District Court New South Wales Medium Neutral Citation: Szauter v Centennial Northern Mining Services Pty Limited [2015] NSWDC 112 Hearing dates: 18 December 2014; 11 - 12 May 2015 Date of orders: 12 May 2015 Decision date: 12 May 2015 Jurisdiction: Civil Before: Neilson DCJ Decision: Award for the plaintiff for partial incapacity Awards for plaintiff for permanent impairment of neck and back Awards for plaintiff for loss of efficient use of the right arm at or above the elbow and loss of efficient use of the left leg at or above the knee Award for plaintiff for pain and suffering Defendant to pay plaintiff's expenses under s 60 Defendant to pay plaintiff's costs Catchwords: WORKERS COMPENSATION – Coal miners – Whether plaintiff partially incapacitated for work as a coal miner – Plaintiff would have continued work if not for retrenchment – Highly unlikely to obtain employment as a coal miner due to age, injury history and industry downturn – Incapacitated for work on open labour market in any event WORKERS COMPENSATION – Coal miners – Expert evidence – Lump sum claims for permanent impairment – Conflicting and problematic expert opinions – Whether pathology constitutional – Cannot exclude aggravation, acceleration or deterioration caused by type of work performed – Discounts applied WORKERS COMPENSATION – Coal miners – Expert evidence – Lump sum claim for permanent impairment of right hand – No pathology identified – No finding of permanent loss of efficient use Legislation Cited: Workers Compensation Act 1926 Workers Compensation Act 1987 Category: Principal judgment Parties: Arnold Szauter (Plaintiff) Centennial Northern Mining Services Pty Limited (Defendant) Representation: Counsel: Mr D Benson (Plaintiff) Mr B Odling (Defendant) Solicitors: Slater & Gordon (Plaintiff) Sparke Helmore (Defendant) File Number(s): RJ159/14 Publication restriction: No Judgment 1. HIS HONOUR: The plaintiff, Mr Szauter, is a former coal miner. He claims weekly payments of workers' compensation from 2 August 2014 to date and continuing. As the case has been presented, his claim is under s 11(1) of the Workers Compensation Act 1926 as preserved in its operation for coal miners by the Workers Compensation Act 1987. The plaintiff also claims lump sum compensation under s 66 as it applies to coal miners, for the impairment of his neck and back and the loss of efficient use of his right arm at or above the elbow, the left leg at or above the knee and of the right hand. He also claims a consequential lump sum under s 67 for pain and suffering, anxiety and distress resulting from such impairments and losses. The plaintiff also claims an order under s 60, in particular, seeking a finding as to surgery that is proposed to be carried out by Dr Daniel Posel. 2. The plaintiff was born on 13 July 1950. He is currently 64 years of age. He is right handed. His personal circumstances are relevant. They are only contained in a history obtained by Dr Lloyd Hughes, who first examined the plaintiff on 12 November 2013. The plaintiff lives alone, having divorced a number of years ago. He has a daughter and five grandchildren. He neither smokes tobacco, nor drinks alcohol. He is not involved in any sport or physical activities outside of his work. It is clear that the plaintiff enjoyed his work. He told me that he loved coal mining. I shall refer later to another matter which clearly points to the plaintiff's being enamoured of his work, of thoroughly enjoying it and doing anything he could to maintain his position in the coal mining industry. 3. The plaintiff was born in New South Wales and I infer grew up in Sydney. He obtained the Intermediate Certificate and then entered the workforce. His first job was at a pickle factory which was then in Chatswood. When he obtained his driver's licence, he decided to drive to Queensland. He then needed to find work. He started working for the Queensland Railways as a fitter. He worked in that job for one and a half years. He then returned to Sydney where he found work as a truck driver. He drove for McKeown's Transport for four months and then for Yellow Express for six months. He then returned to Queensland and worked at Mt Isa. He worked in the lead smelter for about two years, and, in addition, worked underground mining lead ore for about six months. 4. He then returned to New South Wales in March 1977. He obtained work at the Macquarie Colliery. He worked there from March 1975 until September 1977. He then transferred to the John Darling Colliery where we worked for a brief period, before in October 1977 going to work at Awaba Colliery. The plaintiff worked at the Awaba colliery until March 2000. He then went to work at the Newstan Colliery where we worked from 10 March 2000 until 13 April 2009. The plaintiff then returned to the Awaba Colliery for two and a half years, and when it shut down, he went to work at the Centennial pit at Mannering for six months and then went to the Newstan Colliery, after the Mannering Colliery went on to care and maintenance. He then worked at Newstan until August 2014. He was retrenched on 1 August 2014 and hence the commencement of his claim for weekly payments of compensation. 5. The plaintiff was a poor historian. I do not say that in any pejorative sense. It was difficult to get the plaintiff to concentrate on questions, and clearly a lot of what has happened to him over the years has faded from his memory. However, certain records enable the plaintiff's injury history to be outlined. 