District Court New South Wales Medium Neutral Citation: Breen v Panloy Pty Ltd t/as Mynetrades & Ors [2016] NSWDC 410 Hearing dates: 24 February 2016 Date of orders: 24 February 2016 Decision date: 24 February 2016 Jurisdiction: Civil Before: Neilson DCJ Decision: I approve the redemption by consent, orders in accordance with short minutes of order. Catchwords: WORKERS COMPENSATION – Application for redemption Category: Procedural and other rulings Parties: Dennis Breen (Plaintiff) Panloy Pty Ltd t/as Mynetrades (First Defendant) UGM Engineers Pty Ltd (Second Defendant) Amberbolt Pty Ltd (Third Defendant) Statcoal Pty Ltd (Fourth Defendant) Representation: Counsel: Mr P O'Rourke (Plaintiff) Mr M Newton (Defendant) Solicitors: Whitelaw McDonald (Plaintiff) HWL Ebsworth (Defendant) File Number(s): RJ128/15 Publication restriction: No Judgment 1. HIS HONOUR: This is an application for redemption. The adequacy of the sum proposed for the redemption depends to an extent upon the compensability of the condition of the plaintiff's hips. He underwent a left total hip replacement on 27 March 2013 and a total right hip replacement on 20 November 2013. The cost of such surgery is substantial. The plaintiff, were he successful in establishing that the need for such surgery was causally related to injury arising out of or in the course of his employment, would have an entitlement for total incapacity benefits following such surgery, for the cost of follow up procedures such as physiotherapy and the like, and would also be entitled to substantial lump sums under s 66 in respect of the loss of efficient use of each of his legs at or above the knee. There is also much medical evidence which suggests that the plaintiff's substantive ongoing incapacity results not merely from his low back condition but also from the condition of his hips. It is therefore necessary for me to consider the issue as to compensability of the plaintiff's hip conditions. 2. The plaintiff left school at the age of 16, then undertook an electrical apprenticeship with BHP. After completing his apprenticeship, the plaintiff travelled overseas working for a period of some 12 months. When he returned to Australia he commenced working in his trade. He commenced in the underground coal mining industry in January 1981 as an electrician. He worked in such employment until February 1983 when he moved to Western Australia. He did not return to New South Wales until 1990. When he did so, he returned to the coal mining industry at the Mount Thorley open cut mine. He worked there from June 1990 until June 1998. 3. He then left the industry again and worked in precast concrete businesses until September 2005. He then worked as an electrician at power stations in the Hunter Valley until April 2007. In May 2007 he rejoined the coal mining industry and worked there until 10 September 2012. He then left the industry because he found the work too hard. He has had alternative work outside the coal mining industry since, in particular, July 2014 he has been working as a printer's assistant and doing deliveries on a casual basis at Jennings Print. He also does some electrical work for that employer. 4. The plaintiff was examined at the request of his own solicitors by Dr Allan Hopcroft, who examined him on 21 May 2015 and prepared a report bearing the same date. As to injury, Dr Hopcroft recorded this history: "He recalls two significant injuries - first at Newstan Colliery and the second at Beltana Colliery. He recalls that in June 2007, he was working underground lifting a miner plug weighing between 60 and 70 kilograms when his boots became stuck in mud and he suffered a weight bearing rotational severe strain of his lumbar spine. On 10 November 2010, he was standing on a rock wall which gave way underneath him, causing him to slip down a distance of approximately 1 metre, severely twisting his back again, and incurring a major left groin strain." The doctor goes on to record that after this last event, the plaintiff had some time off work, had physiotherapy and acupuncture and was able to return to work but had increasing problems with one of his knees and his back, leading to his stopping work in the industry. There is no contemporaneous evidence relating to the first of those two injuries. There is contemporaneous medical evidence concerning the event of 10 November 2010. The plaintiff was treated at the time by Dr Ben Secold, a general practitioner. Dr Secold's certificates diagnosed a torn left groin muscle. The plaintiff was certified as fit for his pre injury duties on 26 November 2010. History suggests that the plaintiff was referred to Dr Peter Spetala, a consultant neurosurgeon, for a low back pain following upon the fall now in question but Dr Spetala did not see the plaintiff until 11 April 2012. He obtained no history of the fall of 10 November 2010. He merely records "Quite longstanding back and bilateral leg pain". The plaintiff in the history recorded by Dr Spetala did not assign that to any particular event in the course of his coal mining work. It is significant that he did not mention the event of 10 November 2010. 