Wilson v Nebo Colliery

[2015] NSWDC 99

District Court

New South Wales

Medium Neutral Citation:

Wilson v Nebo Colliery & Ors [2015] NSWDC 99

Hearing dates:

3-4 March 2015

Date of orders:

04 March 2015

Decision date:

04 March 2015

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

The need for the plaintiff to undergo surgery for his left hip was reasonably necessary as a result of injury arising out of or in the course of the plaintiff’s employment as a coal miner with the name defendants

Fifth defendant to pay the plaintiff’s expenses under s 60 for treatment of his low back condition and for his left hip condition

Fifth defendant to pay the plaintiff’s costs

Award for the fourth defendant and for Endeavour Coal Pty Ltd trading as Nebo Colliery, Wongawilli Colliery and Elouera Colliery.

Catchwords:

WORKERS COMPENSATION – Coal miners – Estoppel – Claim for hospital and medical expenses – Need for further surgery – No “declaration of liability” sought – Previous proceedings concerning lumbar spine – Subject proceedings concern lumbar spine and hips – No estoppel arising as hips not claimed in earlier proceedings

Legislation Cited:

Workers Compensation Act 1987 (NSW)

Cases Cited:

Bruce v Grocon Ltd (1995) 11 NSWCCR 247

Category:

Principal judgment

Parties:

Frederick Peter Wilson (Plaintiff)
Nebo Colliery (First Defendant)
BHP Wongawilli Colliery (Second Defendant)
Elouera Colliery (Third Defendant)
Delta Mining (Fourth Defendant)
Gujarat NRE FCGL Pty Limited trading as NRE Wongawilli Colliery (Fifth Defendant)

Representation:

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

Solicitors:
Slater & Gordon (Plaintiff)
Sparke Helmore (Defendants)

File Number(s):

RJ334/14

Publication restriction:

No

Judgment

1. HIS HONOUR: The plaintiff, Mr Frederick Peter Wilson, is a former coal miner. He claims expenses under s 60 of the Workers Compensation Act 1987. I understand those expenses to be substantial. Schedules filed but fortunately not tendered into evidence indicate total outstanding costs unmet by the defendants to be $95,781.03. The outstanding expenses can be seen to arise from three substantive conditions.

2. The first is the plaintiff’s low back condition. On 4 October 2011 at the St George Private Hospital the plaintiff underwent laminectomy and fusion between the L2 vertebra and the L4 vertebra at the hands of Dr Renata Bazina, a neurosurgeon. The next condition is the condition of the applicant’s left hip. For that condition the plaintiff underwent total left hip replacement at St Luke’s Hospital on 19 April 2012 under the hands of Professor Lawrence Kohan, an orthopaedic surgeon. The third condition is the condition of the plaintiff’s right hip. For his right hip condition the plaintiff underwent total hip replacement at St Luke’s Hospital on 20 May 2013, again under the hands of Professor Lawrence Kohan.

3. The statement of claim nominates five defendants. In fact, there are only three. The first three named defendants are Nebo Colliery, Wongawilli Colliery and Elouera Colliery. Each of those collieries was, at the relevant time, operated by the company now known as Endeavour Coal Pty Ltd which commenced life under the name Australian Iron and Steel Pty Ltd and then changed its name to BHP Steel (AIS) Pty Ltd before changing its name into the current form. The fourth named defendant is Delta Mining which took over the operation of the Wongawilli Colliery, and the fifth named defendant is Gujarat NRE, which took over the operation of the Wongawilli Colliery after Delta Mining ceased to operate it. In effect, however, there is one substantive defendant, the insurer of each of the three companies to which I have referred, Coal Mines Insurance Pty Ltd.

4. It is important to bear in mind that there were earlier proceedings between the plaintiff and Australian Iron and Steel Pty Ltd. Those proceedings were in the Compensation Court of New South Wales. They were commenced by an application for determination filed on or about 13 June 1995. In those proceedings the plaintiff relied upon six events. The first was an event on 14 May 1982 at the Elouera Colliery when the plaintiff was carrying heavy timber and injured his back. The second was on 15 August 1989, again at the Elouera Colliery, when the plaintiff was lifting a cable and again injured his back. The third occurred some time in 1990, again at the Elouera Colliery, when the plaintiff was driving machinery over rough terrain and was jarred and injured his back. The fourth occurred in October 1992, again at the Elouera Colliery, when the plaintiff was driving machinery over rough terrain and again jarred his back. The fifth occurred, again at the Elouera Colliery, on 20 April 1994 when the plaintiff was driving a front end loader over rough terrain and, for a third time, jarred his back. The final event alleged in the application for determination was on 1 November 1994, again at the Elouera Colliery when the plaintiff was lifting a heavy pit prop and injured his back. In addition, the application for determination alleges that the applicant’s low back condition had been “aggravated by the nature and conditions of his employment”, whatever that is supposed to mean. An injury was only alleged to the plaintiff’s low back.

