Pagan v Centennial Myuna Pty Ltd [2017] NSWDC 420

District Court New South Wales

Medium Neutral Citation: Pagan v Centennial Myuna Pty Ltd [2017] NSWDC 420 Hearing dates: 20 November 2017 Date of orders: 20 November 2017 Decision date: 20 November 2017 Jurisdiction: Civil Before: Neilson DCJ Decision: I make an award under s11(2) for: a. $1162 pw from 19/3/16 to 17/9/16; b. $400.40 pw from 18/9/16 to 30/9/16; c. $403.40 pw from 1/10/16 to 31/3/17; d. $408.60 pw from 1/4/17 to 22/9/17; e. $490.40 pw from 23/9/17 to 30/9/17; f. $494.30 pw from 1/10/17 to 24/3/18; and g. $411.90 pw from 25/3/18 (as indexed) to date and continuing

I order the defendant pay the plaintiff's s60 expenses.

I order the defendant pay the plaintiff's costs. Catchwords: WORKERS COMPENSATION – Coal miner – Claim for weekly payments of compensation for a back and neck injury Legislation Cited: Workers Compensation Act 1926 Category: Principal judgment Parties: Allan Pagan (Plaintiff) Centennial Myuna Pty Ltd (Defendant) Representation: Counsel: Mr D Benson (Plaintiff) Mr B Odling (Defendant)

Solicitors: Slater & Gordon (Plaintiff) Sparke Helmore (Defendant) File Number(s): RJ 140/16 Publication restriction: Nil

Judgment 1. HIS HONOUR: The plaintiff, Mr Allan Pagan, was a coal miner. Mr Pagan was born on 13 October 1957. He is currently aged 60 years. He left Cessnock High School at the end of year 8, and entered the workforce straight away. He was initially employed at the Hungerford Hill vineyard where he did a number of different jobs including vine dressing for a period of some six months. He then started working with the Cessnock retreading company where he worked for about five, perhaps up to six, years. He started there at the bottom of the hierarchy of the workforce but eventually made himself up to the rank of factory foreman. However, that job came to an end when the premises burnt down. 2. He then joined the Munmorah State Mine. Amongst the many documents included in exhibit J, records produced on subpoena by the Coal Services Health (CSH), there is a request from the manager of the Munmorah State Coal Mine bearing date 30 March 1979 addressed to the Joint Coal Board (JCB) to assess the plaintiff's fitness to enter the mining industry. Other documents indicate to me that the plaintiff was assessed by a medical practitioner on 3 April 1979. The forms at that time did not contain much pertinent information, but the medical practitioner who examined the plaintiff indicated that he was healthy, that his muscular system was "clear", that his nervous system revealed no abnormality, that the movements of his back were full and that he was fit to enter the coal mining industry. He was then on no medical treatment. The only other pertinent information contained in the entries made on 3 April 1979 was that the plaintiff's interest at that time was spear fishing. 3. The plaintiff told me that he started working at the Munmorah State Mine on 30 May 1979. The records produced on the subpoena by CSH indicate that the plaintiff was examined by either the JCB or CSH on 5 November 1981, 3 April 1984, 2 July 1987, 14 June 1989, 19 March 1992, 30 November 1994, 19 February 1998, 13 August 2001, 30 March 2004, 22 July 2009, 15 August 2012, and then finally on 16 October 2015. From time to time, the plaintiff mentioned that he had injured his neck, and from time to time, the plaintiff mentioned that he had injured his back. But it is clear that the periods of incapacity, if any, following upon any such injuries were not particularly great. 4. The plaintiff has tendered in his case his medical records from the Cessnock Medical Centre at Wollombi Road, Cessnock, which go back to 14 August 2009. The plaintiff had some neck symptoms which may have been compensable on 26 November 2012 and 28 November 2012 and also 13 December 2012, but there is no subsequent mention of any neck problem until 6 January 2016. There is also reference to some minor back injuries. For example, on Friday 8 March 2013, the plaintiff attended upon his general practitioner with a complaint of a lower back injury which was "WorkCover." The plaintiff gave a history of twisting his back at work. Essentially the doctor found nothing amiss on physical examination. He prescribed pain relief but told the plaintiff that he was fit to go back to doing normal duties. The doctor asked the plaintiff to return in two weeks if he needed any further treatment or physiotherapy. There was no attendance upon the doctor until 17 April 2013 when the doctor certified the plaintiff as fit to return to work, gave the plaintiff a "final certificate" and noted that there was no complaint of pain, no tenderness, and the range of the movements of the plaintiff's back was normal. Accordingly, whatever caused the plaintiff to see the doctor about his lower back on 8 March 2013 had cleared away by 17 April 2013. 