Carmichael v Ravensworth Surface Operations Pty Limited [2024] NSWDC 389

District Court New South Wales

Medium Neutral Citation: Carmichael v Ravensworth Surface Operations Pty Limited [2024] NSWDC 389 Hearing dates: 1-2 May 2024 Date of orders: 2 May 2024 Decision date: 02 May 2024 Jurisdiction: Civil Before: Neilson DCJ Decision: See par [19]. Catchwords: Workers Compensation – Whether worker suffered an injury resulting in L4-5 disc prolapse requiring surgery – Disc had been degenerate long before plaintiff commenced coal mining but had been asymptomatic. Legislation Cited: Nil. Cases Cited: Nil. Texts Cited: Nil. Category: Principal judgment Parties: Plaintiff – Andrew William Carmichael Defendant – Ravensworth Surface Operations Pty Limited Representation: Counsel: Plaintiff – Hunt, S. Defendant – Rowles, T.

Solicitors: Plaintiff – Slater & Gordon Lawyers Defendant – Sparke Helmore Lawyers File Number(s): 2023/00054482 Publication restriction: Nil.

Judgment 1. HIS HONOUR: The plaintiff, Mr Andrew William Carmichael of Cessnock, claims weekly payments of workers compensation from 3 January 2023 to 18 June 2023 for either total or partial incapacity from his current employer Ravensworth Surface Operations Pty Limited. He also claims his hospital, medical and like expenses during that period. 2. The plaintiff was born in 1985 and will shortly turn 39 years old. He completed year 10 at Cessnock High School and worked for the next three years either as a kitchenhand at a restaurant or as a barman at a hotel in Cessnock sometimes working at both places. 3. In 2005, he obtained an apprenticeship as a carpenter with a firm in Cessnock, which were building houses. He completed that apprenticeship and in 2010 moved to London. Whilst in London, he worked for a bespoke carpentry business as a cabinet maker. In 2011, he returned to Australia. In 2012, he commenced a traineeship as an underground miner with Glencore at the Blakefield South Colliery. From there, he was transferred to the Bulga underground mine but when underground mining was ceased in 2017, he was transferred to work for the defendant at the Ravensworth open cut coal mine. He was originally driving haul trucks, but more recently, he has been driving bulldozers. He has been driving bulldozers since April 2002. 4. The plaintiff has had a bad back for many years. The first reference to it that I have, is in the records of a former general practitioner, Dr Willmott, who noted on 11 November 2015 that the plaintiff had low back pain, that there was a spasm which came and went and he had extreme difficulty sitting and had had these problems since the age of 21, that is, going back to either 2006 or 2007. 5. The doctor noted the plaintiff had in the past seen an osteopath. The notes made by Dr Willmott suggest that the plaintiff's low back problem originated from his playing cricket. He was a wicket keeper. Indeed, the plaintiff played cricket for many years, a sport which he enjoyed but which would be difficult with a sore back. He was referred by Dr Willmott in early 2016 to Dr Peter Spittaler a consultant neurosurgeon in the lower Hunter Valley. The substance of Dr Spittaler's report to Dr Willmott on 10 March 2016 is this: "He is a carpenter by trade but now works as an underground miner. He is a keen sportsman, playing cricket, soccer and golf. He has had no other significant past history but he smokes about ten cigarettes per day. The patient has a ten-year history of intermittent lower back pain with some right leg pain. This is usually short-lived but occurs every few months. Last November, whilst on holiday in Fiji, the patient developed some right buttock and posterior thigh pain which increased significantly on his return to Australia. He has been taking anti-inflammatories and takes Panadeine forte daily. The pain radiates from the right buttock into the posterior thigh and posterior calf. There is no sensory impairment in the leg. The pain is worse with coughing and straining and relieved with bed rest. On examination, flexion of the lumbar spine produced an increase in right leg pain. There is evidence of a right S1 radiculopathy with weakness of plantar flexion and an absent ankle jerk but no sensory impairment. The MRI of the lumbar spine demonstrates desiccation of the L4-5 and L5-S1 intervertebral disc with a significant right L5-S1 disc prolapse which is clearly responsible for the patient's sciatic pain. As Mr Carmichael has been symptomatic for four months, it is unlikely at this stage that he would improve spontaneously. I discussed with him a right L5‑S1 microdiscectomy and advised him that it is likely to help his leg pain but warned him of the risks of anaesthesia, infection, nerve root injury and recurrence. I think the patient is going to go ahead with surgery but is checking his dates". 