District Court New South Wales Medium Neutral Citation: Jedniuk v Glennies Creek Coal Management Pty Limited [2016] NSWDC 228 Hearing dates: 27-29 July 2016 Date of orders: 29 July 2016 Decision date: 29 July 2016 Jurisdiction: Civil Before: Neilson DCJ Decision: Award for the plaintiff for $429 per week from 26 July 2014 to-date and continuing pursuant to s 11(1) of the Workers Compensation Act 1926 as preserved by Sch 6 Pt 18 of the Workers Compensation Act 1987. Defendant to pay the plaintiff's s 60 expenses including all those described in exhibit B. Award for the plaintiff for $7,938 for 10% permanent impairment of the back. Award for the defendant for permanent impairment of the neck, loss of efficient use of the left arm at or above the elbow, and loss of efficient use of the right arm at or above the elbow. Claim under s 67 dismissed. Defendant to pay the plaintiff's costs. Catchwords: WORKERS COMPENSATION – Coalminer – Ascertainment of nature of ongoing symptoms and their cause – Plaintiff working as a coal miner until coal mine closed – Whether an ongoing incapacity – Plaintiff now working as electrical contractor – Quantification of entitlement for partial incapacity – Whether entitled to have fees for undergoing remedial massage paid Legislation Cited: Workers Compensation Act 1926 Workers Compensation Act 1987 Category: Principal judgment Parties: Alex Jedniuk (Plaintiff) Glennies Creek Coal Management Pty Limited (Defendant) Representation: Counsel: Mr D Benson (Plaintiff) Mr T Rowles (Defendant) Solicitors: Slater & Gordon (Plaintiff) Hicksons (Defendant) File Number(s): RJ447/14 Publication restriction: No Judgment 1. HIS HONOUR: The plaintiff Mr Alexander Jedniuk claims weekly payments of workers compensation from the 26 July 2014 to date and continuing for either total incapacity, partial incapacity or partial incapacity to be treated as total. He also claims a lump sum compensation under s 66 of the Workers Compensation Act 1987 as it operates for coal miners for 22.5% impairment of his neck, 15% impairment of his back, 20% loss of efficient use of the right arm at or above the elbow and 25% loss of efficient use of the left arm at or above the elbow, together with a consequential lump sum for pain and suffering pursuant to s 67. However, learned counsel for the plaintiff does not press the claim for lump sum compensation for the loss of efficient use of the plaintiff's right arm at or above the elbow. The plaintiff relies on two frank injuries which occurred to him on 2 February 2008 and 15 February 2014. 2. The plaintiff was born on 18 February 1980. He is currently 36 years old. He is married and he and his wife have four children aged between 9 years and 3 months. Since his services were dispensed with by the defendant, the plaintiff has been operating his own business as an electrical contractor. His wife's only work has been to assist him in his electrical contracting business by performing clerical work. The plaintiff was educated at Irrawang High School and obtained a Higher School Certificate in 1997. In 1998 he commenced an apprenticeship as an electrician and completed that apprenticeship in 2002. He then obtained work with Waratah Engineering Proprietary Limited for 3 years as an electrician. 3. On 12 October 2005 he joined the mining industry as an employee of a company which provided contract labour to mines. That contractor was Walter Mining who placed the plaintiff at the Glennies Creek mine. On 6 April 2006 the plaintiff was able to take up work directly with the mine which was operated by the defendant until the defendant's mine closed in the middle of 2014. 4. The plaintiff was, using the terminology used in the coal mining industry, "a weekend warrior". He worked weekend shifts. Initially they were on Fridays, Saturdays and Sundays and they were night shifts commencing at 10pm and finishing at 10.15am on the following morning. Two years afterwards, the shifts were changed and commenced at 7.45pm and finished at 8.15am. There is no dispute that the plaintiff's work as an electrician, working, in essence, both in his trade and as a multiskilled mine worker, involved very heavy work, including heavy lifting and working above shoulder height with his hands and arms, lifting, for example, cables into place on the roof or ribs of coalmines. 5. The injury of 2 February 2008 occurred when the plaintiff was plugging 3.3 kilovolt cables into a DCB, in effect a large power board near the long wall of the Glennies Creek mine, or one of the long walls of the mine. According to exhibit D, this is the description of the incident: "Plugging in the 3.3kV cables to DCB…very tight and low due to DCB on rib, coal build up on floor [,] strained neck trying to plug in cables." The plaintiff drew a diagram, which became exhibit A, showing where the DCB was, referrable to the rib, that is the wall of the mine, and where he was standing with an X, trying to plug in cables, which are shown entering smaller X's marked on the box meant to identify the DCB. An elevation of the DCB is also contained on that sketch plan and shows six sockets into which cables could be plugged. By analogy to what most Australians experience, the plug and the cable might be thought to be something like the cable of a vacuum cleaner and plug, the vacuum cleaner that needed to be plugged into a power board, but of course the plug in question is very much larger and very much heavier. The plugs weigh about 25 kilograms themselves. The cables to which they are attached are very large and very heavy. 6. It is clear that the plaintiff was working in a confined space between the cable he was trying to insert into the DCB and the rib of the mine when the physical problem occurred, which is described in exhibit D as a strain of his neck. However, the plaintiff indicated to me a problem over the medial border, that is the spinal border, of the left scapula. Indeed the plaintiff has been consistent in situating the major site of his symptoms since that time on the medial aspect of his left scapula, that is on the side closest to the spine. There is no dispute about the occurrence of the event. It happened at 2am and is thought to have happened on a Saturday night. The plaintiff is right handed. 