District Court New South Wales Medium Neutral Citation: Roberts v Centennial Myuna Pty Ltd [2017] NSWDC 413 Hearing dates: 27 November 2017 Date of orders: 27 November 2017 Decision date: 27 November 2017 Jurisdiction: Civil Before: Neilson DCJ Decision: For those reasons, I make an award for the plaintiff: (1) for $1,235.50 per week from 2 August 2015 to 31 January 2016; (2) for $391.90 from 1 February 2016 to 31 March 2016; (3) for $400.40 per week from 1 April 2016 to 30 September 2016; (4) for $403.40 per week from 1 October 2016 to 31 March 2017; (5) for $408.60 per week from 1 April 2017 to 30 September 2017; and (6) for $411.90 per week from 1 October 2017 to date and continuing, pursuant to s 11(1) of the Workers Compensation Act 1926 as preserved for coal miners. I make a general order under s 60. I make the following awards under s 66: (1) for $14,288.40 for 18% permanent impairment of the back; (2) for $15,876 for 15% loss of efficient use of the right arm at or above the elbow; (3) for $14,883.75 for a further 15% loss of efficient use of the plaintiff's left arm at or above the elbow. I make an award for the plaintiff under s 67 for $15,837.25. I order the defendant to pay the plaintiff's costs. Catchwords: WORKERS COMPENSATION – Coal miner – 40 years in coal mining underground – Claim for weekly payments since retirement and lump sum compensation Legislation Cited: Workers Compensation Act 1926 Category: Principal judgment Parties: Warren Roberts (Plaintiff) Centennial Myuna Pty Limited (Defendant) Representation: Counsel: Mr D Benson (Plaintiff) Mr B Odling (Defendant) Solicitors: Slater & Gordon (Plaintiff) Sparke Helmore (Defendant) File Number(s): RJ220/16 Publication restriction: Nil Judgment 1. HIS HONOUR: The plaintiff, Mr Warren Roberts, claims weekly payments of workers compensation from 2 August 2015 to date and continuing pursuant to s 11(1) of the Workers Compensation Act 1926 as its operation is preserved for those who work in or about a coal mine by the Workers Compensation Act 1987. The plaintiff also claims lump sum compensation under s 66 as it still operates for coal miners for 20% permanent impairment of his back, 27.5% loss of efficient use of his right arm at or above the elbow, 27.5% loss of efficient use in his left arm at or above the elbow and a consequential lump sum under s 67 of $22,066.66. Work history 1. The plaintiff is the son of a man who spent his whole working career in the coal mining industry. The plaintiff left school at the age of 15 years and nine months having obtained the School Certificate. He commenced almost straightaway as an apprentice electrician with the Hebden Colliery. The plaintiff last worked in the coal mining industry on or about 18 December 2014. On the following day he commenced on putative long service leave that led to his retirement on 1 August 2015 and his claim for weekly payments of compensation commences on the following day. If my mathematics be correct, which is always problematic, the plaintiff has had a working life of 45 years. But for five of those years, he worked in the coal mining industry either in the Hunter Valley or on the Central Coast. 2. It is implicit in the evidence that the plaintiff completed his apprenticeship as an electrician at the Hebden Colliery. All told, he worked there for four and a half years. He then worked the Stockrington No 2 Colliery for two years and then spent two years out of the coal mining industry. He told me in rather idyllic terms that that was because of a need for a "change of scenery". He then returned to the Hunter Valley coal mines and worked at the Newvale No 2 Colliery for six years. 3. He then left the coal mining industry again because of a divorce and because he travelled in order to obtain work, merely to travel. He was out of the coal mining industry for three years. He then returned to working at the Lemington No 2 Colliery for six months, then at the Awaba Colliery for six years and then at the Endeavour Colliery on the Central Coast for four years and then he commenced his first period of employment at the Myuna Colliery for a period of two years. He then returned to the Central Coast to work at the Endeavour Colliery for 18 months, but on 6 November 1995 he took up working again at the Myuna Colliery and worked there until his retirement. 