District Court New South Wales Medium Neutral Citation: Watson v Coal & Allied Operations Pty Limited (Hunter Valley No 1 Colliery) [2019] NSWDC 801 Hearing dates: 22 August 2019 Date of orders: 22 August 2019 Decision date: 22 August 2019 Jurisdiction: Civil Before: Neilson DCJ Decision: See 18 Catchwords: WORKERS COMPENSATION. COAL MINER. Lump sum compensation claims for neck, left arm, back, left leg, sexual organs, and pain and suffering. Legislation Cited: Workers Compensation Act 1987 Cases Cited: Malcom v Roads and Traffic Authority (1995) 12 NSWCCR 258 Category: Principal judgment Parties: Darren Watson – Plaintiff Coal & Allied Operations Pty Limited (Hunter Valley No 1 Colliery) – Defendant Representation: Counsel: D. Benson – Plaintiff T. Rowles - Defendant File Number(s): RJ00137/18 Publication restriction: Nil. Judgement 1. HIS HONOUR: The plaintiff claims lump sum compensation under s 66 of the Workers Compensation Act 1987 for 7.5% permanent impairment of his neck, 7.5% loss of efficient use of his left arm at or above the elbow, 37.5% permanent impairment of his back, 20% permanent loss of efficient use of his left leg at or above the knee and 20% loss of his sexual organs. He also claims consequential lump sums under s 67 for pain and suffering, anxiety and distress resulting from those losses and impairments. 2. The matter is a little complicated by the fact that on 20 April 2009 the parties reached a complying agreement by which the plaintiff was awarded a lump sum for 25% impairment of his neck and 7.5% loss of efficient use of his left arm at or above the elbow, together with a consequential lump sum under s 67 of $15,000. 3. The plaintiff injured his neck and left shoulder in an incident on a bobcat on 19 September 1999 and further injured his neck in an incident whilst loading trucks on 23 May 2004. There was then a further neck and right shoulder injury on 8 June 2005. The plaintiff however does not make any claim in respect of the loss of efficient use of his right arm at or above the elbow. It was in respect of those injuries that the plaintiff made a claim for s 66 benefits in 2007. The plaintiff's solicitors qualified Professor YAE Ghabrial who prepared a report bearing date 30 November 2007. At that time Dr Ghabrial diagnosed a 22.5% impairment of the plaintiff's neck and a 15% loss of use of his left arm at or above the elbow. No doubt that claim resulted in the complying agreement that was filed on 20 March 2009 and by which the parties are bound as at that date. 4. The plaintiff claims that the condition of his neck and left shoulder has deteriorated since that time. He also relies on a number of injuries to his low back which have led to symptoms in his left leg and to his claim for loss of his sexual function. The low back injuries relied upon are one that occurred on 11 March 2013 when the plaintiff was driving a grader, perhaps a recurrence of that event on 27 November 2013, and an incident in particular on 12 March 2017 when the plaintiff was shaken whilst operating a grader. That led to the plaintiff's stopping work and he has not worked for the defendant since that time. Indeed, he has remained in receipt of weekly payments of workers compensation since that time. 5. The plaintiff was born in 1961; he is currently 58 years old. His industrial history is best summed up in a report of Dr Michael Lowy, who describes himself as a men's health physician. Dr Lowy's report bears date 18 April 2018. The relevant history is this: "He was born in Cessnock in country NSW and has lived there all his life. He left school in Year 10 and initially worked in a cordial factory and then for some years in an earthmoving business. He began working in the open cut mining industry in 1988, initially in the washing plant and then later as a machine operator." The chronology prepared by learned counsel for the plaintiff, Mr Benson, indicates the commencement of the plaintiff's work in the coal mining industry was in fact in 1989. The plaintiff commenced working in what was then called the Leamington Coal Mine, which is an open cut coal mine. The name of the pit has changed over the years, as has the identity of the operator of the pit. However, at all material times the plaintiff has worked at that open cut coal mine either in the washery plant but most of the time as a plant operator. There is no dispute that the plaintiff has suffered the injuries relied upon in these proceedings. The only real question is quantum. 