Yates v Centennial Mandalong Pty Ltd

[2017] NSWDC 49

District Court

New South Wales

Medium Neutral Citation:

Yates v Centennial Mandalong Pty Ltd [2017] NSWDC 49

Hearing dates:

6 February 2017

Date of orders:

06 February 2017

Decision date:

06 February 2017

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

Award for the plaintiff for $1,313.80 per week from 7 July 2015 to 6 December 2015 for total incapacity.

 

Order the defendant to pay the plaintiff’s expenses under section 60 for treatment of his right shoulder condition

 Order the defendant to pay the plaintiff’s costs

Legislation Cited:

Workers Compensation Act 1987

Category:

Principal judgment

Parties:

Stanley Allen Yates (Plaintiff)
Centennial Mandalong Pty Ltd (Defendant)

Representation:

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

  Solicitors:
Not recorded

File Number(s):

RJ446/15

Publication restriction:

No

Judgment

1. HIS HONOUR: The plaintiff is a coal miner. He claims weekly payments of compensation from the 7 July 2015 to 7 December 2015 for either total incapacity or partial incapacity deemed to be total, or, in the alternative, partial incapacity. He also claims his expenses under section 60 in respect of that period and, as I understand, it in respect of treatment to his right shoulder.

2. The plaintiff has been working in the coal mining industry for some 33 years. He is now 63 years old. As one could easily anticipate he has sustained a large number of injuries to various parts of his body over the years. The current claim is in respect of an injury to his right shoulder. Pleaded is an event on 12 May 2013 when the plaintiff strained his right shoulder whilst pulling a loader cable in to a miner while lying in the throat of the miner. Also pleaded is an event on 10 May 2016, when the plaintiff was picking up his tool bag by its strap and felt a severe pain in his right arm. His tool bag weighed between 23 and 25 kilos. The plaintiff described its size as being 18 inches long, 10 inches wide and 10 inches high. At the time it was stored in the side pocket of an SMV, a vehicle designed to move people around within a mine. It had become stuck and in the process of trying to pull it up by its stap, the plaintiff experienced pain and discomfort in his right shoulder.

3. On 12 May 2013, the plaintiff did report an event occurring at 4.30pm. According to exhibit A, a contemporaneous computer generated incident and hazard report, the plaintiff sustained a lower back and right shoulder problem while pulling loader cable in to a miner. The event is further described in exhibit A in accordance with the pleading that I have quoted. After this event the plaintiff went in to the Westlakes Medical Centre at Fishing Point Road, Rathmines. The first doctor that he saw there after that event was Dr Susan Clarke. The clinical notes indicate a complaint of low back pain but there is no complaint about the plaintiff’s right shoulder recorded. There are numerous attendances thereafter at the Westlakes Medical Centre concerning the plaintiff’s low back injury but there is no mention of any right shoulder injury. In any event, the plaintiff told me that he performed restricted duties for about 10 weeks and thereafter noticed no ongoing problem in his right shoulder. The notes of the Westlakes Medical Centre make it clear that the plaintiff did have ongoing symptoms in his low back which persisted up until the time of the event on the 10 May 2015. However, I am prepared to accept the plaintiff that he did sustain some symptoms in his right shoulder in the event on the 12 May 2013 but clearly he wholly recovered from any such problems within a period of 10 weeks.

4. There is no doubt that on 10 May 2015, the plaintiff did sustain symptoms in his right shoulder following upon the injury when he was attempting to lift his toolbox out of the side pocket of the SMV. 10 May would have been a Sunday. The plaintiff worked on weekends, three 12 hour shifts. I assume that he worked on Friday nights, Saturday nights and Sunday nights. He persevered with his symptoms until he went to the Westlakes Medical Centre on Monday 18 May and saw Dr Steven Connors. The plaintiff gave a consistent history of injury, occurring on 10 May 2015 to Dr Connors. The plaintiff told Dr Connors that he felt pain in his upper biceps and he also noticed bruising over the upper biceps following that incident. The plaintiff treated himself with ice immediately after the event, managed to finish his shift and lost no time from work but since that time he had experienced pain and soreness over his right biceps. On examination Dr Connors noted that the plaintiff had a painful arc between 90 degrees and 170 degrees and that the maximum of abduction was 170 degrees but otherwise the range of movements to the right shoulder was full. Dr Connors suspected a tear of the biceps tendon.

5. He referred the plaintiff for a radiological investigation and also ultrasound of the right shoulder. They were carried out by Dr Geier at Lakes Radiology at Morisset on the 27 May 2015. X-ray of the right shoulder is described as showing moderate degenerative changes involving the acromioclavicular joint. The glenohumeral joint space was well preserved but there was an irregularity in the region of the greater tuberosity consistent with rotator cuff degeneration. The ultrasound conducted by Dr Geier is more revealing. That is said to show evidence of a full thickness tear involving the supraspinatus tendon. There was fluid filling a defect measuring 13 x 16 mm. There was an associated retraction of the damaged tendon. A contour defect was associated with the subscapularis tendon consistent with a full thickness tear involving the anterior aspect of that tendon, measuring 11 x 10 mm. Dr Geier summed up this investigation as showing a rotator cuff destruction and sub deltoid bursitis.

6. The plaintiff was then referred by Dr Connors to Dr Stephen Kemp, an orthopaedic surgeon specialising in surgery to the hand and upper limb. On examination Dr Kemp, who first saw the plaintiff on 3 June 2015, found a rupture of the long head of the biceps tendon. He diagnosed “an acute on chronic cuff tear centred on the rotator interval”. In a letter to the plaintiff’s employer’s insurer, Dr Kemp said this:

“His investigations show evidence of pre-existing wear in the shoulder but it was clearly the specific incident that caused a de-compensation and “an acute on chronic cuff tear”. Had Mr Yates not lifted the heavy tool bag from the back of the truck, he would not require active treatment at this stage.”

