Welsh v Elcom Collieries Pty Ltd

[2017] NSWDC 417

District Court

New South Wales

Medium Neutral Citation:

Welsh v Elcom Collieries Pty Ltd & Ors [2017] NSWDC 417

Hearing dates:

28 November 2017

Date of orders:

29 November 2017

Decision date:

29 November 2017

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

I publish an award under s 11(1) and an order under s 60.

 

I make awards for the plaintiff against the third defendant pursuant to s 66 of the Workers Compensation Act 1987 as it operates for those who work in or about a coalmine:
(1) for $4,762.80 for 9% permanent impairment of the neck;
(2) for $14,288.40 for 80% permanent impairment of the back;
(3) for $15,876 for 15% loss of efficient use of the right arm at or above the elbow;
(4) for $8,930.25 for 9% loss of efficient use of the right leg at or above the knee;
(5) for $8,930.25 for 9% loss of efficient use of the left leg at or above the knee.

 

I make an award for the plaintiff against the third defendant for $20,000 pursuant to s 67 for pain and suffering resulting from such losses and impairments.

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

Catchwords:

WORKERS COMPENSATION – First Aid Officer and bathroom attendant, multi-skilled since 1990 at a coal mine – Claim for weekly payments after accepting voluntary redundancy, for partial incapacity – How that affects computation of weekly payments for partial incapacity – Claims for lump sum compensation – Observations on medical evidence

Legislation Cited:

Workers Compensation Act 1926
Workers Compensation Act 1987

Category:

Principal judgment

Parties:

Robert William Welsh (Plaintiff)
Elcom Collieries Pty Ltd (First Defendant)
Powercoal Pty Ltd (Second Defendant)
Centennial Newstan Pty Ltd (Third Defendant)

Representation:

Counsel:
Mr P O’Rourke (Plaintiff)
Mr B Odling (Defendants)

  Solicitors:
Whitelaw McDonald (Plaintiff)
Sparke Helmore (Defendants)

File Number(s):

RJ 307/16

Publication restriction:

Nil

Judgment

1. HIS HONOUR: For almost 27 years the plaintiff, Mr Robert William Welsh, worked at the Newstan Colliery. He commenced working there on 21 June 1982. He took a voluntary redundancy on 2 May 2009. During that period of work the plaintiff had three different employers. The first employer was the first defendant, who employed him between 21 June 1982 and 11 October 1992. His next employer was the second defendant, Power Coal Pty Ltd, which took over his employment on 12 October 1992 and ceased to be his employer on 2 August 2002. On 3 August 2002 the plaintiff's contract of employment was novated to the third defendant, Centennial Newstan Pty Ltd.

Work history

2. Unlike many, the plaintiff has not only worked in the coalmining industry. He left school at the age of 16 years. He then worked at the steelworks here in Newcastle five years in the employment of Stewarts & Lloyds. He left the steelworks to work at Yeatman's Bakery in Cessnock for two years. He then joined the Ambulance Service of NSW in August 1972. He worked for the Ambulance Service for 12 years. At the time that he left he was partway through his level III training, which, if completed, would have given him the rank of paramedic. The plaintiff then joined the coal mining industry.

Work 1982 to 1992

3. His experience in the Ambulance Service was of benefit to Newstan Mine. He was employed initially as a first-aid attendant and bathroom attendant. Initially he worked for 35 hours per week and did six hours overtime on each Saturday morning. He commenced his shift by doing work as the ambulance or first-aid officer. He would clean and refurbish the first-aid room and the equipment and supplies it contained. He would arrange for further supplies and check the equipment, such as the Oxy-Viva machines, to make sure that it worked. He would go underground on occasions to check the first-aid equipment which was kept underground and also to inspect the underground ambulance. He would also, for example, when underground check the Oxy-Viva machines that were kept underground.

4. At about 8am, two hours after the commencement of the shift at 6am, the plaintiff would attend to work in the "bathroom" at the colliery. At its height the colliery employed well over 200 miners. The plaintiff told me the exact number but I cannot recall whether it was 240 or 280. In any event, in the bathroom were 92 showers arranged in four different "cubicles" or it would probably more appropriate to call them shower rooms. The plaintiff's duties were to maintain supplies that were kept in the bathroom, in particular soap, which was used by the miners when they showered at the completion of their shift.

5. By 8am those miners who worked overnight would have completed their showering and left the bathroom and then the plaintiff would attend to refurbishing the stores in the bathroom and then to cleaning the bathroom. The stores which he had to refresh, included the soap and scrubbing equipment. The soap was initially contained in 25 litre containers. Later there was a change when a pressurised system for the delivery of soap was installed and the soap came in 44 gallon drums. The plaintiff would need to move stores from the main storeroom to the storerooms in the bathroom and then dispense items within the bathroom. He was also, as I understand it, responsible for ordering new stores that the bathroom required. The plaintiff would then clean the showers, scrubbing the walls and floors. The walls were tiled to a height of 2.7 metres and both the wall tiles and the floor tiles needed to be hosed with acid, scrubbed down and then washed off with water. These activities would keep the plaintiff occupied until either 12.30pm or 1pm and he would then complete his shift at 2pm. In the last hour and a half, or hour, the plaintiff attended to general first-aid work.

6. In addition to that regular pattern the plaintiff also was on call to render first-aid in the first-aid station on the surface and was also called down into the pit to render first-aid if required to miners injured within the pit who could not be conveniently brought to the surface. That was the pattern of the plaintiff's employment between 1982 and 1990.

Multi-skilling from 1990

7. As I understand it, in about 1990 multi-skilling was introduced and the plaintiff was introduced to many more mine activities. However, much of that was surface work. There was also a change in the hours worked. The shifts were now 40 hours per week and there was overtime available, sometimes for 12 hours and sometimes for six. The plaintiff continued to do his first-aid duties and bathroom duties, but also worked in the washery and also was engaged in loading trains with coal. He also told me that if no other work was available he would work in the yard essentially assisting the loading and unloading of items to be taken down into the pit to be used by those mining at the coalface.

