District Court New South Wales Medium Neutral Citation: Pender v Centennial Angus Place Colliery and Yates Pty Limited [2021] NSWDC 459 Hearing dates: 05-08 April 2021 Date of orders: 08 April 2021 Decision date: 08 April 2021 Jurisdiction: Criminal Before: Neilson DCJ Decision: See [54]-[55] Catchwords: COAL MINERS WORKERS COMPENSATION – Claim for weekly payments, ongoing – Whether injury to P's left knee working for 2D resulted in an incapacity – Claim for lump sum compensation – Assessments of impairment of neck, back and loss of use of left arm at or above elbow, and s67 therefor – Claim for lump sum for loss of use of right arm unable to be made until after surgery is performed. Legislation Cited: Workers Compensation Act 1926 Workers Compensation Act 1987 Cases Cited: Aitkin v Goodyear Tyre and Rubber Company (Australia) Limited (1945) 46SR (NSW) 20 Category: Principal judgment Parties: Plaintiff – Kevin B. Pender 1st Defendant – Centennial Angus Place Colliery 2nd Defendant –Yates Security Pty Limited Representation: Counsel: Plaintiff – D. Benson 1st Defendant – S. McMahon 2nd Defendant – S. Haligan Solicitors: Plaintiff – Barry F. Cosier & Associates Solicitors 1st Defendant – Sparke Helmore 2nd Defendant – Hicksons Lawyers File Number(s): RJ00228/19 Publication restriction: Nil. Judgment 1. HIS HONOUR: The plaintiff is a former coal miner. He was born in Lithgow in November 1959. He is currently 61 years old. He left school halfway through year 9 in 1975. He then joined the State Rail Authority of New South Wales. His initial employment was as a station hand. Whether he was called a station boy at that time or a station assistant is not clear. However, he had various roles in the SRA and eventually ended up as a shunter. 2. On 31 August 1989, having left the SRA, the plaintiff commenced working in the coal mining industry at the Baal Bone Colliery, which is just north of Lithgow. At the time he was 29 years and nine months old. He was a federation coal miner. As is usual in cases of this nature, I have had a long description of his work as a coal miner. There is no dispute that it is heavy, demanding work. He has always worked as an underground coal miner. He worked in, obviously, coal shafts. He was subjected to adverse climactic conditions and adverse physical condition in that he had to work in mines and walk over rough and uneven surfaces and the like. He was often involved in heavy lifting and carrying, and his work threw force on all aspects of his spinal column and on the joints of his body, including his knees, hips, ankles and shoulders. Indeed, compared with most other manual vocations, the work of a coal miner could be said to throw excessive strain on the spinal column and joints of the body as well, clearly, as the musculature. Injuries as a coal miner 1. The plaintiff first injured himself on 12 October 1994. He injured himself at 10pm. He was obviously on a night shift. He commenced working that shift at 7pm. He was lifting bags of salt which were used to dewater the roadways within the mine and he felt back pain. He was seen by his general practitioner, Dr Kanagaratnam at Lithgow. I shall take the liberty of referring to Dr Kanagaratnam as to the plaintiff's general practitioner. X-rays of the back were taken at that time. A copy of the X-ray report is before me as exhibit J. The X-ray is reported by Dr Li. It was not only of the low back, but also of the thoracic spine. The low back is reported in this fashion: "Scoliosis of the lumbar spine convex left. Lumbarisation of S1 noted, resulting in six lumbar vertebrae. The disc spaces are normal. The vertebral bodies are of normal height. Osteophytes seen at the margin of L3/4 disc. The facet joints are normal. No pars interarticularis defect. The sacroiliac joints are normal." One would expect with a scoliosis of the lumbar spine convex to the left there would be a compensating deviation of the thoracic spine to the right. Such does exist and is reported in the same X-ray. Otherwise, the plaintiff's thoracic spine is said to show minor degenerative changes. In the upper thoracic spine has some disc space narrowing. At this time, the plaintiff was about 34 years old. The description of the radiological appearances at that time in both the thoracic spine and lumbar spine could very properly be described as very early degenerative changes. According to the plaintiff, he had physiotherapy as prescribed by his general practitioner and did restricted duties for about two weeks. 1. His next injury was again an injury to the back. That occurred on 11 October 1998. According to the claim form submitted by the plaintiff at that time, he was lifting the roller carrier onto a structure trailer working with Mark Bulkeley and injured his lower back. This incident was reported to the ambulance officer. This incident, again, appears to have occurred at 7.10pm. According to the employer's report of the injury form, the plaintiff stopped working at 1.25am presumably on the following day. On 19 October 1998, the plaintiff saw his general practitioner about a chest problem. He also told his general practitioner about injuring his back on 11 October 1998 and still to be suffering from low back pain. The general practitioner's records indicate that the plaintiff had gone to the Lithgow District Hospital where a muscle strain was diagnosed and he was given a certificate to be off work for one week. There are some further notes made by the general practitioner, but I have great difficulty in reading them. There is a reference to pain. According to the employer's report of injury, no time was lost and it may well be that the certificate that was given to the plaintiff at the Lithgow District Hospital was for the performance of alternative work. 2. On 14 March 2002, there was a fall of coal from the rib at longwall 22. The rib means the side of the shaft, rather than the roof or the floor. The plaintiff sustained injuries not only to his low back, but to his left hip, his thigh and his groin. He had been working on the continuous miner and the shuttle car was involved in the accident that led to the rib fall. According to the plaintiff's evidence-in-chief he saw his general practitioner and got a certificate for restricted duties for a couple of weeks or longer. In the general practitioner's handwritten notes, there is a record made on probably the 8th of May 2002. The first part of the date has been obliterated by a folding of the paper in the course of photocopying. The entry, as far as I can read it, says this: "Persistent low back pain, fluctuating symptoms. No radiation of pain. Straight leg raising right equals left equals 90 degrees." After that, the doctor's handwriting becomes largely illegible to me. However, there was a reference to the ordering of X-rays of the lumbar sacral spine. X rays were performed on 8 May 2002. The plain X-ray is reported thus: "History of presentation: low back pain. There is scoliosis convex to the left at L3. There is slight rotation to the right. There is a spina bifida occulta of S1 of no significance. There is mild disc space narrowing at L5/S1. The remaining intervertebral discs are of normal height. The vertebral bodies are normal in height with normal posterior alignment. There is minor anterior osteophytic lipping at L2/3 and L3/4. No evidence of spondylolisthesis. Normal sacroiliac joints. Normal bone texture." What is reported in the X-rays of 1994 as lumbarisation of S1 leading to the identification of six lumber vertebrae is now reported as being a spina bifida occulta at S1. Of significance, however, is the notation of disc space narrowing at L5/S1 indicating an advancement of the degenerative process and the area of the low back most likely to be involved in degeneration is L5/S1 and the level above it, L4/L5. 