1. The first item I should consider is the plaintiff's neck. As I have indicated, prior to the complying agreement Dr Ghabrial diagnosed a 22.5% impairment of the neck. The parties eventually agreed on a 25% impairment of the neck. On 15 November 2017 Dr Ghabrial slightly increased his original assessment to a 25% impairment of the neck. At this stage the plaintiff had stopped work. On 11 March 2019 the plaintiff was re-examined by Dr Ghabrial who took a history of deterioration in the plaintiff's condition since his earlier assessment. On that occasion Dr Ghabrial increased his assessment to a 30% impairment of the neck. The problem with that is this. Dr Ghabrial's findings on 15 November 2017 were these: "Examination of the neck on 15 November 2017 showed moderate muscle guarding. The movements were moderately decreased and there was moderate tenderness all over the neck, worse in the left lower facet joints. Neurological assessment of the upper limbs showed normal motor power, normal sensation and normal reflexes." The doctor's most recent examination of the plaintiff's neck is recorded thus: "Examination of the neck on 11 March 2019 showed moderate muscle guarding. The movements were moderately decreased and there was moderate tenderness all over the neck, worse in the left lower facet joints. Neurological assessment of the upper limbs showed normal motor power, normal sensation and normal reflexes." In other words, the findings on examination are identical. There is no reason for the change in the assessment that Dr Ghabrial made in his latest report. Furthermore, if the condition of the plaintiff's neck deteriorated when he was absent from work that would bespeak an underlying condition getting worse of its own momentum rather than getting worse because of the type of work that the plaintiff did for the defendant. In the circumstances I am not persuaded that the plaintiff has any further impairment of his neck since the time of the complying agreement. 1. Dr Ghabrial's initial assessment of the left arm was this: "Examination of the left shoulder on 30 November 2007 showed slight restriction of all movements with discomfort. He had generalised tenderness all over the left shoulder, more marked on the posterior aspect of the left shoulder." The doctor then pointed out that he had no investigation of the plaintiff's left shoulder before him. He did not have a plain X-ray let alone an ultrasound or an MRI or the like. Nevertheless, the doctor diagnosed a "soft tissue injury with chronic bursitis of the left shoulder". The diagnosis of chronic bursitis could only be a matter of speculation because on the findings on examination it is hard to see how one could exactly say the plaintiff had bursitis; it is merely a learned assumption on the Professor's part. On 15 November 2017 Dr Ghabrial said this about the condition of the plaintiff's left shoulder: "Examination of the left shoulder on 15 November 2017 showed abduction to 90 degrees, adduction to 30 degrees, flexion to 110 degrees, extension to 40 degrees, internal rotation to 70 degrees and external rotation to 40 degrees. There was moderate tenderness on the anterior and superior aspects of the left shoulder. There was power of grade 4 and a half and the sensation was normal. There were no scars on the left shoulder." When Dr Ghabrial examined the plaintiff's left shoulder on 11 March 2019 the findings were almost identical. The only differences were that the plaintiff's abduction had increased from 90 degrees to 100 degrees and his flexion had increased from 110 degrees to 120 degrees. In other words, objectively there was improvement in the condition despite the plaintiff's telling the doctor that there had been a deterioration in the condition. However, on this aspect Dr Ghabrial was not mislead by the plaintiff's complaint because on this occasion he diagnosed a 22 and a half per cent loss of efficient use of the left arm at or about the elbow, which is the same assessment that he made on 15 November 2017. 1. Dr Rowe did not think that there was any loss of efficient use of the plaintiff's left arm at or above the elbow but he did not formally examine the shoulder joint itself, he merely examined the plaintiff's neck. It is not suggested that the plaintiff's neck causes the problem in the plaintiff's left shoulder. The postulation of Professor Ghabrial always has been that there was local pathology. However, neither in 2017 nor in 2019 did Professor Ghabrial have any investigation of the plaintiff's shoulder. It is clear that the professor increased the extent of the loss of efficient use of the left arm between 2007 and 2017 by 7.5% but why he did so has not adequately been explained. Unfortunately the doctor's findings of November 2007 do not enable me to compare them with the findings made in 2017 and 2019 nor does Dr Rowe's assessment at all help me. In the circumstances I am not persuaded on the balance of probabilities that there has been any change in the condition of the plaintiff's left arm since the complying agreement of 20 March 2009. 