8. The washery was seven to eight storeys high and each level of it was reached by a set of steel stairs. If the plaintiff worked on weekends or did 12 hour shifts he worked in the washery. During each week day he might work for one or two hours in the washery. When he worked in the washery he would work in the control room, but it is also necessary to do regular inspections and clear any spillages of coal from the conveyors by shovelling the coal back from the floor of the washery into the conveyor. The plaintiff told me, and was not contradicted, that if he was working the washery for, say, an 12 hour shift about ten hours were involved in inspecting the conveyors and the various levels of the washery and in shovelling coal back onto conveyors. The number of times that it was required to shovel coal depended upon the efficiency of the system at any one time. Sometimes there might be minor spillages only. Other times there could be major spills which involved blockages of the conveyors which caused major disruption and a need for a lot of shovelling.

9. When the plaintiff worked loading coal into trains he would drive a loader. One of the vehicles which he drove was known as vehicle 25. It was a large Caterpillar front end loader which could be described as the "lemon in the fleet". A number of workers refused to drive it but the plaintiff did not. The plaintiff when he drove that vehicle experienced a lot of jolting and being thrown around. Later Komatsu front end loaders were introduced. When that occurred the plaintiff was involved in an accident, which I shall soon describe. That essentially remained the pattern of the plaintiff's work until the voluntary redundancy. It should be noted that the plaintiff did not as a general proposition work underground and he certainly did not work at the coalface. What took him underground was his work as the first-aid officer, to attend to first-aid stores and equipment underground and to attend to injured miners and, when he was working in the yard loading equipment to be taken to the coalface, he might travel down with the loads into the pit.

10. Although the plaintiff was initially classified as a Federation miner and did some mining work from 1990 onwards, it is erroneous to categorise the plaintiff only as an underground coalminer. Compared to many other underground coalminers, the plaintiff's work was not as arduous or demanding. However, it is clear that some of the activities in which he engaged as a multi-skilled worker, that is work not as the first-aid officer and bathroom attendant did require bending and lifting and carrying and repeated walking up and down staircases and other activities throwing stress on his spine and his upper and lower limbs. The plaintiff's work when loading trains also exposed him to the hazards of driving and operating large plant and being thrown and jostled whilst using that plant when loading coal into trains.

Injuries

11. As could be expected, the plaintiff had a number of injuries during his almost 27 years at the Newstan Mine. The statement of claim alleges that his first injury occurred in 1985 when he suffered an injury to an unspecified knee. The statement of claim also alleges that a second injury befell the plaintiff on 20 July 1991 when he was underground and injured his back. However, no evidence was adduced of any such injuries. There is no evidence of any injury to the plaintiff sustained whilst working for the first defendant.

12. The plaintiff's first injury, according to the evidence before me, was on 17 October 2000 when he was moving drums of soap and sustained an injury to his low back, in particular to the left side of his low back, when he twisted while moving drums of soap. The plaintiff indicated that the pain was at the beltline and to the left of the midline. The beltline is the L4-5 level. The plaintiff told me that he had time off work then and physiotherapy at Coal Services Health, but the records of Coal Services Health were tendered in the plaintiff's case and there is no record of such physiotherapy being provided to him. The plaintiff told me and was not challenged that ever since that event he has had pain from time to time in the lower back. He described it as "periodic pain". The plaintiff has sought to maintain his fitness and alleviate symptoms by undertaking swimming as exercise. The plaintiff also alleged an injury to his low back on 30 February 2002, according to the chronology which has been provided to me! There is no contemporaneous evidence of it. The date is unknown in the Old Roman, Julian or Gregorian calendars. There is only one injury of which evidence has been adduced against the second defendant.

13. On 2 September 2002 the plaintiff told me of injuring his right arm. According to the chronology provided to me by the plaintiff's counsel, MFI 1, the plaintiff injured his right shoulder, but the plaintiff made it clear that he thought he had injured his right elbow. The incident occurred when the plaintiff was manoeuvring a 44 gallon drum of soap. It is clear that the plaintiff on this occasion did attend Coal Services Health and had physiotherapy. The diagnosis provided in the records of Coal services Health indicates that the diagnosis was "tennis elbow" or medial epicondylitis. It was anticipated that the plaintiff undergo eight sessions of physiotherapy. There are notes indicating the administration of physiotherapy 18 September 2002 and 20 September 2002.

14. On 30 November 2002 the plaintiff injured his low back again when driving vehicle number 25, the "lemon in the fleet". He was using that to load a train wagon with coal when he was jolted and thrown around within the cabin of the vehicle and jarred his low back again. On this occasion the plaintiff told me that the pain went not only into the left side of his low back, but into his left buttock and down his left leg as far as the knee. The plaintiff told me that later on the pain in the left leg went as far as his foot. The plaintiff went on to tell me that since that time he has had pain in his back provoked by various activities in which he was engaged.

15. On 26 April 2004 the plaintiff was driving one of the new Komatsu front end loaders. The plaintiff was unused to driving it and freely admitted making a mistake by depressing a wrong lever. That led to an emergency. The bucket of the front end loader was laden with coal and as the plaintiff hit the wrong lever the front end loader moved with the front wheels becoming a fulcrum and the bucket containing coal being on the ground, causing the back of the front end loader to be thrown up into the air at 45 degrees. To get out of this situation the plaintiff discharged the coal from the bucket, which caused the tipping of the front end loader forward on the fulcrum its front wheels to reverse and the front end loader's back dropped to the ground with some speed or violence. The plaintiff was thrown from his seat into the roof of the front end loader and then back into his seat again. He told me that his whole body felt numb. He sat in the vehicle until he could gather himself together from what would obviously have been a frightening experience. He, essentially, told me that every part of his body felt sore. When driving plant the plaintiff did not wear a miner's helmet: it was on the seat next to him rather than on his head, and one can understand the violent jarring that he experienced in his neck and shoulders and low back.