5. He claimed weekly payments of compensation from 1 January 1991 to the date of the filing of the application for determination and continuing. He also claimed lump sum compensation under s 66 of the Workers Compensation Act 1987 for permanent impairment of his back. However, that claim must have been amended at some time because, eventually, lump sum compensation was awarded not only for permanent impairment of the back but for the loss of efficient use of each of the applicant’s legs at or above the knee. The plaintiff also claimed a general order under s 60.

6. Those proceedings were heard and determined by the late Moroney CCJ on 3 April 1996. Initially the hearing commenced at Wollongong but it was completed in Sydney. The then respondent, the current first defendant, consented to an award for weekly payments of compensation from 1 January 1992 to date and continuing. However, it was left to his Honour to determine the plaintiff’s claim for lump sum compensation. His Honour determined that the plaintiff had an 18% impairment of his back based on a concession made by Dr Barry Bracken who gave oral evidence before his Honour and was subjected to cross examination by the then learned counsel for the then respondent. His Honour also accepted evidence that the plaintiff had a 10% loss of efficient use of each of his legs at or above the knee because of somatic referred pain from the plaintiff’s low back. His Honour determined that there was a deductible proportion pursuant to s 68A of the Workers Compensation Act 1987 as then in force. His Honour made awards for the plaintiff for 13.5% impairment of his back and 7.5% loss of efficient use of each of his legs at or above the knee.

7. His Honour also awarded the plaintiff a lump sum under s 67 for pain and suffering, anxiety and distress resulting from that impairment and those losses. His Honour determined that the plaintiff was entitled to $15,000 under s 67, of which his Honour apportioned one half to the past and one half to the future. It is important to note that the plaintiff did not allege in those proceedings that he had any permanent loss of efficient use of either of his legs because of osteoarthritis of his hip, nor was it alleged that he had suffered any injury to his hips.

8. As no injury to the hip was alleged, no issue estoppel can arise from his Honour’s earlier findings in accordance with my decision on the issue of issue estoppel and cause of action estoppel in Bruce v Grocon Ltd (1995) 11 NSWCCR 247. My late learned colleague accepted evidence from Dr Selby Brown. That evidence was this:

“On the basis of his above reported history, symptoms and physical findings, I consider that it is most probable that initially in 1982 he sustained an injury to the L4-L5 disc. He also most probably already had some degenerative changes present in his lumbar spine which, to this time, had been asymptomatic and either this incident in 1982 and/or the subsequent injury incidents at work has allowed for aggravation of these previously asymptomatic changes to become symptomatic and to have remained so ever since. He also has a Grade I L5-S1 spondylolisthesis which could have developed as a stress fracture from any of these incidents or may have been previously present and was asymptomatic and has been aggravated to become symptomatic and has remained so ever since. Mr Wilson, therefore has multiple pathology in his lumbar spine which could reasonably be considered to be the underlying cause for his longstanding symptoms and which I consider is definitely related to his various work injury incidents.”

Earlier in his report Dr Selby Brown had said this after pointing out the radiological appearances from both plain X-ray and CT scanning:

“The conclusion of the reporting radiologist on these films was that they showed generalised early degenerative disc and facet joint disease, a small posterior central disc prolapse at L4 5 and grade I spondylolisthesis at L5 S1 level.”

9. That, to me, succinctly states what the condition of the plaintiff’s back was in both 1995 when the plaintiff was examined by Dr Colin Selby Brown on 18 July and in 1996 when my late learned colleague gave judgment. Unsurprisingly, the plaintiff’s degenerative disease has continued its inexorable course and has increased over the years, causing increasing disability.

10. However, one cannot ignore the fact that the plaintiff continued to work as a coal miner until his services were dispensed with by Gujarat NRE FCGL Pty Ltd on 4 August 2010. That is, for over 14 years the plaintiff continued to work as a coal miner. The plaintiff was not, however, working full underground work as a federation coal miner. He had, for a number of years, been working as a “supplies man”, as he refers to in his affidavit, or, as was referred to in the oral evidence as “out bye work”. The plaintiff had moved from being a full time underground federation miner to out bye work in about 1995. His earlier claim for weekly payments of compensation was based on the fact that, since 1992, the plaintiff had been unable to perform overtime. However, the work of being a “supplies man” involved heavy lifting, bending, stooping and other work throwing stresses on both the low back and, I infer, the hips. The plaintiff gave a full description of his work as a supplies man in oral evidence yesterday and it clearly involved much heavier work than most “labourers” would do and is not greatly different to the work which a full time federation underground miner does. I have no hesitation in accepting that the plaintiff’s work continued to both aggravate and accelerate the underlying degenerative disc and facet disease identified by Dr Selby Brown.