6. On 21 October 1975 at the Macquarie Colliery the plaintiff injured his left knee. He lost no time from work and the payout was the princely sum of $5.90. That indicates minor medical treatment. On 30 September 1976 at the Pacific Colliery, which was a subsequent name of the Macquarie Colliery, the plaintiff injured his left shoulder. That was a no time loss injury, but expenses of $695.18 were paid. That indicates some medium level of treatment of the plaintiff's injured left shoulder. On 14 March 1977, again at the Pacific Colliery, the plaintiff sprained his back. He lost no time from work. Relatively modest expenses were paid under s 10 of the Workers Compensation Act 1926. On 10 April 1979, the plaintiff, again, sprained his back. By that time he was working at the Awaba Colliery. No time was lost from work, and only a modest amount was paid under s 10. There was a further back strain on 6 March 1981. No time was lost from work, but expenses of $453.91 were paid, presumably under s 10. On 10 August 1982 at the Awaba Colliery there was, again, a very minor back injury, and $24 was paid under s 10. On 2 November 1984 at the Awaba Colliery the plaintiff injured his left knee and also made a report of an injury to his right knee. He needed treatment for his left knee and $74.50 was paid under s 10. On 16 June 1986 at the Awaba Colliery, the plaintiff sustained injuries to his neck, right shoulder and right arm. Liability was accepted by the employer and expenses of $396.50 were paid under s 10. 7. On 1 September 1994 the plaintiff strained his lower back again at the Awaba Colliery. Only very modest expenses were paid under s 60 of the Workers Compensation Act 1987. 8. On 2 December 1994 the plaintiff was injured at the Awaba Colliery. This is referred to not only in exhibit B, the plaintiff's Claim and Incident History, generated by Coal Mines Insurance, but also in his general practitioner's records. The general practitioner's records state that the plaintiff was hit on the head by a piece of falling pole. The notes also indicate that the plaintiff was pushed to the ground by a 50 kilogram rock, presumably a very large piece of coal. The plaintiff had stiffness of his neck, he also lacerated his nose, and six sutures were administered to him at the John Hunter Hospital. According to the general practitioner's records, the plaintiff had some time off work, although that is not corroborated by exhibit B. 9. On 4 September 1998 at the Awaba Colliery, the plaintiff fell backward whilst loading chemicals onto an EINCO. He landed on his buttocks and on his back. He complained to his general practitioner of pain in the lower back and soreness in his right elbow. The general practitioner's notes record that the plaintiff kept working as he did not wish to lose any time off work. He had taken some pain killers. The general practitioner noted that the plaintiff was tender over the right sacroiliac joint and over the right loin. 10. On 9 March 1999 the plaintiff stumbled into a pot hole at work at 5.30pm and injured his left knee. There was increased swelling overnight and the plaintiff went to see his general practitioner on the following day. His knee was found to be stiff on the morning of 10 March 1999. On examination the general practitioner noted a moderate effusion and noted tenderness along the medial cartilage line. The general practitioner queried whether there was a torn cartilage, meaning I expect a tear of the medial meniscus. The plaintiff was prescribed Voltaren. The plaintiff returned to his general practitioner on 17 March 1999. There was a full range of movement of the knee, but there was still a small amount of swelling. By that stage the plaintiff had returned to performing his normal duties as an underground miner. 11. On 19 July 2004, a first aid record was made indicating that the plaintiff strained or sprained his left knee. That is exhibit C. The CMI record, exhibit B, records that as a left ankle strain, but the more contemporaneous document indicates that it was a left knee sprain. 12. On 14 September 2007 the plaintiff consulted his general practitioner about his left shoulder. The general practitioner found a left shoulder impingement. He also found a painful arc at 45 degrees. He noted posterior tenderness of the joint. He prescribed an X-ray and an ultrasound. That was reported by Dr Colin Walker. It is exhibit H. The report of the shoulder X-ray showed that the acromioclavicular joint was moderately degenerative. There was found to be small under-surface anteromedial spur narrowing the rotator cuff outline. There was also sclerosis of the greater tuberosity, implying that the plaintiff had rotator cuff disease. The ultrasound report is somewhat longer. However, what it does show is a 16 millimetre high grade partial thickness or full thickness tear of the supraspinatus, mid-third, with severe impingement. There was also found to be distention or widening of the bursa with fluid within it. There was also said to be minor chronic tendonitis of the subscapularis muscle. The inference to be drawn from the radiological investigation is that there was a degenerative process present in the plaintiff's left rotator cuff, and that something had happened relatively recently which had led to tearing within the rotator cuff. 13. The