District Court New South Wales Medium Neutral Citation: Rutledge v Mining Concepts Pty. Limited formerly known as Colrok Constructions Pty Ltd & Anor [2022] NSWDC 253 Hearing dates: 23 June 2022 Date of orders: 23 June 2022 Decision date: 23 June 2022 Jurisdiction: Civil Before: Neilson DCJ Decision: Redemption approved. Catchwords: COMPENSATION – SPECIAL STATUTORY COMPENSATION – COAL MINERS – REDEMPTION – Whether Defendant might be liable to pay for surgery to Plaintiff's knees. Legislation Cited: Workers Compensation Act 1987 (NSW) Cases Cited: Nil. Texts Cited: Nil. Category: Principal judgment Parties: Plaintiff – Patrick Rutledge First Defendant - Mining Concepts Pty. Limited formerly known as Colrok Constructions Pty Ltd – Deregistrered Second Defendant - Ground Consolidation Pty Ltd formerly known as Heldod Pty. Limited - Deregistrered Representation: Counsel: Plaintiff – Benson, D. Solicitors: Plaintiff – Whitelaw McDonald Solicitors & Attorneys Defendants – Moray & Agnew File Number(s): 2022/00154349 Publication restriction: Nil. Judgment 1. HIS HONOUR: Before me is a redemption application in the sum of $40,000. The Plaintiff is currently 73 years old. However, he has a potential claim which could date back to September 2006. If the redemption be approved, it also will remove the Defendants' liability to pay for the Plaintiff's hospital, medical, and like expenses, pursuant to 60 of the Workers Compensation Act 1987. 2. One of the major inputs to hospital, medical, and like, expenses, that have been incurred over the years, is the cost of bilateral knee replacements. On 26 August 2020, the plaintiff consulted Dr Jorgen Hellman, an orthopaedic surgeon here in Newcastle. As a result of that consultation, the Plaintiff was admitted to the Lingard Private Hospital on 30 November 2020 where he underwent bilateral total knee replacement procedures, including liners being used for damage to the patella articular cartilage. Post operative x-rays show total knee replacements. Those were carried out on 18 January 2021. As I understand it, the cost of such surgery is approximately $50,000 per knee and it is clear from the other medical evidence before me that a large part of the Plaintiff's incapacity is alleged now, and at least since he saw Professor Ghabrial on 6 November 2018, to be referrable to his knee problems. His knee problems appear to be the source of ongoing symptoms. 3. The question really is, are the knee injuries related to any work the Plaintiff did? In that regard, I find the report of Dr Alan Hopcroft of 15 September 2020 most informative. Dr Hopcroft's history contains this: "He was born in Northern Ireland and went to school there before moving to [Great Britain], where he worked in construction and sewerage as a civil engineer. He emigrated to Australia arriving here on 4 September 1974 at the age of 26. Very soon thereafter, within two to three weeks [of] arrival, he entered the underground mining industry at Kalgoorlie in Western Australia with the Nepean Mine where he worked between 1974 and October 1975. He then transferred to the mining industry in New South Wales, arriving in October 1975 and working on in the mining industry through until 2006. He stopped mining on 29 September 2007 [sic] and he and a friend established a business manufacturing chairs with cushion seats for mining vehicles, and he ultimately retired in 2015 at the age of 66." 1. In fact, the Plaintiff last worked in the coal mining industry in New South Wales in September 2006, not in September 2007. He then worked in self-employment with a friend manufacturing chairs with cushioned seats for use in underground mining vehicles, and probably above ground mining vehicles as well. I have heard a number of cases over the years in which complaints were made about very uncomfortable chairs in mining vehicles. No doubt, that was something that inspired the plaintiff and his friend to open the business that they did. 2. Of course, underground mining in Kalgoorlie is irrelevant, and that is in gold mining and other forms of metal mining, not coal mining. Even then, although the Plaintiff was based in New South Wales, he worked some of his time in Queensland. According to Dr Hopcroft's further history, the Plaintiff was with a contracting company to the coal mining industry, and would therefore travel anywhere between Wollongong and Mackay in Queensland to undertake heavy manual and difficult construction jobs. 3. Annexed to the short minutes of order is a copy of the plaintiff's claims history as recorded by Coal Mines Insurance. Its first recorded claim was on 10 February 1976, and the last recorded claim was in 2005 and that was a claim for industrial deafness. All his claims were made against Colrok Australia Pty Ltd, which I assume is the mining contractor for whom he worked. His claims, none of which involved any time from work, were for injuries to the left hand the lower back, the face, the right shoulder, the right fourth finger, the right foot, the left cheek, the right lower arm, the right instep, the neck, a foreign body in the right eye on two occasions, an injury to a hip and the back, as well as a chest strain and the claim for industrial deafness, and a further wound to the face that occurred in July 2001, as well as a lower back strain on 1 December 2001. There was no claim ever made in respect of any injury to either of the Plaintiff's knees. 