11. In par 13 of his affidavit, the plaintiff referred to injuring his neck at work on 13 January 1988 but pointed out that he was not asked questions about his neck injury when he gave evidence in Court in 1995. He was no doubt not asked questions about his injury to the neck because it was not the subject of any claim before my late learned colleague.

12. The plaintiff’s affidavit continues thus:

“14. I also reported severe symptoms in my hips as well as my back on or about 24 November 1992 following particularly heavy work. I do not believe I was asked questions about my hips in Court in 1995.”

The reason, no doubt the plaintiff was not asked questions about his hips in his evidence was because, again, it was not the subject of any claim before his Honour. However, some questions were indeed asked, some evidence was indeed given about the plaintiff’s left hip in the earlier proceedings. The plaintiff was examined by Dr Barry Bracken, an orthopaedic surgeon, on 19 September 1995 for his then solicitors. Dr Bracken’s report includes this:

“It is noted that he had straight leg raising to 80 degrees on both sides with some terminal complaint of back pain. No neurological signs were present in either leg. Thigh measurements were equal, but the right calf was noted to measure a half inch more in circumference than the left. It was also noted to have signs of clinical early osteoarthritis in the left hip where there was a limited range of abduction and terminal flexion and without any flexion deformity. Internal and external rotation were markedly restricted.”

13. On 29 August 1995 the plaintiff was asked in chief questions about the injury alleged on 20 April1994. The plaintiff said that he had between ten and 12 weeks off work as a result of that event. He told Moroney CCJ that he saws his general practitioner, Dr Watson, and had physiotherapy. He also said that he had pain in his low back and right leg. Mr Wilson’s then counsel, Mr G F Little, as he then was, asked the plaintiff if he remembered lifting a pit prop in November 1994 and hurting his back again. The plaintiff said that he couldn’t remember that event. This question and answer was then given:

“Q. After the injury in earlier 1994, when you had been driving the front end loader [EINCO] and jarred your back, did your back return to the state it had been in for years or was there something different about it?

A. It’s not the same as it used to be. I have still got hip pains and leg pains and I had tingling in my spine which I’ve never had before.”

One could infer that the plaintiff was experiencing symptoms in at least one of his hips after the event of 20 April 1994. Later in chief the plaintiff was asked whether the problem in his right leg was either in his hip or in other parts of the leg. The plaintiff replied that he had severe pain in his right thigh which was like a knife sticking into him and stopping him from sitting down for about three weeks. Thigh pain could be referrable either to the low back or to the hip, although it is more usual for patients with hip problems to complain of groin pain.

14. When Dr Bracken gave evidence, learned counsel for the then respondent, Ms P M Kavanagh (as her Honour then was), sought to cross examine Dr Bracken to suggest that the problem with the plaintiff’s leg was due to the condition of his hip. However, Dr Bracken maintained his view that the loss of efficient use of the plaintiff’s left leg was caused by a somatic referred pain from the joints in the plaintiff’s back.

15. In his affidavit, the plaintiff referred to having a number of additional injuries between giving evidence to Moroney CCJ and 2004. In par 16(d) the plaintiff said this:

“I found that my work regularly aggravated my back, hip and neck symptoms but I simply put up with it. I was working long hours which really probably did not help my symptoms.”

It is noteworthy that the plaintiff referred only to a “hip” and not to both his hips.

16. The plaintiff was retrenched from the Wongawilli Colliery in 2004. However, some three months later he again obtained employment with Delta Mining, initially at the Elouera Colliery but the evidence suggests that the Elouera Colliery and the Wongawilli Colliery were somehow conjoined. Prior to joining the employment of Delta Mining the plaintiff underwent a pre employment medical assessment with Coal Services Health at Corrimal. He did not tell those assessing him of his previous symptoms. One can understand why he did not do so.

17. The plaintiff in par 19 of his affidavit said that he managed to persist with his work with use of painkillers, a lumbar corset and, from time to time, a weightlifter’s belt. In his oral evidence the plaintiff confirmed that he wore a lumbar corset which appears to have covered his back from below the shoulder blades to the sacrum underneath his clothing, a six inch weightlifter’s belt ouver his clothing to guard his loins and, on top of that, wore the usual coal miner’s belt from which his coal mining equipment was suspended.

18. Unfortunately for the plaintiff, the continuing award for weekly payments entered by Moroney CCJ, was terminated by consent on 6 November 2001. That consent order was made by my late learned colleague, Duck CCJ, at Wollongong. The plaintiff consented to the termination of that award on legal advice. It appears that the plaintiff may not have been able to sustain his claim for ongoing weekly payments but it is unfortunate that the ongoing order under s 60 has not been observed since this time.

