Villiami v Endeavour Coal Pty Limited

[2016] NSWDC 290

District Court

New South Wales

Medium Neutral Citation:

Villiami v Endeavour Coal Pty Limited [2016] NSWDC 290

Hearing dates:

14 – 15 September 2016

Date of orders:

15 September 2016

Decision date:

15 September 2016

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

Award for the plaintiff for $1,415.01 per week from 24 July 2015 to 3 December 2015 for either partial incapacity treated as total or total incapacity

 

Defendant to pay the plaintiff's expenses under section 60 of the Workers Compensation Act 1987 in respect of that period

 Defendant to pay the plaintiff's costs

Catchwords:

WORKERS COMPENSATION – Coal miners – Whether need to undergo surgery was reasonably necessary as a result of employment injury – After each of two events at work plaintiff suffered severe but transient pain in the area of his right testicle – This was subsequently diagnosed to be a symptom of a right inguinal hernia – Same condition diagnosed on left side of groin by treating surgeon – Plaintiff underwent “bilateral inguinal herniorraphy” causing a closed period of incapacity – Despite diagnosis, no inguinal hernia found on operation but large spermatic cord lipomata – HELD: closed period off work and surgery were compensable as symptoms were work related and advice regarding surgery was given in honest belief it was compensable and plaintiff honestly and reasonably believed that advice

Legislation Cited:

Workers Compensation Act 1926
Workers Compensation Act 1987

Cases Cited:

Barr v Bailey and Jorgenson Pty Ltd [1967] WCR(NSW) 171
Corrigan v CL Brown & Sons (1998) 16 NSWCCR 681
McGillicuddy v Grahame Industries Pty Ltd [1958] WCR(NSW) 150

Texts Cited:

M Boulter QC, Workers Compensation Practice in New South Wales, (Law Book Company Ltd, 1966)

Category:

Principal judgment

Parties:

John Villiami (Plaintiff)
Endeavour Coal Pty Limited (Defendant)

Representation:

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

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

File Number(s):

RJ29/16

Publication restriction:

No

Judgment

1. HIS HONOUR: The plaintiff, Mr John Villiami, claims weekly payments of compensation from 24 July 2015 to 3 December 2015 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 preserved in its operation for coal miners by the Workers Compensation Act 1987 Sch 6, Pt 18. He also claims his expenses under s 60 for treatment performed during that period of time.

2. The plaintiff relies upon two events that occurred to him, one on 17 April 2015 and the other on the 5 July 2015, as well as "the nature and conditions of his employment", which is pleaded as though it were a term of art, but it is not. The conditions in respect of which the plaintiff claims compensation are bilateral inguinal herniae.

3. Litigation under the workers compensation legislation concerning inguinal herniae has a long, long history. A former judge of this Court, Boulter QC J, before his appointment to the Bench, wrote a textbook, Workers Compensation Practice in New South Wales, which was published by the Law Book Company Ltd in 1966. Appendix A to that work was an article written by the late Dr TF Rose headed "Some remarks on the 'compensation inguinal hernia'" which was reproduced from the British Medical Journal. In that article the following is stated under the heading "Grounds for a Successful Bid for Compensation":

"From the forgoing analysis it is shown that certain findings must be present in order to establish a claim for compensation for these hernias.

The history of the incident causing the hernia is one of the most important pillars on which the patient's claim rests. An uncertain or equivocal history, especially if the incident is not witnessed or reported immediately, spells the doom of the patient's hopes in court. A prior history of chronic cough, difficult micturition or straining at stool, none of which the patients in this series had, will raise doubts as to the genuineness of the claim.

Pain and tenderness must immediately occur with the effort allegedly causing a hernia. This fact is a sine qua non of success in winning compensation.

The patient need not vomit, feel nauseated or lose work, since these phenomena depend not only on the severity of the injury, but also on the patient's fortitude.

The appearance of the swelling need not be immediate, but it must be painful and tender when it does appear. Pending its appearance, the affected inguinal region must be painful and tender.

When the operative findings were available before the claim is heard in court, the sac of a recent hernia must be in-walled and there must be no adhesions (provided a truss has not been worn)."

The article differentiates between direct and indirect herniae, but it is clear that whether the hernia be direct or indirect, the sac must be found.

