Crapp v BHP Pty Ltd & 3 Ors [2016] NSWDC 112

District Court New South Wales

Medium Neutral Citation: Crapp v BHP Pty Ltd & 3 Ors [2016] NSWDC 112 Hearing dates: 12 April 2016 Date of orders: 12 April 2016 Decision date: 12 April 2016 Jurisdiction: Civil Before: Neilson DCJ Decision: Redemption application approved Catchwords: CIVIL – Coal miners – Redemption – Adequacy of sum proposed – Whether bilateral plantar fasciitis work-related – Extent of causation of plaintiff's left knee condition as a result of work injury Category: Principal judgment Parties: Alan Crapp (Plaintiff) BHP Pty Limited (First defendant) BHP (AIS) Pty Limited (Second defendant) Walter Mining WDS Limited (Third defendant) Wollongong Coal Limited (Fourth defendant) Representation: Counsel: Mr D Benson (Plaintiff) Mr B Odling (Defendants)

Solicitors: Barry F Cosier & Associates (Plaintiff) HWL Ebsworth (Defendants) File Number(s): RJ622/14 Publication restriction: No

Judgment 1. HIS HONOUR: There is currently before me a redemption application for the sum of $80,000. My duty is to consider the proposal in light of the evidence put before me by the parties to ascertain that sum be appropriate to redeem the liability of the defendants named in the statement of claim. Effectively there is only one of them because each of the four defendants named in the statement of claim is insured by Coal Mines Insurance Ltd. 2. The plaintiff claims weekly payments of compensation at the rate of $374.10 per week from 21 January 2014 to 25 July 2015, his expenses under s 60, which I am told amount to $2,847, lump sum compensation under s 66 for $5,292 for 11% permanent impairment of the neck, for $29,767.50 for 30% loss of efficient use of the left leg at or above the knee, for $7,938 for 10% permanent impairment of the back, for $12,899.25 for 15% loss of efficient use of the right foot and for $8,599.50 for 10% loss of efficient use of the left foot. The plaintiff also claims a consequential lump sum under s 67 for pain and suffering, anxiety and distress, resulting from those impairments and losses, of $39,720. 3. Of concern to me are the plaintiff's claims in respect of the loss of efficient use of his left leg at or above the knee and his claims in respect of the loss of efficient use of each of his feet. I shall deal with the latter first. The plaintiff relies upon the type of work he did which required him to work, mainly standing on his feet or walking, wearing boots and in particular "gumboots" in the course of his work as an underground miner. The condition diagnosed is plantar fasciitis. The plaintiff relies upon an assessment made by Dr Gordon Mill of Illawarra Occupational Health. 4. The plaintiff complained to Dr Mill on 6 December 2012 of burning sensation under the sole of each foot. The plaintiff also complained of intermittent pain around the left lateral hip. The plaintiff himself had told the doctor that he believed that the symptoms he was suffering in his feet resulted from a period of time earlier in 2012 in which he had to mobilise wearing a fracture boot, or as they are often called, a moon boot. However that was only on his left leg. The plaintiff believed the difficulties he had in walking with the moon boot on his left foot led to these symptoms. The plaintiff alleged incapacity resulting from the plantar fasciitis ended when Dr Mill finalised "the claim" on 29 January 2013. The period when the plaintiff wore the moon boot is not at all clear but Dr Daniel O'Keefe, an orthopaedic surgeon, took this history on 18 June 2015: "On 10 October 2011 he was doing a monthly audit of fire extinguishers and was on top of the old bathhouse steps at Russell Vale [a colliery] when he slipped down and fractured his left fibula. He drove himself to the Shellharbour Hospital and was told to come back the following day when an X ray was taken and he was strapped and put into an ankle brace. He was again managed by Dr Mill at IOH, and referred to Dr Stackpool, orthopaedic surgeon, who recommended continuation of conservative treatment in a CAM walker. He had ongoing symptoms and continued physiotherapy at IOH and returned to work with lifting restrictions..." The inference I draw from that history and the report of Dr Mill of 19 March 2013 is that the plaintiff ceased using the CAM boot at the time that he returned to work and that it was a considerable period of time, that is many months, between his ceasing to use the CAM boot, or moon boot, and the onset of symptoms which were diagnosed by Dr Mill as plantar fasciitis. Indeed, the problem with the question of causation can be gleaned from the words of Dr Mill's report of 