19. The plaintiff continued to work at the Wongawilli Colliery until 2009 with Delta Mining when it was taken over by Gujarat NRE. The circumstances in which the plaintiff ceased to work are deposed to in pars 24 to 26 of the plaintiff’s affidavit:

“24. I did continue working with the fifth defendant until July 2010. My employment with the fifth defendant was terminated. The background to that termination was that a co-worker, one [name omitted] whose main job was to take supplies from the pit top underground as a driver, was in my opinion from having worked with him over some years a bludger, and was often either not available when required or would sometimes simply refuse certain tasks.

25. An occasion occurred when I had prepared supplies for [name] to take underground which were required urgently by the Deputy. When I requested [name] to attend to this, he instead proceeded on a break. The Deputy then telephoned me asking whether I had seen [name], and not wanting to put [name] in, I asked the Deputy to phone control. It would appear that the Deputy must have said something to [name] because when [name] ultimately came out of the pit on that day he called me a ‘Pommy c’ for dobbing him, which was in fact untrue. I did inform [name] that if he was to call me that name again I would knock him on his backside. Some days later, [name] came and apologised to me but from then on, relations were frosty and a further incident occurred when [name] again called me that name. I did grab him and shook him but did not hit him.

26. I believe that [name] or someone on his behalf complained to management and I was dismissed.”

Exhibit 1 is a letter from the last defendant to the plaintiff bearing date 4 August 2010 terminating his services with effect on 4 August 2010 for “serious misconduct, i.e., an assault on [name] on Friday, 30 July 2010.” It would appear that there might have been grounds for challenging the dismissal but that does not appear to have occurred.

20. There are before me a number of encomia of the plaintiff. Those encomia are consistent with the plaintiff’s persisting with working as a coal miner doing heavy and arduous work for over 14 years after he appeared before my late colleague, Moroney CCJ. In a report of 17 November 1994, the plaintiff’s general practitioner, Dr Robert Watson of Figtree, who has been seeing the plaintiff for many, many years, described him as “somewhat stoical”. Dr Bracken, in his opinion, said this:

“Mr Wilson appears to be a well motivated man, but is struggling to work normal shifts at the present time. Considering the state of his back it is my opinion that his complaints are reasonable and indeed understated. His main problems stem from general degenerative changes in his lumbar spine, resulting from his conditions of work over 20 years.”

Dr Bracken went on to express the view the plaintiff was unfit to continue normal duties as an underground miner. Nevertheless, the plaintiff persisted in doing heavy work, albeit it that most of it was above ground. Moroney CCJ said this of the plaintiff:

“The applicant has had, on the evidence, an impressive record and his personal history is most impressive. He was a witness upon whom I felt I could rely entirely and that is most essential in this case because the history certainly since 1982 is about all I had to go on in making a determination in relation to the applicant’s claims under s 66 and s 67.”

His Honour went on to decry the little assistance to be gained from medical evidence when that was put before him. It can be seen, therefore, that the plaintiff was assessed by both Dr Bracken and Dr Watson as a man who made little complaint and put up with severe pain stoically. He also impressed my late colleague as a reliable and honest witness.

21. It is clear from the general practitioner’s records that the plaintiff complained about his low back and his left hip from 1996 until up to and after the time of termination of his service by the last named defendant. For example, on 29 November 2007 the plaintiff complained of left sided sciatica and the doctor thought that might be due to a left hip problem which had very reduced adduction and for which the doctor prescribed an X-ray, although it appears that that was not actually performed at that time.

22. The plaintiff also made mention of his left hip osteoarthritis on 16 August 2008 for which he was then taking nonspecific anti-inflammatory dugs. The plaintiff, on 16 August 2008, told Dr Watson that he was upset from an accident that had happened at work that day but what that was I do not know. On 9 May 2009 the plaintiff told a doctor at Dr Watson’s practice that his activities were limited by both arthritis in his hip and his back.

23. On 18 October 2010 the plaintiff reported to Dr Watson that he had severe left sciatica with sensory disturbances, mainly in the left leg which was aggravated by sitting, walking with tilted gait and hadn’t settled since August despite regular drug therapy. Dr Watson noted that the plaintiff’s knee jerks were absent bilaterally and the plaintiff’s ankle jerks were then OK. He prescribed a CT scan of the lumbar spine.

24. The plaintiff returned to see Dr Watson on 21 October 2010 to discuss the CT scan with him. The plaintiff told Dr Watson that he felt he would have been better after stopping work but that was not the case. The doctor noted a reduced range of movement in the left hip and thought the plaintiff needed a referral not only for his back condition but for his hip condition. On the following day, 22 October 2010, an X-ray was taken of the plaintiff’s left hip. It is reported thus:

“There is significant narrowing of the left hip joint space with marginal irregularities, sclerosis and osteophytes seen at the left hip. There are also subchondral cystic changes at both the femoral head and the acetabular region. There is also some similar but less advanced degenerative change at the right hip. No other focal bony lesion is seen in the pelvis.”