general practitioner's records suggests that he administered some injections under ultrasound, although such may have been performed by the radiologist both on 26 September 2007 and perhaps subsequently on 16 October 2007. The plaintiff was then referred to Dr Desmond Bokor, a orthopaedic surgeon specialising in shoulder joint replacement and also elbow surgery. The history recorded by Dr Bokor is this: "The problems began about three months ago without any specific injury with antero lateral base pain radiating into the back of the shoulder. This is following activity and disturbs his sleep at night and he feels that he is not benefitting from anti inflammatory medication. He has had some problems in the left shoulder about 30 years ago which resolved." That may well refer to the left shoulder injury at the Pacific Colliery on or about 30 September 1976. Dr Bokor thought that the plaintiff's clinical features suggested that he could have an underlying full thickness tear of the rotator cuff. He injected the subacromial bursa with cortisone and a local anaesthetic and placed the plaintiff on a physiotherapy program. That physiotherapy program was provided to the plaintiff. The plaintiff told me that after he saw Dr Bokor, he asked Mr Stuart Waite, the Health and Safety Manager of the Centennial Newstan colliery, for permission to have physiotherapy and that was provided to him. 1. In his evidence given on 18 December 2014, the plaintiff told me that he saw Dr Beckhouse, who was to refer him on to Dr Bokor, after an incident involving a rotor lift. The plaintiff attributed in his evidence the onset of symptoms in his left shoulder to an incident involving a rotor lift. That is a implement that weighs about 10 kilograms. It has a chain at each end to which at each end is attached a hook. By rotating a handle on the rotor lift, the chain can be wound up to lift things. The plaintiff believed that when he was using the rotor lift, one of the hooks became snagged and he went on to say this: "I was lifting it up onto my, onto my shoulder with my left hand and I'd say something got caught, probably the hook on the other end of the chain, got caught on the floor plates or on a toolbox down there." The plaintiff told me that he felt pain in his shoulder. There is no corroborative evidence for that event, either in a medical history or in records of a contemporaneous nature. However, I am happy to accept the plaintiff's evidence in that regard. I accept that what he does remember he honestly tried to tell me about, although clearly some of his recollections were faulty. 1. The next event occurred on 7 March 2008. According to exhibit B it was a right shoulder strain occurring at the Newstan Colliery. Liability for this event was accepted by the defendant's insurer. The records state that all told the plaintiff lost 16 weeks and two days from work, and the total paid on the relevant claim was $46,861.72. What happened can be best seen in a report of the plaintiff's general practitioner, Dr Matthew Beckhouse, dated 19 May 2009 which forms part of exhibit B. Any matter in square brackets in the quotation I am about to make has been inserted by me for clarification. Dr Beckhouse wrote this: "I...consulted on Mr Szauter on 11 March 2008, where he noted an injury to his right shoulder on the previous Saturday pulling a large stone from a battery tray. The shoulder had remained painful since then. On examination at this time the shoulder was non tender and he had a full range of movement. There was no painful arc. At that time it was thought to be a fairly simple soft tissue injury and he was recommended to take a non steroidal anti inflammatory drug and to have some physiotherapy. He was asked to return to review in two weeks. When Mr Szauter was reviewed two weeks later, there was no change in symptoms and X ray and ultrasound were arranged. [They were performed on 2 April 2008.] The ultrasound subsequently revealed a tear to his supra spinatus tendon and evidence of associated subdeltoid bursitis. After some discussion it was decided to try conservative treatment first with a depo corticosteroid injection under ultrasound control. This resulted in some improvement in symptoms. When he was reviewed on 10 June 2008 he noted that he had a fall two days before that landing on his hand and subsequently his right shoulder had become a little worse. [Exhibit B is a first aid record indicating on 8 June 2008 the plaintiff slipped on a sloping piece of plasterboard in a long wall return and in order to break his fall stretched out his right arm causing pain in his hand, wrist and right shoulder. Exhibit B indicates that this claim was accepted and medical expenses of $317.60 were paid.] After further physiotherapy his shoulder subsequently improved. Over the next few months his shoulder symptoms improved a little with physiotherapy, but when seen in December we decided to try another cortisone injection. Again, Mr Szauter noted improvement after the injection when seen in January, but at this point given his continued disability we offered for him to see an Orthopaedic Surgeon with a view for surgical management." Other records tell me that an ultrasound of the right shoulder was carried out on 7 January 2009. Although that radiological investigation report is not before me, it is referred to in a subsequent report of Dr Posel. It would appear that the cortisone injection was performed at the same time as the right shoulder ultrasound was performed. 