16. Following this event the plaintiff saw his general practitioner, Dr Peter McGeoch. Dr McGeoch was then practising at the Woodrising Medical Centre at Woodrising. Dr McGeoch had moved there and the plaintiff first attended that practice on 15 August 2001. The clinical notes of that practice are before me. They are exhibit N. The first set of clinical records from that practice have a commencement date of 15 August 2001, but they make it clear that it is a "second file". The plaintiff told me, and I am quite happy to accept, that Dr McGeoch misplaced his first set of notes before moving to Woodrising Medical Centre. The plaintiff had been seeing Dr McGeoch at Booragul and had been seeing Dr McGeoch at that practice since he moved to open the Toronto Ambulance Station in about 1980. Accordingly, records concerning the plaintiff's health from 1980 to 2001 have gone astray.

17. Furthermore, it is abundantly clear that the records kept at the Woodrising Medical Centre are exiguous, and sometimes non-existent. For example, I do know from some contemporaneous documents that the plaintiff attended Dr McGeoch on 6 May 2004 complaining about his right shoulder. There is a copy of a certificate issued by Dr McGeoch bearing date 10 May 2004 indicating the plaintiff had a pain in his right shoulder, a diagnosis of possible rotator cuff tear, saying the plaintiff required an X-ray and an ultrasound, but that he was then fit for his normal duties. When I go to the doctor's note for 10 May 2004 the notes merely say that the doctor printed a prescription for Tenormin, which has nothing to do with the plaintiff's shoulder injury. I know that Dr McGeoch on 10 May 2004 referred the plaintiff for both an ultrasound and a X ray of his right shoulder. A report of those investigations was made by Dr Brad McDonald on 4 June 2004 and sent to Dr McGeoch. I know that Dr McGeoch saw the plaintiff again about that investigation on 8 June 2004. However, the doctor's notes for 8 June 2004 merely report a prescription of three drugs, none of which was referrable to any orthopaedic condition. In other words, Dr McGeoch's notes are exiguous and are of no assistance to the Court whatsoever. This is most unfortunate for the plaintiff because he is denied the assistance given to the Court by notes made by a general practitioner which are contemporaneous.

18. Furthermore, I know that the plaintiff was involved in an accident at home on or before 20 February 2007. On that date there is a radiological report addressed to Dr Sim at the Woodrising Medical Centre. But there is no note in the records of the Woodrising Medical Centre concerning any attendance by the plaintiff in January/February 2007 made by Dr Sim. There is an attendance noted by Dr McGeoch on 14 November 2005 and the next attendance is on 22 August 2007. Dr Sim made no record or if he did it has somehow been obliterated from the computerised records of the Woodrising Medical Centre.

19. Nevertheless, it is clear that the event of 26 April 2004 would have caused insult to the plaintiff's spine and clearly injury to his right shoulder.

20. The plaintiff reported injuries to his back on 12 July 2005, 12 August 2005 and 4 July 2006, but had little recollection of those events. The plaintiff told me that he experienced pain in his back with activities such as lifting, twisting and bending, and that it often happened that if one reported every instance in which one experienced such pain, one would "fill up the first-aid book".

21. On 20 February 2007, the plaintiff underwent a plain X-ray of his left ankle. The clinical history recorded by the radiologist, Dr Anthony Van Niekerk, is "wardrobe fell on ankle". The plaintiff told me that he was moving furniture with his son-in-law when his son-in-law dropped his end of a wardrobe causing the wardrobe to strike the plaintiff's ankle. The plain X-ray of 20 February 2007 reports slight soft tissue swelling around the ankle, but there was no fracture or dislocation seen. However, there was a small left calcaneal spur at the plantar fascia insertion and also a slightly smaller calcaneal spur at the insertion of the tendo Achilles. Calcaneal spurs are notorious for causing pain in the feet. The plaintiff clearly had some calcaneal spurs in his left foot.

22. Antecedent to that plain X-ray the plaintiff attended Coal Services Health complaining of a problem in his left heel and indicating that previously he had had a problem in his right heel and that orthotics provided to him in the past had worn out. The notes made at Coal Services Health on 16 February 2007 indicated the plaintiff had mild to moderate pain in the left mid foot and also mild to moderate symptoms on eversion of the left hind foot. The plaintiff was fitted it would appear, if I am reading the notes correctly, with some custom made probably orthotics for both the left and the right feet at that time. That would indicate the plaintiff was having problems with at least calcaneal spurs on the left hand side in February 2007. Whether that attendance was referrable to the accident involving the wardrobe at home is an interesting question which of course cannot now be solved without contemporaneous records being made at the Woodrising Medical Centre.

23. By August 2007 the plaintiff told me of experiencing symptoms in his right knee and of having symptoms when walking and kneeling. The pain he experienced was walking up and down stairs. He mentioned the 23 stairs at his home, but it must be borne in mind that at the same time he would have been walking up and down the steel stairs in the washery from time to time each week. The symptoms in his right knee were intermittent but becoming more frequent as the years went by.

11. The plaintiff told me of another injury to his back on 16 June 2008. He was taking a trolley of material from the main storeroom area to the bath house and he piled three 25 litre drums of soap on top of each other. He had his hand on top of that pile of drums as he was either pulling or pushing the trolley when he hit a "step" or bump causing a jarring of his back. The plaintiff saw Dr McGeoch on 20 June 2008. The doctor noted prescribing medication for treatment of medical conditions, not for any orthopaedic problem, but the doctor also noted prescribing in addition Celebrex and requesting an X-ray of the low back. Clearly the plaintiff must have complained to Dr McGeoch on that occasion of having low back pain, although that complaint itself is not recorded.