7. He told me that some 24 hours after the event he developed a headache and a sore neck. There is no dispute that the injury was reported. The plaintiff, in his claim for compensation exhibit D, made on 27 April 2008 said that he reported it to the deputy, Mr Trent Frazer, and it is Mr Frazer, the deputy, who completed the employer's report of injury form, which is exhibit E. The plaintiff told me that he went to Physio At Work in Newcastle. Exhibit E tells me something slightly different. It tells me that the plaintiff had physiotherapy at the mine, provided by the on site physiotherapist. However, it appears to be likely that shortly after that treatment at the mine itself the plaintiff went to "Physio At Work" in Newcastle. The plaintiff thought the place may have been in Watt Street, but exhibit V indicates that it was at 8 Bolton Street. The plaintiff had, according to exhibit V, 20 to 25 visits to that physiotherapy practice, however, other evidence suggests that it was up to 30 visits to that practice. The physiotherapy outside the mine occurred within a week or two of the event of 2 February 2008. The plaintiff had increased pain whenever he was required to work with his arms above head height and also when he was lifting heavy weights. 8. The plaintiff did attend upon his general practitioner, Dr Raschke, on 26 May 2008. Her notes are these: "Hurt himself at work. Was working in confined space, knee deep in mud, trying to connect 3.3 kv cable; these weigh 50 60 kg, had to use force to push it in; had to strain and hurt his neck. Has been having work funded physiotherapy since and it seems to not be getting better. Physiotherapy wanted him to get an X-ray." The plaintiff was sent for the radiological investigation requested. A plain X-ray of the cervical spine was performed on 10 June 2008 at Dr Raschke's request. In essence, that shows a perfectly normal cervical spine. The report of that radiological investigation is exhibit H. It is important, however, to note that the records of Dr Raschke's practice clearly indicate that the plaintiff's attendances upon the physiotherapist in 2008 were being paid for by the defendant. I should indicate that the records of Dr Raschke indicate that on 27 February 2008, that is after the injury of 2 February 2008, Dr Raschke wrote a letter concerning "Workcover". That letter I have been unable to find in her notes. However, it appears to have referred to her earlier attendances upon the plaintiff for a crush injury to his little finger. Although the doctor issued a final certificate on 21 November 2007, it appears likely that the letter written on 27 February 2008 referred to the earlier claim and not to the event of 2 February 2008. 1. Despite the physiotherapy which he was undergoing and the attendance upon Dr Raschke and the radiological investigation, the plaintiff continued to carry out his work with his intermittent attendances upon the physiotherapist. 2. On 28 November 2008, the plaintiff found it necessary to go back to see Dr Raschke. The plaintiff and his family members had been involved in an accident in a shopping centre. The plaintiff and his wife and children were on a moving walkway that was going downhill when a group of trolleys that had not been adequately strapped together by the trolley handler ran away from the trolley handler and struck the plaintiff and his wife and children. In addition to the plaintiff's being struck by an errant shopping trolley, he was also struck by the trolley handler who was trying to stop the runaway trolleys. Again, the plaintiff noted some soreness in his left shoulder and scapular region. The diagnosis provided at that time by Dr Raschke was of a soft tissue injury. She referred the plaintiff to Ms Linda Watts, a physiotherapist at Medowie, to undergo physiotherapy. The plaintiff told me that he had three treatments by Ms Watts and that removed the increased pain that he had been suffering since the trolley accident. 3. The plaintiff worked throughout 2008 and into 2009. On 4 April 2009, a worker was killed at the Glennies Creek Mine. That unfortunate occurrence was witnessed by the plaintiff. The plaintiff went off work as did every other worker in the mine. It was shutdown for a while. The plaintiff was treated for some 15 months by a psychiatrist for what appears to have been diagnosed as a post-traumatic stress disorder at the time. 4. When the plaintiff returned to work after that 15 months, he returned to doing heavy work. The plaintiff told me that the work activities would cause a flare up of his pain from time to time, particularly when he was doing heavy work overhead. According to exhibit T, the plaintiff needed to take some further time off work again in mid-November 2012 as he had been required to attend the inquest into the death of the deceased co-worker and he found that very stressful and he needed to take some time off work. For that, he consulted Dr Raschke on 14 November 2012. 5. The plaintiff did not attend upon Dr Raschke again until 7 May 2014. It appears that in June 2012, the plaintiff may have started seeing an alternative practitioner, Dr Peter Rallings at a clinic known as, "Health in Abundance," which was also in Medowie. In June 2010, the plaintiff commenced seeing Ms Joanne Johnson, a masseuse, at the Healing Spirit Massage Therapy Centre in Medowie. The plaintiff attended upon Ms Johnson on 8 June 2010, complaining about his left shoulder. He then underwent a full body, heavy therapeutic massage together with neck stretching and remedial treatment to the left rotator cuff group of muscles. It has been agreed by the parties that between 8 June 2010 and 17 February 2014, the plaintiff attended upon Ms Johnson on 27 occasions to have remedial massage. 