1. The plaintiff was asked about an event occurring on 30 June 2002 when he injured his back lifting high tension electrical cable. He was unable to remember that event. There is no documentary evidence about it before me. Suffice to say, however, that that piece of evidence should be used as indicating that the plaintiff's work did involve lifting high tension electrical cable, just as it involved lifting other heavy structures such as vent tubes. 2. In September 2003, the plaintiff was made redundant at the Baal Bone Colliery. He told me that he was out of work for about two weeks, but then found work at the Angus Place Colliery on a fixed contract for one year as a Federation miner. On 12 January 2005, the plaintiff had a further low back injury. There is a claim form. However, this does not appear to have been what could be described as a sprain, strain or tearing of muscles, but rather a "puncture injury". When asked to describe what happened, the plaintiff wrote this: "Back lading with Eimco, rib bolt dug into right-hand lower back." As the plaintiff himself has described the type of injury as a "puncture", that may only be of significance to show one of the risks involved in underground coal mining where one has to work constantly with rib and roof bolts, which can be heavy and dangerous to work with. 3. In January 2005 - that is, shortly after the event I have just described - the plaintiff has ceased working at Angus Place Colliery and returned to the Baal Bone Colliery. He was again working full-time on an indefinite contract and he was working the night shift each time he was rostered for duty. On 16 March 2006, the plaintiff injured his right elbow when loading rollers on to a structure. The plaintiff is right-handed. Again, no specific injury is alleged to have occurred to the plaintiff's right elbow at this time that gives rise to a claim for compensation, but again indicative of the type of work that an underground miner does. 4. On 20 June 2006 the plaintiff was driving an Eimco shunting a trailer underneath hanging vent tubes and, as he did so, he struck his head on the tubes hurting his neck. He saw his GP, it would appear, on the same day and gave a consistent history of injury to GP whose notes tell me the plaintiff had a dull ache. His range of movement was examined and found not to be restricted. The doctor raised a provisional diagnosis of a muscular injury and prescribed Voltaren. The doctor told the plaintiff to come back if he needed to because of neck pain. 5. The next relevant event occurred on 11 February 2007. This was described by the plaintiff in his claim for compensation at the time as being a left knee strain. The plaintiff was on an Eimco and stepped off it and stood awkwardly in between two relay bars which he did not see. That led to the straining of his left knee. According to the claim form, he did not stop work as a result of that event. However he did go to see his general practitioner about it on 15 February 2007. The general practitioner reported the mechanism injury as being a twisting of the left knee in between the two relay bars. The doctor went on to record this: "Pain steadily improving over time. Still at work, normal duties and no significant problem. On examination no swelling/effusion range of movement is normal." The word "normal" is preceded by an abbreviation that I cannot decipher. However, Dr Kamalaharan gave the plaintiff a certificate to perform his normal duties. 1. The chronology provided to me indicates that there was a left shoulder injury when lifting mesh reported on 8 May 2007. The plaintiff did not remember the date of this event, nor could he recall whether he lost any time off work, but he did confirm that there was an injury to his left shoulder when he was lifting mesh which he described as being about five metres long and one metre wide. He used different terms but that is the thrust of what he told me. 2. There was an event on 5 December 2007 when the plaintiff was lifting a roof module, another word for mesh, up on top of a miner and strained his neck. He did not see Dr Kamalaharan, but a Dr Andrew Donovan. According to the report of injury form, he did not stop work as a result of that event. That is confirmed by the plaintiff who could not recall losing any time off work. 3. The plaintiff reported a right shoulder injury on 30 May 2008. According the in the incident report form, he hurt his right shoulder while loading a miner with roof bolts. On 6 June 2008 the plaintiff reported this to Dr Kamalaharan. The notes made on 6 June 2008 indicate an injury to the right shoulder in the previous week, which is reported by the doctor as being 29 May 2008. The description of the event is consistent with the report of injury form. The doctor recorded the plaintiff was still working, but he had pain when he elevated his shoulder joint. The doctor then reported the pain was persisting, with a restriction of elevation of the right arm. The doctor prescribed an X-ray and physiotherapy and agreed that an ultrasound or an MRI might be required. On 10 June 2008 there was an X-ray of the right shoulder performed at Lithgow which reports no relevant abnormality. The plaintiff saw Dr Kamalaharan again on 3 July 2008. The doctor reports that the X-ray revealed no abnormality and that in the meantime - that is, since his attendance on 6 June 2008 - the plaintiff had had physiotherapy for his right shoulder joint with "some improvement". The doctor noted the plaintiff was "coping at work". He directed that the physiotherapy continue. For how long it continued the evidence does not disclose. 4. On 3 January 2011 the plaintiff attended upon his general practitioner about neck pain. The general practitioner's notes record, if I am reading them correctly, this: "In May 2006, head/neck injury at work when crewing a trailer and hit head … prescribed ice, et cetera. Ongoing intermittent neck pain. Now stiff neck for four days with pain going from the neck to the occiput. No specific injury. No radiation of pain. No particular weakness [indecipherable]. On examination tenderness of cervical spine, decreased range of movement." Then the notes become indecipherable. Again there was a reference to there being a need for X-ray, CT scan, physiotherapy and the prescription of Naprosyn. There was radiological investigation following upon that. On 2 February 2011 there was a CT scan of the cervical spine. The clinical history recorded by the radiologist, Dr Ha, is that there was a history of injury four years previously and the plaintiff was now suffering from neck pain and stiffness with limited movement. Dr Ha summarised his findings thus: "1. Amorphous calcification in the pre-vertebral soft tissues at the level of the base of the odontoid process of C2 may represent calcification within the anterior longitudinal ligament. 