4. The plaintiff's work as an electrician in a coal mine involved many heavy aspects of electrical work. When multi-skilling was introduced, the plaintiff also acquired the ability to do jobs done by those who are not tradesmen and that included almost all activities in an underground coal mine excluding only driving the continuous miner itself. 5. It would be unsurprising if the plaintiff had not, during his extensive mining career, suffered many minor injuries, some requiring some time off work and others merely requiring the administration of first aid, some injuries might require a period on light duties, some injuries might require time off work. Injury on 23 August 2004 1. On 23 August 2004 the plaintiff was driving a shuttle car and the part of the mine roof collapsed hitting the plaintiff on his head. He was wearing a mining helmet, but the contemporaneous note made by his general practitioner was that the helmet was forced upright and the plaintiff injured his nose. He was also struck on the right wrist. Because the weight of rock on his head, he felt a lot of pressure on his neck and shoulders. The general practitioner's notes refer to a "pile‑drive effect". Fortunately, the plaintiff was not rendered unconscious. He was taken to a nearby crib room and had his neck iced. He was then taken to the surface and conveyed by ambulance to the John Hunter Hospital. Plain X‑rays were taken at 10pm. The clinical history recorded by radiologist is this: "Miner. Large lump of coal fell from above hitting top of head and breaking helmet. Immediate neck and upper back pain. Swollen hand." An X‑ray was taken both of the cervical spine and the thoracic spine as well as the left wrist. No abnormality was recorded. At 11.45pm a CT scan was made of the cervical spine that was said to show that there was no cervical vertebral fractures, that the bony alignment was within normal limits and the facet joints articulated normally. There was not thought to be any spinal canal or intervertebral foraminal narrowing. 1. The plaintiff was off work for about two weeks but then was on restricted duties up until the following year. His general practitioner recorded on 1 February 2005 that the plaintiff had returned to full duties. However, the general practitioner noted at the time that the plaintiff still had pain in the right side of his neck and his right trapezius and shoulder area. The plaintiff has regularly complained to his general practitioner and others of neck pain ever since. 2. At the end of 2005 the plaintiff was still having problems in his neck and upper back. A plain X‑ray was performed on 2 December 2005 by Dr Colin Walker. That is said to show moderate facet arthropathy at C4‑5 and C5‑6 on the left‑hand side and at C7‑T1 on the left side. In the thoracic spine there was mild anterior spurring, in the upper and mid‑thoracic spine. There was lateral spurring at T8‑9, T9‑10 and T10‑11. That was on the right side of the thoracic spine. 3. The plaintiff was referred by Dr Bruce McArthur to Dr Peter Spittaler, a consultant neurosurgeon. The referral letter to Dr Spittaler pointed out that the plaintiff's main symptom was pain and stiffness in the neck. Dr McArthur pointed out to Dr Spittaler that the plaintiff continued to work but was concerned that his symptoms were getting worse. The GP recorded that the plaintiff wished to keep his job as he had a young family and he did not want to miss any time off work and, therefore, Dr McArthur had continued to certify the plaintiff as being fit for his normal duties as a coal miner. The plaintiff told me that he had recently remarried, that he had a young child with his second wife and hence the need to stay at work. At this stage the plaintiff was about to turn 53. 4. Dr Spittaler saw the plaintiff on 7 February 2006. He accepted that the plain X‑rays of the cervical spine demonstrated degenerative change. He thought the plaintiff might have an injury to a cervical disc and recommended the plaintiff undergo an MRI scan. That was performed on 22 February 2006. There was broad‑based disc bulging identified at C3‑C4, C4‑C5, C5‑C6 and C6‑C7, but there was no compromise of the spinal canal or any exit foramen. In addition, at C6‑C7, there was a small posterior osteophyte. The plaintiff returned to see Dr Spittaler after that investigation. Dr Spittaler had believed that the best management for the plaintiff's long‑term ongoing neck pain due to degeneration "would be to stop going underground". However, that was not an option the plaintiff could consider. It is to his credit that he managed to work on in the coal mining industry for another eight years. 