12. The plaintiff's plain X-ray was carried out by Dr Hugh Scotton on 23 June 2008. Dr Scotton noted the plaintiff had a slight lumbar scoliosis with convexity to the right and that there was moderate narrowing of the L1-2 and L2-3 disc spaces with marginal osteophytic spurring. There was also slight lipping of the margins of the L4-5 disc space and minor narrowing of the L5-S1 disc space. The plaintiff went back to see Dr McGeoch on 26 June 2008 and the doctor noted on this occasion that the plaintiff had longstanding low back pain which was intermittent but had been improved with physiotherapy. The doctor also noted that the plaintiff thought that a drug prescribed to him for a medical condition caused back pain and that caused the doctor to change the prescription for Atacand to Avapro, but it may well be that Dr McGeoch became confused. I am fairly confident that the plaintiff with his knowledge of first-aid, et cetera, would not believe that a drug would cause usually low back pain.

Voluntary redundancy

26. The plaintiff next told me in his evidence-in-chief of taking the voluntary redundancy from the third defendant, which was then operating Newstan Colliery, on 22 May 2009. The mine was being closed down. There had been many rumours passing amongst the mining employees that the pit was going to close and on or about 22 May 2009 the pit was put into "care and maintenance", which essentially means that it was taken out of production. Younger mine workers were transferred by the Centennial Group to other Centennial controlled coalmines and others were offered a redundancy. The plaintiff was offered a redundancy and took it. He freely conceded that the redundancy package gave him $140,000. I do not know whether that is before or after tax.

27. The plaintiff told me that he was holding out for the redundancy, in that he had formed the view that he could no longer continue his mining duties because of the various pains which were afflicting him. Perhaps it might be more appropriate to think that the plaintiff hung on to his job until offered the redundancy which he took so that he could escape from doing work which was hurting his body. In any event, I accept that the plaintiff was having increasing difficulty doing his work because of pain in his low back, some intermittent symptoms in his neck and continuing pain in his right arm and in his right knee.

Further employment

28. After taking the redundancy the plaintiff was unemployed for a number of months and made it quite clear that he became bored. He obtained a public vehicle driver's licence and in August of 2009 started driving buses casually for Sid Fogg & Sons Pty Ltd. The plaintiff drove buses for that employer until February 2011. The plaintiff told me that it was mainly school runs. He then started working for Hunter Valley Buses and worked for them until 30 November 2011. For Hunter Valley Buses, the plaintiff drove buses in the Hunter Valley from Newcastle to the vineyards and sometimes on trips to Sydney. He described this as "tourist bus" driving. About December 2011, the plaintiff obtained work with a gentleman who had two different businesses, one described as Newcastle Limousines and the other described as the Newcastle Tour Company. As I understand it, for the Newcastle Tour Company, the plaintiff drove a small bus and took visitors up the Hunter Valley from Newcastle on tours of the vineyards. With Newcastle Limousines he drove short distances locally and mentioned, for example, taking those arriving at the Newcastle Airport at Williamtown back into the City. However, sometimes he might have to drive to Sydney and in particular he mentioned to cruise terminals. The plaintiff did this work until November of 2015 when he gave it up. At the time the plaintiff left the coalmining industry he was 62. At the time he gave up work as a bus driver and limousine driver he was 68.

Relief sought

29. The plaintiff brings a claim for weekly payments from the day after his acceptance of voluntary redundancy, that is from 23 May 2009 up until the day before his 66th birthday, that is until 23 September 2013. The plaintiff also makes claims for lump sum compensation under s 66. Despite what is contained in the pleadings, the plaintiff ultimately advanced claims for the permanent impairment of his neck, the permanent impairment of his back, the loss of efficient use of his right arm at or above the elbow, the loss of efficient use of his right leg at or above the knee and the loss of efficient use of his left leg at or above the knee and a consequential lump sum for pain and suffering, anxiety and distress resulting from those impairments and losses.

Further treatment

30. Since leaving the coalmining industry the plaintiff has had some further treatment. On 17 June 2014 the plaintiff saw Dr Cameron James at the Woodrising Medical Centre. He appears to have first seen that doctor on 21 January 2014. On 17 June 2014, Dr James obtained a history of the plaintiff's ongoing back pain. The doctor thought that that was now associated with radiculopathy between L2 and L4, made worse since a trip in 2013 the plaintiff had made to Europe. The plaintiff told Dr James and he told me that he attributed the pain in his leg to walking on cobble stones in various European cities. The plaintiff also told the doctor that the back pain was worse when he was required to sit for long hours. On that occasion Dr James referred the plaintiff to Coal Services Health, saying that he thought the plaintiff was suffering from back pain and L2 to L4 radiculopathy and needed some treatment.

31. Notes of Coal Services Health made on 20 June 2014 indicate that the plaintiff's problems were not in the left leg but in the right leg. The plaintiff attended Coal Services Health physiotherapy for his problem, but not only on 20 June 2014 but also on 27 June 2014 and 4 July 2014 when the plaintiff admitted to improvement and the physiotherapist made a note, "Going well." It is possible that the physiotherapy notes are incorrect and the complaints were in fact about the left leg. However, the anatomical diagram shows pain between the top of the buttock and the popliteal fossa and not in the foot and lower leg, which is really what the plaintiff was complaining about.

32. At the same time as he referred the plaintiff to Coal Services Health physiotherapy, Dr James organised for an MRI scan of the low back. That was reported by Dr Ahmed Mayat on 24 June 2014. There was desiccation of the lumbar discs in keeping with degenerative disc disease. There was minor disc bulging at L1-2 and L2-3. There was thought to be a broad based disc bulge at L3-4. There was a minor broad based disc bulge at L4-5. Dr Mayat said this about the lumbosacral level:

"L5-S1 demonstrates a broad based disc bulge and there is mild disc osteophytic encroachment on the exit foramina bilaterally. No central spinal canal compromise is detected. Bilateral facet joint degenerative change is identified."