The doctor then reiterated that he saw the event that occurred on the 10 May 2015 as the main reason why the plaintiff required active treatment on his right shoulder.

7. The defendant sought a separate opinion. That opinion was sought from Associate Professor Ian Dickinson, an associate professor of surgery, but unfortunately I do not know the tertiary institution to which Dr Dickinson has been appointed. Dr Dickinson saw the plaintiff on the 22 June 2015. The plaintiff had continued, up until this time, to perform his normal underground mining work, principally doing work in his trade as a fitter. Like Dr Kemp, Dr Dickinson was of the view that the plaintiff had pre-existing degenerative changes in the right rotator cuff. He thought the event of the 10 May 2015 caused “mild aggravation of this pre-existing degeneration”, but he thought that by the 22 June 2015, the effect of that mild aggravation had ceased and the plaintiff’s ongoing symptoms were related to the underlying degenerative condition. The Doctor also thought that the plaintiff required no active treatment and certainly did not require arthroscopic acromioplasty.

8. The problem with that opinion is that the plaintiff remained symptomatic albeit that he was able to continue to perform his normal work. Even if one postulate that all that happened on 10 May 2015 was the exacerbation of an underlying degenerative condition, on the evidence before me, that exacerbation would not have gone away. The plaintiff still required active treatment for his symptoms. He was supported in that regard, not only by Dr Kemp but also by his general practitioner Dr Connors.

9. Dr Kemp saw the plaintiff again on the 6 July 2015. The plaintiff confirmed to Dr Kemp that he had had significant ongoing symptoms since the 10 May 2015. The doctor went on in his report to Dr Connors to say this:

“There is no question in my mind, as previously discussed, that whilst lifting the tool bag at arm’s length is almost certainly not enough to cause acute rotator cuff tear, in fact it would be exactly the sort of injury that might aggravate an underlying worn cuff to tip it from a well compensated asymptomatic condition in to one in which there was significant irritability. This in my mind constitutes a clear aggravation of the underlying condition at the very least and I therefore regard this quite definitely as a compensable condition.”

The doctor then decried the decision of the plaintiff’s employer’s insurer to decline liability for the plaintiff’s ongoing treatment. Dr Kemp pointed out the plaintiff was keen to undergo surgery. What that generally indicates, and certainly indicates in the case of Mr Yates, was that he genuinely was suffering symptoms and he wanted some amelioration of the condition. Dr Kemp agreed to practise surgery and booked the plaintiff in to the Lingard Private Hospital, and on the following day, 7 July 2015, performed a right arthroscopic acromioplasty with rotator cuff repair.

10. At operation Dr Kemp found a 2 mm defect within the rotator cuff and a complete disruption of the long head of the biceps tendon. That was, as I said, repaired. One cannot fail to conclude that although the long head of the biceps tendon may have been degenerative, in the event on the 10 May 2015, there was a frank rupture of that tendon.

11. After practising the surgery, Dr Kemp expressed his view as to the immediate future:

“Stan will push on now through a standard convalescence of passive exercises on and off his UltraSling for the first six weeks followed by an active assisted programme and then finally resisted exercises from the 12 week mark onwards.”

That treatment regime was practised. All told, the plaintiff had approximately 22 weeks off work before he could return to work. The insurer of the defendant insisted the plaintiff have any restriction placed upon his ability to work removed. Such a restriction had been proposed by Dr Connors, but at the plaintiff’s request, Dr Connors removed it. The plaintiff then attended for a functional assessment by Coal Services Health and was certified as being fit to return to work and did so on the 7 December 2015.

12. Therefore, despite what is claimed in the statement of claim, the closed period ought close not on the day the plaintiff returned to work but on the day preceding that event, 6 December 2015.

13. Interestingly enough, the defendant arranged for the plaintiff to be reviewed by Dr Dickinson on the 29 July 2016, by which time he had been working for eight months in his pre-injury job. The plaintiff told Dr Dickinson that he was currently performing his full duties, although he did not say that there were no restrictions in what he could do with his right arm. Dr Dickinson thought that the plaintiff was not fit for heavy manual duties but would be fit only for “suitable light duties”. Nevertheless, he thought that any aggravation for the plaintiff’s condition by his work had long gone away. One must point out that but for the period when he was recovering from the effects of the event of 12 May 2013, the plaintiff’s left shoulder condition did not stop him doing any part of his work as an underground miner. He had the event on 10 May 2015. Surgery needed to be practised to remedy the symptoms that the plaintiff had experienced since 10 May 2015 and thereafter Dr Kemp was of the view that the plaintiff was not fit to perform all duties as an underground coal miner but only “suitable light duties” from the point of view of his right shoulder. It is illogical, in those circumstances, to argue that the effect of the event of 10 May 2015 only caused a temporary, minor aggravation. On any view of it, the plaintiff’s working condition changed in Dr Dickinson’s view from the state it was in prior to 10 May 2015 to the state it has been at least since the surgery was practised on 7 July 2015.

14. For those reasons, the plaintiff is entitled to succeed in his claim. There is no real dispute that the plaintiff was totally incapacitated by reason of the operative treatment and the necessary recovery therefrom during the period from 7 July 2015 to 6 December 2015. For those reasons I make an award for the plaintiff for $1,313.80 per week from 7 July 2015 to 6 December 2015 for total incapacity. I order the defendant to pay the plaintiff’s expenses under section 60 for treatment of his right shoulder condition. I order the defendant to pay the plaintiff’s costs.

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Decision last updated: 20 March 2017