5. The plaintiff sought some legal advice and was advised to make a claim for lump sum compensation under s 66 and s 67. For that purpose, he was sent by his solicitors to see Dr YAE Ghabrial. Dr Ghabrial took a history that the plaintiff had, residual symptoms in his neck and at the back of each of his shoulders. Dr Ghabrial went on to diagnose a 25% permanent impairment of the plaintiff's neck. He did not believe that there was any "pre‑existing problem" with the plaintiff's neck because he had not previously complained of symptoms in the neck. That is an illogical statement, but parties are often persuaded by such illogicalities. When Dr Ghabrial examined the plaintiff's shoulders he said this: "Examination of the shoulders on 9 June 2006 showed generalised tenderness in the posterior aspects of both shoulders, worse in the left shoulder. The movements were full but gave him pain in both shoulders." To me that represents a complaint of some local problem in the shoulder rather than any radicular problem; that is, symptoms coming from the neck rather than from within the shoulder joints themselves. Dr Ghabrial went on to assess a 10% loss of efficient use of each of the plaintiff's upper limbs. 1. The defendant qualified Dr Roger Rowe. Dr Rowe said that there was a 20% permanent impairment of the plaintiff's neck, but he considered that one‑quarter of that amount was the result of pre‑existing degenerative pathology in the neck. Accordingly, he would have allowed a 15% impairment of the neck referrable to the injury of 23 August 2014. Dr Rowe examined each of the plaintiff's shoulders. According to him, there was no problem in either shoulder and he did not receive any complaint from the plaintiff of symptoms in either arm or find any sign of any problem in either arm. He would not allow any loss of efficient use of either upper limb. 2. The current plaintiff and defendant reached an agreement. They agreed that the plaintiff had a 20% impairment of his neck and a 5% loss of efficient use of each arm at or above the elbow. They also agreed the plaintiff was entitled to a lump sum under s 67 of $14,162.75. The defendant offered, and the plaintiff accepted, a total lump sum settlement under s 66 and 67 of $35,000. 3. The plaintiff has continued to complain of symptoms in his neck ever since. However, as ought be clear from what I said at the commencement of these reasons, the plaintiff makes no further claim for permanent impairment of his neck. That is completely understandable when one realises that Dr Ghabrial re‑assessed the plaintiff on 11 December 2015 and on 5 April 2017 and on each occasion maintained his assessment of a 25% impairment of the plaintiff's neck. Likewise, Dr Rowe reviewed the plaintiff on 24 October 2016 and, again, made the same assessment of the impairment of plaintiff's neck as he had made originally. Therefore, nothing has changed as far as the neck was concerned since the agreement reached between the parties and recorded in a complying agreement dated 18 July 2007. Back 1. However, the plaintiff has other problems, as one would expect of a coal miner who worked so long and in such difficult conditions in underground coal mines. The plaintiff has a low‑back complaint. He believed that it first appeared when he was working at the Awaba Colliery and that it may have occurred in or about 1986. The plaintiff said that he was off work for one month after he initially injured his low back and that he had physiotherapy. Thereafter he has had problems with his low back from time to time and his symptoms have increased with the passage of time. 2. The evidence before he shows that CT scans of the plaintiff's low back were made on 13 September 2011 and 13 September 2012. The clinical history obtained by the radiologist, who made the CT scan on 13 September 2011 was of "bilateral sciatica", meaning pain in each leg coming from the low back. Essentially, that is reported to be a normal study. The CT scan of 13 September 2012 has as its clinical history "lower backache radiating to the right side". Again, the plaintiff's low back was studied from L3 to the sacrum, but it was found that at all levels the discs were intact and there was no form of protrusion and that the facet joints were normal. The plain X‑ray of the plaintiff's low back made on 28 November 2015 tells me that there were mild degenerative changes present involving the lower lumbar facet joints and discovertebral joints with anterior vertebral body spurs. This would appear to be the first radiological investigation which looked at the bony structures rather than at the soft tissues, namely, the discs. 