4. From Dr Hopcroft's report I know that there was no x-ray performed of either of the Plaintiff's knees until 9 October 2017 when he was sent by his current general practitioner, Dr Tonkin, to have an x-ray of his pelvis, his hips and both knees. The x-ray of the knees is reported in this fashion: "There are degenerative changes seen in both knee joints with loss of joint space and the presence of osteophytes seen in the medial tibiofemoral compartment. Similar changes are also noted in the patellofemoral compartments bilaterally." 1. Further x-rays of the Plaintiff's knees were performed at the request of Dr Tonkin on 23 July 2020 and are reported as showing mild osteoarthritis in both medial compartments, but normal lateral compartments of each knee. There was osteophytic spurring, indicating the presence of mild osteoarthritis in the upper poles of each patella. There was also mild lateral bony spurring on the patellae, slightly more noticeable on the right-hand side. There was a very small effusion in the suprapatellar pouch on the left-hand side. There was bilateral narrowing of the medial joint space. That is completely consistent with advancing osteoarthritis of the knees. 2. There was no support for the compensability of the Plaintiff's knee condition from the treating orthopaedic surgeon, Dr Hellman. There is some support from Professor Ghabrial, but according to Professor Ghabrial's history the Plaintiff had "multiple injuries" involving his knees, but that is not substantiated by any history or contemporaneous record. Dr Hopcroft relies upon the microtraumata opinion, often used when a question of a degenerative condition arises, and he argues that the work that the Plaintiff did over many years contributed to his condition. That might be so, but one cannot exclude the work the Plaintiff did in the United Kingdom, the work he did in the mines in Kalgoorlie, the work he did whilst employed by Colrok in Queensland, and the work he did in self-employed between 2006 and 2014. 3. The only way that one can verify the microtraumata theory is to see whether the work was causing symptoms referable to the alleged condition, that is, symptoms referable to the osteoarthritis, but there was no contemporaneous evidence that that was the case. There was no recorded complaint of any knee problem during the period when the plaintiff was working in the coal mining industry in New South Wales. The medical evidence tendered by the defendant is all the other way. That medical evidence is from Dr Anthony L.G. Smith, an orthopaedic surgeon, and from Dr Loretta Reiter, a consultant rheumatologist. Dr Smith points out that the Plaintiff's hip and knee osteoarthritis are familial conditions not caused by work. There is also a degenerative process going on in the Plaintiff's low back, and the doctor points out this: "This man has spinal degenerative disease. The incident of that in his age group is 100%. In addition, he has an L5-S1 spondylolisthesis and he has a canal stenosis from L3 down, probably because of short pedicles. I have not seen the radiology. None of these phenomena are consequent to his employment. His L5-S1 spondylolisthesis is a familial inherited abnormality occurring in about 5% of human beings, apart from Africans, where it is 1%. He has bilateral knee osteoarthritis and bilateral hip osteoarthritis. Those conditions are inherited and familial. Knee osteoarthritis is seen in about 20% of the population of Caucasian origin, amongst which he numbers and in that same population the incidence of hip arthritis is about 20%. Some people, like him, have both." 1. Indeed the short pedicles and the spondylolisthesis at L5 S1 must be congenital or idiopathic conditions, and could not possibly be caused by the Plaintiff's work in the coal mining industry. That leads one to the view that the conditions are underlying and genetically based rather than caused by work. Furthermore, to make a finding that they were caused by work, there would have to be at least a contemporaneous complaint of pain referable to some incident in the plaintiff's employment but there is no evidence of any such problem. 2. I am therefore persuaded that the Plaintiff would be unsuccessful in seeking to claim the cost of his bilateral knee replacements from the Defendants. In the circumstances, the sum proposed for redemption appears to me to be reasonable. I approve the redemption by consent orders in accordance with short minutes of order. They shall be initialled and left with the papers. 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: 08 July 2022