5. There was also attendance upon the general practitioner on Friday 25 October 2013. The history recorded is this: "Driving a mine transport and door came open. Applied a brake and hit his right knee on the door. Sustained pain in the right knee. Also had an injury a week ago when he slipped and landed on his buttocks. Sustained pain in the lower back. Non-radiating. Can weight bear." As far as I can tell from the rest of the doctor's notes, he could not find any abnormality in the lower back. The plaintiff went back to the general practitioner on 5 November 2013, 12 November 2013, 22 November 2013 and 9 December 2013 about his back. On that day, the plaintiff had no tenderness in his back and had a full range of movements. The doctor certified the plaintiff was then fit for full duties, and he was to return if there were any further problems. 1. There was then no attendance upon his general practice for neck or back problems until the event in respect of which he claimed weekly payments of compensation, an injury on 7 January 2016. He attended upon the doctor on 8 January 2016, concerning the event that occurred to him at work on the preceding day. The plaintiff was not cross-examined about his account of that injury. The plaintiff was struck by a miner cable on the head, I assume on his helmet, and was thrown backwards violently, landing on his back. As the plaintiff said, he was "sent…flying". He believed that he did not lose consciousness. Fortunately, or perhaps unfortunately, the area where he landed on his back was "pretty dry." If it had been viscous in mud, it may have softened the impact on his back. The plaintiff told me that he had symptoms in his neck, his back and in each of his shoulders. As I understand it, his condition slowly worsened as he realised the extent of his symptoms. Another miner came to his assistance, and that other miner sought further assistance. The plaintiff managed to finish his shift, working for a further hour and a half but then went home. He returned to the mine on the following day but essentially was sent home and went to see his general practitioner, Dr Yang Wang at the Cessnock Medical Centre. Until recently, the plaintiff stayed under Dr Wang's care. 2. I should have mentioned earlier that although the plaintiff commenced his mining career in Munmorah State Colliery, he was transferred by that mine's new owner, the Centennial Coal group, to the Myuna coal mine on 27 June 2005. Dr Wang's note made on 8 January 2016 is consistent with the plaintiff's evidence. The note was made at 11.06am. The plaintiff told the doctor that on the previous day at around 1.30 a cable hit him, causing him to fall backward, sustaining injury. The plaintiff told the doctor he had pain in his neck and shoulders and lower back. At that stage, the shoulder pain was "getting slightly better." The plan recorded in Dr Wang's notes was that the plaintiff should have rest and pain relief and referral to a chiropractor and suitable duties, and that the plaintiff was to be reviewed in one week. 3. The plaintiff was called back to the mine and was in fact provided with suitable duties above ground. However, he was at times required to go down into the pit. That caused problems due to the vibration of the vehicles taking him down into the pit, but then the requirement to go into the pit was removed, and he continued to perform selected duties above ground level. 4. However, the plaintiff was sent by the insurer of the defendant, CMI, to see Dr Lloyd Hughes, an orthopaedic surgeon who examined the plaintiff on 8 March 2016. Dr Hughes recorded the plaintiff was then doing light duties, that he had seen a chiropractor at one time, and that he continued to see Dr Wang. Dr Hughes also recorded that Dr Wang had given the plaintiff tablets for pain. The plaintiff told Dr Hughes that he had some pain in the lower back intermittently, depending on physical activities. The plaintiff told the doctor that if he stood for a while, he experienced some pain in his back. He also told the doctor that he experienced pain in his lower neck region intermittently but he had no other symptoms. The plaintiff told Dr Lloyd Hughes that he had experienced episodes of lower back pain previously at work, he thought on about four or five occasions. He could also recall an episode of neck pain after he jarred his neck whilst driving an EIMCO many years previously. When Dr Hughes examined the plaintiff, he could not find any abnormality. Dr Hughes was aware that there had been radiological investigations. 5. They had been ordered by Dr Wang. There is a MRI scan of the cervical and lumbar spines reported by Dr Shanmuganathan on 4 February 2016, and a CT scan of his cervical spine reported by Dr Fiorentino on 5 February 2016. Dr Shanmuganathan made this comment about the MRI scan of the cervical spine: "1. Likely recent fracture of the superior endplate of the T3 vertebral body involving the anterior and mid-vertebral body with no involvement of the posterior cortex. There is no significant wedging of the vertebral body. However, associated bone marrow oedema noted. This is stable. 2. Likely impingement of the exiting left C5 nerve root at the C4/5 foramen from uncovertebral osteophytes. Substantial facet arthropathy is seen on the left at C4/5 level. Involving the superior articular facet of C5, there is low transverse T1 signal which need correlation with CT [scan] to exclude possibility of an underlying undisplaced fracture with the history of trauma. 