6. A number of the attendances during that period are described in exhibit W, which are records from Ms Johnson's practice. I do know that the plaintiff attended upon her on three occasions in 2010 and six occasions in 2012 and five occasions in 2013, but the remaining occasions were clearly at other times which have not been recorded. 7. I turn now to the event of 15 February 2014. On that day the plaintiff was attempting to fit a vent tube onto either the roof or rib of a mine tunnel. The event is described thus in the claim form, exhibit F: "Fitting vent tube. Lifting above head. Tube dropped, stuck. The tube got stuck on rib bolt and was difficult to engage. Ground slipped away and felt sharp pain in shoulder/arm/chest." The shoulder in question was the right shoulder. In the claim form which was signed on 24 February 2014, the plaintiff described the nature of the injury as a muscle strain. The employer provided a report of injury form, also dated 24 February 2012 and there is no dispute about the occurrence of this event. 8. The plaintiff continued with his work but on Tuesday 25 February 2014 consulted with Dr Rallings. Dr Rallings, in his notes, exhibit F, recorded a consistent history of that event. He observed on examination a full range of movement of the right shoulder, although there was mild soreness in abduction and flexion above 135 degrees. Job's test was negative. He found no swelling or deformity. He prescribed an ultrasound of the right shoulder and provided the plaintiff with a certificate to perform restricted work between 25 February 2014 and 4 March 2014 for 12 and a half hours a day for three days per week. That indicates, in essence, the plaintiff's normal shift pattern, but restricted the work that he could do. 9. The plaintiff took that certificate to work. He was told that if he wanted to perform light work or restricted work he would have to move from weekend shifts to mid-week shifts and that was not at all convenient for the plaintiff. I suspect that there would have been a financial penalty involved, but even if there were not, it is clear that the midweek shifts required working four days per week and the plaintiff needed to travel one and a half hours to work each afternoon and one and a half hours travel home each morning whilst doing the weekend night shifts, and one can understand that an extra three hours travel per week would make life more inconvenient for the plaintiff. 10. On Friday, 28 February 2014 the plaintiff went to see Dr Rallings again in the midafternoon. It must have been on this occasion that the plaintiff was told about the need to perform alternative or selected duties midweek rather than on weekends. The history recorded by Dr Rallings on 28 February is this: "Wishes to go back to full duties - states no pain now. Also asked for certificate from 25 February 14 to be reviewed and restricted duties removed. Declined this request. Explained would not be appropriate based on symptoms and examination findings present when initially examined. Has ultrasound booked for 18 March 14. Examination: on examination full range of movement at right shoulder, can lift box above head without discomfort." The doctor then gave the plaintiff a certificate to perform his normal duties with effect from 28 February 2014. It would appear that the plaintiff's recovery on 28 February 2014 was engineered by the industrial issue rather than any medical improvement. 1. The ultrasound of the right shoulder was performed on 19 March. The finding made was of subacromial bursitis with evidence of impingement with abduction. That was followed by an ultrasound guided right subacromial bursal injection carried out by a radiologist. According to the report of that procedure the patient tolerated the procedure well. 2. In probably late April 2014 there was a meeting at the Glennies Creek mine between management and the workforce. Management indicated that the joint venture which was conducting the mine had concerns about the viability of the mine and that there might well be changes about to occur. It is clear that the plaintiff took that to indicate that the mine might close. No doubt the rumour mill worked more efficiently than official notification. On 1 May 2014 the plaintiff obtained an Australian business number. The only reason for doing that was an intention or plan or provision for opening his own business. If he were to be laid off by the mine, then he had options of seeking to find other employment in the coalmining industry, seeking other employment as an electrician in industry or commerce generally or conducting his own business as an electrical contractor. 3. About a fortnight after that meeting the workforce at the Glennies Creek mine was stood down on pay. The mine, I am assured, closed and the staff were made redundant with effect on 27 June 2014. That is one of a number of dates provided in the evidence. The plaintiff was paid up until that time, at least, and I am told that he obtained a redundancy payment on 25 July 2014. The date of the redundancy payment seems to be reflected in the date of the commencement of the claim for weekly payments of compensation in the statement of claim and perhaps the redundancy payment contained pay for one month in lieu of notice. 4. On 7 May 2014, the plaintiff returned to see Dr Raschke. I do not know whether this was before or after the standing down of the Glennies Creek Mine workforce. The plaintiff told Dr Raschke of continuing problems since 2008 and her notes continue thus: "never really went away but was manageable for a long time. Fed up. Able to do usual duties. Wants to know why it hurts all the time. Uses heat packs, and Panadol Osteo." The doctor's notes then turn to the plaintiff's second problems which were described by the plaintiff as being in his right shoulder for which he had been seeing Dr Rallings. The doctor's notes then say this: "Had an ultrasound and was found to have bursitis. Accepted liability. Had a steroid injection. Having massage. Sees Joanne Johnson. Usual duties okay. Pain not too bad but noticeable. Needs ongoing massage and would like to try physiotherapy. Takes Panadol Osteo. Linda Watts." Reflecting on the entries made on 7 May 