Boyd v Brand Energy and Infrastructure Services Australia Pty Limited

District Court of NSW|2022-06-22

The Plaintiff's claim

HIS HONOUR: The Plaintiff, Christian Derrick Boyd, claims weekly payments of worker's compensation pursuant to s 9, or s 11(1), or s 11(2), of the Workers Compensation Act 1926 (NSW), through the operation of those provisions preserved pursuant to Schedule 6 Part 18 of the Workers Compensation Act 1987 for those who work "in or about a mine". That clause can be first found in Schedule 6 Part 18 Clause 1(1) of the Workers Compensation Act 1987. Section 3 of that Act defines "mine" to mean: "a mine within the meaning of the Coal Mines Regulation Act 1982 as in force immediately before its repeal by the Coal Mine Health and Safety Act 2002, but does not include any place that, in accordance with section 10 (2) of the Work Health and Safety (Mines and Petroleum Sites) Act 2013, is a place to which that Act does not apply."
In Ellavale Engineering Pty Limited v Pilgrim [2005] NSWCA 272, the members of the Court of Appeal discussed the phrase "in or about a mine". It refers to a sense of physical proximity to a coal mine, and sufficient connection to the business carried out at the mine. The case law makes it abundantly clear that anybody who goes on to a coal mining tenement to carry out work in the coal mining tenement, in the coal mine, is a person who is, to use shorthand, a "coal miner", the title to Schedule 6 Part 18 of the Workers Compensation Act 1987.
There is no dispute that the Plaintiff was injured on 13 June 2018 when he was working at a fuel depot within the pit at the Yancoal Mount Thorley Warkworth open cut mine in the Upper Hunter Valley near Singleton. Yancoal can be described as the collier. The Defendant was a contractor to Yancoal, providing scaffolding corrosion protection services in, inter alia, the mining sector in this State.

Plaintiff's background

The plaintiff was born in Sydney in 1972. He is currently 49 years old. The last secondary school which he attended was the Maitland Boys' High, which he left at the end of year 9. He did not obtain the School Certificate. His first employment was as a shelf packer and cashier at a family run supermarket. In 1989, he commenced working for Macquarie Smash Repairs as an apprentice vehicle painter. Eventually he obtained a qualification as an automotive/vehicle painter from Tighes Hill TAFE, and became a qualified tradesman automotive/vehicle painter.
However, for a period between 1990 and 1991, he worked at the Mater Hospital at Waratah as a wardsman. He left that employment to go back to his trade. He then worked for Top Line Smash Repairs in his trade for three years. He then undertook two years' work as a private contractor in the trade, but then started working for Craig Phillips Spray Painting in his trade for about seven years until that business was sold. He then returned to working in his trade as a private contractor for about six years.
In 2010, he was employed for a relatively short period of time by Goninans Ltd as an industrial painter and spray blaster, but the job ran out after some four months. Between 2011 and 2017 he worked for an organisation known as Conner Anderson, as an electrical motor maintenance man. He worked part-time for that employer. His first wife became ill with cancer and he became her carer, hence, he was only doing casual work. Unfortunately, his first wife died in 2015.
In 2017, he started working for Trojan Labour Hire Pty Ltd with KGB Coating at Gateshead, working on a power station. Later in that year, he started working for a number of contractors in the coal mining industry. His first job was with Champ Resources Pty Ltd, working at the Mount Thorley Warkworth mine where he was inducted into the coal mining industry. For that contractor he worked in his trade. He then started working for Mine Assist in the same role, but at the Mount Thorley Warkworth mine. At some stage he also worked for about five weeks at the Bulga mine.
He then applied for work with Monadelphous as a spray painter and blaster, and to obtain that work he underwent a pre-placement medical examination by Dr D. Meredith on 18 September 2017. Dr Meredith certified that the plaintiff was medically fit and healthy in relation to the occupational demand of his usual trade, and thus he was able to work within the coal mining industry. It would appear that shortly thereafter, he started working for Monadelphous at the Mount Arthur open-cut mine.
On 15 February 2018, according to Exhibit X, he started working for the Defendant. According to Exhibit X his usual hours were from 6am to 2.30pm. His employment was casual, and his classification was as an industrial painter/blaster. He worked at a number of sites which included Hunter Valley Operations, the East washery, and the Mount Thorley Warkworth open cut coal mine.