2. Degenerative spondylopathy of the cervical spine with moderate implant degeneration at the C6/7 and facet joint hypertrophy at the C3/4, C4/5 and C7/T1 levels. Significant foraminal narrowing is seen at the left C4/5 and right C5/6 levels, raising suspicion of exiting left C5 and right C6 nerve root compromise respectively." Leaving aside the suggestions of nerve root compromise, what the CT scan shows is advanced degenerative disc disease in the cervical spine, most noted at C6/7, which is generally the level of the cervical spine most affected by degenerative processes. On 8 February 2011 the plaintiff attended upon his general practitioner again with the CT scan. The doctor appears to have prescribed physiotherapy and that treatment regime was to be continued. The doctor's notes indicate that the plaintiff was to be reviewed in four weeks' time and he considered whether there had been some form of fresh injury to the neck. However, the notes do not record any attendance upon the doctor one month later. 1. On 20 June 2011, the plaintiff reported, according to the chronology, a head and neck injury when he struck vent tubes, but there is no report to that effect before me. On 30 September 2011, the plaintiff stopped working at the Baal Bone Colliery. He was offered a redundancy payment, which he took because he had no alternative. 2. On 21 October 2011, he commenced working for JR Conveyers Pty Ltd at the coal washery at the Baal Bone Colliery. He did that work until 1 February 2012. He underwent a pre-employment medical with Coal Services Health at Lithgow on 1 February 2012. That medical assessment is before me. As a result of that, the plaintiff was certified as fit to return to the coal mining industry and he, on this occasion, commenced working at the Angus Place Colliery which was then operated by Centennial Coal Pty Ltd. His work there was as a multi-skilled miner. His employment there was made permanent and full-time on 7 December 2012. 3. On 21 March 2013, the plaintiff struck his head when he was riding or driving an Eimco and it hit a pothole, causing his head to strike the canopy of the Eimco. He was wearing a seatbelt at the time. This appears not to have led to any immediate time off work. There was a similar event that occurred on 20 August 2013 when he drove on to concrete and again hit the canopy, I assume, of an Eimco. That is one of the documents in exhibit G. 4. On 14 November 2014, the plaintiff ceased working at the Angus Place Colliery for Centennial Coal Pty Ltd when the mine was put into "care and maintenance", a euphemism for being closed. Prior to the closure, however, there had been a change in the plaintiff's work. In 2012 or 2013, the plaintiff had been approached by the under-manager, Mr John Cummings, who inquired of the plaintiff, as was probably known to Mr Cummings, whether the plaintiff still had a dozer driving ticket. The plaintiff replied in the affirmative and Mr Cummings offered him work in the supply area and work at the pit top. The work at the pit top required the plaintiff to drive a bulldozer. The other half of his job was to load vehicles with supplies and take them down into the mine and deliver them to wherever they needed to be delivered. This represented a reduction in the amount of physical work that the plaintiff was required to do and the plaintiff told me that he welcomed the job because of various aches and pains that he had in his knee and low back, and shoulders. He was doing that work, which was not light duties work, but was certainly a modified work for an underground miner when the Angus Place Colliery shut down. Work with second defendant 1. The plaintiff was then unemployed and remained unemployed until 22 September 2016 when he commenced work as a security guard for Yates Security Pty Ltd. That company is not one that is generally involved in coal mining, but on this occasion it's work was providing security services to the Angus Place Colliery. Albeit that he was no longer a coal miner and was working for Yates Security Pty Ltd as a security guard, the plaintiff was still working in or about a mine, as that term is used in the workers compensation legislation and therefore remained entitled to benefits for what is known in shorthand terms as "coal miners". 2. The plaintiff's job there initially required him to work for 13 days in a row and then have 13 days off. His shifts were 12 hour shifts between 6pm and 6am. He was advised of this work by a fellow, former coal miner and that led to his applying for and being offered the job to be a security guard at the Angus Place Colliery. He was given a Great Wall sedan which he used in his work as a security guard. He was required to drive around the Angus Place Colliery checking doors on structures such as the administration buildings and mine adits and other aboveground structures. The plaintiff told me that half of each shift was spent on his feet walking and the other half required him to be driving his vehicle in or around the mine and its boundaries and internal roads, checking to make sure that all was secure that that there was no break-in or the like. Injury 14 December 2017 1. Whilst doing that work, the plaintiff was injured. Exhibit 12 is a document prepared by the plaintiff. It describes the event in this fashion: "While at work doing my Yates Security patrol for Angus Place Colliery, I drove up to check the Bore Road gate at 21.51. I stopped, got out of the car and opened the Bore Road gate. While walking back to the car, I stood unevenly on a rock and felt a sharp pain in my left knee. I completed my patrols. I drove home and put ice on my left knee. I rang John Cummings at 22.40 and got the answering machine. I left him a message. I then rang Joe Smith at 22.45 trying to find out what to do as no-one on site. I saw John Cummings, Friday 15/12/17 and completed an incident investigation form. Then went to Lithgow Hospital to see a doctor who sent me for an X-ray. He put me on WorkCover. I am going to Orange for an MRI on Monday, 18/12/17. I see Dr S Kanagaratnam on Friday 23/12/17 at 13.00." There are in evidence, exhibit 5, notes made at Lithgow District Hospital on 17 December 2017. That contains a history consistent with that the plaintiff reported. According to the hospital notes, X-rays done did not show any fracture or effusion. However, they noted increasing swelling and redness in the knee anteriorly. Generally there is no difference between swelling and effusion, but this appears to indicate a local effusion over the patella, rather than the usual effusion affecting the whole of the knee joint. The hospital doctor noted the plaintiff to be suffering from a fever that afternoon and the plaintiff felt quite flushed. 