19 March 2013: "Mr Crapp reported that he had had troubles with his walking since the previous injury (fractured distal fibular, left leg), although a clear time span of onset of symptoms was not available. Plantar fasciitis can be triggered by altered walking gait, altered footwear, altered footwear with inadequate arch support and altered weight bearing or walking frequency. I considered it feasible that the altered mechanics of walking in a fracture boot and alterations to his normal regime could have contributed to the development of these symptoms. The onset of such symptoms would typically appear during the period of altered gait and then progressively resolve following return to normal walking. Mr Crapp's presentation to my rooms was some months after healing of his leg fracture and return to normal footwear and duties." [Doctor's emphasis.] The doctor then refers to the uncertainty of aetiology but nevertheless decided that the plaintiff's employment was a substantial contributing factor to the development of plantar fasciitis which in fact reverses the onus of proof. 1. To add to this problem, the plaintiff was examined by Dr Roger Rowe, an orthopaedic surgeon on 28 September 2015. The plaintiff gave Dr Rowe a history not in particular of wearing a fracture boot, moon boot or CAM boot, but wearing gumboots and developing discomfort in both feet in 2011. On examination Dr Rowe noted the plaintiff had mild bilateral flat feet. The burning sensation was sited under the heal and ball of each foot. The doctor did not observe any clinical abnormality. Plantar fasciitis is often caused by calcaneal spurs and when it is triggered off by calcaneal spurs the symptoms are generally under the heel of each foot. However, no plain X ray has been carried out to ascertain whether the plaintiff has calcaneal spurs. On the question of aetiology Dr Rowe said this: "There is no evidence of any injury to the right or left foot. He has burning pain which is common in the general community and is generally of unknown cause. There may have been some burning when wearing gumboots but the gumboots did not cause the burning and this is confirmed by the fact that he still has the burning long after he ceased wearing gumboots." 1. It is to be noted that the plaintiff was examined by Dr Rowe on 28 September 2015 and the plaintiff had taken a voluntary redundancy on 19 January 2014, some 18 months previously. The problem for the plaintiff is compounded by further evidence. In September 2004 when he was outside coal mining industry in self-employment, he presented to Dr David Manohar at Wollongong with a burning sensation of the top of each of the buttocks that went into the hamstring muscles but did not extend beyond the knees. Dr Manohar provided a provisional diagnosis of enthesitis of the hamstrings. Whether that diagnosis was ever formally confirmed I do not know. However, the plaintiff, in 2012 came under the care of Dr Arthur Stanton, a vascular surgeon. The plaintiff was complaining of a hot feeling in the soles of each foot and according to a history obtained by Dr Stanton, on or about 14 July 2012 the symptoms had been present for two to three years, that is, they had been present prior to the fracture of the left lower fibula which led to the wearing of the fracture boot, moon boot or CAM boot. A large number of tests were performed, including blood tests, nerve conduction studies and bilateral lower limb arterial duplex studies. The only abnormalities found were in blood sugar level and there was some stenosis of arteries in the lower legs which provided blood supply to the feet. On the left side, there was between a 50% and a 75% stenosis of the proximal anterior tibial artery and a 50% stenosis of the mid anterior tibial artery. On the right side there's a 50% stenosis of the mid to distal superficial femoral artery and evidence of tibial disease present in the anterior tibial artery. Dr Stanton thought that the symptoms in the plaintiff's feet might be due to some local musculoskeletal condition, such as plantar fasciitis, or they could be related to the plaintiff's impaired glucose tolerance. There was some peripheral vascular disease present but Dr Stanton did not think that it was the cause of the plaintiff's symptoms because he still had very good dorsalis pedis pulses, that is the pulse could be well felt in the foot. 2. Such objective abnormalities as are present that might explain the symptoms in the plaintiff's feet could not be caused by anything that happened to him at work. There is no nexus between the plaintiff's distal left fibial fracture and the onset of symptoms. In the circumstances the plaintiff cannot persuade the Court on the balance of probabilities that in some way symptoms diagnosed as plantar fasciitis are related in any way to the type of work that the plaintiff did. Accordingly, the plaintiff's claims in respect of the loss of efficient use of each of his feet and any related treatment expenses must fail. Therefore that makes the sum proposed for redemption appear to be more adequate. 