In his comment Dr Mayat said this:

"No significant neural compression, spinal canal compromise or exit foraminal stenosis."

Initially Dr McGeoch referred the plaintiff to Dr Ghabrial. However, before that occurred there were some further investigations. On 19 February 2015 the plaintiff was sent for an X ray of his left ankle. Essentially that is reported as showing no abnormality, but there is no comment about calcaneal spurs. On 30 March 2015 the plaintiff underwent an X ray of his left hip. That X ray was arranged by Dr McGeoch. Dr McGeoch's notes for 30 March 2015 record the referral for X ray of the left hip and this:

"Guided epidural cortisone injection L5-S1 under imaging."

The purpose of having the left hip X-ray was related to a cortisone injection into the lumbosacral disc. Unfortunately, Dr McGeoch did not record what the history was or the complaint was or why he organised these procedures. The X ray of the left hip has a clinical history of "Confirmed L5-S1 pathology." It goes on to report that there was mild joint space narrowing in both hips superiorly. However, there was no significant osteophytosis of the femoral heads. There was a minor bony irregularity of the acetabulum noted. The report goes on to comment about facet joint arthropathy at the lumbosacral level. In other words, what the report did is comment on appearance of both hips, albeit that it was supposed to be limited to the left hip. Both hips were degenerate in essence. However, what the radiology probably did confirm was the plaintiff had a problem at the L5-S1 disc.

33. On 15 June 2015, Dr McGeoch did two things. He ordered nerve conduction studies of both lower legs. The plaintiff told me that they were not carried out. He also referred the plaintiff to Dr YAE Ghabrial. Dr Ghabrial saw the plaintiff on 10 July 2015. Dr Ghabrial's report of that date says this:

"Examination of the back on 10 July 2015 showed a protected sitting and standing attitude. There was a normal gait and decreased postural lordosis. The spinal movements were moderately decreased with pain and a positive catch. Extenstion, lateral bending and rotation were decreased with pain. There was moderate right and marked left paraspinal lumbar spasm. The straight leg raising in the short sitting and supine positions was 90 degrees on the right and 60 degrees on the left with a negative right and positive left sciatic stretch. There were no motor deficits but there was decreased sensation of the left S1 dermatome. Knee jerks were normal on both sides, right ankle jerk was normal and left ankle jerk decreased. There was marked tenderness at the L4-S1 level, the lumbar midline. The femoral stretch was negative and the sacroiliac tests were normal."

The doctor then refers to the MRI scan performed on 24 June 2014, but he misdates it to 24 June 2015. He said that the MRI scan "suggested L5-S1 disc protrusion", although the radiologist was not of that opinion. Dr Ghabrial then reported that he had discussed with the plaintiff the pros and cons of a caudal block and gave him information about that injection, but he appears not to have known that the plaintiff had undergone perhaps a caudal block on 30 March 2015. Dr Ghabrial finished his report by pointing out that if the plaintiff decided to have a caudal block he would let the doctor's rooms know. Dr Ghabrial has subsequently seen the plaintiff, but that was for medico legal purposes.

Medico-legal evidence

34. The remaining medical evidence before me is all medico legal. It provides me with the usual dichotomy that I have pointed out on numerous occasions: it puts me between Scylla and Charybdis, to use the classical allusion, or to use the vernacular, between a rock and a hard place. I have assessments at the diametrically opposed ends of the medical spectrum.

Incapacity

35. Suffice to say that I accept that the plaintiff has been partially incapacitated for work since his accepting voluntary redundancy due to ongoing problems in his low back, in his right shoulder, his right knee and perhaps because of some problem in his left leg. I accept that the work which the plaintiff did for Newstan Colliery was a causative factor in the development of the plaintiff's problems, which I shall describe shortly when considering the claims under s 66, and that the incapacity in question is causally related to the work that the plaintiff did over years at the Newstan Colliery and that the process can be classified as the development of morbid pathology or the aggravation, acceleration, exacerbation or deterioration of morbid pathology in the plaintiff's conditions such that the third defendant becomes liable under the disease provisions of the workers' compensation legislation for the plaintiff's incapacity and impairments and losses.

36. The approach which I make to the claim for weekly payments can be very shortly described. A wages schedule which was tendered by consent is exhibit P. That shows two "comparables" who each was earning more than the plaintiff. The probable earnings but for injury if he had stayed at the Newstan Colliery are the average of the two allegedly comparable workers. The average of their earnings is greater than the plaintiff ever earned. Suffice to say that I reduce the comparables but for injury at the Newstan Colliery to $2,000 per week during the whole of the period. However, it has to be realised that the plaintiff voluntarily took himself out of the coalmining industry by taking the redundancy package and he took from the his last employer, the third defendant, a package worth to him $140,000.

37. I therefore approach the claim under s 11(1) of the Workers Compensation Act 1926 as it is preserved by the Workers Compensation Act 1987, Schedule 6, Pt 18 by not looking at what the plaintiff would have earned as a coalminer but what he would have earned uninjured had he not been a coalminer. If he had not entered the coalmining industry it is likely the plaintiff would have stayed with the Ambulance Service and become a paramedic. I believe that during the period now in question that paramedics would earn approximately $80,000 per annum or $1,500 per week. Therefore at the top end of the equation under the three steps required under s 11(1), I have placed the figure of $1,500.

38. The plaintiff's earnings shown between 2009 and 2014 can hardly be the real measure of his ability to work in the open labour market. For example, the evidence is the plaintiff worked in 2009 and 2010 but the wages schedule says that he earned nothing during those years. The wages schedule tells me that from 1 February 2012 to 30 June 2012, the plaintiff earned an average of $167.10 per week. During the subsequent financial year he earned $261.56 per week and in the financial year ending 30 June 2013 he earned $185.98 per week. However, commencing on 1 July 2013 until 24 September 2013 the plaintiff was earning $317.17 per week. It is clear that prior to 1 July 2010 the plaintiff was earning wages because he had been working for Sid Fogg & Sons since August of 2009. The plaintiff told me that he had a lengthy trip to the United Kingdom and Ireland in one year and then a lengthy trip to Europe in another year, thereby enjoying no doubt is retirement or his semi-retirement, but essentially removed himself from the workforce for long periods of time. Doing the best I can, I believe the plaintiff's ability to earn injured in the open labour market since his voluntary redundancy payout is $300 per week.