1. An appointment had been made for the plaintiff to see a specialist on the following day and rather than have treatment at the hospital, the plaintiff preferred to see that specialist. That is Dr Lachlan Host, an orthopaedic surgeon. Dr Host's report says this: "...he fell on the knee at work on Thursday, landing directly on the patella and sustaining a pre-patellar bursitis. Undoubtedly this will be a large haematoma and as can sometimes occur, these can become secondarily infected and I suspect that is what happened to Kevin. The area is now more swollen and more painful, with erythema extending down to the mid-tibia and up onto the mid-femoral region anteriorly with a CRP of 157 and some low grade temperatures. He is booked in for an MRI today and I think that is worthwhile just to exclude any other pathology, but it doesn't appear to go into the knee as his knee range of motion is reasonable given the swelling anteriorly and he has non-irritable range from 0 to around 80 degrees. There doesn't appear to be any effusion with all of the swelling pre-patellar. This is quite a dense pre-patellar collection." The MRI was made by Dr Rohan Sabharwal. It is reported in this fashion: "Intrasubstance tear of the quadriceps tendon involving the rectus femoris inserting fibres laterally on a background of quadriceps tendinopathy and there is pre-patellar bursitis. Oblique/cleavage tear in the posterior body and posterior horn of the medial meniscus." The plaintiff was then taken to the Bathurst Base Hospital where an attempt appears to have been made to drain the pre-patellar effusion and to treat the plaintiff with antibiotics. The plaintiff returned to see Dr Host after Christmas. He noted the plaintiff has stopped antibiotics on Christmas Day. Dr Host expressed the view that he was surprised that the MRI showed that the plaintiff had a partial tear of the quadriceps involving an insertion in the lateral part of the distal rectus femoris. Again the doctor prescribed antibiotic treatment in order to get the infection under control. There are notes before me from Dr Kanagaratnam following his seeing the plaintiff on 10 January 2018 and a further report of Dr Host, 17 January 2018, and notes from Dr Kanagaratnam bearing the date 24 January 2018 and 6 February 2018 and a report from a physiotherapist bearing the date 9 February 2018. 1. Eventually the plaintiff underwent partial anterior medial meniscectomy under the care of Dr Host on 23 February 2018 at the Lithgow Community Private Hospital. There is no post-operative report from Dr Host, unfortunately. Eventually the plaintiff was certified as being fit to return to his pre-injury work with the second defendant on 5 April 2018 and he did so. 2. On 9 May 2018, the plaintiff returned to see Dr Kanagaratnam. That was not about his left knee injury, but because he had a "sore neck". The doctor noted that there was "no specific cause." The doctor on examination found the plaintiff to be tender over C6/7 but did not find any neurological signs. He prescribed X-ray. That X-ray was made by Dr Matthew Healy on 9 May 2018. Dr Healy's conclusion is this: "There are advanced degenerative changes seen involving the cervical spine, as described. There is multilevel bilateral foraminal narrowing and to a lesser degree, canal stenosis. The changes are most marked between C3 and C7. Clinical correlation is recommended." The plaintiff returned to see his general practitioner on 14 May 2018. The doctor made a note of what the CT scan was said to report. However, the doctor noted on this occasion the plaintiff had some radicular symptoms; that is, symptoms going into one of his arms at least. There could have been radicular symptoms in both arms. The doctor ordered further investigations. On 24 May 2018, there was an MRI scan of the cervical spine. Again, the clinical indication reported by the radiologist, Dr Chaill, was of cervical radiculopathy Dr Chaill summed up his investigation thus: 1. There is no critical central canal stenosis or focal myelomalacia; 2. The degree of bony stenosis of the foramina would have been better assessed on the CT study, but there is evidence of bilateral foraminal narrowing at each level between C3 and C7. The plaintiff returned to see his general practitioner on 31 May. He discussed with the plaintiff referring the plaintiff for neurosurgical advice. 1. Eventually he was referred to Dr Matthew Tait, one of the practitioners who practise as "Macquarie Neurosurgery". Dr Tait organised further imaging. On 2 August 2018 there was a triple phase regional bone scan with SPECT-CT. The clinical history recorded by the radiologist, Dr Concannon, was of chronic cervical spine pain. The conclusion reached by Dr Concannon was that there was marked bilateral C3-4 facet arthritis greater on the right than on the left. Facet joint injections appear to have been commenced by Dr Tait. On 6 August 2018 there was a facet joint injection into the C7-T1 facet joint. Chronologically the next report is a medicolegal report and I shall leave that to one side at the present time. The next report I have is from Dr Matthew Tait who said that the plaintiff had returned to him for review on 10 October 2018. It is clear that he had seen the plaintiff earlier but there is no earlier report provided to me from Dr Tait. Dr Tait noted that the left-sided C7 T1 facet joint injection did not result in any change in the plaintiff's arm pain. Nerve conduction studies had also been made, but as far as the plaintiff could tell Dr Tait, they indicated that the problem was arising from the neck rather than from any local nerve damage. The doctor thought it would be a good thing to have further facet joint injections at other levels of the plaintiff's neck. In the meantime, he noted the plaintiff had now developed low back pain and pain in his left buttock radiating into the left thigh. On 12 November 2018 there was a CT-guided bilateral C3-4 cervical facet joint injection. On 26 November 2018 there was a CT-guided left C6-7 cervical foraminal injection. On 19 December 2018 there was a CT guided left C7-T1 cervical foraminal injection. All those investigations had been ordered by Dr Tait, clearly following his upon his seeing the plaintiff on 10 October 2015. Incident at home 1. On either Christmas Eve, but more likely Christmas Day, the plaintiff was involved in an event at his home. There was a family get-together which involved the use of "water bombs". A history recorded by Dr Kanagaratnam on 27 December 2018 was that the plaintiff had been "crash tackled by a son at water fight", leading to his experiencing right shoulder pain. The doctor said that an X-ray made in the Emergency Department, clearly at the Lithgow District Hospital, revealed no abnormality. The doctor noted that there was still significant weakness in the right shoulder joint with limited movement. On that occasion Dr Kanagaratnam considered that there might have been a rotator cuff tear and organised for a further radiological investigation. 