2014, they suggest that at that time, the plaintiff was still performing the normal work of a underground coal miner. The reference to Ms Linda Watts is clearly reference to a physiotherapist to whom Dr Raschke was referring the plaintiff. On 7 May, Dr Raschke gave the plaintiff a certificate. It is in exhibit U. That certifies the plaintiff as being fit for his pre injury duties but indicated the plaintiff needed radiological investigations and needed to take Panadol Osteo and apply heat packs. On 26 May 2014, an MRI of the cervical spine was performed. That showed very mild degenerative changes present in the discs with a slight loss of disc height at C6-7 and C7-T1. Other investigation should be compared with the plain X-ray of the cervical spine performed on 10 June 2008. There was clearly the onset of early degenerative disc disease in the cervical spine. Of course, that could be merely due to age. The spine naturally starts to degenerate when it reaches full maturity. In 2014, at the time of the performance of this MRI scan, the plaintiff was 34 years old and one might expect a man of that age to commence to suffer cervical degenerative disc disease. Incidentally, that MRI scan showed, "more than expected degenerative change with a small disc osteophyte complex at T2-3." In other words, insofar as the MRI scanned the top of the thoracic spine, there was thought to be greater degenerative change in the thoracic spine than one would expect for a man of the plaintiff's age. 1. The plaintiff went back to see Dr Raschke on 29 May 2014. This in essence was to discuss the results of the investigation that had just been performed. A further certificate was given on 29 May 2014. Again, it certified the plaintiff was fit for his pre injury duties. On this occasion, it said the plaintiff required referral to Dr Anthony Schwarzer, a rheumatologist, and he also required massage therapy from Ms Johnson. The plaintiff went back to see Dr Raschke on 3 June 2014. The complaints recorded at that time were that the plaintiff's pain woke up him up every night and that he was not obtaining any relief. A range of medications were considered and appropriate scripts printed. A further certificate was given certifying the plaintiff as having a capacity for some type of work, but not his full, pre injury work. The details of Management Provided, say this: "Massage therapy; had steroidal injection; needs physiotherapy; refer to Linda Watts, physiotherapist; massage therapy has been proceeding; has plateaued in his progress; so refer to physiotherapy as well; had steroid injection; please have physiotherapy and massage therapy; Panadeine Forte; Voltaren." The certificate merely reiterates the prescription of pain relief, but also, on this occasion, restricts the type of work the plaintiff could do. The restriction made was that there was to be no lifting heavy weights above his head, and he was not permitted to lift more than 15 kilograms. 1. On 18 June 2014, the plaintiff underwent a computerised tomographic arthrogram of his left shoulder, as well as an MRI of that joint. That is reported as revealing no evidence of tendinopathy or tendon tear, and no evidence of any labral tear. I have read the body of both reports and they essentially reveal no abnormality. In addition to referring the plaintiff to Dr Schwarzer, the plaintiff was referred by Dr Raschke to Dr Daniel Posel, an orthopaedic surgeon. 2. Dr Posel saw the plaintiff on 26 June 2014. The first paragraph of Dr Posel's report is this: "I reviewed Alex today with his reported ongoing left medial border of scapular discomfort, evidently incurred following an injury at work almost six and a half years ago, on 2 February 2008. There is no apparent physical problem with the left shoulder to account for such." The third paragraph is this: "Alex worked as an underground coal miner (electrician) for a period of nine years and enjoyed his job. He finished up at work six weeks ago with closure of the mine. Alex has recently started his own business a commercial/domestic electrician. Alex did achieve his deputy's ticket whilst an underground coal miner." Each part of that piece of history is correct. Dr Posel's findings on examination bear careful analysis because they need to be juxtaposed with the findings of another medical practitioner to whose report I shall, in due course, turn. Dr Posel's findings are these: "Examination of his neck reveals good movements and no specific site of discomfort, however with full neck flexion, lateral rotation of the neck to the left and lateral flexion of his neck to the right, Alex reported the discomfort over the medial border of the left scapula was aggravated. Left shoulder function appears fine in that the left shoulder has a full range of motion. There is not suggestion of any glenohumeral joint nor rotator cuff pathology. The AC joint is non-tender. There is also no evidence of bicipital tendinopathy. With active abduction of both arms, it does appear that the scapulothoracic control on the left is less smooth than on the right. There is no obvious myotomial nor dermatomal loss of function of the left upper limb." Dr Posel formed this impression: "The cause of Alex's left medial border of scapular discomfort appears neurological in origin in that various movements of his neck tend to aggravate such. There is no mechanical problem with the left shoulder itself." Dr Posel proposed a further neurological investigation. His report concludes thus: "I did explain to Alex that as he has had his problem now for more than six years, there is unlikely to be a 'quick fix'. In the interim, Alex is fit to continue on all of his usual duties, as a self-employed electrician and, theoretically, had he continued working as an underground coalminer, he could continue such on his usual duties." 