1. The orthopaedic surgeon to whom the plaintiff was referred was Dr Daniel Posel. Dr Posel saw the plaintiff on 24 September 2009. He obtained this history: "Arnold reports a roof fall at Awaba Colliery 14 years ago. He fractured his nose and hurt his neck. He had no time off work subsequently. Arnold reports an acute injury to his right shoulder on 8 March 2008. He was pulling a stone out of a battery tray. Such got stuck and he reefed his shoulder. Evidently at that stage an ultrasound examination was performed and the rotator cuff tear was identified. Arnold, however, didn't have much discomfort in his shoulder. In view of concerns regarding job security, he wasn't very keen on having any time off and he coped reasonably well with his rotator cuff tear. Arnold relocated back to Awaba Colliery three months ago. He has had no time off work with regard to his right shoulder, but there is now increasing discomfort in his right shoulder at night, and he is unable to sleep on his right shoulder with an ache radiating down the whole arm. There is also discomfort with internal rotation of his shoulder, especially when reversing his car. The shoulder will clunk with abduction. Arnold reports a reduction in shoulder power with overhead use and discomfort in getting his shoulder into the fully overhead position. Arnold has had two steroid injections of his right shoulder, most recently in January 2009, with short term relief of his pain. Arnold explained he also has a smaller rotator cuff tear in his left shoulder but he's coping with such." The reference to the roof fall at the Awaba Colliery is clearly a reference to the event which occurred on 4 September 1998. Clearly the date of the injury relied upon is not correctly given. The date was 7 March 2008 rather than 8 March 2008. 1. Dr Posel examined both the plaintiff's left shoulder and his right shoulder. As far as the left shoulder was concerned, there was a "smaller rotator cuff tear" with minimal impingement. According to Dr Posel the ultrasound of 7 January 2009 identified a 13 millimetre x 15 millimetre full thickness tear of the supraspinatus tendon. There was also an ultrasound performed on 18 September 2009 which identified an extension of the rotator cuff tear. The doctor proposed surgery. The plaintiff accepted that advice. Surgery was performed at the Toronto Private Hospital on 4 November 2009. Part of the operation report is this: "Today, here at Toronto Private Hospital, I performed surgery on Arnold's right shoulder with an arthroscopic debridement of the shoulder joint, tenotomy and subsequent tenodesis of rather frayed and split long head of biceps tendon, arthroscopic acromioplasty, arthroscopic AC joint resection and mini open rotator cuff repair of at least 3.5 centimetres wide, full thickness supraspinatus tendon tear. A stable rotator cuff repair was achieved." Dr Posel reviewed his patient on 22 December 2009, seven weeks after surgery. He noted that the plaintiff was on annual leave over the Christmas holiday period until 18 January 2010. He thought the plaintiff was fit to resume pit top duties from 19 January 2010 until a further review on 20 February 2010 with a lifting restriction on 2.5 kilograms. He also permitted the plaintiff to resume driving his motor car. 1. The plaintiff was reviewed by Dr Posel not on 20 February but on 25 February 2010. The plaintiff told the doctor that he was unable to return to work as no suitable duties were available. The plaintiff was happy with his right shoulder progress, and the doctor certified the plaintiff as being able to resume suitable duties on 26 February with certain limitations which are set out in his report. He thought it would be feasible for the plaintiff to resume all this usual underground coal mining duties by 5 April 2010. The plaintiff eventually did so. 2. The next thing that occurred was a further injury to the plaintiff's left shoulder. It is well recorded in exhibits B, F and G. According to exhibit G, the plaintiff injured his left shoulder in this fashion: "While roof bolting with a handheld roof bolter the production mine worker jammed the tightening dolly on the roof bolt. When he managed to free the dolly it fell striking him on the left shoulder." The plaintiff went to his usual general practice about that injury. A report from Dr Beckhouse of 14 January 2014, which is part of exhibit P, refers to this event. Dr Beckhouse records this: "Mr Szauter...attended this practice on 27 September 2013 after a heavy object fell from the ceiling onto his left shoulder at work. He was seen by Dr Lisa Crotty who noted a lump on the left shoulder with reduced range of movement and she thought he had a traumatic left shoulder query supraspinatus injury. He was sent for X-ray and ultrasound and organised for review. Mr Szauter returned for review on 2 October 2013 by myself where it was noted that the X-ray showed minor degenerative change. Ultrasound revealed a full thickness tear involving the mid portion of the supraspinatus measuring 13 x 18 millimetres. There was a partial thickness tear of subscapularis measuring 8 millimetres. Subdeltoid bursa was consistent with bursitis. After discussion with the patient we elected to continue conservative treatment and he was sent back to work on suitable duties. He was seen again on 9 October where things had improved and he wanted to try normal duties. He was then seen on 21 October when he noted he was still experiencing significant shoulder pain and after suitable discussion was sent for review by Dr Posel..." 