4. The plaintiff has been a coal miner in this State since 2008. He commenced his current employment in February 2011. The current defendant is the collier working the combined Appin and West Cliff collieries. The plaintiff works as an underground miner for the defendant. There are aspects of his work which are undoubtedly heavy and throw stress and strain on inter alia his abdominal wall. The plaintiff described at some length the process of installing megabolts in the ribs and roofs of mines. Each megabolt could weigh up to 20 kilos. One bolt is dealt with at a time. It can take between 10 minutes and 25 minutes to install any one megabolt. The megabolts are between eight and ten metres long. They vary in width from a diameter of 30 millimetres to a diameter of 50 millimetres. The plaintiff described in oral evidence, and demonstrated as well, the position that he needed to adopt in order to commence insertion of a megabolt into a hole drilled in the rib or roof of a tunnel. It clearly required the exertion of force using both arms, and particularly the right arm, whilst squatting, and no doubt also requiring the plaintiff to thrust with his legs as well as his arms. There is no doubt, and no issue, that that required the plaintiff to strain his body and in particular to strain the abdominal wall.

5. The plaintiff initially believed that certain symptoms that he had, resulted from his undergoing a vasectomy at the Kareena Private Hospital at Caringbah on Monday the 16 March 2015. At the same time that he underwent vasectomy, the plaintiff underwent another operative procedure which is not relevant to any matter now in question. In 2015 the plaintiff was working for the defendant at weekends, working three night shifts, shifts commencing at 8pm and finishing at 8am, shifts beginning on a Friday night, Saturday night and Sunday night. 16 March 2015 was a Monday. The plaintiff did not work his next rostered shift because he was still recovering from the surgery performed on 16 March 2015. The neurologist who performed the surgery was Dr Ngo of Miranda. The plaintiff returned to see Dr Ngo on 27 March 2015 and was essentially given a clearance to return to work. The plaintiff did so.

6. He continued to work thereafter his normal shifts until Friday 17 April 2015. On that shift he was inserting a megabolt into the hole drilled for it. He was jerking it up, and he felt a discomfort in his right testicle. He described that as being "kicked in the balls". The symptom was fleeting. He continued working and completed the rest of his shift. He told me that he mentioned it to a work mate of his, Mr Nathan Cooper. Mr Cooper had, like the plaintiff, undergone a vasectomy, and the plaintiff was interested to know whether his symptom was somehow related to the vasectomy, and he made the inquiry of Mr Cooper who indicated to the plaintiff it was not a usual symptom post-vasectomy.

7. The plaintiff told me that he took sick leave on the following days, Saturday 18 and Sunday 19 of April 2015. However, it transpired that he took those days as "carer's leave", having asked for that leave in advance on 15 April 2015. He asked for the carer's leave because his wife was then heavily pregnant and he needed to care for his wife and two young children at that time. The request for the carer's leave dated 15 April 2015 became exhibit 1. The plaintiff readily conceded that he did take the carer's leave and maintained that, nevertheless, he did have symptoms in his groin which he thought merited staying off work in any event. In other words, the application for carer's leave was, according to the plaintiff's evidence, fortuitous. One could be highly sceptical about such a statement. However, I formed a favourable view of the plaintiff, and I believe he did his best to tell me the truth. I accept, therefore, that he was feeling discomfort in his scrotum during the shifts that he was supposed to have worked on the 18 and 19 April, 2015. However, it is clear from subsequent histories that the symptoms went away.

8. On the following Monday the plaintiff sought to see a doctor. Unfortunately he was unable to see a doctor until the 24 April 2015. He saw the doctor on the Friday and told the doctor that he was symptom free. The doctor gave the plaintiff a clearance to return to work. The plaintiff told me, and I accept, that he was not even examined by the doctor, who did not palpate his scrotum and did not ask him, for example, to cough to see if there was any suggestion of any external ring weakness in the groin. The plaintiff then returned to his normal shifts. He worked until 5 July 2015.

9. On that Sunday he was required to assist his supervisor/deputy lift from the back of a trailer onto the ground a pump that weighed approximately 40 kilograms. As the plaintiff was lifting the pump onto the ground he felt again as if he had been "kicked in the balls" and was hunched over with pain after placing the pump on the ground. The plaintiff believed that he mentioned this event to Mr Cooper, but exhibit 3 tells me that Mr Cooper was on sick report on Sunday 5 July 2015. The plaintiff conceded that Mr Cooper may have been on sick leave and he may have mentioned it to Mr Cooper subsequently. I have no hesitation, nevertheless, in accepting that the plaintiff did lift and move the 40 kilogram pump with his supervisor/deputy on 5 July 2015 and that he noted acute pain in his scrotum at the time.