25. The opinion then expressed by the radiologist was that the plaintiff had advanced osteoarthritic changes in the left hip and moderate degenerative chances in the right hip. Osteoarthritic change and degenerative change are the same thing. After that radiological investigation Dr Watson had a further consultation with the plaintiff on 26 October 2010 and then referred him for his hip condition to Dr Anthony Leong and for his back condition to Dr Ravi Kumar.

26. Dr Kumar ordered further radiological investigations. Dr Leong noted the plaintiff’s symptoms were mediated not only by his left hip condition but also by his low back condition and believed that the low back condition should be dealt with first. Eventually, the plaintiff came under the care of Professor Lawrence Kohan, a professor at the University of Technology, Sydney, and an orthopaedic surgeon.

27. Dr Kohan saw the plaintiff about his left hip condition. He obtained a history that the plaintiff’s left hip had been the subject of symptoms “over the last five years” but had recently become much worse. In fact, the symptoms can be shown to go back to at least 1995 and, on 6 January 1992, Dr Watson had noted the plaintiff was stiff in each hip with reduced rotation in each hip. The plaintiff first consulted Dr Kohan on or about 30 June 2011. By that stage the plaintiff had a marked antalgic limp on the left side, a Trendelenberg test was positive on the left side, and there was 1 centimetre of shortening of the left leg and 3 centimetres of thigh muscle wasting on the left side. Dr Kohan discussed the natural history of osteoarthritis with the plaintiff. In his report he said this:

“Osteoarthritis, when it starts, usually begins with episodic symptoms. As time passes, and as the condition progresses, the exacerbations of pain tend to become more marked, more frequent, and become precipitated by a lower level of physical activity. The remissions tend to become less frequent, and eventually, pain may be more or less constant. The time period over which this deterioration occurs is variable, and may depend on physical size, physical activities, previous injuries, and genetic predisposition, amongst others.”

Dr Kohan went on to say that the plaintiff’s marked left hip stiffness and limp were likely to aggravate the plaintiff’s spinal condition. He then pointed out three modes of treatment which might improve the plaintiff clinically. There were activity modification, weight control and nutritional supplementation. Under the heading “Activity Modification” Dr Kohan said this:

“As far as possible, activities which tend to aggravate the symptoms should be avoided. This may include squatting, kneeling, climbing, twisting and the lifting of heavy loads.”

The inference from the plaintiff’s evidence is that all his work as a miner involved squatting, kneeling, climbing, twisting and the lifting of heavy loads. In particular, his work above ground as a supplies man involved squatting and kneeling, some climbing, twisting and the lifting of heavy loads. The inference to be drawn from what Dr Kohan said about “activity modification” is that such activities at least cause an exacerbation of symptoms and one might infer that, if those tasks are avoided, the progress of the degenerative condition will not be accelerated. Therefore, if those activities are persisted with, the underlying osteoarthritis could be accelerated or, indeed, made worse, that is, aggravated.

28. It would appear that on or about the same day the plaintiff saw Dr Renata Bazina, a neurosurgeon, for his low back pain. By the time the plaintiff saw Dr Bazina, he had a left foot drop. That was a complication of the plaintiff’s low back condition. In a report of 11 July 2011, Dr Bazina commented upon a new MRI. She said that it showed that the L2-3 disc protrusion previously shown had resolved on the right side was now more a left posterolateral disc protrusion causing spinal canal stenosis at L2-3.

29. She then arranged for further testing. That was carried out by Dr David Rail, a neurologist, on 28 July 2011. In a report of 15 August 2011 Dr Bazina commented that the nerve conduction studies and EMG confirmed a proximal cause for the plaintiff’s left foot drop, that is, it was caused not distally near the foot itself or, for example, at the hip, but more proximately in the spine. She went on to say this:

“He has significant canal stenosis at [L]2/3. In addition to this he has severe disc changes at [L]2-3 and [L]3-4 which are the result of accumulative degenerative disease and likely exacerbated with his work as a miner. Mr Wilson suffers with chronic lower back pain but his most immediate concern is the canal stenosis at 2-3 causing cauda equina compression and his left foot drop.”

30. She recommended spinal surgery which was, indeed, eventually practised by her at St George Private Hospital on 4 October 2011. The plaintiff was fused from the 2nd to the 4th lumbar vertebrae. Thereafter, the plaintiff was prescribed physiotherapy and morphine based painkilling medication. By 28 February 2002 it would appear that the plaintiff’s major problem was no longer in his back but in his hip.