3. Dr Rowe, when he examined the plaintiff on 8 November 2016, assumed that the plaintiff had a lumbar spondylosis; that is, a degenerative condition of the vertebrae resulting from degeneration of the discs. He accepted that the plaintiff had a 10% impairment of his back, although he believed that only half of that was due to the plaintiff's experiences at work and the other half was due to age and constitutionally‑determined degeneration. 4. When Dr Ghabrial examined the plaintiff on 11 December 2015, he found that the plaintiff was able to sit and stand normally. There was a normal gait but a decreased postural lordosis. Spinal movements were mildly decreased with pain. There was forward flexion from the fingertips to the mid‑calf region. When Dr Ghabrial examined the plaintiff on 5 April 2017, flexion was then only to the knee. On 11 December 2015, extension, lateral bending and rotation were decreased with discomfort. On this occasion Dr Ghabrial find mild paraspinal lumbar spasm. On 5 April 2017 he said that the paraspinal lumbar spasm was moderate. The reflexes on each occasion were normal. On each occasion there was moderate tenderness between L3 and L5, but the femoral stretch tests were negative and the sacroiliac tests were normal. On the first occasion Dr Ghabrial assessed a 20% impairment of the back, but on the second occasion he assessed a 30% impairment of the back. 5. It is to be noted that when Dr Rowe examined the plaintiff's low back in between Dr Ghabrial's two assessments, he found no tenderness, no muscle spasm and a reasonable range of movement and the plaintiff was able to touch mid‑shin level. However, there was restriction of the range of extension. 6. I have some difficulty with Dr Ghabrial's finding of muscle guarding and of mild spasm on the first occasion, which became a moderate spasm on the second occasion, when Dr Rowe did not find any at all in between. 7. I have reached the view that the plaintiff has a 20% permanent impairment of his back. I cannot exclude the possibility that there is some underlying degenerative condition. However, I am not persuaded by Dr Rowe's opinion that is half of the total impairment. I shall, therefore, apply the statutory formula and deduct a tenth of the loss so that the plaintiff becomes entitled to 18% impairment of his back. Included in that must be an assessment in respect of the degenerative condition in the plaintiff's thoracic spine which was clearly degenerate as far back as the injury of August 2004. The thoracic spine is part of the back as is the lumbar spine. One must accept that heavy lifting and bending and the activities of underground coal mining throw excess stress on the back causing degeneration through attrition. Arms 1. The condition of the plaintiff's arms is also of some interest. I have found in the clinical notes a complaint of discomfort in the shoulders on 28 June 2007 made to Dr McArthur. That, of course, is roughly a year after Dr Ghabrial's assessment on 9 June 2006. Eventually, the plaintiff was referred, by his general practitioner, to Dr Minas Petrelis, an orthopaedic surgeon practising at Charlestown. The plaintiff appears to have seen Dr Petrelis on 25 March 2013. However, before that time there were investigations of the plaintiff's shoulders arranged by his general practitioner. Plain X‑rays, which appear to have been taken on 14 February 2013, show narrowing of the right shoulder joint in keeping with osteoarthritis. There were moderate osteoarthritic changes at the acromioclavicular joint. There was thickening of the greater tuberosity in keeping with rotator cuff degeneration. There was also said to be osteoarthritic changes in the left shoulder joint. There were minor osteoarthritic changes at the acromioclavicular joint. There was thickening of the tuberosity in keeping with rotator cuff degeneration. Ultrasound of the left shoulder was said to show a tear of the mid‑portion of the supraspinatus tendon measuring 14 mm x 14 mm in size. The subscapularis and infraspinatus tendons were normal. So was the biceps tendon. There was no impingement or other abnormality. Ultrasound of the right shoulder showed a partial tear of the mid‑portion of the supraspinatus tendon