Heaney v Powercoal Pty Ltd [2024] NSWDC 381

District Court New South Wales

Medium Neutral Citation: Heaney v Powercoal Pty Ltd [2024] NSWDC 381 Hearing dates: 16 February 2024 Date of orders: 16 February 2024 Decision date: 16 February 2024 Jurisdiction: Civil Before: Neilson DCJ Decision: I approve the redemption. Catchwords: Workers Compensation – Whether need for left total knee replacement on 8 November 2019 causally related to work last done on 7 July 1994. Legislation Cited: Nil. Cases Cited: Nil. Texts Cited: Nil. Category: Principal judgment Parties: Plaintiff – Warren Heaney Defendant – Powercoal Pty Ltd Representation: Counsel: Plaintiff – McMahon, S. Defendant – Dudgeon, C.

Solicitors: Plaintiff – Turner Freeman Lawyers Defendant – Hicksons Lawyers File Number(s): 2023/00214897 Publication restriction: Nil.

Judgment 1. HIS HONOUR: There is currently before me a redemption application in the sum of $95,000. The plaintiff is now 83 years old. He makes a claim for weekly payments of compensation from when he left the coalmining industry on 7 July 1994 until he turned 66 in 2008. There is also a potential for lump‑sum compensation pursuant to s 66 and s 67. One of the things that I have to bear in mind is the fact that the plaintiff underwent a left total knee replacement on 8 November 2019, under the care of Dr Geoffrey Workman at the John Hunter Hospital, to which he was admitted on 8 November 2019. The cost of such surgery is significant, and if that operative treatment were compensable, the sum proposed for redemption would be inadequate, bearing in mind that also dependent on that would be the plaintiff's entitlement to lump‑sum compensation for loss of efficient use of his left leg at or above the knee. 2. The plaintiff has a very interesting work history. It is set out by Dr A.V.B. Isaacs in his report of 13 October 2021, which is part of Exhibit A‑A. That employment history is this: "Mr Heaney left school about 1956. From about 1956 to 1962, he was employed at John Darling Colliery as a miner. From about 1962 to about 1969 Mr Heaney was employed by BHP at Lambton B Colliery as a miner. From about 1969 to 1972 Mr Heaney was employed by Wallarah Coal and Allied at the Wallarah Colliery as a miner. From about 1972 to 7 July 1994, Mr Heaney was employed by Powercoal Proprietary Limited (formerly known as Elcom Collieries Proprietary Limited) as a coalminer. Mr Heaney retired from mining on 7 July 1994. From about 1996 to about 2001 Mr Heaney operated a dry‑cleaning business through an ABN." 1. The history obtained by the defendant's doctor, Dr Loretta Reiter, has a history that the plaintiff sold the dry‑cleaning business in 2001. The plaintiff was unable to remember exactly today when he ceased working the dry‑cleaning business. The interesting thing about Mr Heaney's evidence is that, when he started working in the coalmines, ponies were still pulling cars of coal from the mines. It takes one back a very long time. 2. The plaintiff relies upon the opinion of Dr Isaacs as far as his left knee is concerned. Dr Isaacs took this history: "On 23 October 1990 Mr Heaney injured his left knee whilst at work. He was getting out of a machine he had been driving when he stepped down into a mud hole. He felt his knee twist and he felt immediate pain. Mr Heaney consulted his general practitioner, Dr Gordon at Belmont, who referred him for further investigations. He was then referred to Dr Chapman, orthopaedic surgeon and Dr Chapman felt that he did not have any substantial damage to his knee and referred him for physiotherapy. As physiotherapy was not helping him Dr Chapman performed an arthroscopic examination. On 30 November 1990, Mr Heaney underwent a left knee arthroscopic examination at Lingard Private Hospital. This showed a small tear of the posterior horn of the medial meniscus. Partial medial mediscectomy was performed and following that, he had post‑operative physiotherapy. He returned to work on 3 February 1991 and at that time he was still experiencing pain and he had to rely on Voltaren and an elastic support to get him through each day." 1. Dr Isaacs said this about the compensability of the plaintiff's left knee condition: "The left knee condition is directly related to his employment as the injury to the left knee at work on 23 October 1990 most likely has initiated the degenerative process in the knee joint and that has been further aggravated by the work activities and the working