10. The plaintiff was still concerned that the symptoms in his groin resulted in some fashion from the vasectomy performed by Dr Ngo. On Monday 6 July he made a phone call to Dr Ngo's rooms, but was advised that the first appointment that he could obtain with Dr Ngo was on 17 July. The plaintiff worked his normal shifts on the 10, 11 and 12 oJuly, but took his work "really easy". He saw Dr Ngo on 17 July 2015. Dr Ngo's report continues thus:

"He has noticed a one month history of right testicular discomfort, and on occasions he feels that the right testicle has retracted up to near the inguinal canal. His symptoms usually improved spontaneously with time.

On examination today, both his testicles today felt normal in size, shape and consistency. There was a prominent cremasteric reflex, and this may contribute to his symptoms. It was difficult to illicit any inguinal hernias.

I will organise for John to have an inguinal and testicular ultrasound."

That was performed on 21 July 2015 and reported on by Dr Tariq Khalil on that day. The report is exhibit D. I will not quote it, but the conclusion reached by Dr Khalil is this:

"Irreducible right-sided inguinal hernia that is incarcerated. There is a reducible left-sided inguinal hernia."

When that report was received by Dr Ngo's office a phone call was made to the plaintiff. He was told to consult his GP and on the same day, that is, 24 July 2015, he saw Dr Zeenath Hassim at the Woonona Medical Practice at Woonona. Dr Hassim's notes indicate that on examination she found a right inguinal hernia. Her notes then record the word "tender" with two plus signs indicating a moderate degree of tenderness in the affected area. Whether Dr Hassim actually found a hernial sac is quite unclear from her clinical notes. She then referred the plaintiff to Dr Tony Palasovski, a general surgeon, whose speciality appears to be breast surgery and endocrine surgery.

11. The plaintiff did not go to work on 24 July 2015, which was a Friday when hewas due to start work at 8pm. He phoned the defendant's health administrator and sent her certificates on a WorkCover form indicating that he was fit for restricted duty only or the proverbial light work that one would give for persons suffering from a hernia or bilateral herniae. Light duties were not provided to the plaintiff. 24 July 2015 is the first day of the plaintiff's claim. There is no suggestion that, if the plaintiff be entitled to compensation, he is not entitled to weekly payments during the period of the claim.

12. Dr Palazovski saw the plaintiff on 27 July 2015. His findings on examination are these:

"On inspection, there were no obvious protrusions in the inguinal region. General abdominal examination did not reveal any obvious masses or lumps. Whilst I could elicit a cough impulse in the right groin, I could not detect an obvious hernial sac. He had a similar, albeit smaller weakness on the left."

In his report, Dr Palazovski went on to discuss the ultrasound. Dr Palazovski expressed the view that the appearances were more characteristic of a spermatic cord lipoma rather than the alleged hernia. He then went on to point out that ultrasound carried a high false positive rate approaching 40% in some series of cases, and it would appear to be in this area, where there was no definite hernial sac clinically palpable.

13. The doctor arranged for the plaintiff to undergo a dynamic CT scan of the ventral abdominal wall and inguinal orifices. That is reported by Dr Gupta as confirming the presence of bilateral inguinal herniae. Dr Gupta's report, exhibit E, sets out the sizes of what he believed were hernial sacs. Having reviewed that investigation, Dr Palazovski in a report of 5 August 2015 expressed the view that the plaintiff had bilateral inguinal orifice weakness consistent with groin hernia pain and recommended surgery. In a report of the same day, that is, 5 August 2015, addressed to the general practitioner, Dr Palazovski pointed out that the left sided hernia appeared to be slightly bigger than that on the right, but importantly there was no bowel in either of the herniae.

14. Surgery was performed on 28 September 2015. On the left side the doctor found this:

"Large cord lipoma on the left excised. No obvious indirect sac or direct weakness present."

On the right side he found this:

"The findings were that of a large cord lipoma and posterior inguinal canal weakness with plication of the transversalis fascia performed using 2/0 Vicryl."

In other words, Dr Palazovski did not find any hernial sacs. What he did find was bilateral spermatic cord lipomta. However, he did find on the right hand side, which is where the plaintiff had complained of symptoms, a weakness in the posterior inguinal canal. There was no finding of such a weakness on the left hand side.

15. On the evidence before me, the plaintiff has never complained about his left groin. He told me that he only became aware of an anomaly on the left hand side when it was pointed out to him when he was being examined by Dr Palazovski, and during the examination the plaintiff felt some symptoms, perhaps when the doctor was pressing the external inguinal ring.