3. No significant cord abnormality is seen." It was Dr Shanmuganathan's suggestion of a CT scan that led to the CT scan performed by Dr Fiorentino on the following day. That excluded a fracture of the superior articular facet at the C5 level. Before I go to the lumbar spine, I should point out that Dr Shanmuganathan pointed out that at the C3/4 level, there was disc desiccation with a loss of disc height and endplate osteophytes. At the C4/C5 level, there was degenerative disc disease with osteophytes indenting the thecal sac. That at the C5/C6 there is also disc desiccation, and at C6/C7, "no significant disc degenerative disease is seen" and at C7-T1, there was mild facet degeneration noted bilaterally. Unassisted by certain medical practitioners, I would describe the MRI scan of the cervical spine as showing widespread degenerative disc disease leading to the degenerative process seen in the bony structures, and leading to, for example, osteophytosis. 1. In the lumbar spine, there was some facet arthropathy at L5-S1 and minor endplate oedema at the anterosuperior aspect of the second vertebral body, secondary to degenerative disc disease in the lumbar spine. That is only the doctor's summary. The findings listed indicate widespread degenerative disc disease in the lower back with the usual reactive bony changes. 2. On 1 March 2016, a week before the plaintiff saw Dr Lloyd Hughes, he was seen by Dr YAE Ghabrial, an orthopaedic surgeon. When Dr Ghabrial examined the plaintiff, he found not only muscle guarding in the lower back but some moderate paraspinal lumbar spasm, but, like Dr Hughes, he found a negative sciatic stretch test, no motor, sensory or reflex deficit, and no neurological deficit. He however found some marked tenderness at L2/3 and also marked tenderness in the upper thoracic spine. When Dr Ghabrial examined the plaintiff's neck, he found moderate muscle guarding and marked tenderness at C4/5. However, like Dr Hughes, he found that motor, power, sensation and reflexes were all normal. There was no suggestion of any neurological deficit in the cervical spine. Dr Ghabrial thought the plaintiff fit to continue with selected duties. One might be forgiven for thinking that the findings on examination of Dr Ghabrial and the findings on examination of Dr Lloyd Hughes indicate that they may have been examining different men. 3. Armed with Dr Lloyd Hughes' assessment, the insurer of the defendant denied further liability for the plaintiff's condition on the basis that it was not any longer work-related because Dr Lloyd Hughes expressed the view that the plaintiff was fit for his normal work, and that if the plaintiff had any restrictions, they were due to degenerative disc disease throughout the plaintiff's neck and back. The plaintiff was called to a meeting on 18 March 2016, and was told by superiors in the employment hierarchy at the Myuna Colliery that the light duties which he was performing were to be withdrawn and that he was to go off work. This, it would appear, was a direct result of the insurer denying the liability for the plaintiff's injury. The plaintiff then stayed off work, deeming himself unable to perform his pre-injury duties and using up his accrued benefits such as sick leave, annual leave, and long service leave. He was called to a meeting on 2 August 2016, and his services was formally terminated "due to ill health." Since that time, the plaintiff was paid his other accrued entitlements and has been subsisting on those and on some subvention by his trade union of $700 per week. 4. The remaining medical evidence is predictable. The plaintiff was reviewed by Dr Ghabrial on 2 June 2016. He noted no change in the plaintiff's clinical features, and the plaintiff told the doctor that no longer were selected duties available to him. It appears Dr Ghabrial expressed a view the plaintiff was not fit for activities involving heavy lifting, excessive bending and excessive twisting. In the absence of any selected duties being advisable to the plaintiff Dr Ghabrial could not see the plaintiff as being fit to go back to full duties as an underground coal miner. The doctor goes on to express this bald opinion: "Mr Pagan is not suffering from a degenerative condition." With the utmost respect, that is an untenable position. When provided with that opinion, Dr Lloyd Hughes wrote a supplementary report bearing date 14 June 2016, pointing out that the radiological appearances are of degenerative disc disease in the cervical spine and in the lumbar spine. With the utmost respect to Dr Ghabrial, I agree with Dr Lloyd Hughes that the plaintiff has degenerative disc disease in both his cervical spine and in his lumbar spine. One would not expect otherwise for any person who had spent any lengthy period of time working in a coal mine. The plaintiff had been working in coal mines since May 1979. At the time of the events now in question, the plaintiff had been working in coal mines for some 35 and a half years. 