2. The plain X-ray of Christmas Day 2018 made at the Lithgow District Hospital is reported in this fashion: "The right glenohumeral joint is congruent, but there is loss of the humeroacromial interval, possibly due to supraspinatus tendon tear. There is bone remodelling at the greater tubercle due to background enthesopathic change as well as mile degenerative change within the glenohumeral joint. There is no widening of the acromioclavicular joint and no clavicular or scapular fracture seen. No proximal humeral fracture." The further imaging ordered by Dr Kanagaratnam has been reported by a different radiologist, but again it is Dr Matthew Healy. It is worthwhile noting in full: "Biceps tendon: there is tendinopathy and tenosynovitis and the biceps is medially subluxed due to a subscapularis tendon tear. Subscapularis: there is an almost complete full thickness tear from the insertion. There is background tendinopathy. Supraspinatus: there is complete full thickness tear from the insertion with marked retraction. Infraspinatus: the tendon is intact. Subdeltoid/subacromial bursa: there is bursitis and impingement. Acromioclavicular joint: degenerative changes are noted. Glenohumeral joint: degenerative changes are noted and there is a joint effusion. Conclusion: there is a complete full thickness tear involving the supraspinatus tendon from the insertion as well as full thickness tearing involving a large portion of the subscapularis tendon. There is tendinopathy and there is bursitis and impingement. " 1. The plaintiff returned to see his general practitioner on 7 January 2019 and Dr Kanagaratnam noted the plaintiff needed physiotherapy and review by an orthopaedic surgeon. To that end he was referred to Dr Pavitar Sunner whose rooms are at, inter alia, Katoomba. The first paragraph of Dr Sunner's report of 24 August 2019 is this: "Thank you for asking me to see Kevin Pender who is a 59-year old right handed gentleman who worked in the mines for nearly 40 years but is currently working as a security guard. He says that he has had ongoing issues with his shoulders for quite some time, but then he was involved in a little accident at home on Christmas Day or Christmas Eve where they were mucking around with the family and he ran into his son. It was not a big collision and he did not actually fall to the ground, but he immediately felt pain in his right shoulder. In fact, the pain was so [bad] that he thought he had actually broken something. He ended up at the local hospital where an X-ray was performed and he was subsequently referred back to you. Since then an ultrasound has been done which has reported fairly extensive rotator tears.": The next paragraph commences with noting that there had been some easing of the pain in the meantime, but as at 24 January 2019 the plaintiff was still not pain free. The final paragraph of Dr Sunner's report commences thus: "I have advised this gentleman that the most likely scenario is that he probably has had a rotator cuff tear that he was not aware of and his recent incident has suddenly increased the size of the tear making it symptomatic now. The rotator cuff tear is not going to heal by itself and the size of his rotator cuff tear is going to require surgical repair." There has not yet been any repair of the plaintiff's right rotator cuff because it's compensability is disputed. 1. On 7 February 2019 there was a MRI scan of the right shoulder which has been reported extensively by Dr Hunjan, a radiologist. There is also a CT-guided arthrogram performed on the same day by the same radiologist. The plaintiff then went back to see Dr Sunner whose report of 21 February 2019 is this: "I saw Kevin Pender in my rooms again today along with his wife. He has had the MRI done and the MRI, as expected, shows a massive rotator cuff tear involving the entire supraspinatus, most of the subscapularis and most of the infraspinatus. What is even more significant is that he has severe atrophy of the muscles with grade IV fatty changes involving the supraspinatus and infraspinatus. This would suggest that these tendons have been torn for a minimum of 18 months, possibly even longer. It usually takes about 18 months after a muscle has been completely torn and not been used for it to be replaced by the fatty tissue. Given the degree of severity and the fatty changes in these muscles, I would suggest that these muscles have been torn for years. This would certainly be consistent with the fact that he says he had actually injured his shoulders back in 2007 and 2008 and he has had ongoing issues with both his shoulder. Given the size of the tear and the fatty changes and the atrophy, if he was a 75-year old I would have no hesitation in offering him a reverse shoulder replacement. However, in a 59-year-old it may be worthwhile attempting a repair, although the chances of a successful repair are not very high. Before we discussed this in any detail, he says that he wants to pursue it through his lawyers and have it treated through Workers Compensation, because he feels that he tore these lesions while he was working as a miner and he has a fairly strong case for this. He is going to pursue this first and then he will contact my rooms again when he is ready to proceed to surgery." In a medicolegal report of 13 March 2019, Dr Sunner largely reiterates the opinions I have already quoted. However he adds on this occasion that the majority of the tearing of the musculature had been present for at least two or more years. He concludes with this observation: "As I have stated above, the incident of December 2018 was what has tipped him over the edge, but the majority of his rotator cuff tear was pre-existing prior to December 2018 and is more likely to be related to the nature of his work." The rest of the materials I have before me are all medicolegal. 1. Returning briefly to the facts of the matter, the plaintiff continued working for the second defendant until 18 November 2019 when he submitted his resignation. He has not worked since nor has he looked for work and his position is that he is unable to do any work. 2. In Aitkin v Goodyear Tyre and Rubber Company (Australia) Limited (1945) 46SR (NSW) 20 it was stated that: "The worker's actual earnings should be relied upon as being the measure of his capacity to work unless it was established that the worker was deliberately taking lower paying work than could be reasonably expected to be obtained or idling, or that the reduction of his actual earnings was reduced by something unconnected with the injury." When dismissed by the first defendant, the plaintiff found work with the second defendant. The work which he found paid him a much lower salary according to exhibit K, the amended plaintiff's wage schedule which was not disputed. The plaintiff has been able to earn as a coal miner at all material times $2,800 a week. It is agreed that when he was working for the second defendant, the plaintiff was earning the princely sum of $371 per week. The mathematical difference is $2,429. The claim 1. The plaintiff claims weekly payments of compensation reflecting that loss between his being dismissed by the first defendant and acquiring work with the second defendant. The question is was the plaintiff incapacitated during that period of time? He says he was, but the first defendant disputes that. As the first defendant's doctor, Dr Roger Rowe points out, it was very difficult for him, when he first saw the plaintiff on 19 February 2019, to try to establish what the plaintiff's ability to work was back in 2014, some five years earlier. The first defendant points to a lack of any relevant complaint to Dr Kanagaratnam during the period between 14 November 2014 and 21 September 2016. The first defendant is correct in pointing out that lack of complaint. However, it must be borne in mind the plaintiff was not doing any work at all. He was not doing any of the things that an underground coal miner does, which throw stress and strain on the spine and the other joints of the body. In other words, there was no provocative activity which might cause the appearance of symptoms. 