1. Dr Posel was to see the plaintiff on 19 November 2013. However, before the plaintiff saw Dr Posel, he saw Dr Lloyd Hughes, an orthopaedic surgeon for the colliery's insurer, CMI. Dr Hughes expressed this view: "Mr Szauter is suffering from a degenerative rotator cuff lesion of the left shoulder with degenerative tears present in the supraspinatus and partial thickness tear involving the subscapularis. This condition would have been present prior to the injury at work on 26 September 2013 and the injury at work, in my opinion, was a contusion to the left shoulder which has now resolved. Degenerative rotator cuff tears are common at this man's age of 63 and often asymptomatic. The only treatment I would recommend would be a short course of physiotherapy followed by a home exercise program. He is fit to continue working." What caused Dr Hughes to opine that the only injury the plaintiff had sustained was a soft tissue contusion and what led him to express the opinion that that contusion had now resolved are beyond my understanding. Clearly there is a history consistent with a tearing of the perhaps pre-existing degenerative changes in the rotator cuff leading to the pathology identified on the radiological investigations and accepted by both Dr Beckhouse and Dr Posel. 1. As I said, Dr Posel saw the plaintiff on 19 November 2013, and recommended surgery. He said this: "Following the recent underground incident on 26 September 2013, Arnold has converted his minimally symptomatic left shoulder rotator cuff tear, previously documented four years ago, to one of a more symptomatic problem with increasing pain and more weakness in the left shoulder. Given such, I have recommended surgery to the left shoulder in the form of an arthroscopic acromioplasty, arthroscopic AC joint resection and mini open rotator cuff repair and have arranged to perform such at Lake Macquarie Private Hospital on 3 February 2014, pending approval from Coal Mines Insurance under the auspices of workers' compensation." Encouraged, no doubt, by the opinion expressed by Dr Hughes, the insurer denied liability for the proposed surgery. 1. The plaintiff was involved in a further event on 24 February 2014. The best description of this event is contained in Dr Posel's history recorded on 20 June 2014. That history is this: "Arnold reports good right shoulder function subsequently [after surgery] until 24 February 2014. He explained he was lifting large props into a man transport on his own, such have dimensions of 12 feet x 300 millimetres. With the third one, Arnold explained there was lots of drag when positioning with breaker prop. He didn't feel a rip in his right shoulder but a sharp pain. He has been having physiotherapy once a week with no real change. Arnold continues on his usual underground coal mining duties, including roof bolting. He doesn't feel his right arm is weak and he hasn't noticed any loss of shoulder movements. Arnold is able to sleep on his right side. He cannot however, sleep on his left side. Right shoulder pain is 3/10 and is more of an annoyance." On examination the doctor noted that the plaintiff's left shoulder was unchanged since 19 November 2013. Examination of the right shoulder indicated that he had not suffered any acute injury which interfered with the previous surgery. However, further X-rays suggested a rotator cuff insufficiency. An ultrasound of the right shoulder performed on 3 April 2014 indicated the long head of the biceps tendon was absent from the bicipital groove in keeping with the tenodesis that had been performed. Dr Posel expressed this opinion: "Arnold is a well motivated 63 year old coal miner now of 29 years experience. He is keen to continue working underground for a few more years. Arnold is effectively carrying his left shoulder injury. When favouring his left side, he is now overloading the right and he has strained his right shoulder. Clinically, and radiologically, there does not appear to be a recurrent right shoulder rotator cuff tear and no further surgical intervention is indicated to the right shoulder at this stage. The only way of unloading the right shoulder would be the rectify the existing problems in the left shoulder. As mentioned above, permission for such surgery to proceed under the auspices of workers' compensation has not been granted by Coal Mines Insurance. The medico legal case regarding the left shoulder is now ongoing." The last sentence clearly refers to the current litigation. The ante-penultimate and penultimate paragraphs of the doctor's opinion are these: "As Arnold continues to perform such [his usual duties underground] despite this rotator cuff deficient left shoulder, there is no reason why he should not continue with such up until the time of surgery to his left shoulder. It is admirable that Arnold continues lifting the large breaker props on his own. I recommend in future he seek assistance from one of this younger colleagues in this regard." 