1. Surgery was in fact performed at Lingard Private Hospital on 5 April 2016. Dr Spittaler did as he had intended to do, and performed a right sided L5‑S1 microdiscectomy. On 19 May 2016, Dr Spittaler reviewed the plaintiff and was pleased to report that he had relief from his sciatic pain, he had "occasional twinges but these are settling." The plaintiff told Dr Spittaler he was soon going to return to work. He did. 2. On 3 January this year, the plaintiff noted a further onset of pain. He was driving a bulldozer, a very large one, the cabin of which could only be reached by climbing up a ladder on the left of the driver's cabin, as one sat in the bulldozer to drive it, there was an entry door to the cabin on the right side, but there was also an entry door to or from the cabin on the left side. 3. The plaintiff commenced his shift he told me at 7am. Around the 10 o'clock mark, the plaintiff felt the need to urinate. He thought the easiest way of doing that was to urinate from the side of his bulldozer. For that purpose, he attempted to stand up and to reach over to the right-hand side door in order to open it so that he could stand on the right side edge of the machine to do what he intended to do. As he attempted to stand up, he noticed a sudden onset of pain unlike other pains that he had experienced from time to time. 4. The plaintiff indicated from the witness box an attempt to stand up and reach to his right the angle of the upper body to the lower body was about 45 degrees to my observation, meaning that if he was formally standing and bending forward, there would be forward flexion to 45 degrees. That of course would throw strain on the lower back and could rupture a disc, especially if a disc were degenerate. 5. We do know from the radiological investigations made by or for Dr Spittaler in 2016, that not only was the L5-S1 disc degenerate, but also the L4-5 disc was degenerate. The plaintiff also noticed on 3 January this year, pain going down left leg. The plaintiff was able to see his general practitioner at the Marketplace Doctors at Cessnock, Dr Ahmed Shetia on 6 January 2023. The notes made by Dr Shetia are these: "Patient stated lower back since Tuesday morning at work. Patient stated was sitting in operating machine and when he got up, he stated lower back pain and leg pain mainly right side….decreased range of movement." 1. On examination, the doctor noted the plaintiff was tender over the L4‑5 disc space and also over the S1 vertebral body which of course is part of the sacrum. He also found para-lumbar tenderness. Eventually he was again referred to Dr Spittaler who saw him on 2 February 2023. The relevant part of Dr Spittaler's report on this occasion is this: "The patient is now working as a plant operator in an open cut coal mine rather than underground. Since April last year, he has been operating dozers. He was doing this in January and stopped for a rest and was urinating from the side of the dozer when he developed back and right leg pain. His back pain and leg pain has continued, although it worsened about two weeks later after the onset. The pain radiates from the buttock into the posterior thigh and lateral calf. The MRI of the lumbar spine performed prior to the worsening demonstrates a modest right L4-5 disc prolapse with some high signal suggesting oedema…. I think this patient's symptoms relate to a new disc prolapse at a different level to his previous problem as he has only been symptomatic for four weeks, his leg pain may improve with time. On examination, there was no weakness of plantar or dorsiflexion and no sensory disturbance. I have given Andrew a request for a CT guided right L4-5 transforaminal steroid injection and I also requested for another MRI, as it is possible that his disc prolapse has worsened to explain the distinct worsening of his symptoms two weeks after their onset. I have organised review in four weeks. It is pretty clear to me that this incident is a new disc prolapse from the work activities that Andrew has been doing, particularly operating a dozer." 