3. I turn then to consider the condition of the plaintiff's left leg at or above the knee, in particular pathology in the knee. The plaintiff has longstanding pathology in his knee. Before me is a letter that he wrote to the Department of Veterans Affairs. It commences with this history: "In 1971 I had a fall from the back of a truck at the school of artillery at North Head at Manly, landing on and severely damaging my left knee. Consequently, after first aid treatment, I was returned to my unit, first field regiment, Brisbane, and reported to the regimental medical officer (doctor) and he referred me to a Wickham Terrace specialist surgeon, Dr Livingston, who, after X rays and tests, had me admitted to the first military hospital, Euronga, Brisbane, for surgery. Dr Livingston explained in post operation consultation [that] he had to remove bone frags which turned out to take longer and had to make a bigger incision and that the damage was more than anticipated and explained there would quite possibly be complications in later life and this has proved to be correct as the symptoms would be stiffening of the joint and some pain varying as I age." I do not know when that letter was written to the Department of Veterans Affairs but I am aware that the Department of Veterans Affairs arranged for the plaintiff to be examined by Dr Silva, an orthopaedic surgeon at Wollongong, on 26 October 2013. Unfortunately I do not have the report of Dr Silva following upon that examination but I have a supplementary report from him which indicates what his findings were. 1. There is no dispute that the plaintiff suffered some injuries to his left knee when he was a coalminer. The plaintiff left the Australian Army in 1978 and joined the coal mining industry in this State. He left coalmining in New South Wales in 1983 and worked for about a year in a coal mine in Queensland. He then returned to New South Wales and worked as a coal miner here again between 1984 and 1988. He was then retrenched. He was self-employed outside the coal mining industry between 1988 and 2006. He rejoined the coal mining industry in New South Wales in 2006 until his redundancy on 19 January 2014. 2. The records of Coal Mines Insurance indicate that a claim was made in respect of the left knee on 28 March 1988. This was a no time loss injury. The princely sum of compensation paid was $170.60 which indicates to me the payment of some medical expenses. From this time there is a report of Dr Graham Mowbray, an orthopaedic surgeon, to what I now described as Coal Miners Insurance on 17 May 1988. The report says this "This patient was referred by Dr Sims and seen on 10 May 1988. In 1973 he had an operation on his left knee which he thought was removal of a loose body. The knee was good afterwards and a month ago at work he hit his left knee while he was lifting, on its lateral aspect, and a couple of days later he became stiff and then started to become stiff when he played golf. There has been no swelling and he said the knee feels a little insecure. There is a long, anterolateral scar and a palpable osteophyte over the medial femoral condyle. There was no localised tenderness and there was a capsular click on the lateral side. X rays show what could be a posterior medial loose body in the knee, but there are no symptoms suggestive of this. I think the most probable diagnosis is a capsular bruise from the direct blow and I think he should wait a few months as it is likely that symptoms will resolve." It is highly likely, from the records that I have then, that the plaintiff's symptoms did resolve without any further treatment. The extent of the scarring was clearly the result of the surgery practised in Brisbane by Dr Livingston. An osteophyte takes years to develop. The presence of the osteophyte indicates a degenerative process within the knee that preceded the event of 28 March 1988 by years, if not a decade. The injury of 28 March 1988 appears merely to have drawn attention to a previously injured knee, previously the subject of operation and a knee that had gone on to develop osteoarthritis. 