1. The next thing that happened, of course, is the plaintiff's retrenchment on 1 August 2014 with the closure of the Newstan pit. The plaintiff would have liked to have continued working as a coal miner. He has sought to obtain work in the coal mining industry, unsuccessfully. Whether he would pass a Coal Services Health medical to be able to return to working in the coal mining industry is debatable, given the pathology which has been identified in each of the plaintiff's shoulders, to say the least. 2. As I have mentioned at the commencement of these reasons, the plaintiff is now 64. There is a downturn in the coal mining industry at the current time. Given the plaintiff's age and injury history, it is highly unlikely that he will be accepted back by any employer in the coal mining industry. That the plaintiff has an incapacity for work on the open labour market is undoubted. That could easily be inferred from what I shall say about the plaintiff's claims under s 66. He soldiered on in the coal mining industry because he loved it and he wanted to work. He avoided treatment of an active nature and was definite about undergoing the surgery to his left shoulder because of his fear of losing his job, a fear of being retrenched, a fear of being certified of being unfit to work in the industry in which he had worked for near 40 years. 3. The plaintiff, if he had remained as a coal miner would be earning $2,716 per week. There is no suggestion, except from Professor Ghabrial, that the plaintiff is totally incapacitated for work. No one else espouses that position, neither the plaintiff nor his counsel. The plaintiff has not made a formal request for his last employer to provide him with suitable duties. The plaintiff does not rely on s 11(2) of the Workers Compensation Act 1926. The plaintiff's only claim for weekly payments is under s 11(1) of the Workers Compensation Act 1926. The defendant says that the plaintiff is fit to do his old job as a coal miner, albeit that no one in the coal mining industry is prepared to provide him with such work. The defendant, therefore, says the plaintiff is not losing any income theoretically and is not entitled to any award under s 11(1). However, the plaintiff has a disability in each of his shoulders. That disability has led to a loss of efficient use of his dominant right arm at or above the elbow. It is clear that the plaintiff also has a degenerative process at his spine and at least his left knee. The plaintiff is incapacitated for work on the open labour market. 4. I ask myself what could the plaintiff now earn on the open labour market? He is a fitter by trade. Average male weekly earnings are $800 per week approximately. As a tradesman he might be able to earn $1,000, perhaps $1,200 per week, at most. The difference between such earnings and $2,716 is obvious. The maximum the plaintiff can claim under s 11(1) is the maximum weekly payment for a single worker at the current time. That is $391.90 per week. The plaintiff is clearly entitled to that amount under s 11(1) in my assessment. I reject the submission that the plaintiff is able to earn $2,716 per week. He could not earn such money on the open labour market, and the labour market in which he used to work, coal mining, is not open to him any longer because of a lack of work. 5. I turn to the plaintiff's claims under s 66. The plaintiff relies upon assessments made by Professor Ghabrial. The defendant relies on assessments made by Dr Hughes. The Court is between Scylla and Charybdis. Like Odysseus, I must steer between the siren's song coming from near Scylla and the whirlpool, Charybdis. The siren song is that of Professor Ghabrial. The siren song is attractive because it provides very large assessments of a plaintiff's losses and impairments. The siren song must be avoided because those assessments are mere ipse dixits by the professor without any reasoning being provided, without any explanation of why the losses happened and as to why there ought be no deductible proportion. Some of the assessments are extravagant. The whirlpool of Dr Hughes must be avoided because his opinion would suck me down to the bottom of the ocean. He requires that there be objective signs before making any assessment of permanent impairment, and some of his statements are internally inconsistent and, again, he refused to grapple with the argument that the type of work which a coal miner does might contribute to degenerative processes. 6. Professor Ghabrial sets out a list of 12 injuries of which he says the plaintiff gave him a history. According to the plaintiff, Professor Ghabrial took no history at all. Professor Ghabrial's history looks awfully the same as the pleadings in the amended statement of claim with the exception of an event alleged to have occurred on 28 November 2007, an injury to the left shoulder, which is not pleaded, is not the subject of any evidence, and is not referred to in any document at all that I have managed to find. It would appear that the professor's list of injuries contains one aberration, otherwise it is completely consistent with the pleadings. One might think that he took his history from the amended statement of claim. That history is also consistent with a few minor adjustments with part of exhibit B. The first injury listed by Professor Ghabrial is an injury to the right hand on 14 October 1994. According to exhibit B, that was an injury to the right thumb. The third injury listed as one that is pleaded as occurring in August/September 1998 to the back, and that is what is pleaded, but what exhibit B shows is an injury on 4 