2. The next item for consideration is the plaintiff's back. On 15 November 2017 Dr Ghabrial thought the plaintiff had a 35% impairment of his back. On 11 March 2019 he thought the impairment of the back was 37.5%. Dr Rowe provided an assessment of the impairment of the plaintiff's back on 27 March 2018. He thought that there was a 20% impairment of the back which needed to be reduced by 20% for age and constitutionally determined degeneration. The plaintiff had an MRI scan performed of his lumbar spine on 23 October 2014. Because the plaintiff was claustrophobic the MRI scan was undertaken whilst the plaintiff was seated. According to Dr Rowe the MRI scan showed evidence of mild degenerative change at the lumbosacral level with desiccation and slight posterior bulging. He also thought that the MRI scan showed facet joint degeneration at that level. There was also degenerative change at other levels of the lumbar spine. Dr Rowe did not think that there was any evidence of nerve root compression. 3. The plaintiff was referred to a spinal surgeon, Dr Rob Kuru, by Dr John Prickett, an anaesthetist specialising in pain management. Dr Prickett wanted Dr Kuru's opinion as to whether any surgical remedy ought be provided for the plaintiff's low back. According to Dr Kuru the MRI demonstrated some minor underlying degenerative changes but no significant disc extrusion either centrally or any foraminal stenosis. He thought that there was some irregularity in the region of the pars interarticularis but he did not think that there was any obvious slip. I assume that when the doctor refers to the pars interarticularis he is referring merely to the lumbosacral level. Dr Kuru referred the plaintiff for plain X-rays of the spine whilst he stood. As I understand it, those do not change the position shown by the MRI. The MRI certainly suggests degenerative disc disease affecting the lumbar spine but in particular the L5-S1 level. Dr Kuru re-examined the plaintiff on 10 April 2018, did not find any neurological deficit. He did not think that surgery was indicated. 4. Dr Rowe saw the plaintiff on 27 March 2018, that is, shortly before Dr Kuru examined the plaintiff. Dr Rowe's findings on examination are noteworthy. They are these: "Examination of the back revealed normal alignment. The ache was sited across the left lumbosacral region and into the left leg. There was no tenderness. There was no muscle spasm. He was able to bend forward to touch the mid-shin level. Lateral flexion was of similar reasonable range. Back extension beyond neutral was of reduced range. Straight leg raising on the right was 60 degrees. Straight leg raising on the left was 40 degrees with a weakly positive sciatic stretch test. Sensation was normal. There was mild weakness of the left big toe extension and the left calf muscle circumference was 12 millimetres less than the right calf. The thigh muscle circumferences were equal." I should point out that Dr Rowe had seen the plaintiff on 13 April 2017 and noted at that time no neurological deficit but pointed out that the plaintiff's left thigh and left calf circumferences were 1 centimetre less than on the right side but that was probably consistent with the plaintiff's being a right handed man. However, on the second occasion the doctor did find a neurological deficit, the mild weakness of the left big toe extension and on this occasion there was a greater wasting of the left calf muscle but no wasting of the left thigh muscle. That again indicates to me a neurological deficit. Dr Rowe noted on the second time he saw the plaintiff a history that when the plaintiff's back was bad he developed a left sided limp, a fact which the plaintiff told me of today. 1. The findings of Dr Ghabrial about the plaintiff's low back on both 15 November 2017 and 11 March 2019 are almost identical except that on the first occasion he found a negative sciatic stretch test but on the second occasion he found a positive sciatic stretch test. On each occasion he found decreased sensation in the L5 dermatome. I am persuaded that the plaintiff has suffered some real injury to the lumbosacral disc probably based, on history, in the event of 11 March 2013. 2. Because the extent of impairment of the neck and the back vary greatly between practitioners it is necessary to develop some rules of thumb. I have pointed out in numerous judgments that a simple disc lesion at a low lumbar level might result in an 18 or 20% impairment of the back. Where it is necessary to practice laminectomy and fusion the impairment might increase to 25% because although the surgery was practised to alleviate symptoms the fusion causes stiffness in the back and decreases function and throws increased stress on the next level of the lumbosacral spine, namely, the L4 5 level. 