1. The records of Coal Miners Insurance indicate that the plaintiff again strained his left knee on 19 December 2009. There is a claim record of Coal Miners Insurance for a claim in respect of injury on that date but liability was disputed. The injury of 19 December 2009 was caused when the plaintiff slipped on a wet rock whilst carrying some mesh to the coalface. According to the history obtained by Dr Rowe, that occurred when the plaintiff was carrying the mesh "overhead at the time" which means he may have been carrying it on his shoulder or on top of his head and supporting it with his arms. The plaintiff gave a history of feeling a tear on the medial side of the left knee. He was transported by ambulance to Wollongong Hospital where X-rays were said to exclude any fracture. He was treated with a knee brace which he wore for between four and six weeks. He then had physiotherapy for three months. He was under the care of Dr Mill at IOH. He then returned to light duties and eventually returned to normal duties. 2. There is no dispute that the plaintiff has some permanent loss of efficient use of his left leg at or above the knee as a consequence of the condition of his left knee. In his report of 2014, Dr Rowe says that the extent of that loss was 15% of the whole of the left leg. In a report of 28 September 2015 Dr Rowe said the loss was 10% purely as a result of the injury of December 2009, and then says half of the total was due to age and constitutional factors and the other being the result of the injury of December 2009. The doctor's view is not at all clear. However, it does seem to indicate that he was of the view that there was at that time a 10% loss of efficient use of the left leg at or above the knee, only half of which could be attributed to the coal mining injury. 3. Dr O'Keefe, when he first saw the plaintiff, diagnosed a 30% permanent loss of efficient use of the left leg at or above the knee. That was his assessment made on 30 January 2014. He made the same assessment following upon his examination of the plaintiff on 18 June 2015 following examination on 15 June 2015. He attributed all of that loss to the plaintiff's injury in the coal mine. However the history which he took is quite inconsistent with that assessment and throws grave doubt, in my view, on the doctor's opinion as to causation. 4. When the plaintiff was first examined by Dr O'Keefe on 28 January 2014 X-rays were available which showed mild degenerative spurring from the joint margins of the left knee. There was old ossification of the medial collateral ligament, which was 23 millimetres long and represented a previous medial collateral ligament tear and there was also radiological evidence of a loose body in the posterior aspect of the joint, which was 7 millimetres in diameter. The clinical diagnosis made by Dr O'Keefe at the time was that there was evidence of old left knee injury with torn medial ligaments and arthritis and a loose body within the knee. In a supplementary report of 12 August 2014 the doctor sets out this history. "I am somewhat perplexed as to why he omitted the history of the left knee injury whilst in the army in 1971, and apparently underwent some surgery on the knee by Dr Livingston to remove some loose bodies, and apparently was told afterwards by the surgeon that 'He had done a lot of damage to his knee'. He had three months intensive physiotherapy and rehabilitation and returned to normal duties. His knee started 'playing up again' after running a newsagency for 14 years, but he definitely sustained a medial ligament injury at work as a coal miner in 2009 2010 (as documented in my earlier report)..." He then comments on an assessment which had been made by a Dr Simone Ryan for the Department of Veterans Affairs. He then says this. "I have done a lot of these assessments and find that the rationale used somewhat difficult to understand. I gather that despite the injury to the knee in the army and its alleged severity, Dr Ryan has assessed him as having nil percent impairment for this injury (pre 1988) because it had not become static until 2010. She then states in pt B of the question that 'This nil percent impairment could be improved by a total knee replacement. It is generally accepted that a satisfactory total knee replacement represents a 10/20% permanent loss of efficient use of the lower limb, so in order to improve his overall impairment, his pre operation permanent loss of efficient use needs to be higher than this amount.' In question 4, she assesses him as having 10% whole person impairment using Table 9.2 and 9.5 for injuries that became permanent after 1 December 1988." Dr O'Keefe then adds his own comments, "It appears that the original diagnosis was of osteochronditis dissecans, a