1. The plaintiff's hip condition has been treated by Dr Michael Tarrant, an orthopaedic surgeon. The relevant part of Dr Tarrant's history is this. "He previously played rugby union with Maitland and was a self-employed mine contractor. He was basically laid off and had some business dealings which went bad. He has chronic low back pain and has L4/L5 stenosis. He had osteopathy at one stage which reduced his back pain. He complained of bilateral groin pain, more so on the left, and tended to pass it off as being related to his back. He subsequently had x-rays which showed some degree of avascular necrosis and quite severe arthritis of both hips, more so on the left. He previously had a fair alcohol consumption, which sounds more like binge drinking than anything. He was also a heavy smoker, although he has been a non-smoker for six months. At one stage he was working underground when he slipped and fell 1.5 metres and complained of some groin pain. This would not have caused his pathology, although any kind of stiffness or arthritis in the hip doesn't allow patients to tolerate any kind of fall." The doctor then went on to comment on the radiological appearances. In particular they show a degree of hip dysplasia and osteoarthritis affecting it. The reference to the fall of 1.5 metres is clearly a reference to the event of 10 November 2010. It is true that the plaintiff had some groin pain at the time, but the contemporaneous diagnosis was of a torn left groin muscle that fully recovered by 26 November 2010. There does not appear to have been any need at that time for radiological investigation of the back and pelvis. Such investigations only commenced in early 2012, well over a year later. 1. Dr Tarrant provided a medicolegal report to a superannuation company on 4 June 2013. He raises the question of the effect on the plaintiff's hip condition of the fall on 10 November 2010 and said this: "He had an injury when he was working underground and slipped and fell one and a half metres and complained of some groin pain. I suggested that he had such severe bilateral constitutional arthritis that this kind of fall would not result in his arthritis. Certainly he would not have the capacity to take a fall without having some symptoms. I suggested also that on X-rays he may have some degree of hip dysplasia and secondary avascular necrosis and it was open to debate as to the cause of his problem. Most patients have primary arthritis, which by definition is of unknown cause. He had severe bilateral hip arthritis, more so on the left. He had limited insurance and was essentially uninsured and was placed on the acute waiting list at Royal Newcastle Centre. I felt he was younger and had quite outstanding pathology and would be relatively fit to have a major operation at short notice." The doctor goes on to outline the subsequent surgical history of the plaintiff's condition. The best one could make out from Dr Tarrant's opinions is that the event of 10 November 2010 might be sufficient to cause symptoms in the plaintiff's left hip. But it is clear that if his symptoms were mediated by osteoarthritis in his left hip and not by a torn groin muscle. Although the symptoms rapidly abated, one could accept an exacerbation of the plaintiff's left hip osteoarthritis but it appears clear from the contemporaneous documentation and that he recovered from such an exacerbation by 26 November 2010. 1. The only other medical evidence directly on point is from Dr Roger Rowe, an orthopaedic surgeon, qualified by the defendant, who says the condition of the plaintiff's hips is purely constitutional which in essence mirrors the opinion of Dr Tarrant, the treating orthopaedic surgeon. 2. There is an assessment of Professor Ghabrial of the loss of efficient use of each of the plaintiff's legs due to the condition of his hips, the doctor making a general averment that the condition of the plaintiff's hips was caused by a disease of gradual onset leading to the condition of the plaintiff's hips. Presumably he was saying that the disease is osteoarthritis of the hips and that was caused in some fashion by the plaintiff's work. That is contrary to the opinion of both the treating specialist Dr Tarrant and Dr Rowe and is not supported by any argument whatever or any medical evidence, apart from the doctor's ipse dixit. 3. In the circumstances I could not be satisfied on the balance of probabilities that the current condition of his hips or the condition of his hips at any time after 26 November 2010 was causally related to the plaintiff's work as a coal miner. 4. In the circumstances the sum proposed for redemption is reasonable. I approve the redemption application by consent orders in accordance with short minutes of order which I have executed and left with the papers. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 March 2017