2. I have a reluctance to accept that on the day following the termination of his services, the plaintiff was incapacitated for the work he had been doing until the day before. However, it is common for many workers to soldier on until they reach a point where it has become impossible for them to work. I have sought to point out the degenerative condition in the plaintiff's neck and low back, both long-standing. Those degenerative conditions would not disappear while the plaintiff was off work. They would remain and were the source of possible symptoms should he return to any provocative activity. 3. Whilst I accept the plaintiff would probably have soldiered on for longer had the Angus Place Colliery not shut down, the point is that, when it did so, he was thrown on to the open labour market and the idea that he could find work in the coal mining industry would be suspect, because no coal mining employer offered him work, nor did he find any such work. Nor indeed did he look for such work. Furthermore, any coal mining employer would no doubt consider that doing the work that the plaintiff had been doing for a year or more prior to his dismissal; that is, the aboveground work and the supply work would indicate some form of restriction in his working ability, making them extremely reluctant to carry him on. Furthermore, the prospect that the plaintiff would find work as a labourer in, for example, the construction industry or on road gangs or the like would be highly unlikely given his age and his work history and the condition of his spine and his joints. 4. In other words, I accept when he was retrenched by the first difficult, the plaintiff did have an incapacity on the open labour market. That he wanted to work is established by the fact that he still had a wife to support, that he still had a son living at home who, no doubt, would seek support, and that when work was offered to him by the second defendant he took it upon himself to do so. There is no evidence that the plaintiff was shirking or taking work that was deliberately reducing his earning capacity. I therefore accept in accordance with what fell from Sir Frederick Jordan in Aitkin v Goodyear Tyre and Rubber Company that the plaintiff was suffering an economic loss of $2,429 a week from 22 September 2016 to 18 November 2016. The parties are not agreed on what the current weekly wage rate is. The first 26 weeks of incapacity will be at the current weekly wage rate and thereafter will be at the rate for a man with a dependent wife. The amount of the loss clearly exceeds the statutory maximum and will, in my experience, also exceed the current weekly wage rate. 5. The question then becomes what was the plaintiff's ability to earn whilst working. The question then becomes what is the plaintiff entitled to whilst working for the second defendant? The answer to that is he's entitled to the same compensation under s 11(1) of the Workers Compensation Act 1926 as its operation is preserved by the Workers Compensation Act 1987 for coal miners, at the same rate, that is, at the statutory rate reflecting a loss of $2,429 per week. 6. The question then becomes what was the plaintiff entitled to from the 19 November 2019 by way of weekly payments of compensation? Here, the issue is is there an incapacity? An incapacity is not the same as a disability. That the plaintiff has some minor ongoing symptoms in his left knee is not disputed. The second defendant has consented to an award for 12% loss of efficient use of the plaintiff's left let at or above the knee as a consequence of the injury on 14 December 2017. Whilst the plaintiff was off work because of the knee injury he was paid some compensation by the defendant. What is not clear is whether it was at the rate applicable to a coal miner, but that is something that the plaintiff should work out with the second defendant. 7. That the plaintiff has some symptoms remaining is what the plaintiff said. The plaintiff has given various histories as to why he stopped working for the second defendant. The plaintiff saw for the second defendant Dr Peter Gray, an orthopaedic surgeon on 21 May 2019. That was before his resignation. Dr Gray made a report on 23 May 2019. At the top of page 4 of that report the doctor records this: "Mr Pender is currently working as a security guard at the Angus Place Colliery in Lidsdale. His workload has recently increased due to stealing of electrical cables from the mine site. He now works seven days a week for two weeks and then has two weeks off. He works on active patrols between 6 am and 6pm, and undertakes about six patrols each day, each patrol lasting 45 minutes. He is on call for the remainder of the 24-hour period. He mainly uses a patrol car, but has to get out and climb stairs and inspect the sites. He states that he is able to manage this current job and is keen to keep working." If my recollection of the plaintiff's evidence be correct, there is a slight error in what Dr Gray describes. I understood the plaintiff's evidence to be that he worked not from 6am to 6pm, but from 6pm to 6am; that is, night shifts. However, it is clear that the same job he was doing antecedent to the injury of 14 December 2017 and was paying the same wage. 1. The plaintiff was seen by Dr Matthew Giblin on 26 August 2019, but the doctor did not record any history about the plaintiff's then work activity. The plaintiff was seen again by Dr Giblin on 9 March 2020 and the doctor merely recorded, "Presently he is not working", which is not at all helpful. 2. The plaintiff saw Dr Roger Rowe for the first defendant for a second time on 21 July 2020 and the plaintiff told Dr Rowe that he resigned from the job with Yates Security "in October 2019". Dr Rowe records that the plaintiff is now working as a carer for his wife who has a chronic back problem that has required two surgical procedures. Evidence was given about that by the plaintiff. It appears that his wife had had chronic back problems for many years prior to his leaving the coal mining industry and he was assisting her even in those days. When the plaintiff saw Dr Gray for a second time on 17 November 2020, Dr Gray recorded this history: "Mr Pender retired from work towards the end of 2019 as he is not enjoying the conditions of his employment and he felt he had worked for long enough." The plaintiff made it abundantly clear in his evidence that he had a major falling out with the second defendant because they were not paying him regularly and he was continually chasing them up for the payment of his wages and many of his inquiries went unanswered or were ignored. In other words, he resigned because of industrial problems. However, it appears to me that had those industrial problems not have occurred, he would have soldiered on with the second defendant, which is the history that the plaintiff gave to Dr Gray on 21 May 2019. 