39. The difference between $1,500 per week and $300 per week is $1,200 per week, which is greater than the current weekly wage rate during the first 26 weeks after the claim commences, but, of course much greater than the statutory rate. The plaintiff is therefore entitled to a full award under s 11(1) of the Workers Compensation Act 1987. The plaintiff is also entitled to a general order under s 60 for the payment of relevant hospital, medical and the like expenses.

Neck

40. I turn now to the plaintiff's claims for lump sum compensation. The first is for the permanent impairment of the neck. The plaintiff's solicitors have qualified both Dr Alan Hopcroft and Dr Ghabrial. The defendant has qualified Dr Roger Rowe. Dr Hopcroft diagnoses cervical spondylosis and says that the impairment of the neck is 25%. Dr Roger Rowe agrees with the diagnosis of cervical spondylosis but says that the impairment is 5% of which only half is work related and he does not relate that to the type of work that the plaintiff did, but to an injury of which he had a history occurring in "2007", but which appears to me to be a description of the injury of 26 April 2004 in which the plaintiff was driving the Komatsu front end loader when he was involved in that frightening accident I sought to describe. Dr Ghabrial says the plaintiff's impairment of the neck is 20%, but provides no diagnosis.

41. I should point out that I have not been given any investigation of the plaintiff's neck at all, not even a plain X ray. Bearing in mind the concession made by Dr Rowe, I accept the plaintiff suffers from cervical spondylosis and that the alternative to that, which means degeneration of the cervical vertebra, degenerative disc disease in the plaintiff’s neck which of course leads on to the cervical spondylosis. I accept the plaintiff has a 10% impairment of his neck. However, there is clearly a dispute as to whether that is wholly due to the plaintiff's work or only partly due to the plaintiff's work. In those circumstances I apply the statutory deduction of one tenth to obviate further litigation. The plaintiff is accordingly entitled to an award for 9% permanent impairment of the neck.

Back

42. The next award is for the permanent impairment of the back. As I have mentioned, Dr Ghabrial diagnoses an L5-S1 disc protrusion. Dr Ghabrial diagnoses a 35% impairment of the back. Dr Roger Rowe diagnoses lumbar spondylosis and says that the impairment of the back is 10%, but that is wholly unrelated to work and is due to age and constitutionally determined degeneration. Dr Hopcroft said that the plaintiff had lumbar spondylosis, but he thought it was causing significant left radiculopathy, which probably means that he thought that there was a discal problem at L5-S1. Dr Hopcroft put impairment at 45%. If the plaintiff had had his lumbosacral disc excised it might be appropriate to find a 20% impairment of the back. The assessments of Dr Ghabrial and Dr Hopcroft are so generous as to be bizarre.

43. The real question for me is whether the plaintiff has a disc protrusion at L5-S1. The findings on examination of Dr Ghabrial I have already mentioned. If they be accurate and if they be permanent I would accept the plaintiff has an L5-S1 disc protrusion. Marked paraspinal lumbar spasm, a positive left sciatic stretch test, reduced sensation in the S1 dermatome and a decrease in the left ankle jerk are all objective signs of an organic problem with the L5-S1 disc. Dr Rowe examined the plaintiff on 15 March 2016 and made no such findings. He said that there was no evidence of muscle spasm. The plaintiff could bend forward and touch beneath his knees. Straight leg raising was 60 degrees bilaterally. The sciatic stretch test was negative. There was no neurological deficit and there was no muscle wasting. The plaintiff was examined by Dr Alan Hopcroft a month later, on 13 April 2016. Dr Hopcroft's findings on examination about the low back are these:

"He has quite marked pain over his lumbar spine with marked restriction in movement, and can go into a flexion crouch to approximately 110 degrees of loaded knee flexion bilaterally.

He can carry his weight on the toes of each foot but continues to complain of significant and increasing pain, paraesthesia and numbness of his left foot, and wears and ankle support strap because of pain at that site in spite of the X ray of 19 February 2015...

When lying supine, straight leg raising is limited to approximately 30 degrees bilaterally and I felt that deep reflexes at the left ankle were depressed compared to the right, to repeated examination."

The only problem of an objective nature that might be referrable to an L5-S1 disc lesion is some depression of the left ankle deep reflex. However, for reasons which I shall later explain, the plaintiff seems to have some unexplained local pathology in his left foot. Dr Hopcroft did not find paraspinal lumbar spasm, did not find a positive left sciatic stretch test, did not find decreased sensation in the S1 dermatome.

44. At the end of the day the plaintiff has the onus of proof. The plaintiff must satisfy me on the balance of probabilities that he has a lumbosacral disc lesion. I am not so persuaded. There may be some referred pain in his left leg from time to time. I accept that the plaintiff has lumbar spondylosis, a diagnosis provided by both Dr Rowe and Dr Hopcroft. Considering the number of levels that the low back involved I accept the plaintiff has a 20% impairment of his back. I reduce that by the one tenth statutory deduction in view of the fact that the plaintiff may have an underlying constitutional propensity to degenerative disc disease in the low back. Accordingly, the plaintiff is entitled to a lump sum for 18% permanent impairment of his back.

