plaintiff suitable work which would be reconsidered at some future time. I had merely mentioned yesterday afternoon that there was some evidence of a return to work for a few hours on a few shifts, sometime in October 2014, which the evidence did not adequately disclose. In the circumstances, I am prepared to find the plaintiff was totally incapacitated until 27 October 2014 and on that day the defendant failed to provide the plaintiff with suitable employment and that the plaintiff is entitled to benefits under s 11(2), of the Worker's Compensation Act 1926, from 27 October 2014 for partial incapacity to be treated as total.
It should be clear from the findings I have already announced that the plaintiff's claim for lump sum compensation must fail. I am not persuaded that there is any permanent impairment of her neck resulting from anything that happened to her whilst she was working with the defendants. Nor am I satisfied that the permanent impairment of her back which she undoubtedly has, results from anything that happened to her at work. The loss of sufficient use for a right leg at or above the knee is said to be a consequence of the back condition because of symptoms radiating from the low back into the right lower limb. Again, there does not appear to be any dispute, the plaintiff does have such a loss of sufficient use of her right knee at or above the knee. The only question is the extent of the loss. Lest the matter go further I would point out that I would find that the plaintiff had a 30% impairment of her back and a 15% loss of sufficient use of her right leg at or above the knee. The assessment of Dr Spittaler of a 20% impairment of the back is in my view extremely modest. Even Dr Rowe puts it at 25%.
If one makes a survey of the Compensation Court Reports, one will find that I have expressed on numerous occasions rules of thumb because of the often extravagance of assessments of impairment back. I have pointed out that a low lumbar disc protrusion might result in a finding of 18% impairment of the back. If surgery is practised by way of a laminectomy, the impairment might increase to 20%. If it is necessary to carry out a spinal fusion the impairment might be about 25% because of the stiffening of the spine at for example, the lumbosacral level, which throws greater strain on the L4‑5 disc space from which the patient must now bend and that can lead to increase in problems at that level. Here the plaintiff has been fused from the fourth lumbar vertebrate sacrum and in my view the extent of the impairment would be about 30%.

Another defect in the plaintiff's case, of course, is that initially Dr Ghabrial thought that the plaintiff had 35% impairment of her back, that is, when he examined her on 29 May 2015, but having then carried out surgery to improve her condition thought the extent of the impairment had increased to 45% and that was never explained. The assessments of the impairment of the loss of sufficient use of the plaintiff's right leg are 10%, 15% and 20% and I would adopt the assessment of Dr Spittaler that the plaintiff had a 15% loss of sufficient use of her right leg at or above the knee were it necessary to make such a finding.

Award

For those reasons I make an award for the plaintiff for $983.50 per week, from 1 September 2014 to 25 November 2014, and for $1,008.35 per week from 26 November 2014 to 28 February 2015, and $386.90 per week from 1 March 2015 to 18 March 2015. The award is under s 9 of the 1926 Act up until 26 October 2014 and from 27 October 2014, is under s 11(2) of the same Act.
I order the defendant to pay the plaintiff s 60 expenses in respect of that period but not including the MRI scan of the low back performed on 28 January 2015.
I order the defendant to pay the plaintiff's costs.
In respect of the claims under s 66 and 67 of the Worker's Compensation Act 1987, I make an award for the defendant.
Credit to the defendant for any payments made by it to or for on behalf of the plaintiff during the period the subject of the award.

**********

Decision last updated: 29 March 2019

Medium Neutral Citation:	Stanberg-McCrae v Liddell Coal Operations Pty Ltd [2017] NSWDC 461
Hearing dates:	6, 7 November 2017
Date of orders:	08 November 2017
Decision date:	08 November 2017
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	For those reasons I make an award for the plaintiff for $983.50 per week, from 1 September 2014 to 25 November 2014, and for $1,008.35 per week from 26 November 2014 to 28 February 2015, and $386.90 per week from 1 March 2015 to 18 March 2015. The award is under s 9 of the 1926 Act up until 26 October 2014 and from 27 October 2014, is under s 11(2) of the same Act. I order the defendant to pay the plaintiff s 60 expenses in respect of that period but not including the MRI scan of the low back performed on 28 January 2015. I order the defendant to pay the plaintiff's costs. In respect of the claims under s 66 and 67 of the Worker's Compensation Act 1987, I make an award for the defendant. Credit to the defendant for any payments made by it to or for on behalf of the plaintiff during the period the subject of the award.
Catchwords:	COAL MINERS WORKERS COMPENSATION – Claims for continuing weekly payments, lump sum compensation and hospital and medical expenses – Plaintiff injured in in MVA in Qld on 15 September 2000 at age 18 – Major injury was to the neck – Symptoms persisted for at least 6 years – Plaintiff recovered damages – Commenced employment with the defendant on 1 April 2000 initially as a maintenance fitter and then as a plant operator in open cut mine – Spinal symptoms commenced in early 2013 – Variable symptoms at different times in cervical, thoracic and lumbar spines – Frank injury on 27 January 2014 – Dispute as to what areas of body injured – Consideration of medical evidence – Plaintiff last worked on 1 September 2014 – Surgery to law back practiced by Dr YAE Ghabrial on 8 September 2015 and 13 January 2016 – Whether need for surgery resulted from any injury arising out of or in the course of employment – Whether undoubted impairments and loss work-related
Legislation Cited:	Workers' Compensation Act 1926 Worker's Compensation Act 1987
Category:	Principal judgment
Parties:	Rebecca Stanberg-McCrae (Plaintiff) Liddell Coal Operations Pty Ltd (Defendant)
Representation:	Counsel: Mr D Benson (Plaintiff) Mr T Rowles (Defendant) Solicitors: Whitelaw McDonald (Plaintiff) Sparke Helmore (Defendant)
File Number(s):	RJ 230/2015
Publication restriction:	Nil