1. The CT scan report requested by Dr Posel was made by Dr Colin Walker on 3 July 2014. The report says this: "At C5/6 the disc, canal and exit foramina are intact. At C6/7 there is minimal central disc protrusion. Canal and exit foramina are satisfactory. In the thoracic region minor anterior spurring is noted at the disc edges from T2 to T6. No posterior disc protrusion, fracture, lytic lesion or foraminal narrowing is identified. At T6 there is mild costovertebral degenerative change with anterior spurring on the right. There is no identified lesion between the scapula and the ribcage." I am not aware of the plaintiff's having gone back to see Dr Posel. However, the radiological report which I have just quoted indicates no problem other than degenerative disc disease in the lower cervical spine, but an unusual problem in the thoracic spine. 1. The plaintiff first saw Dr Anthony Schwarzer on 11 August 2014. Dr Schwarzer's findings on examination are these: "On presentation Alex was a personable, tall, overweight man with a straight spine. There was bilateral T8 and left T7 tenderness. There was no spinous process tenderness. He demonstrated normal ranges of back and neck movements, although there was slight discomfort in the left interscapular area with rotation of his neck to the right. There was no chest wall tenderness. There was no cervical tenderness. Peripheral joint examination was normal. Neurological examination was normal." Dr Schwarzer then expressed this opinion: "Alex's major problem is bilateral interscapular pain which can, on occasions, refer to the neck. The major area of pain seems to be in the T7-8 region. The CT scan of the cervical and upper thoracic spine did not extend to the area of interest and I have therefore organised for him to undergo an MRI scan of the thoracic spine. However, this is often done more for reassurance than as an important diagnostic tool. There may be some subtle abnormalities but if he has plain mechanical pain then the MRI scan is non diagnostic. It may help if there is significant disc protrusion in the area of interest. Given the neuropathic elements of his pain I took the liberty of starting him on Lyrica 25mg nocte. The dose can be gradually increased depending upon side effects and efficacy. Given the fact that he is working I would prefer that he just takes the dose at night. I've also taken the liberty of referring him to Damien Cummings who is a specialist spinal physiotherapist...I explained to Alex that possible sources of pain include the intervertebral discs and the zygapophyseal joints and that we can perform diagnostic injections under x-ray control. I have organised for him to return for the appropriate diagnostic blocks..." 1. The MRI of the mid thoracic spine sought by Dr Schwarzer was performed by Dr Ken Thong on 18 August 2014 and the report made by Dr Thong bears date 19 August 2014. It is reported as showing no abnormality. Nevertheless, the plaintiff continued to see Dr Schwarzer and continues to see Dr Schwarzer. Dr Schwarzer commenced the zygapopyseal joint blocks and one is proposed in the near future. A number of the injections or blocks have caused an amelioration in the plaintiff's pain level in that one of them or perhaps two of them have caused an amelioration of pain for periods of up to 6 months. There are a large number of subsequent reports before me from Dr Schwarzer, the last being dated 3 September 2015. The plaintiff told me in his evidence that he recently saw Dr Schwarzer on 15 July 2016 and that a further procedure has been booked. The fact that Dr Schwarzer's blocks ameliorate the plaintiff's pain, in particular the pain around the medial border of his left scapular, indicates that the areas being blocked are those generating pain. The areas being blocked are the small joints of the thoracic spine. It appears to be accepted by Dr Schwarzer that that is the cause of the plaintiff's problems. 2. Indeed, Dr Millions, the surgeon qualified by the defendant, accepts that the plaintiff's discomfort is caused by problems in the thoracic spine and he relates them to the event of the 2 February 2000. Dr Millons examined the plaintiff on two occasions, on 18 June 2014 and more recently on 20 May 2015. I think it fair to say on the first occasion Dr Millons saw the plaintiff he was sceptical about the plaintiff's symptoms and their relationship to the alleged injuries at work. Indeed, following upon Millons' examination the defendant's insurer wrote to the plaintiff on 7 July 2014 denying liability for the plaintiff's workers compensation claim based on the opinion of Dr Millons' that the plaintiff's then condition was not related to his employment. 3. Some things about Dr Millons' examination on 18 June 2014 should be noted. The doctor noted tenderness down the vertebral border of the left scapula, the area demonstrated to me by the plaintiff as the source of his problems since February 2008 and consistently reported to all the medical practitioners. The plaintiff did complain of some tenderness with movements of his cervical spine and of movement of his upper thoracic region and over the upper vertebral angles of each scapula but more on the left than on the right. Nevertheless the plaintiff exhibited a full range of movement of the neck albeit with a complaint of pain at the extremes of the ranges. There was no wasting of the shoulder girdle or of either upper limb. At that time the MRI scan of the left shoulder had not been performed but Dr Millons was aware of the diagnosis of bursitis in the right shoulder but he did not think that there was any continuing evidence of such a condition. As to fitness for work Dr Millons said this: "I believe that Mr Jedniuk is quite fit to return to work and believe that he would be fit to return to the work he was doing at Glennies Creek were the position still available." 