31. On that day the plaintiff was seen by Professor Kohan who said this:

“Since then [spinal surgery], the symptoms have deteriorated. In particular, night pain has become a major problem to him, as the pain arising from the left hip wakes him on a regular basis, every night. He describes pain in the left groin area, radiating to the anterior aspect of the thigh, and over the lateral aspect of the hip. Movement is diminished. He is having difficulty managing his normal activities of daily living. Putting on his footwear is increasingly difficult, as is driving, getting in and out of a car. He does have difficulty on stairs, and generally, needs to hold onto the rail.”

That led to Professor Kohan performing total left hip replacement at St Luke’s Hospital on 19 April 2012.

32. In a number of reports between 24 April 2012 and 5 June 2012 Professor Kohan commented upon the plaintiff’s recovering well from his left hip surgery. By 17 July 2012 he noted the plaintiff had no pain arising from his left hip. However, the plaintiff had “a multitude of other problems, primarily, it would appear, spinal related”. It is unfortunate that the plaintiff’s left foot drop was not cured by the spinal surgery but that was not anticipated by Dr Bazina as it appeared the problems had been too longstanding. However, the plaintiff’s symptoms were, to an extent, removed.

33. By 16 October 2012 Professor Kohan noted the plaintiff was developing a mild limp on the right side due to the condition of his right hip. By 23 April 2013 Professor Kohan noted the plaintiff was “still quite miserable” because of symptoms arising from his right hip in combination with the spinal symptoms which were ongoing. The plaintiff was still on morphine-based medication at that time. The plaintiff then underwent total right hip replacement under Professor Kohan’s hands on 20 May 2013.

34. The plaintiff made, according to Professor Kohan, an excellent recovery from his right hip condition. However, he has still major problems with his low back. Professor Kohan took the liberty of referring the plaintiff to Associate Professor Peter Papantoniou, an orthopaedic and spinal surgeon. Professor Papantoniou first appears to have seen the plaintiff on 18 July 2013. By that stage the plaintiff had weaned himself from OxyContin, the morphine-based medication.

35. When Professor Papantoniou examined the plaintiff he noted that he had decreased sensation in the L5 and S1 dermatomes. The power was reduced in the left L5 distribution. All the plaintiff’s reflexes were absent. He was of the view that the plaintiff’s symptoms were caused by bilateral L5 radiculopathy due to bilateral L5 pars interarticularis defects with a spondylosis if not a spondylolisthesis of L5 on the sacrum with L5 nerve root impingement. In a report of 25 July 2013 Professor Papantoniou said this:

“I feel Mr Wilson has L4-L5 and L5-S1 pathology associated with the fusion above these levels. Unfortunately, having had a fusion from L2 to L4, he is still at these higher levels putting significantly more forces across L4-L5 and L5 S1 levels. With the bilateral L5 pars defect, he has significant instability and I feel that this is the source of his left foot drop. With the bilateral foraminal stenosis at L4 L5 and L5 S1 level there would also be causing impingement on the [nerve] roots. His right sided lower pack pain is most likely caused from the instability of the L5 pars defect.”

Professor Papantoniou recommended that the plaintiff have an extension of his fusion down to the sacrum. He went on to say this:

“I have explained that I would need to expose the screws from L2 downwards to put one continuous rod from L2 down to S1. He would need interbody cages at L4 L5 and L5 S1 if it was safe to get them in. The only complicating feature at present is that he has recently had his right total hip replacement and it will be prudent to wait at least three months after this procedure to allow a decrease in the risk of [deep venous thrombosis].”

The doctor went on to record that he had provided to the plaintiff literature provided by the Royal Australasian College of Surgeons concerning spinal fusion.

36. The plaintiff has now expressed to Professor Papantoniou and to me his desire to undergo this major, perhaps radical, surgery. In a report of 31 July 2014 Professor Papantoniou said this:

“I have explained my findings and pathology to Mr Wilson again. I have demonstrated on the images and on models. I have again recommended that he have a revision fusion from L2 down to S1. Mr Wilson has been having discussions with his insurer and with his solicitors and apparently wishes to have this done privately and then we will sort out claiming it back from his insurance company. In that, I have put in a call to his solicitor, but I have not received the return call yet. I have sent him for preoperative bloods and ECG investigations as well as a new CT and MRI. I will send this letter to his cardiologist and his cardiothoracic surgeon seeking their opinions as to his fitness for surgery. I will see him routinely once he has had all his imaging, but should he have any problems, queries, or concerns prior to this, I have asked him to contact my rooms and be seen sooner.”

37. Unfortunately, it appears that this proposed surgery has not been proceeded with because of the current proceedings. Prior to Professor Papantoniou writing that, the plaintiff had been under the care of Dr G G Fermanis, a cardiothoracic surgeon. The plaintiff underwent “open heart surgery” at St George Private Hospital on 13 November 2013. In a report of 4 December 2013 Dr Fermanis said this:

“As you will recall, three weeks ago he underwent coronary bypass grafting. The procedure went smoothly. Since being discharged, he has mobilised quite well. He is less short of breath than pre operatively. On examination today he is in stable sinus rhythm. His wounds were healed. Recent chest X ray is also quite satisfactory. Accordingly, I am very pleased with his progress. I hope his back surgery can be expedited.”