measuring 11 mm x 12 mm in size. There was thickening of the bursa anteriorly in keeping with bursitis. The subscapularis and the infraspinatus tendons were normal. The biceps tendon was also normal. It appears that the soft tissue appearances were in keeping with the osteoarthritis shown by the plain X‑ray. 2. Dr Petrelis accepted the plaintiff had a bilateral shoulder problem with each shoulder suffering from mild osteoarthritis. The plaintiff told the doctor that he was working as an electrician in the coal mines and had a 12‑months increasing pain in his shoulders. Dr Petrelis found it difficult to consider what treatment to provide to the plaintiff. He recommended injections of cortisone into each of the shoulders to see if that would settle the plaintiff's condition. Those injections were performed. However, they only helped the plaintiff for a relatively short period, a day or so. However, the plaintiff's right shoulder was causing him great concern and the plaintiff agreed to undergo arthroscopy to that shoulder. Arthroscopy was performed at the Warners Bay Private Hospital on 3 July 2013 to the left shoulder! The arthroscopy was said to reveal grade 4 osteoarthritis in the glenoid and humeral head. Fortunately, the rotator cuff was found to be intact. The subacromial space revealed a thick bursa with some fraying of the supraspinatus. Arthroscopic decompression was performed. 3. When reviewed by Dr Petrelis on 25 July, the plaintiff told him that his left shoulder was much improved, but his right shoulder had been giving him some problems. The plaintiff continued to see Dr Petrelis throughout 2013, but was never pain‑free in that year. 4. One of the medical reports before me concerns a problem that the plaintiff had with his left calf muscle. That is quite irrelevant to the claims currently before me, but does tell me a few things. The plaintiff was then working three 12‑hour shifts per week. He is what is called in the coal mining industry a "weekend warrior". He works 12‑hour shifts on Fridays, Saturdays and Sundays. However, because of the problem with his calf, the plaintiff found it difficult to walk in gumboots in the mine and so he was only working underground for six hours and the other six hours of each shift was being worked at pit top until he overcame the problem with the gastrocnemius muscle. In other words, the plaintiff was still, as at November 2013, performing underground work in difficult conditions, despite the problem with his neck, his low back and each of his shoulders. 5. The plaintiff returned to see Dr Petrelis on 10 November 2014. The plaintiff told the doctor that he had ongoing issues with his left shoulder. It ached with activity and at rest. He even had symptoms driving his car which appeared to the doctor to be pins and needles in the left hand involving all the digits. The pins and needles did not worry the plaintiff at night, but pain woke him up. An X‑ray was performed showing, again, an arthritic left shoulder. Dr Petrelis arranged for electrical testing to exclude a carpal tunnel syndrome and that was excluded. However, in February 2015 the plaintiff discussed with the doctor the concept of a replacement of his left shoulder joint. The plaintiff took other medical advice concerning that proposition and decided not to undergo such surgery. A significant reason why was probably the fact that by that stage the plaintiff was on long service leave and it is clear that the plans that he had made included retiring from the coal mining industry at the conclusion of his long service leave. The plaintiff, indeed, had told Dr Petrelis when he first saw Dr Petrelis on 25 March 2013 that he was retiring at the end of that year. The plaintiff denied giving that history, but I accept that it was. However, it is not, in my view, a credit issue. The plaintiff told me, and I am prepared to accept, that he decided to give up work because it was becoming increasingly difficult for him to manage underground mining work with the accumulating number of disabilities that he had. Perhaps his decision was made earlier than he remembered when giving evidence in the witness box. 6. Returning to the question of the plaintiff's shoulders, I have been given the usual assessments. I am placed between Scylla and Charybdis. Dr Ghabrial tells me that the plaintiff has lost 27.5% of efficient use of each of his arms at or above the elbow. Dr Rowe says that there is a 10% loss of efficient