District Court New South Wales Medium Neutral Citation: Webber v Dendrobium Coal Pty Limited [2024] NSWDC 382 Hearing dates: 30 April 2024 Date of orders: 30 April 2024 Decision date: 30 April 2024 Jurisdiction: Civil Before: Neilson DCJ Decision: See pars [6] – [7]. Catchwords: Workers Compensation – Whether need for shoulder surgery on 1 November 2022 resulted from injury occurring prior to 22 June 2018 (when worker resigned) or to a novus actus interveniens. Legislation Cited: Nil. Cases Cited: Nil. Texts Cited: Nil. Category: Principal judgment Parties: Plaintiff – Matthew John Webber First Defendant – Dendrobium Coal Pty Limited. Second Defendant - Centennial Mandalong Pty Limited. Representation: Counsel: Plaintiff – Hunt, S. First and Second Defendants – Rowles, T. Solicitors: Plaintiff – Whitelaw McDonald Lawyers. First and Second Defendants – Sparke Helmore Lawyers. File Number(s): 2022/00162038 Publication restriction: Nil. Judgment 1. HIS HONOUR: Currently before me is a redemption application in the sum of $130,000. The major compensable pathology, which the medical reports explain to me, is that condition of the plaintiff's left shoulder, which he initially injured working in the Dendrobium Coal mine in the Illawarra in about 2004. He then came under the care of Dr Haber, an orthopaedic surgeon, and eventually had surgery to his left shoulder. There was a recurrence of the left shoulder problem when the plaintiff was working at the Centennial Mandalong mine here in the Hunter Valley as a result of which the plaintiff saw both Dr Haber, and sought a second opinion from Dr Bokor. Eventually, after having physiotherapy, the plaintiff returned to work. 2. He had initially joined the coalmining industry in September 2003 and worked at Dendrobium in the Illawarra until 30 June 2008. He then moved to the Hunter Valley and on 13 August 2008 commenced working at the Centennial Mandalong mine. He last physically worked there on 9 February 2018, submitting his resignation on 22 June 2018. 3. The reason for his ceasing work and retiring was because of psychological or psychiatric problems. There is a dispute on the medical evidence about the aetiology of that condition. However, the plaintiff sustained a further injury to his left shoulder and underwent further surgery. This is best explained by the history obtained by Dr AVB Isaacs, an orthopaedic surgeon, who saw the plaintiff on 9 August 2023 and generated a report bearing the date 10 August 2003. The relevant part of the history is this: "Sometime in May 2022, when he was doing some light work on his boat and was scraping barnacles off the inside of the boat, he aggravated the pain in the left shoulder. At that time he was not employed as he had been medically discharged for some mental health issues since February 2018. When he saw Dr Minas Petrelis, shoulder surgeon, on 16 February 2022 due to his persistent pain in the left shoulder, he told Dr Petrelis that when he was medically discharged in 2018 for some psychological issues, he did suffer from a moderately severe degree of pain in the left shoulder and he was unable to manage his work. Examination of his left shoulder revealed restricted movements in the shoulder, with impingement. An MRI scan of the left shoulder performed at that time confirmed evidence of anterior instability, partial thickness tear of the subscapularis footprint, glenohumeral and biceps sheath effusion with debris and mild acromioclavicular joint arthrosis. At that time, Dr Petrelis expressed his opinion that Mr Webber should have an arthroscopic washout of the left shoulder joint and may be a, perhaps, biceps tenodesis with or without a rotator cuff repair. I understand Mr Webber subsequently underwent surgery for the left shoulder by Dr Petrelis on 1 November 2022. I do not have details of that surgery." 1. There is a fuller description of that surgery by Associate Professor Paul Miniter, an orthopaedic surgeon. In one of his reports of 8 April 2024, Dr Miniter says this: "I note that since I have last seen him, he has undergone a procedure that is under the care of Dr Petrelis. The scar is consistent with biceps tenodesis. I looked carefully at the correspondence that you have sent and it would indicate that Dr Petrelis reviewed this gentleman in September and suggested an operation. Unfortunately, there does not seem to be a postoperative note and I, therefore, do not have the notes associated with the operative findings. However, he did have an MRI scan of the shoulder which was performed before the surgical treatment. This MRI scan was performed at PRP Imaging and with his permission and in his presence, I logged in and reviewed the scan which was performed on 31 August 2022. There was a glenohumeral joint effusion and there was a biceps effusion and apart from this there were also a degree of insertional tendinopathy of the subscapularis. There were features also of shoulder instability and significant Hill‑Sachs lesion. I did evaluate the scan carefully and in the lateral projection, it appears that there is an altered signal within the humeral head associated with the Hill‑Sachs lesion which would be more consistent with an acute injury. I do recall that scans taken well before this time in 2005 suggested a Hill‑Sachs lesion. I asked him today as to his functional activities as I was concerned at what appeared to be some more acute features in relation to the Hill‑Sachs lesion. He told me that he'd not been performing any activities." 1. In another report of the same date Dr Miniter expressed the view that it was possible that the plaintiff had suffered a further aggravation of his left shoulder following upon an incident in 2022. Certainly, the MRI scan on 31 August 2022 suggests a new or additional pathology in addition to the Hill‑Sachs lesion, that is, an acute injury, which, in medical terms, means a recent one. The problem as to causation is really tackled by Dr Isaacs in a supplementary opinion of 17 August 2023 in which he said this: "These facts confirm that the pain he experienced as a result of scraping the barnacles from the boat in May 2022 was the result of an aggravation of the pre‑existing pathology in the left shoulder. It is my opinion that the injury in May 2022 when scraping barnacles was an aggravation of the pre‑existing condition which arose from the work‑related injury in December 2004, and some part of the subsequent damage to Mr Webber's shoulder would have been occasioned even if the original injury in December 2004 had not occurred." 1. These opinions point forcefully to the fact that the need for the operation did not arise from any injury arising out of the course of the employment, but the need for the surgery performed by Dr Petrelis in 2022 resulted from a non‑compensable injury, that is an injury that the plaintiff sustained when he was scraping barnacles from his boat in May 2022. With great respect to Dr Isaacs, I believe the barnacles were on the bottom of the boat not on the inside of the bottom of the boat. 2. In those 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. ********** 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: 28 August 2024