3. In the current case Professor Ghabrial diagnosed on 15 November 2017 a 35% impairment of the back which he increased to 37.5%. With the utmost respect to the learned doctor I might reach such opinions if it had been necessary to remove intervertebral discs, perhaps L4 5 and L5 S1, and to fuse the spine from the L4 to the sacrum where there were residual symptoms. This is not such a case. I accept the 20% impairment diagnosed by Dr Rowe. The question here is ought there be a deductable proportion? Dr Rowe says it ought be one-fifth. How he arrives at that figure I do not know. I have come to the view that I should deduct the statutory 10% to allow for age related change and the possibility, and indeed the probability, of there being an underlying constitutional predisposition to degenerative change. That means the plaintiff is entitled to a finding of 18% impairment of his back. 4. Dr Ghabrial on 15 November 2017 diagnosed a 17.5% loss of efficient use of the plaintiff's left leg at or above the knee. On 11 March 2019 he increased that to a 20% loss. Dr Rowe thought that the loss was only 5%. However, bearing in mind the neurological symptoms which I have identified when discussing the plaintiff's back I accept the plaintiff has a 10% loss of efficient use of his left leg at or above the knee but that needs to be reduced to 9% because this loss is secondary to the impairment of the back. 5. The plaintiff also claims a lump sum for 20% permanent loss of efficient use of his "sexual organs". As I pointed out in Malcom v Roads and Traffic Authority (1995) 12 NSWCCR 258 the appropriate item to consider is the penis and here the plaintiff says there is a loss of efficient use of his penis as a sexual organ because he cannot use it in the way that he previously did. The evidence of Dr Lowy on this aspect is uncontested. Dr Lowy said this: "Whilst he has always been able to achieve a normal quality erection, and his libido is normal, any movements of sexual intercourse severely affect the back pain and result in an early loss of the erection. He is only able to engage in sexual intercourse whilst lying on his back, with extremely limited movement. As a result, such activity occurs very infrequently, although non penetrative sexual activity which is easier to be involved in takes place more frequently." The final paragraph of Dr Lowy's report is this: "Mr Watson's prognosis is that he is unlikely to be ever employed again in an occupation that involves the physical activity required of him in the mining industry. He is unlikely to ever recover his former sexual function, where he would be able to engage in regular and enjoyable sexual intercourse with minimal back pain. I assess he has a 20% permanent loss of efficient use of his sexual organs arising from the injuries he has experienced whilst working in the mining industry." The plaintiff ascribed his sexual problems not only to his back but also to his left arm. The problem with the left arm, he told me, was in supporting his weight, whilst, obviously, using the "missionary position". However, that has not interfered with his ability to perform sexual intercourse prior to his low back injury. The effective cause of the loss of efficient use of his penis as a sexual organ is in fact the low back injury. I accept the assessment of Dr Lowy but that also must be subject to the deducible proportion for the back because it is a secondary loss. Accordingly, the plaintiff is entitled to a lump sum for 18% loss of efficient use of the penis as a sexual organ. 1. My findings under s 66 entitle the plaintiff to lump sum compensation under s 67 for pain and suffering, anxiety and distress resulting from the impairment and losses which I have found. It has been submitted by learned counsel for the defendant that I should take into account the $15,000 which the parties agreed upon in respect of the 25% impairment of the neck and the 7.5% loss of efficient use of the left arm at or above the elbow, referred to in the complying agreement. However, the impairment and losses I have found are completely different and result in different levels of pain, a different experience of pain and increased anxiety and distress. I have reached the view that the plaintiff's experience of pain and suffering referrable to the current impairment and loss is almost equal to 1:4. In my view, the appropriate lump sum to award the plaintiff under s 67 is a further sum of $15,000. 2. For those reasons I make an award for the plaintiff for $14,288.40 for 18% impairment of the back. I make an award for the plaintiff for $8,930.25 for 9% loss of efficient use of the left leg at or above the knee. I make an award for the plaintiff for $11,192.58 for 18% loss of efficient use of the plaintiff's penis. I make an award for the plaintiff for $15,000 pursuant to s 67. I order that the defendant 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: 11 February 2020