45. As I need to point out at some stage I should point out now that the plaintiff has a body habitus which is conducive to degenerative disease in his spine and other weight-bearing joints. For example, on 6 April 2009 shortly prior to his taking a voluntary redundancy, Dr McGeoch noted that the plaintiff was 170 cm tall, weighed 111 kg and that his BMI was 38.41. On 26 July 2010 the plaintiff's height was 170 cm, his weight was 110 kg and the BMI was 38.1. A year later on 25 July 2011 the plaintiff's height was reduced to 169 cm, his weight was 113.9 kg and his BMI was 39.88. On 4 July 2013 the plaintiff's height was at 169 cm, his weight was 112 kg and the BMI was 39.2. On 21 February 2014 the height was 169 cm, the weight was 113 kg and the BMI was 39.6. That body habitus must throw stress on the spine and other weight bearing joints hence the statutory deduction of one tenth.

Right arm

46. The plaintiff claims a lump sum for the loss of efficient use of his right arm at or above the elbow. Dr Alan Hopcroft diagnoses low grade arthritic changes in his shoulder and wrist and some radicular symptoms from the neck. He believed the plaintiff had a 15% loss of efficient use of the right arm at or above the elbow and a 10% loss of efficient use of the plaintiff's right arm below the elbow. This is the error of disarticulation of limbs which has not been the law since 1994. I do not accept the plaintiff has radicular symptoms from the neck. There is no evidence to support any suggestion of a cervical disc lesion. Dr Ghabrial, in the plaintiff's case, points out that there is no problem with the plaintiff's wrist. I can accept that the plaintiff has low grade arthritic changes in his right shoulder.

47. Dr Rowe nevertheless thought that there was nothing wrong with the plaintiff and said that there was no loss of efficient use of his right arm at or above the elbow. Dr Ghabrial accepted a rotator cuff injury and diagnosed a 17.5% loss of efficient use of the right arm at or above the elbow. I have already mentioned of the plaintiff being treated for his right shoulder by Dr McGeoch. The plain X ray performed on 4 June 2004 shows mild narrowing of the subacromial space with pitting over the greater tuberosity and degenerative arthropathy in the acromioclavicular joint. On ultrasound examination there was found to be a small full thickness tear of the anterior supraspinatus tendon measuring 7 mm in the longitudinal direction and 8 mm in the transverse plane. An overlying contour defect was found in the bursa. Dr MacDonald, the radiologist, confirmed in his impression that there was chronic subacromial impingement and a full thickness tear of the supraspinatus. There is also some medial subluxation of the biceps tendon and irregularity of the subscapularis insertion. In those circumstances to suggest, as Dr Rowe did, that there is nothing wrong with the right shoulder, is ludicrous.

48. Dr McGeoch in a medico-legal report of 7 July 2017 annexes a list of injuries provided to either him or to the plaintiff by the Newstan Colliery on 17 June 2008. That records injuries to the shoulder on 26 April 2004, one I have already mentioned, further jarring to the shoulder on 2 October 2006 and an ongoing sprain or strain to the right shoulder on 16 October 2006.

49. I accept that the plaintiff has a 15% permanent loss of efficient use of his right arm at or above the elbow. As a general proposition, the shoulder is not thought to be a weight-bearing joint, although the arm depends from the shoulder the arm is not of sufficient weight to generally cause degeneration in the shoulder joint. I therefore do not accept that there ought be any deduction from the 15% that I have found and the plaintiff is accordingly entitled to a lump sum for 15% loss of efficient use of his right arm at or above the elbow. The pleadings do make a claim for the loss of efficient use of the left arm at or above the elbow, but that was abandoned by Mr O'Rourke in addresses.

Legs

50. The remaining claim is in respect of each leg. As far as the right leg is concerned, Dr Hopcroft diagnoses osteoarthritis of the knee and diagnoses a 20% loss. Dr Roger Rowe obtained no history of any knee injury and no complaint of any knee injury and the inference to be drawn from his report is that there was no loss. Dr Ghabrial said that the plaintiff had a 35% loss of efficient use of his right leg at or above the knee because of osteoarthritis. I accept that the plaintiff has osteoarthritis of his right knee. The plaintiff was seen by Dr McGeoch on 22 August 2007 when again Dr McGeoch records no history but did order an X ray of the right knee. That was performed on 19 September 2007. It is reported by the radiologist, Dr Raad Findakly thus:

"Mild to moderate degenerative changes are evident with little marginal lipping and slight narrowing of the joint space of the medial tibiofemoral compartment. The joint alignment is maintained and articular surfaces are preserved. No focal bony destructive lesion is identified about the right knee."

The plaintiff returned to see Dr McGeoch on 24 September 2007 and the doctor's notes say this:

"Moderately osteoarthritic knee[.] Quite happy to cope with symptoms at the moment."

51. I find the plaintiff has a 10% loss of efficient use of his right leg at or above the knee because of osteoarthritis. However, that osteoarthritis is mild and it seems to be on the radiological investigation confined to one of the three compartments of the knee. In those circumstances I suggest the plaintiff has a 35% loss of efficient use of the right leg at or above the knee because of osteoarthritis in the knee is risible. Again, a knee is a weight-bearing joint. The plaintiff's body habitus must be taken into account. I therefore reduce the 10% finding to 9% deducting the statutory one tenth. The plaintiff is accordingly entitled to an award for 9% permanent loss of efficient use of his right leg at or above the knee.

52. The most problematic claim is in respect of the left leg. In his report of 27 November 2015, Dr Ghabrial said the plaintiff had a 17.5% loss of efficient use of the left leg at or above the knee because of S1 radiculopathy. Bearing in mind the doctor's findings of an L5-S1 disc protrusion which would affect the S1 nerve, his opinion is understandable. However, in his report of 3 May 2017, Dr Ghabrial refers to a "left hip injury", of which I am unaware and which has never been explained. The doctor merely referred to "some irritability" in the plaintiff's left hip. If the plaintiff has some degeneration in his hips it is most likely due to his body habitus, to a constitutional condition. It has nothing to do with his work because there is no evidence to support a finding of injury to either hip. Dr Ghabrial said that because of the hip injury the plaintiff had a further 25% loss of efficient use of his right leg at or above the knee, so that if one accumulates the two losses Dr Ghabrial believes that the plaintiff has a 42.5% loss of efficient use of the right leg at or above the knee. Considering that the plaintiff has a normal gait and can ambulate normally without a walking stick or any other appliance, that assessment is risible.