4. When Dr Millons saw the plaintiff again on 20 May 2015 he had available to him the radiological investigations that are currently available to me and, clearly, reports from Dr Schwarzer. On that occasion when the doctor examined the plaintiff's neck there was no localised tenderness in the cervical spine. There was the usual tenderness down the vertebral border of the left scapula. There was no wasting around the shoulder girdle nor any wasting of either upper limb. There was no particular tenderness found in the right shoulder. The doctor conducted examinations of both the movements of the left and the right shoulders and found some crepitus in the right shoulder and some crepitus but no pain in the left shoulder. I shall shortly discuss the doctor's findings as to the range of movements. Dr Millons found a good range of movement through the thoracolumber spine with flexion bringing his fingertips to the lower shin. Extension, lateral flexion and rotation were all within a good range. 5. Dr Millons' opinion contains a number of paragraphs, all of which need to be individually commented upon. The first was that Dr Millons pointed out that the plaintiff has had problems with his left scapula region going back to 2008. He thought the problems appear to be down the medial border of the scapula. Those observations are correct. He went on to say that in February 2014 the plaintiff strained the muscles around his right shoulder but things appeared to have settled down and the right shoulder seemed normal to examination. That is also correct. The plaintiff told me that he recovered from the right shoulder strain, and as I said toward the beginning of these reasons, learned counsel for the plaintiff did not press any claim for the loss of use of the right arm at or above the elbow. Dr Millons went on to point out that there was a full range of movements through the left shoulder. He then went on to say this: "The discomfort down the medial border of the scapula was felt to be coming from the facet joints in the thoracic region and Dr Schwarzer addressed his endeavours at those areas with radio frequency treatments, first at T4/5, then six months later at T5/6/7. There has been a considerable downturn in symptoms since that time but it is felt that he will need further radio frequency treatment at T4/5. Such treatments will often give 8-9 months relief from symptoms, as seems to have been the case with him. Apart from that treatment I doubt whether anything else is likely to materially alter the situation. A low level of ongoing symptoms in the upper thoracic region, particularly towards the left would appear likely. He is working as a self-employed electrical contractor and appears to be working full time and coping well with that work." Dr Millons went on to say that he thought the effects of the injury of 15 February 2014, which were only soft tissue injuries, had resolved. However, he appears to accept that there were ongoing problems caused by the injury of 2008; injuries to the facet joints of the thoracic spine. When asked to provide a prognosis, Dr Millons said this: "I would have thought the prognosis was reasonable. Continuing symptoms would appear likely although they should not greatly interfere with his capacity to work." The use of the adverb "greatly" by Dr Millons in essence implies that there could be some interference with his capacity to work. When asked whether the plaintiff was fit for his pre injury work, Dr Millons said this: "I do. He, of course, lost his job at Glennies Creek when the pit was closed. I would see no reason to put any particular restriction on him. He can set his own limits to the level of whatever discomfort that may occur." The concession in the last sentence must be thoughtfully considered. The plaintiff could limit himself to cope with his symptoms. The problem is not the plaintiff's ability to limit himself, but whether any employer would permit him to limit himself. In a supplementary opinion, Dr Millons went on to say this about the impairment of the back: "Permanent impairment of the thoracic region where there has been shown to be some problems, would be of the order of 10% and that would seem to relate to the incidents in February 2008 and February 2014." I should just point out that the attribution of the 10% impairment to the events of February 2008 and February 2014 is inappropriate considering that in the earlier, main report, the doctor thought the plaintiff's ongoing problems in the thoracic spine were referrable to the injury of February 2008. He did not think that there was any deductable proportion because there is no evidence of any problem prior to February 2008. In that regard, the doctor is quite correct. 1. There is only one medical opinion that I have not canvassed and that is that the one relied upon by the plaintiff, Professor YAE Ghabrial. On examination, Dr Ghabrial said that there was moderate tenderness between T1 and T3. No one has referred to the plaintiff's level of tenderness as moderate Dr Ghabrial. Furthermore, the areas affected appear to be lower than those identified by Dr Ghabrial. As far as the neck was concerned, Dr Ghabrial found mild muscle guarding. That was not found by any of Dr Posel, Dr Schwarzer or Dr Millons. Dr Ghabrial found moderate tenderness on the left side of the neck between C1, the atlas, and T3, in the thoracic spine. That is, he found moderate tenderness on the left side of the whole of the neck. No one else has found that. 2. The doctor sets out his findings about the range of movements of both the left and the right shoulders. I believe that that range of movements ought be compared with the range of movements found by Dr Millons on the 20 May 2015. It needs to be borne in mind that Dr Ghabrial examined the plaintiff on 13 March 2015 so that there was a gap of some four months between the two medical examinations. I tabulate the findings thus: Left arm Movement Dr Ghabrial Dr Millons Abduction 110 degrees 170 degrees Abduction 30 degrees Normal Flexion 120 degrees 170 degrees Extension 30 degrees Normal Internal rotation 70 degrees 80 degrees External rotation 40 degrees 60 degrees Right Arm Movement Dr Ghabrial Dr Millons Abduction 160 degrees 170 degrees Abduction 30 degrees Normal Flexion 90 degrees 170 degrees Extension 40 degrees Normal Internal rotation 70 degrees 80 degrees External rotation 30 degrees 60 degrees Of course, it would be more useful if Dr Millons had told me what the normal ranges of adduction and extension were. However, the discrepancy between the findings is marked. Dr Millons believed that the plaintiff had, in essence, a full range of normal movement of both of his shoulders. That is the opinion also of Dr Posel and that also appears to me, to be the opinion of Dr Schwarzer. 