use of each of the plaintiff's arms at or above the elbow, but he believes half of that to be due to age and to constitutionally‑determined degenerative change. Dr Rowe comments in his major report of 8 November 2016 that the plaintiff had bilateral shoulder girdle discomfort "possibly arising from the neck or degenerative change in the rotator cuffs". In his short reports assessing the permanent loss of efficient use of each arm at or about the elbow, the doctor refers to a "lack of any investigation" as to the problem in the plaintiff's shoulders. That to me has been adequately investigated. The diagnosis is clear ‑ degenerative change in each of the shoulder joints. I accept that it is due to degenerative change in each of the shoulder joints rather than some radicular problem or referred problem from the neck. 7. Doing the best I can, I accept that the plaintiff has a 20% loss of efficient use of each of his arms at or about the elbow. The left shoulder has been the source of more complaints than the right. The plaintiff has undergone surgery for that condition which ought have ameliorated the complaints somewhat. However, the left shoulder is more gravely affected than the right radiologically or, as Dr Petrelis said, "on paper". I, therefore, give to each arm at or above the elbow the same quantum of loss. From that finding must be deducted the 5% loss of efficient use of each arm at or above the elbow that has previously been awarded. The plaintiff is, accordingly, entitled to an award for 15% loss of efficient use of his dominant right arm at or above the elbow and 15% loss of efficient use in his left arm at or above the elbow. 8. There will be a deemed date of injury for each of the awards for the back and each arm, being the day on which the plaintiff last worked, which appears to have been on or about 18 October 2014 when the plaintiff was employed by the defendant in conditions to which the nature of such degenerative conditions are due. Weekly payments 1. The remaining claim, of course, is for weekly payments of compensation. The claim is only for partial incapacity. The claim is probably academic. The plaintiff has not looked for any work because he does not know of any work that he could do. His earnings, but for injury, have been at all material times $2,442.98 per week. In some suitable employment, which might be bench‑type assembly work that is done by an electrician or a person with electrical knowledge, the plaintiff could earn, in my view, about $950 per week. The difference is $1,492.98 which entitles the plaintiff to the maximum amount he is entitled to for partial incapacity throughout the period of the claim. Pain and suffering 1. The plaintiff also makes a claim under s 67. He has already been awarded $14,162.75, which I am told represents 21.5% of the maximum available. However, it is clear that the sum was calculated to round out a settlement figure of $35,000. I think the appropriate thing for me to do is to make a finding at the current time and deduct what has been awarded. The maximum payable for pain and suffering, anxiety and distress resulting from losses and impairments is $66,200; that is, the maximum sum I could award to, say, a young man of 20 or 25 who was rendered a quadriplegic. Doing the best I can, I believe that the plaintiff is entitled to a lump sum under s 67 of $30,000. When I deduct what has been paid from that, that entitles the plaintiff to a lump sum of $15,837.25. Award 1. For those reasons, I make an award for the plaintiff: 1. for $1,235.50 per week from 2 August 2015 to 31 January 2016; 2. for $391.90 from 1 February 2016 to 31 March 2016; 3. for $400.40 per week from 1 April 2016 to 30 September 2016; 4. for $403.40 per week from 1 October 2016 to 31 March 2017; 5. for $408.60 per week from 1 April 2017 to 30 September 2017; and 6. for $411.90 per week from 1 October 2017 to date and continuing pursuant to s 11(1) of the Workers Compensation Act 1926 as preserved for coal miners. 1. I make a general order under s 60. 2. I make the following awards under s 66: 1. for $14,288.40 for 18% permanent impairment of the back; 2. for $15,876 for 15% loss of efficient use of the right arm at or above the elbow; 3. for $14,883.75 for a further 15% loss of efficient use of the plaintiff's left arm at or above the elbow. 1. I make an award for the plaintiff under s 67 for $15,837.25. 2. 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: 23 February 2018