38. Eventually, learned counsel for the defendant, Mr Odling, conceded that he could hardly resist a finding that the plaintiff’s need for the surgery which has been practised by Dr Bazina was reasonably necessary as a result of injury arising out of or in the course of the plaintiff’s employment. The plaintiff’s aggravated underlying degenerative disc disease and degenerative facet disease has advanced with the passage of time and with the heavy work which the plaintiff performed for the three defendants who employed him over the years prior to August 2010.

39. The plaintiff required the surgery that has been done. Had the plaintiff been wrapped in cottonwool after appearing before my late colleague, Moroney CCJ, one might think that the plaintiff’s condition would not have advanced to the stage it reached requiring surgery. However, it did. It appears to me that the plaintiff’s final employer is liable to compensate the plaintiff under s 60 for the surgery practised by Dr Bazina on 4 October 2011 and for all the preceding and succeeding treatment of the plaintiff’s spinal condition.

40. The parties have sought to litigate before me the need for the surgery proposed by Professor Papantoniou which the plaintiff wishes to undergo. However, the plaintiff does not seek a “declaration of liability” if I have power to make such a declaration under the Workers Compensation Act 1987, a much vexed subject. Suffice to say that I understand the reasons why the surgery has been proposed by Professor Papantoniou.

41. Commonly, a patient undergoes laminectomy and fusion at L5-S1. That throws stress normally thrown on L5-S1 onto the next disc up, the L4-5 disc, which deteriorates more rapidly because of increased stress thrown on it. Here, the plaintiff has undergone a laminectomy between L2 and L4, throwing even greater stress on the lower levels, that is, between L4 and the sacrum and it is now proposed that that be fused. The clear import of that is the plaintiff would be left with a very stiff spine but that offers him the best chance of the alleviation of spinal symptoms.

42. There is before me a report from Dr Robert Gertler, a psychiatrist, in which Dr Gertler points out that the plaintiff has developed an adjustment disorder with depressed mood as a result of the injuries he sustained during his work as a coal miner. That is completely understandable. Not only would the surgery proposed, if successful, alleviate the symptoms but it would also remove the psychic stress experienced by the plaintiff.

43. The finding which the plaintiff seeks is opposed by the defendant. I am of the view that I cannot make a finding that proposed surgery is reasonably necessary. However, I would point this out. The defendant’s position essentially rests upon the opinion of Dr Roger Rowe in his report of 28 January 2014. In it Dr Rowe said this:

“Whilst I accept the reasoning of Dr Papantoniou in that it may provide him with some relief of his backache by stabilising the lower two levels and that it may prevent further progression of his neurological symptoms in the legs, I do not consider that overall Mr Wilson would probably be better without any such surgery. My concern in this regard is that he has extensive coronary artery disease and thus probably extensive general vascular disease so that there are considerable risks associated with such extensive spinal surgery. There is the risk of further vascular heart complications and the risk of poor healing with such an extensive fusion given his poor vascular state. Overall it is my clinical assessment that he is unlikely to obtain any significant benefit from the proposed surgical treatment although, of course, I cannot be definite in this regard.”

Dr Rowe concedes that it may lead to some relief of symptoms and the prevention of further progression of neurological symptoms due to the underlying disc and facet joint disease. His major objection appears to be the plaintiff’s cardiac health but, clearly, Dr Fermanis has given the plaintiff the “all clear” as far as the condition of the plaintiff’s heart is concerned. It must be pointed out that the coronary artery grafting involved taking veins from elsewhere in the body to place them in lieu of the cardiac veins or arteries being replaced and, therefore, there is an indication that the plaintiff does not suffer from poor vascular health. However, I do note that in the past the plaintiff has undergone varicose vein surgery.

44. Suffice to say that I, like Dr Rowe, can understand the reasoning of the doctor. The concerns of Dr Rowe appear to be exaggerated. If the plaintiff undergoes the treatment and there are no complications, on the evidence currently before me I could not refuse to make a finding that such surgery was reasonably necessary to treat the plaintiff’s ongoing aggravated and accelerated degenerative disease in his low back discs and facet joints.

45. The question about the plaintiff’s hip replacements is another interesting point. The plaintiff’s solicitors qualified Dr Roger Pillemer. Dr Pillemer examined the plaintiff on 19 February 2013. In his report he said this:

“In my opinion he has developed bilateral constitutional osteoarthritis of his hips for which a left total hip replacement has been carried out and it seems likely that he will eventually require a right total hip replacement. In my opinion, this is a constitutional condition for him and not related to the nature and conditions of his work.”