53. Dr Hopcroft diagnoses left radiculopathy and believes that the extent of the loss is 20%. I have already read into these reasons the doctor's findings upon examination and the only abnormality which he appears to have found was of some problem in the deep reflexes at the left ankle. Dr Rowe provides no diagnosis except "age and constitutionally determined degeneration", but accepts that there is a 15% loss of efficient use of the left leg at or above the knee which is wholly non-work-related. It may be that Dr Rowe believed that there was some affectation of the left leg because of the condition of the plaintiff's low back and since he believed the condition of the low back was not work-related so was any affectation of the left leg.

54. There is no evidence before me of any degeneration in either the plaintiff's knee or foot, but there might be some problem in the hip. I have little doubt that if somebody managed to X-ray the plaintiff's left knee that there would be a degenerative condition in it similar to that on the right but no one has bothered to arrange such an investigation and there is no evidence or opinion of degeneration in the plaintiff's right knee. As I have previously said, I am not persuaded that the plaintiff has a work-related hip problem, but that is likely to be due wholly to constitutional factors. As I have said, I am not persuaded the plaintiff has a true disc lesion. But the plaintiff might have some referred pain into his leg from time to time.

55. The plaintiff's complaints to me and to doctors really are about what appears to be some local but not adequately explained pathology in his left foot. There is a frank non-work-related injury to the plaintiff's left ankle on or before 20 February 2007. I know that there are calcaneal spurs in the plaintiff's left foot and they might explain symptoms from time to time. Indeed, as far as the plaintiff's left foot is concerned, he went to Coal Services Health on 30 March 2009 and presented with a history of few week of pain in his left foot. There was swelling and oedema present and it was thought it might be secondary to the injury when the plaintiff's ankle was struck by the wardrobe. The history is that this event occurred in October of 2008 but it was clearly in or about February 2007. The anatomical diagram shows some swelling at the base of the gastrocnemius muscle, that is a major muscle of the calf, and over the medial malleolus of the left ankle. The plaintiff attended for further physiotherapy on 2 April 2009 for that complaint. That there was swelling in the left ankle in 2009 is confirmed by Dr McGeoch in his medico legal report of 7 July 2017 in which he points out that on 6 April 2009 there was swelling in the left ankle. Such would not be caused by a discal problem at L5 S1. All that speaks of is a local pathology.

56. Again, that local pathology was suspected is proved by the X-ray of the left ankle carried out on 19 February 2015. In his report of 15 March 2016, Dr Rowe obtained this history from the plaintiff:

"Mr Welsh then added that he has had left ankle pain and tripping of the left leg for about two and a half years."

When the plaintiff was examined by Dr Hopcroft on 13 April 2016, the plaintiff told the doctor of pain and pins and needles and numbness in the left foot which caused him to wear an ankle support strap. Or course, the left foot is not inverted solely by the S1 nerve root. The L4-L5 and S2 nerve roots are also involved. The fact the plaintiff is wearing the ankle support strap is consistent with there being some local pathology. I am not persuaded that any such local pathology is causally related to anything that happened to the plaintiff at work. It is more likely to be referrable to the accident at home when unfortunately the plaintiff's son-in-law let the wardrobe fall such the plaintiff injured his left ankle.

57. However, I am prepared to find a 10% loss of efficient use of the plaintiff's left leg at or above the knee because of some referred pain from time to time from the plaintiff's low back. However, as I have reduced the impairment of the back by the statutory 10% the same deduction must be made to the loss of efficient use of the plaintiff's left leg at or above the knee. The plaintiff is therefore entitled to an award for 9% permanent loss of efficient use of his left leg at or above the knee.

Pain and suffering

58. I understand that my findings under s 66 entitle the plaintiff to a lump sum under s 67 for pain and suffering, anxiety and distress resulting from those impairments and losses. The maximum that can be awarded is $66,200. I can only award that in "a most extreme case". Cases of quadriplegia and paraplegia might be considered a most extreme case. Indeed, many years ago I held that a young man who had a left sided paresis, that is a partial paralysis of the left side of his body, with organic brain damage resulting in social disinhibition and other mental problems, was a most extreme case. But he was 20 years old. The law clearly requires me to award more to a younger man than to an older man because a younger man is likely to experience symptoms for a much longer period of time than an older man. I accept the plaintiff has been suffering symptom since about 2000, commencing with the problem in his low back, and has experienced those symptoms now for some 17 years. The plaintiff's life expectancy is 16.91 years. When one reads the general practitioner's records one can understand that they are concerned about the plaintiff's body habitus and that might reduce his life expectancy. The normal life expectancy for a man of the plaintiff's age is 16.91 years. I accept the plaintiff will have ongoing symptoms for another 15 years. Doing the best I can, I believe the plaintiff's case is somewhere between 30% and one third of a most extreme case. I believe the appropriate amount to award the plaintiff under s 67 is $20,000.

Awards

59. I publish an award under s 11(1) and an order under s 60.

60. I make awards for the plaintiff against the third defendant pursuant to s 66 of the Workers Compensation Act 1987 as it operates for those who work in or about a coalmine:

1. for $4,762.80 for 9% permanent impairment of the neck;

2. for $14,288.40 for 80% permanent impairment of the back;

3. for $15,876 for 15% loss of efficient use of the right arm at or above the elbow;

4. for $8,930.25 for 9% loss of efficient use of the right leg at or above the knee;

5. for $8,930.25 for 9% loss of efficient use of the left leg at or above the knee.

61. I make an award for the plaintiff against the third defendant for $20,000 pursuant to s 67 for pain and suffering resulting from such losses and impairments.

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

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Decision last updated: 28 February 2018