1. As indicated by that report, the plaintiff saw Dr Spittaler again on 2 March 2023. Dr Spittaler expressed the view that the repeat MRI shows a progression of the L4-5 disc prolapse on the right and there was clear evidence of nerve root compression in the lateral recess. On this occasion, Dr Spittaler elected to offer the plaintiff a right L4-5 lateral recess decompression and microdiscectomy. That was performed a few days later on 7 March 2023. 2. Eventually the plaintiff was certified fit to return to work by Dr Shetia on 8 May 2023 but the defendant would not permit the plaintiff to return to work without a clearance provided by its own doctor. The plaintiff saw Dr Posel at the request of the defendant's insurer on 17 May 2023. In a report bearing the date 19 May 2023, Dr Posel expressed this view as to the plaintiff's fitness for work: "Andrew Carmichael is fit to resume plant operating duties at Ravensworth open cut and can perform his full duties operating the haul truck and grader and within three months, resume dozer operating once again. He is fit to resume his usual 12 and a half hour rotating roster and if required, to perform overtime activities." 1. In short, Dr Posel would not give the plaintiff a full clearance to return to work, albeit the plaintiff's own doctor had. Dr Posel clearly would have limited the plaintiff to operating smaller items of plant such as a haul truck or grader or perhaps a water car if one were in use. In any event, the plaintiff saw a doctor appointed directly by the employer as distinct from the employer's insurer and was permitted to resume work on 19 June 2023 operating a haul truck as suggested by Dr Posel. 2. The issue for my determination is whether the plaintiff's period of work resulted from an injury arising out of or in the course of the plaintiff's employment. Some theory about this is given by Dr Spittaler when he was asked to comment on the opinion of Dr Posel. Dr Spittaler said this in his report of 16 November 2023: "I cannot agree that 'there was no incident nor injury'; a disc prolapse always requires a force to be applied to a degenerate disc. Often in a patient's history, there is no clear-cut injury or force, but by the very nature of the conditions it is an injury. I have stated above my belief that the patient's employment in the coal mining industry has been a significant contribution to him [sic] developing disc degeneration (although I accept he has some other risk factors including smoking). In the absence of a clear-cut alternative, I think the fact that the disc prolapse became symptomatic whilst the patient was operating a dozer, makes it in my mind more likely that his employment has led to the frank disc prolapse." 1. I do not understand what Dr Spittaler meant by the second of those sentences. The statement that he makes is cryptic. However, I do accept that some force needs to be applied to a degenerate disc to cause it to prolapse. The usual mechanism of any discal injury is axial overload and torsional stress. What the plaintiff demonstrated in the witness box as to what he was doing when the pain struck him to my mind shows that the upper body was providing the axial overload and the turning of his body to the right was the torsional stress. 2. The fact that the disc appears to have prolapsed or ruptured whilst the plaintiff was working is indicative of an injury. As was pointed out many years ago by Kirby P, as he then was, there was no difference in law between the breaking of the leg and the breaking of a vein. There is no difference between breaking one body part externally and breaking another part internally. Here, the prolapse of the disc was caused by nuclear material from the disc being extruded from a tear in the annulus fibrosus of the disc. That rupture occurred in the course of the plaintiff's work, that is injury simpliciter and the plaintiff is therefore entitled to succeed in his claim. 3. What caused him to do what he did when the pain came on was part of the interface between human nature, the demands of the human body and the demands of the workplace which put him in the bulldozer which he was required to drive, which he needed to climb up to get into and which he would descend by the ladder if he needed to leave, but there was always a short cut for a man to urinate and that is what happened on this occasion. 4. For those reasons, I make an award for the plaintiff for $1,222.85 per week from 6 January 2023 until 18 June 2023 for total incapacity. I order to the defendant to pay the plaintiff's hospital, medical and like expenses in respect of that period. I order the defendant to pay the plaintiff's costs. Credit to the defendant for any payments made.