The defendant relies upon an opinion of Dr Roger Rowe contained in his report of 18 April 2013. In that report Dr Rowe said this:

“Osteoarthritis of the hips [is] the result of age and constitutional factors and his many years as a professional soccer player.”

There is no surgical opinion that the plaintiff’s left hip or right hip condition was related in any way to the plaintiff’s work. As far as the plaintiff’s right hip condition is concerned, learned counsel for the plaintiff, Mr Benson, accepts that there is no evidence to support a finding that the condition of the plaintiff’s right hip was caused, aggravated, accelerated, exacerbated or caused to deteriorate by any of the work which the plaintiff did as a coal miner. However, there is an opinion expressed by the plaintiff’s general practitioner, Dr Watson. In a report of 9 January 2011 Dr Watson said this:

“To conclude then I have on record a number of work related incidents that appear related to the lower back/nerve root/sciatic problem. It is also likely that the left hip osteoarthritis would have been aggravated, if not caused, by his heavy work.”

46. The plaintiff has widespread osteoarthritis affecting his body. It affects his spine, if affects his hips, and it also affects his hands. There are Heberden’s nodes on the joints of the plaintiff’s hands. That is a constitutional condition due to osteoarthritis. I cannot exclude that the plaintiff has osteoarthritis on a constitutional basis; that is, that he is genetically inclined to have the condition.

47. The plaintiff has a very interesting background, very interesting especially for sports mad Australians. The plaintiff was, in fact, born in Newcastle upon Tyne in England on 15 September 1947. However, he spent most of his youth in Glasgow in Scotland. Indeed, in his affidavit he refers to having been born in Glasgow but that he acknowledged in his oral evidence in chief was a misunderstanding of his background. He left school at the age of 15 years to become a professional footballer. He played first division soccer for Middlesbrough in England for six years. The fact that he was born in Newcastle upon Tyne and played soccer for Middlesbrough explains why I can understand his English because, if he were a Glaswegian, I would not be able to understand his English. After playing for Middlesbrough, the plaintiff migrated to Australia. He played in Australia for South Coast United and then Marconi and then the APIA Club. He played for Australia between 1969 and 1980 as a sweeper. He was captain of the Australian soccer team between 1973 and 1980. He was the captain of the Australian team at the Soccer World Cup in 1974 when, according to par 5 of his affidavit, Australia competed in the final of the World Cup in Germany.

48. The plaintiff commenced working as a coal miner on or shortly after 14 February 1975. He worked as both a coal miner and as a professional soccer player between 1975 and 1980. One can understand the reference of Dr Rowe to the plaintiff’s playing soccer having something to do with the condition of his left hip. I can accept playing professional soccer between the ages of 17 and 34 would aggravate or accelerate osteoarthritis of the hips.

49. As far as the plaintiff’s left hip is concerned it clearly was symptomatic whilst the plaintiff was working as a coal miner. I have sought earlier in these reasons to set out the history suggesting that the plaintiff was having problems with his left hip as a coal miner. The advice by Professor Kohan about “activity modification” clearly indicates to me that the plaintiff’s work as a coal miner could cause symptoms of the condition or make the symptoms worse, that is, exacerbation, and could have the potential to accelerate the condition or aggravate it. Bearing in mind the opinion of Dr Watson, who has been seeing the plaintiff since 1986, and the records indicating complaints of left hip pain whilst the plaintiff was working and, in particular, the evidence that he gave unsolicited to his Honour, Moroney CCJ, I accept that the plaintiff’s work as a coal miner exacerbated and accelerated the condition of the plaintiff’s left hip osteoarthritis, leading to the need for his undergoing left hip replacement surgery.

50. I therefore find, on the balance of probabilities, that the need for the plaintiff to undergo surgery for his left hip on 19 April 2012 under the hands of Professor Kohan at St Luke’s Hospital was reasonably necessary as a result of injury arising out of or in the course of the plaintiff’s employment as a coal miner with the name defendants. However, as I have pointed out, there is no medical evidence to support any relationship between the plaintiff’s right hip condition and his work. No one, for example, sought to adduce evidence that, because of having his left hip immobilised, greater stress was thrown on the plaintiff’s right leg which caused an acceleration of the right hip condition, nor is there any evidence that the plaintiff’s working activities interfered with the plaintiff’s right hip condition, because at no stage did the plaintiff ever report symptoms relating to the right hip whilst he was still working as a coal miner.

51. For these reasons I order the fifth named respondent, Gujarat NRE FCGL Pty Ltd trading as NRE Wongawilli, to pay the plaintiff’s expenses under s 60 for treatment of his low back condition and for his left hip condition. I order the fifth respondent to pay the plaintiff’s costs. I make an award for the fourth named defendant and for Endeavour Coal Pty Ltd trading as Nebo Colliery, Wongawilli Colliery and Elouera Colliery.

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Decision last updated: 24 June 2015