condition which causes loose bodies to form within the joint which can rock the knee and do major damage to particular surfaces. Damage to particular surfaces always leads to osteoarthritis in a weight bearing joint and the knee is a weight bearing joint." However, Dr O'Keefe validly points out that that is a totally separate condition to a medial collateral ligament tear. Dr O'Keefe appeared to believe the medial collateral ligament tear was caused by the work injury but the diagnosis of the medial collateral ligament tear was made on the basis of ossification of the medial collateral ligament which indicates that it occurred a long, long time prior to 2009. In other words, the original injury appears to have been a medial collateral ligament tear with the aggravation, acceleration, exacerbation or deterioration of osteochronditis dissecans. All told, Dr O'Keefe maintained the view that the plaintiff had a 30% loss of efficient use of his left leg at or above the knee although he then says that 20% of that loss was due to an ankle injury, that is to the left lower fibular fracture. 1. The only other piece of medical evidence before me about the plaintiff's left knee that is of some utility is a report of Dr Aziz Bhimani, an orthopaedic surgeon from Escarpment Orthopaedics, dated 25 August 2011. As far as Dr Bhimani was concerned, as the result of the original injury whilst serving in the army the plaintiff had an open lateral minisectomy. However it may be that there was a repair of the medial collateral ligament. Dr Bhimani has a history of intermittent symptoms since the time of the original injury. The summary proposed by Dr Bhimani was that the plaintiff was a 62 year old coalminer who had some mild degenerative changes in his knee with a pre-existing osteocondyle defect and a lateral meniscal tear. The doctor accepted that the lateral meniscal tear was due to the injury in the army and it would lead to degenerative changes within the knee and was causing significant arthritis of the joint which was becoming symptomatic and it could warrant total knee replacement. 2. The medical evidence concerning the state of the plaintiff's left knee is not particularly satisfactory. Everything however points to the plaintiff having sustained a major injury to his left knee when he was in the Australian Army, of having major surgery since that time, of a damage to either a meniscus or ligament, with the onset of osteoarthritis and the aggravation or the like of osteochronditis dissecans. The event at work appears to have been of limited moment, the plaintiff returned to work, doing normal duties of a coalminer, albeit with some persistent symptoms. But nevertheless, it has to be accepted that he did heavy work with the knee in a longstanding deranged state. Doing the best I can, it would appear to be likely the plaintiff has about a 25% permanent loss of efficient use of his left leg at or above the knee because of the state of his left knee but I could not assign anything more than one third of the current state of the plaintiff's knee to what happened to him when working as an underground coalminer and the rest of that appears to me to be related to the injury in the Australian Army. 3. The assessment made on behalf of the Department of Veterans Affairs, which is exhibit BB, is insupportable and a degenerative condition, once triggered off by an injury will gradually get worse with the passage of time. To suggest that it is not static at any one time is correct. It is not static because it will not get any better. In fact, it will only get worse. If the permanent loss of efficient use of the left leg is 25% now, in ten years' time it might be 30%. To use the argument used by Dr Simone Ryan, if a condition can only get worse it cannot improve and therefore should be seen at any particular time as being static because in due course it will only get worse, unless the worsening is arrested by surgery. If it is accepted that a total knee replacement ends up with a permanent loss of efficient use of a leg between 10 and 20% then the person who undergoes the total knee replacement is entitled to at least that sum of money, even before the surgery is practised. 4. Having said that, it appears that the plaintiff's claim in respect of the loss of efficient use of his left leg at or above the knee would not be decided in his favour to the extent claimed in the statement of claim. In all the circumstances, it appears to me that the sum proposed for redemption is reasonable. I approve the redemption. By consent I make orders in accordance with short minutes of order which I initial and leave with the papers.