conditions, resulting in the deterioration of the degenerative process and worsening the pain in the knee." 1. One can accept that the tear of the posterior horn of the medial meniscus might have set in train a degenerative process in the knee, albeit that, since the doctor opines that the degenerative process could be made worse by the work thereafter, one must consider whether work antecedent thereto may also have set in train the degenerative process. However, the only way one knows what is going on is often by the experience of symptoms. According to the history obtained by Dr Isaacs, the plaintiff continued to experience symptoms in not only his left knee, but also in both his ankles since leaving the coalmining industry. However, the doctor goes on then to record a complaint on 7 March 2013 about pain in both ankles. The next treatment that Dr Isaacs referred to is a complaint of pain in the right ankle on 18 March 2014. There was no suggestion of any complaint of right knee pain in either March 2013 or March 2014. 2. Dr Isaacs then records a history of the plaintiff's falling down stairs in September 2017 and landing on his right knee, causing severe pain and tenderness in the right knee joint. That appears to have caused the plaintiff to see Dr Workman on 4 October 2017. I note, from a list of the radiological investigations contained in Dr Reiter's report, that on 18 September 2017 an X‑ray was made of the right knee, but, as is often common, the left knee was also X‑rayed for the purpose of comparison. Dr Reiter's report shows this about the X‑ray of the right knee on 18 September 2017: "Degenerative changes noted in both knee joints. There was loss of joint space and presence of osteophytes seen. There was evidence of loose body noted in the right knee joint. There was evidence of Pellegrini‑Stieda disease, noted with calcifications less of ossification seen [in] the insertion of both medial collateral ligaments." 1. The next radiological investigation reviewed by Dr Reiter was an ultrasound of the right knee on 18 September 2017 showing some effusion in the suprapatellar region. An X‑ray of the left knee as such was not taken until 29 May 2019. That showed loss of joint space in the medial tibio‑femoral compartment. There were also osteophytes noted in each of the three compartments of the left knee. In other words, when the plaintiff saw Dr Workman in 2017, the plaintiff's complaints would appear to have been limited to the right knee, not the left knee, and the right knee had not been injured at work with any ongoing problem, according to Dr Isaacs' history, and one wonders why the appearances in each knee would be similar. The only way one can postulate that is that the underlying condition was caused by a constitutional condition. 2. Dr Reiter herself expressed the view that the incident of 23 October 1990 may have contributed to an early onset of osteoarthritis, but only with the passage of time and the age‑related changes led to the need for the total knee replacement on 18 November 2019. Again that is based purely on history, without regarding the progress of symptoms thereafter. It would appear that the plaintiff's left knee condition did not remain symptomatic since October 1990 up until the time of the total knee replacement. It would also appear that the plaintiff's right knee was more troublesome to him in 2017 than his left knee could have been. One wonders when he fell down the stairs in September 2017 whether he had any symptoms at his left knee at that time, and if he did, one wonders whether they might be attributed to the left knee condition. 3. In the circumstances, the Court could not be satisfied on the balance of probabilities that the need for the total left knee replacement was causally related to any work that the plaintiff did in the coalmining industry prior to his retirement from it on 7 July 1994, bearing in mind the plaintiff had self‑employment thereafter, bearing in mind that he had an injury at least to his right knee thereafter, and bearing in mind that there was no complaint made by the plaintiff of continuing right knee symptoms since he left the coalmining industry, and bearing in mind the radiological appearances were in 2017, quite the same. 4. In the circumstances, the sum proposed for redemption is reasonable. I approve the redemption. By consent, orders in accordance with the short minutes of order, which I shall initial and place with the papers.