16. The plaintiff's return to work was delayed by the need to recover from surgery and by having to undergo physiotherapy to the satisfaction of his own doctors, and then to have further physiotherapy to obtain a clearance from the defendant's doctors. As I said, there is no dispute if the plaintiff be entitled to compensation that there is any dispute about the period in question.

17. The defendant adduced no medical evidence. Reports written by Dr Palazovski subsequent to the surgery and a medico-legal report written by Dr Endrey-Walder each suggest that the plaintiff had bilateral inguinal herniae. The findings at operatio do not establish that at all. Nevertheless, Dr Palazovski himself, despite his initial belief that the plaintiff suffered from spermatic cord lipomata, following the CT scan was prepared to accept that the plaintiff had bilateral inguinal herniae and then proceeded to operation in which he did not find herniae but rather bilateral lipomata.

18. The plaintiff himself believed, on the advice of Dr Hassim, his general practitioner, Dr Palazovski and the radiologists Drs Khalil and Gupta that he had herniae which needed to be repaired. The belief in the existence of herniae was engendered by the plaintiff's symptoms, which I accept were genuine and real, and were precipitated by the plaintiff's work. Indeed, it might be considered that with a weakness in the posterior inguinal canal some abdominal tissue may have protruded through that weakness into the scrotum on a temporary basis, causing symptoms of which the plaintiff complained. However, the symptoms were caused by the work but the weakness, on the evidence before me, does not appear to have been caused by his work. Nevertheless, in my view, the plaintiff is entitled to succeed in his claim.

19. In McGillicuddy v Grahame Industries Pty Ltd [1958] WCR(NSW) 150 a worker underwent an operation. The primary purpose of the operation was to assist in the differential diagnosis on the question of the existence of a tumour, whether the tumour be benign or malignant. If the tumour were found, it might or might not have been the result of an employment injury, and according Rainbow J, the probabilities were "balanced". His Honour went on say this:

"The surgery undertaken was reasonably necessary as a result of persistent symptoms due to the employment injury. Though primarily diagnostic in purpose, the occasion would have been used to remove any obvious cause of trouble. I hold that reasonable diagnostic surgery is medical treatment or hospital treatment within the meaning of section 10 [of the Workers Compensation Act 1926]."

At the commencement of his reasons his Honour said this:

"I think there should be an award for the applicant, because I hold that reasonable diagnostic investigation or surgical investigation was warranted by the symptomatology, and was the result of employment injury and his medical and hospital treatment within the meaning of section 10."

That authority was cited with approval by Ferrari J in Barr v Bailey and Jorgenson Pty Ltd [1967] WCR(NSW) 171. It was distinguished but not doubted by Armitage J in Corrigan v CL Brown & Sons (1998) 16 NSWCCR 681.

20. Here the plaintiff was led to believe by his general practitioner, two radiologists and his treating surgeon that he had at least a hernia on the right side caused by the heavy work that he did for the defendant, his doctors relying upon symptoms that the plaintiff reported following upon events that occurred to him at work. There is no suggestion that the advice given to the plaintiff by his general practitioner, the radiologists and the general surgeon who performed the surgery, was ill informed or ill advised or not reasonably held. As I said, the defendant called no evidence challenging the advice.

21. In those circumstances it appears to me that it was reasonable that the plaintiff undergo the surgery which was performed, and although the pathology found might not be the result of any employment injury the surgery was performed because it was thought that the plaintiff had sustained an employment injury. Consistently with McGullicuddy’s case, where the symptoms were caused by a work-related injury, but the ultimate pathology was not, here the symptoms were caused by work-related events and the surgery proposed was thought to be work-related but the pathology discovered appears not to be, it was still reasonable that the plaintiff undergo surgery. This case is, in fact, stronger than McGillicuddy’s case where the surgery as proposed was merely diagnostic whereas in this case it was thought to be work-related. Furthermore it is possible that the weakness in the posterior inguinal canal on the right side may have been caused by a work injury, but the evidence in that regard is quite unclear.

20. I have inquired of counsel for the parties if any further reason for judgment are required and I am told that none is so required. For those reasons I make an award for the plaintiff for $1,415.01 per week from 24 July 2015 to 3 December 2015 for either partial incapacity treated as total or total incapacity. I order the defendant to pay the plaintiff's expenses under section 60 of the Workers Compensation Act 1987 in respect of that period. I order the defendant to pay the plaintiff's costs.

**********

Decision last updated: 08 November 2016