1. The plaintiff's solicitors qualified Dr Trevor Best, an orthopaedic surgeon. Dr Best saw the plaintiff on 4 May 2016. The plaintiff told Dr Best that he had been referred to a chiropractor for treatment, that he had also attended a physiotherapist first in Maitland who gave him treatment in 2016 that led to no improvement in his symptoms. He also told Dr Best as he told me that he had been referred to Dr Simon Tame, and it appears from Dr Best's reports that Dr Tame is an expert in pain management. The plaintiff told Dr Best that he had also been referred to an exercise physiologist. The history recorded by Dr Best is consistent with what I have said earlier about the plaintiff's experiences of neck and back pain in the past, of his then being asymptomatic for a relatively long period prior to the injury of 7 January 2016. Dr Best expressed this view: "I suggest that Mr Pagan has suffered aggravation of disc degenerative disease in the cervical spine as well as the lumbar spine, as a result of the work injury of 7 January 2016, to produce continuing and permanent impairment in both areas. Mr Pagan does have a pre-existing history of injury to both his cervical spine and the lumbar spine regions, and in particular the cervical spine. However, Mr Pagan reports no symptoms in either area since November 2013…" Dr Best accepted the plaintiff would find it difficult to return to work as a coal miner because of his continuing symptoms, and he thought the plaintiff's ability to work had been "foreshortened." 1. The plaintiff was reviewed by Dr Lloyd Hughes on 27 June 2007. He maintained the opinion that he had previously expressed that the effects of the plaintiff's injury had subsided, and any aggravation of the underlying condition due to his work injury had resolved, and that the plaintiff's continued symptoms were due to the underlying degenerative condition. However, further in the same report, Dr Lloyd Hughes went on to say this: "The restriction I would place on his work duties is that he should not perform heavy underground physical work as he performed in the past, but could do selected above-ground duties not involving any heavy lifting or prolonged stooping or bending." The problem with the doctor's opinion is that prior to 7 January 2016 the plaintiff was performing heavy underground physical work that he had been performing since 1979. Dr Lloyd Hughes accepted that the plaintiff is no longer fit to do that work but said that it was due to the underlying degenerative condition. 1. The evidence which I prefer on this issue is clearly that of Dr Best, and it is corroborated by the plaintiff's own evidence. The plaintiff admitted to the doctors and put before me records indicating that in the past he had suffered intermittently from neck and back symptoms after minor events over the years, but on each occasion he had recovered from such complaints and returned to normal work. He worked on, from December 2013 until 7 January 2016 without any musculoskeletal complaint until this injury. The plaintiff says that since this injury, his symptoms have been such that he cannot return to his pre-injury duties. I am happy to accept the plaintiff in that regard. Over the 35 and a half years he worked in the coal industry, he usually returned to work after some minor back or neck injury. He cannot on this occasion. The only logical inference is that it is due to the effects of the injury of 7 January 2016, what might be described as a major aggravation, exacerbation or deterioration or even acceleration of underlying degenerative disc disease in the cervical and lumbar spines. 2. The plaintiff was happy to perform restricted duties until they were withdrawn by the defendant. He had been certified fit for restricted duties by his general practitioner, and that was well-known to the defendant. I find that on or about 18 March 2016 the defendant withdrew from the plaintiff restricted duties, and thereafter failed to continue to provide to him such restricted duties. The plaintiff's probable week earnings but for injury have been at all material times $2,355.83. The current weekly wage rate is $1,162. The plaintiff is entitled to a continuing award under s 11(2) of the Workers Compensation Act 1926 as preserved for coal miners. 3. Counsel have now handed me an agreed schedule of the award to be made. For those reasons, I make this award: for $1,162 per week from 19 March 2016 to 17 September 2016; for $440.40 per week from 18 September 2016 to 30 September 2016; for $403.40 per week from 1 October 2016 to 31 March 2017; for $408.60 per week from 1 April 2017 until 22 September 2017; for $490.40 per week from 23 September 2017 to 30 September 2017; for $494.30 per week from 1 October 2017 to 24 March 2017; for $411.90 per week as indexed from 25 March 2018 to date and continuing. I order the defendant to pay the plaintiff's hospital, medical and like expenses pursuant to s 60. I order the defendant to pay the plaintiff's costs. Any other orders sought? 4. BENSON: No, your Honour. ODLING: No, your Honour. HIS HONOUR: The schedule of agreed rates of compensation handed to me I have initialled and dated and marked for identification. MFI #1 SCHEDULE OF AGREED RATES OF COMPENSATION HIS HONOUR: Before I leave this matter, I should indicate that the evidence disclosed that the plaintiff had been examined on two occasions for the defendant by Dr David Millons but his reports were not tendered, nor was he called nor his absence from the witness box explained. And in those circumstances, I feel myself entitled to believe that the opinions of Dr Best would probably have been mirrored by those of Dr Millons.