September 1998. The seventh injury listed is an injury on 8 March 2008, but according to the records that occurred not on 8 March but 7 March 2008. The final injury listed is "aggravation of his injuries due to the nature and conditions of his employment in the coal mining industry." which is not a medical term of art, but many, many legal practitioners think it to be a term of art in workers' compensation. However, it is more properly pleaded in the amended statement of claim. The type of work which the plaintiff did in the course of his employment is particularly detailed in the amended statement of claim, and I shall not recite it. Suffice to say that the plaintiff's evidence given on 18 December 2014 and yesterday is completely consistent with it. Mining work is very heavy, demanding work throwing stress on the spine and all joints of the body. 7. Professor Ghabrial examined the plaintiff's neck on 30 July 2014. He found, "Moderate muscle guarding", but otherwise his examination revealed no abnormality other than a moderate decrease of movements in all directions. Doctor Hughes examined the plaintiff's neck and found, "Slight general restrictions of movements with complaints of discomfort", but otherwise no abnormality. Muscle guarding was not found by Dr Hughes. Professor Ghabrial does not tell me the nature of the pathology in the plaintiff's neck. Doctor Hughes diagnoses degenerative disc disease of the spine, and that, in essence, is confirmed by plain X-ray of the neck and thoracic spine carried out on 16 March 2015. Professor Ghabrial diagnoses a 15% impairment of the neck, and Dr Hughes says that there is a 10% impairment of the neck, but that is wholly constitutional. Clearly the plaintiff reported neck injuries on a number of occasions which I have sought to point out earlier in these reasons. The plaintiff's evidence is also of constantly hitting his head encased in his mining helmet forcing the plaintiff's neck backwards; that is, extending his neck causing symptoms. I accept that the plaintiff has degenerative disc disease in his neck. 8. I cannot rule out the diagnosis of an underlying constitutional condition. I can accept, however, an aggravation or exacerbation of that condition by the type of work the plaintiff performed as a coal miner. I am prepared to accept Professor Ghabrial's 15% impairment, but I reduce it by half to account for the underlying constitutional condition. I according find that the plaintiff is entitled to lump sum compensation for 7.5% permanent impairment of his neck. 9. Exactly the same considerations arise with regard to the plaintiff's back. The radiological report of 16 March 2015 shows degenerative change at multiple levels of the thoracic spine, as well as thoracic scoliosis convex to the right. The degenerative disc disease in the thoracic spine and the cervical spine, one would expect degenerative disc disease in the lumbar spine. The plaintiff has reported a number of lumbar strains over the years. Again, I accept the plaintiff has degenerative disc disease in his thoracic and lumbar spines. I cannot rule out the fact that such degenerative changes have a constitutional basis. The human spine matures at the age of 28 years and thereafter starts to degenerate. Degeneration can be an attritional process, and a wear and tear process. I accept the plaintiff's degenerative disc disease has been made worse, that is, aggravated, or exacerbated or caused to deteriorate by the type of work he has done as a coal miner for near 40 years. I accept Professor Ghabrial's at 15% impairment ratio, but I reduce that by half to account for the underlying degenerative condition. The plaintiff is accordingly entitled to an award for 7.5% impairment of his back. 10. The plaintiff does not claim any loss of efficient use of his left arm at or above the elbow because he intends to undergo the surgery proposed by Dr Posel. I have no hesitation in stating that I would certainly find on the evidence that if the surgery had been practised, it was reasonably necessary as a result of injury. Professor Ghabrial diagnoses a 20% loss of efficient use of the plaintiff's right arm at or above the elbow, but a 15% loss of efficient use of the plaintiff 's left arm at or above the elbow. He did that when the plaintiff's major complaint was in the left arm rather than the right arm, when the right shoulder had been surgically corrected but the left shoulder had not. Dr Hughes diagnoses a 15% loss of efficient use of the plaintiff's right arm at or above the elbow, but assigns it wholly to an underlying constitutional condition, despite the fact that his report of 4 March 2015, Dr Hughes had said this: "The diagnosis is rotator cuff tears of both shoulders. Based on the history and reports attached to your referring letter it would appear that the injury to the right shoulder occurred at work in 2008 probably resulting in the rotator cuff tear, although as I stated in my previous report the degenerative rotator cuff tear of the left shoulder is not related to his work as symptoms in the left shoulder occurred spontaneously." [My emphasis.] It appears to me that the event of 7 March 2008 loomed very large in the condition of the plaintiff's right shoulder. Having said that, I cannot rule out some underlying degenerative process in the right shoulder joint, nor can I rule out that the type of work which the plaintiff performed with each of his arms caused an aggravation, acceleration or deterioration of the degenerative process in the plaintiff's rotator cuffs. As far as the right arm is concerned, that would relate to both work before 7 March 2008 and to mining duties that the plaintiff has performed since that injury, and, in particular, since the surgery practised by Dr Posel. 