1. Dr Ghabrial went on to diagnose "severe soft tissue injuries" but without telling me exactly what they might be. He said the shoulder problems included subacromial and subdeltoid bursitis but there was only a diagnosis of subacromial bursitis in the right shoulder provided earlier and no suggestion of subacromial bursitis of the left shoulder or subdeltoid bursitis in either shoulder. The doctor says that as far as the neck and upper back were concerned there was minor degenerative change at C6-C7 and C7-T1 as well as at T2-3. Those observations are correct about the degenerative changes in the thoracic spine but those in and in the cervical spine are likely to be within normal range for a man of the plaintiff's age. However the problems in the thoracic spine are much more significant and extensive than described by Dr Ghabrial. 2. The doctor went on to say this: "He remains unfit for activities involving excessive use of the upper limbs or any use of the upper limbs above the shoulder level, as well as activities involving any lifting over 10 kilograms." An activity involving excessive use of the upper limbs includes process work seated in a factory working at a bench. There is no suggestion the plaintiff could not do such work. The plaintiff himself was doing, in essence, the normal work of an electrician/multi skilled mine worker underground until he was laid off prior to retrenchment. The formulation of Dr Ghabrial is so bizarre as to be outrageous. I am afraid I cannot accept anything that falls from Dr Ghabrial in the current matter. It is quite inconsistent with the weight of medical evidence. 3. I accept on the concession made by Dr Millons that the plaintiff has 10% impairment caused by the injury of 2 February 2008, an injury to the facet joints of his thoracic spine. Whilst Dr Millons says the 10% impairment is of the thoracic region, I am prepared to find 10% impairment of the back, even though the back includes both the thoracic and lumbar areas. Learned counsel for the plaintiff urges upon me a finding of a 20% permanent loss of efficient use of the left arm at or above the elbow. However, there is no pathology in the plaintiff's left shoulder, nor is there any pathology anywhere else in the left upper limb, nor is there anything to suggest a loss of the use of the left arm. Nor is suggested that there is any problem using the left arm itself other than it may generate pain on the medial border of the plaintiff's left scapula and the region where there is impairment of his back. If the blocks work then the plaintiff can still use the left arm. I am not persuaded on the balance of probabilities there is any loss of efficient use of plaintiff's left arm as a result of the injury of 2 February 2008 or as a result of the injury of 15 February 2014. The latter is not suggested on the evidence. 4. One of the disputes between the parties is for payment of the plaintiff's expenses under s 60. A schedule of those payments claimed by the plaintiff is Exhibit B which is headed, "Schedule of out of pocket expenses". The schedule claims the costs for consulting Dr Raschke, obtaining medication from his local pharmacy, attending Dr Schwarzer, undergoing physiotherapy and undergoing remedial massage by Ms Johnson. Initially I was concerned about the need for the remedial massage by Ms Johnson, but that was clearly certified as being necessary by Dr Raschke. The date the last certificate from Dr Raschke before me is 1 September 2015 and in it she referred to the need to have ongoing physiotherapy from Linda Watts, massage therapy, as well as the treatment by Dr Schwarzer and continued pain relief. In the same certificate Dr Raschke certified the plaintiff as being fit for some type of restricted work from 31 August 2015 with no lifting heavy weights above head height and restricting lifting to less than 20 kilograms. 5. The real issue in the current case is, in my view, the question of incapacity. The plaintiff, it is conceded, was performing what was required of him underground until he was stood down prior to the retrenchment. He first looked for work in the industry which was laying him off, the coal mining industry, and could not find any openings. He rapidly decided to try his hand at being a self employed electrical contractor. Initially he was in partnership with his wife, more recently a company has been incorporated to carry on the business, and which presumably employs him. The defendant points to the glaring fact that the plaintiff worked underground as a coal miner until stood down, and then sought work as a coal miner. But when he could not rapidly obtain such work, he turned his attention to starting and developing his own business. Those contentions are correct. The defendant also points to the fact that Dr Posel thought that, theoretically, the plaintiff could continue to do his pre injury work as an underground coal miner, and Dr Millons, in his first report he clearly said so. But on a close reading of his second report clearly put a caveat or two in the way of that proposition. There is no evidence from Dr Schwarzer about incapacity for work, and the evidence of Dr Ghabrial, I cannot accept. 