1. The plaintiff told me that his work did involve climbing stairs and walking over rough and uneven ground and he noticed symptoms in his left knee when he was doing so, whilst working for the second defendant after his return to work in May 2018. Again, in my view he probably would have persisted with those had he not resigned because of industrial reasons. Furthermore, there is a problem and the problem is this; if the plaintiff has an additional disability which he has because of his left knee problem, then there must still be a financial loss flowing from that disability. The essential question is what has the plaintiff been able to earn since he resigned from the employment of the second defendant. That is, what has he been able to earn in some comparable employment since 19 November 2019? 2. The plaintiff believes himself to be totally incapacitated. He is entitled to take that view but there is no real evidence to support that. Exhibit 11 is a "earning capacity assessment" prepared by Dr Andrew Keller, an occupational physician and Ms Rhonda Naohra, a vocational consultant. The report is a mere 51 pages long, a mere bagatelle, and no doubt why the current workers compensation scheme is going bankrupt. The cost of the provision of that type of report must be extremely high. However, what it does establish is that a packer packing light items is able to earn at the same hours that the plaintiff was working for the second defendant $531.12 per week. That is greater than $371 per week. The job is described thus: "Packers weigh, wrap, seal and label chocolate, fruit, vegetables, meat, seafood and other products." Dr Keller assessed the plaintiff was able to do that work for 38 hours per week, within his limitations which were a lifting and carrying capacity of five kilograms, a sitting tolerance of 60 minutes, a standing tolerance of 60 minutes. No heavy pushing or pulling, but no restriction on bending, twisting or squatting. Driving was limited to 60 minutes and that the plaintiff was able to travel 90 minutes by car and public transport. 1. Had the plaintiff been looking for such work or the like, and been unable to find it, the Court would have a greater ability to dismiss his ability to do such work. However, there is no evidence anywhere in any way as to whether such work is available to him in the Lithgow area. He lives at Wallerawang and clearly was working in Lithgow near where the Angus Place Colliery is and he could, no doubt, travel to areas in the upper Blue Mountains such as Mount Victoria, Katoomba and perhaps even as far as Bathurst if he wished to find alternative work. In the circumstances, I am not persuaded that there is any incapacity for work caused by the plaintiff's injury with the second defendant. 2. That means, in essence, the plaintiff is entitled to a continuing award from 19 November 2019 pursuant to s 11(1) payable by the first defendant on a continuing basis the standard rate for a man with a dependent spouse. Lump sum compensation 1. The plaintiff claims a lump sum compensation against the first defendant. The first claim is in respect of 30% impairment of the neck. 30% impairment of the neck is certified by Dr Giblin following his first examination of the plaintiff on 20 August 2018. In his second report bearing that date, the doctor says the plaintiff has a 30% permanent impairment of his knee. However, under the heading "Opinion" in his primary report, he says this: "Specifically in relation to his cervical spine, he has multiple injuries over a period of time added to the normal degenerative changes that would have occurred in the cervical spine." In other words, the doctor was expecting that the plaintiff could have normal degenerative change in his cervical spine, which has been made worse by the type of work he did and the injuries he sustained whilst working in the coal mining industry. Nevertheless, the Dr Rowe has made no deduction for any pre-existing condition or abnormality. Furthermore, what the doctor diagnosed was damage to the cervical spine and the neck and the cervical spine are not the same thing. The cervical spine is the vertebral bodies in between the atlas and C7. However, the neck includes the soft tissues, musculature, sinew, nerves, arteries, veins and other structural elements of the neck. Dr Rowe, for the first defendant, diagnoses a 20% impairment of the back and I accept that, because that is the other only alternative impairment provided. Dr Rowe believes that half of that impairment ought be attributed to the underlying degenerative process, so the plaintiff is only entitled to an award for 10% impairment of the neck. However, Dr Rowe merely provides me with an ipse dixit without explaining why half of the condition ought be attributed to the underlying condition. If, for example, I posit that everyone has a tendency to develop cervical spondylosis or degenerative disease of the cervical spine, then does work as, for example, a clerk lead to as much aggravation as work by a coal miner or does work as a motor mechanic lead to the same aggravation as work by a coal miner. I have not been provided with any reasoning process. In the circumstances, I intend the apply the statutory discount of 10% so that the plaintiff is entitled to an award for 18% impairment of his neck. 1. As far as the back is concerned, the plaintiff says that there is a 20% impairment of his back but again that reasoning by Dr Giblin is the same reasoning referrable to the neck. He again transmogrified the lumbar spine into the back, but the back comprises many other structures than the lumbar spine. For example, he includes the thoracic spine and the rib cage in its posterior aspect as well as soft tissues. I have been stating that in judgments over the last 26 years. Dr Rowe believes that there is a 12% impairment of the back. However, considering the extent of the degenerative changes, I believe the appropriate finding is a 15% impairment of the back. Again, there is the question of a deductible proportion. Dr Giblin does not deal with that at all and Dr Rowe merely states that it should be half. I intend to apply the statutory reduction so that the plaintiff is entitled to an award for 13.5% impairment of the back. 2. That the plaintiff has a loss of the efficient use of his right arm is undoubted. The only thing is that he requires surgery. That surgery should be carried out. The plaintiff seeks formally a declaration that it is reasonably necessary that the plaintiff undergo the surgery proposed by Dr Sunner. The idea of undergoing surgery is to increase the level of utility not to increase the extent of the loss. Surgery is carried out to repair structures and alleviate symptoms rather than to make them worse. The plaintiff has not reached "maximum medical improvement" as far as his right shoulder is concerned and therefore I am unable to make an assessment of his loss of use for the plaintiff's right arm at or above the elbow. 