1. I accept the plaintiff has a 15% loss of efficient use of his right arm at or above the elbow. There is a deductible proportion, but I do not know the extent of it, nor can I tell the extent of the contribution made by the type of work that the plaintiff did, and the effect of the injury of 7 March 2008. I, accordingly, intend to deduct from 15%, 10%, such that the plaintiff is entitled to award for 13.5% loss of efficient use his right arm at or above the elbow. 2. As far as the plaintiff's left knee is concerned, I sought to set out complaints that had been recorded from time to time about it. Professor Ghabrial diagnoses a 20% loss finding a mild quadriceps muscle wasting, mild tenderness on the medial aspect of the left knee, but otherwise as far as I can see no further abnormality. The professor provides me with no diagnosis. Dr Hughes did not find any muscle wasting, but did find mild crepitus on flexion and extension movements of the knees. Dr Hughes diagnoses a 5% permanent loss of efficient use of the left leg at or above the knee based on the presumption the plaintiff is suffering from early osteoarthritis in the left knee which would need to be confirmed by X-rays. I have no hesitation in accepting that the plaintiff would have osteoarthritis in his left knee. I have no hesitation in accepting that there is some permanent loss of efficient use of the left leg about or above the knee because of the condition of the plaintiff's left knee. 3. Professor Ghabrial says the loss is 20%, and Dr Hughes, as I have said, said it is 5%. Doing the best I can, I accept the plaintiff has a 10% loss of efficient use of his left leg at or above the knee, but I discount that by 50% because of some underlying constitutional degenerative condition. Accordingly, the plaintiff's entitled award for 5% loss of efficient use of his left leg at or above the knee. 4. The remaining claim under s 66 is for the right hand. Professor Ghabrial found tenderness over the dorsum of the right wrist and the base of the right thumb. Based on that, the professor diagnosed a 12.5% permanent "impairment" of the right hand. No pathology has been identified by him. Dr Hughes found no abnormality on examination of the right hand, and did not believe the plaintiff had any loss of efficient use of his right hand at all. No pathology having been identified. It is impossible for me to find any permanent loss of efficient use of the plaintiff's right hand. The plaintiff has failed to satisfy the onus of proof which is upon him in that regard. 5. I believe I can accumulate all those losses because each is a result, at least in part, as far as the right arm is concerned, an underlying degenerative process made worse by the type of work the plaintiff has performed as a coal miner. The findings under s 66 entitle the plaintiff to a lump sum compensation of 67 for pain and suffering, anxiety and distress resulting from those impairments and losses. 6. The defendant submits that any award under s 67 should be minor, minimal or nominal because the plaintiff has not complained to any great extent of pain and suffering, anxiety and distress resulting from his impairments and losses. With the outmost respect I am unable to accept that submission. It plaintiff is not a whinger. There are many workers who would whine until the heavens fell if they had some minor loss or impairment. This gentleman has a number of impairments and losses which have affected him and will affect him into the future. He has sought to downplay symptoms in order to retain his job in the coal mining industry, but that ploy by him has been unsuccessful. Doing the best I can under s 67, I believe that this man's experience of pain and suffering resulting from the impairments and losses which I have found is in the ratio of three to ten of a most extreme case. If the plaintiff be entitled to lump sum compensation for the loss of his left arm at or above the elbow, that may need to be revised if I find the same pathological process in the plaintiff's left arm as I have in the right arm. However, that can await another day. 7. I have inquired of counsel for the parties whether any further reasons for judgment are required. I am told that none is so required. 8. For those reasons, I make an award for the plaintiff for: $382 per week from 2 August 2014 to 30 September 2014; $386.90 per week from 1 October 2014 to 31 March 2015, and $391.90 per week from 1 April 2015 to date and continuing pursuant to s 11(1) of the Workers Compensation Act 1926. 1. I make the following awards under s 66 for: $3,969 for 7.5% impairment of the neck; $5,953.50 for 7.5% impairment of the back; $14,288.40 for 13.5% loss of efficient use of the right arm at or above the elbow; $4,961.25 for 5% loss of efficient use of the left leg at or above the knee. 1. I make an award for the plaintiff for $19,860 pursuant to s 67. 2. I order the defendant to pay the plaintiff's expenses under s 60. 3. I order the defendant to 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: 02 July 2015