6. However, it appears that Dr Raschke supports the plaintiff's case, that he is only fit for some form of restricted work as an electrician or underground coal miner. Two things to me stand out: firstly, the plaintiff gave unembellished, unadorned evidence, and I accept that he attempted to tell me the truth. I accept he was a witness of truth. Significantly, towards the end of examination-in-chief, he was asked whether he would be able to go back and fully discharge all the duties that he had previously done as an underground, multi-skilled miner/electrician. He denied that he could. However, he brought up only one area of work that he found that he could not do, and he said that that was lifting heavy objects above his head in order to work on them or with them. He was not challenged about that. He demonstrated lifting both of his arms to the full extent upright, indicating no problem with shoulder movement, but one can accept that with the problem in his thoracic spine, that reaching upward and carrying heavy objects might be beyond him. In the normal work of a coal miner, he may be able to have avoided that or to have obtained assistance from his workmates in doing it. However, I can equally accept that with the problem that persisted from 2008 into the middle of 2014, a progressive degenerative problem triggered off by the work injury, that the plaintiff's condition would gradually deteriorate with the passage of the time. 7. The second thing which assists me in my view, is the attendance by the plaintiff upon Dr Raschke, on 7 May 2014, clearly before he was stood down, in which he was able to do his usual duties, but was "fed up" and wanted to know why the problem that he had along the medial border of his left scapula hurt all the time. That is, he wanted something done at that time, even though he was still doing his normal work, i.e. his inability to persist is consistent with that evidence. I am prepared to accept that the plaintiff has a partial incapacity for the full work of a coal miner underground. 8. The issue then becomes how can that be quantified. There is one common thing, that is that the plaintiff's probable weekly earnings, but for injury, have been at all material times, $2,979.56 per week. The plaintiff's solicitors filed a wages schedule stating that, and the defendant's solicitors file a wage schedule stating exactly the same thing. There is no dispute. The plaintiff is working full-time as a contract electrician, or as close to full time as one can estimate. The defendant has provided the Court with two reports from Furzer Crestani Forensic, commenting upon the economic information provided by the plaintiff in obedience to subpoenas or other requests. In the first report, which bears date 8 December 2015, there is set out on p 9 the average weekly hours charged by the plaintiff for each of the months between June 2014 and June 2015. By January 2015, the plaintiff had increased his chargeable hours to 36.05. By March of 2015, he was charging 39.17 hours per week. The figures for the following 3 months are 48.54 hours per week, 55.09 hours a week, and 52.89 hours per week. The plaintiff pointed out that there was a major wind storm, a quasicyclonic disturbance, in the Hunter Valley, in April 2015, which led to much work for an electrician. I accept that. In answer to subsequent questions, the plaintiff said that since then he has been able to spend 40 hours a week working as an electrician. In essence, he is working full time in his trade. No one has bothered to put before me the award rates for an electrician or the average rates payable to employed electricians in various industries, in this State at any relevant time. Such statistics usually can be supplied. They would be a good guide as to value of the plaintiff's work. 9. The defendant's argument is based on the plaintiff's gross income from his business in the financial year ending with 30 June 2015 less the gross outgoings for materials and goods supplied, ignoring all other necessary expenditure of the business such as insurance, depreciation of capital and the like. According to Mr Rowles, learned counsel for the defendant, that gives a net taxable profit representing the value of the sale by the plaintiff of his labour and skills at $2,699.36 per week. The difference between that figure and the comparables is $280.20. . 10. The plaintiff has submitted that I should value the plaintiff's labour in this fashion. His gross charge out rate is $65.00 per hour. Reduce that by one third for overheads, which takes one to approximately $43.00 per hour. Multiply that by the average hours worked which appear to be in the region of 40 which gives one a figure of $1,740.00 per week, which would indicate a loss of $1,239.56. However, in essence that would indicate that the plaintiff's ability to earn had been reduced by 40% which, in light of the extent of the incapacity, is in my view excessive. 11. In my resort to the Furzer Crestani tables I note that as at October 2015 the total earnings for adults in the electricity, gas, water and waste services category were $1,831.70. Of course a lot more than tradesmen are included in that category. Doing the bes, I can and bearing in mind all the evidence, it appears to me that the proper finding is that the plaintiff is capable of earning in some suitable employment or business is $2,550.00 per week. The difference is $429.00. I shall ignore the cents. 12. I have a discretion under s 11(1) of the Workers Compensation Act 1926 as is its operation is preserved for coal miners to discount the residue to ensure that the extent of the award of weekly payments for incapacity is referable to the circumstances of the case as a whole. In the present circumstances I am not persuaded that I need to apply the discretion any further. I have taken that into account in reaching my finding as to what the plaintiff could earn in some suitable employment or suitable business after injury. 13. For those reasons I make an award for the plaintiff for $429.00 per week from 26 July 2014 to date and continuing, pursuant to s 11(1) of the Workers Compensation Act 1926 as preserved by Sch 6 Pt 18 of the Workers Compensation Act 1987. I order defendant to pay the plaintiff's s 60 expenses including all those described in Exhibit B. I make an award for the plaintiff for $7,938.00 for 10% permanent impairment of the plaintiff's back. I make an award for the defendant for permanent impairment of the neck, loss of efficient use of the left arm at or above the elbow, and loss of efficient use of the right arm at or above the elbow. I dismiss the claim under s 67. I order 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: 26 September 2016