3. I shall go into the problems that arise as far as the right shoulder is concerned. Dr Roger Rowe in his first report of 25 February 2019, following upon his examination on 19 February 2019 said this: "Mr Pender is likely to undergo rotator cuff repair on the right shoulder in the near future as a result of the fall at home on Christmas Day. This is reasonable. The fall produced the rotator cuff tear and precipitated the need for surgery." Nevertheless, Dr Rowe diagnosed a 20% loss of efficient use of the plaintiff's right arm at or above the elbow, one quarter of which was a result of employment in the mining industry, one quarter of which was the result of age and constitutionally-determined deterioration and one half of which was the result of the fall at home on Christmas Day. 1. In his report of 26 August 2019, Dr Giblin refers to reading the report of Dr Rowe of 25 February 2019 and continues thus: "I agree with Dr Rowe that there are some chronic changes in his tendon which are due to the nature and conditions of his employment, however, I feel that there has been an acute component to his injury, which is associated with the fall and the latter has produced the need for surgery. Dr Rowe indicates in his report of May 2019, 'The final contributing factor was the injury sustained at home which completed the rotator cuff tear and precipitated the need for surgical treatment'. In summary, both Dr Rowe and I agree that this gentleman has had a degenerative tendon in his shoulder due to the nature and conditions of his employment and the fall at home has created a situation that he now requires surgery. It is my opinion, that on the balance of probabilities, it is more likely than not that had he not had the pre-existing condition of his shoulder he most likely wouldn't have required surgery. Most patients that I see usually tear their shoulder by falling onto the shoulder on the outstretched hand. This wasn't the case with Mr Pender; he actually fell flat on his back, indicating that more likely than not he had not had his shoulder problem, he probably wouldn't have torn, but since he did have the pre-existing condition, it was more prone to tearing than would have otherwise occurred." The mechanism of the plaintiffs injury on Christmas Eve or Christmas Day 2018 was not falling flat on his back. There are a number of different mechanisms referred to in the medical evidence. Unfortunately, I don't have a transcript of the plaintiff's oral evidence, which was given before me on 24 March 2021. 1. Furthermore, I don't believe the doctors have asked the right question. Undoubtably, there appeared to have been a tear in the event at home at Christmas 2018. The question is would such tearing have occurred had the three tendons in question not been degenerate. That is a slightly different test to that proposed by Dr Sunner. I would like to have the opinion of each of Dr Sunner, Dr Matthew Giblin and Dr Roger Rowe on that very issue. Furthermore, the issue might be clarified by Dr Sunner's findings on examination. However, without the clarification of the issue I have just raised and without access to a transcript, I believe I ought not deal with the question of the loss of efficient use of the plaintiff's right arm at or above the elbow, resulting from what is clearly longstanding degenerative pathology in the plaintiff's right shoulder caused by the type of work he did and the incidents that he suffered whilst working in the coal mining industry. 2. The plaintiff also claims a lump sum for loss of efficient use of his left arm at or above the elbow. This, I understand - I'll be corrected if I'm wrong is not the proposed site of surgery. The loss has been put by Dr Giblin at 18%. The same loss has been certified by Dr Rowe in his first set of reports as being 10%, albeit that in the second report it is different. But it appears to me that he got confused on the second time around, because he made exactly the same as the right arm and clearly on the evidence it is not so badly affected. Doing the best I can, I believe the plaintiff has a total 15% loss of efficient use of his left arm at or above the elbow because of the degenerative pathology in his left shoulder. I am not at all confident that the opinion expressed by Dr Rowe in his first report is accurate in that half of the loss of efficient use of the left arm at or above the elbow is the result of age and constitutionally-determined degeneration. Were that the case, then most men of the plaintiff's age would have such a condition though not as bad as the plaintiff has it. In my assessment and experience, questions of the damage to muscular tissue is not readily caused by constitutional or idiopathic conditions. I am not persuaded on the balance of probabilities that there should be any deductible proportion of the 15% loss of efficient use of the plaintiff's left arm at or above the elbow. 3. The remaining question is what is the plaintiff's entitlement under s 67 for the impairment of this neck, the impairment of his back and the loss of efficient use of his left arm that I have found. I exclude this time the effect of the plaintiff's loss of efficient use of his right arm which I am yet to determine and even the award in respect of that will be determined largely to an extent by the outcome of the surgery posed by Dr Sunner. Learned counsel for the first defendant submitted that an appropriate award would be for 20% of a most extreme case, given the four losses that were in dispute. In my view, something closer to a third would be more appropriate in all the circumstances, but I now leave to one side the question of the plaintiff's right arm at or above the elbow. Based on the plaintiff's experience of pain and suffering, resulting from the impairment of his neck, the impairment of his back, the loss of efficient use of his left arm at or above the elbow, I believe the appropriate award under s 67 to be $15,000. 4. No-one wants any further reasons, do they? MCMAHON: No, thank you. 1. HIS HONOUR: For those reasons, I order the second defendant to pay the plaintiff's expenses under s 60 referrable to any ongoing treatment needed for the condition of his left knee. In respect of the plaintiff's claim for weekly payments against the second defendant, I make an award for the second defendant. 2. I direct the remaining parties to bring in short minutes of order specifying the ongoing weekly award and the quantum thereof and the quantum of the claims under s 66 and including the claim under s 67 at 10 o'clock tomorrow morning. The first defendant is also pay the plaintiff's costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 September 2021