Plaintiff's injury

He was injured on 13 June 2018. He was painting oil storage tanks, or was about to embark upon that process. The incident occurred about 8.15am. Exhibit C is an incident statement prepared, it would appear, by a workmate. The statement says this: "Had a paint tray full of paint, moving between scaffold and oil tank pipelines to paint under the tank. I was slightly [bent] over moving through the area and right leg got caught on pipeline/scaffold causing me to [lose] balance and fall onto scaffold support leg, then continued to fall to the ground. Felt pain in right hip area and right shoulder. Reported incident to Rod Stimpson - stores supervisor. Then reported to ESO/medical centre for treatment. ESO organised for doctor's appt. Booked in for 10.40am."
The medical examination was with a Dr William Debelak of the Singleton Medical Centre and Skin Clinic in George Street, Singleton. Before going to that examination, I should point out that there is a further "report of injury" form which appears to have originally contained nine pages, but only the first three pages of it are before me. I have been told, without objection from the Bar table, that the rest of the document has not been completed. That confirms the date and time of injury, and the place where it occurred. It was a sunny day, the temperature was 13 degrees. The Plaintiff's supervisor, who will appear again in this judgment, is Mr Drew Manthorp. That confirms that the Plaintiff was working in the mining industry at the time. He was wearing all appropriate personal protective equipment. The form confirms that he attended the first-aid clinic on site and then was sent off site to visit the Singleton Medical Centre. The injuries recorded are injuries to the hip and shoulder, and the complaint was of discomfort or pain.
The history recorded by Dr Debelak in his notes is this: "this am working scaffolding / pipes on ground level to paint under oil [tanks] had an open tray of paint R leg got caught btw pipe and scaffolding fell to R hit R hip on upright of scaffold - had a ring on it fell onto R shoulder - hip to concrete about 815am" The reason for the visit, according to Dr Debelak, was that the Plaintiff was a haemophiliac. Other evidence tells me that the Plaintiff is a haemophiliac type-B, a condition often described as "Christmas disease". Of the various forms of haemophilia, this is thought to be benign because it mainly affects those in the female line.
Dr Debelak examined the Plaintiff. His first note is: "all normal". He noted the range of movements in the Plaintiff's joints was "okay". He noted a minor bruise over the right hip. He recommended a plan of the Plaintiff's performing his full duties "carefully". He prescribed Panadol. He asked to review the Plaintiff on the following Friday for a "clearance". A certificate written by Dr Debelak on that day, certified him as fit for his pre-injury duties, and fixed a review date of 15 June 2018. The WorkCover certificate, as these forms are called, did not say that the Plaintiff was to perform his normal duties "carefully". The Plaintiff told me that he returned to the pit, but did no further work that day. He took the following day off work because of his pain and discomfort.
He returned to see Dr Debelak on 15 June 2018, as previously arranged. Dr Debelak recorded this: "didn't go to work yesterday soaked in bath night of injury walked in normally minor R lateral hip pains no bruises" He noted the Plaintiff could return to work performing full duties. The Plaintiff has not returned to see Dr Debelak.
From Exhibit T, I know that Ms Natalie Heritier, of Yancoal, called the Plaintiff on 18 June 2018 in the afternoon to conduct a "routine welfare check". The Plaintiff told Ms Heritier that he was experiencing some ongoing issues with his neck and right shoulder, which he felt might be related to the fall on 13 June 2018. She made an appointment for him to see the pit's doctor on site at 8am on the following day.
According to Exhibit G, the Plaintiff was seen by Dr Ulrich Liedvogel on 19 June 2018. He wrote a letter to Yancoal. It is this: "Thank you for asking me to see this R HD painter/maintenance worker. He injured himself approx 2/52 ago but is unable to recall the exact date. He was carrying a container of paint in his L hand. He had to climb through some scaffolding in order to get to his job site. His R foot got caught on the scaffolding. He lost balance and his R hip impacted with a metal ring on the scaffold. He then fell to the ground taking most of the impact on the point of his R shoulder. He has ongoing R sided neck pain, shoulder pain and pain radiating down the lateral aspect of his R arm. He has intermittent numbness in his ring, middle and index finger as well as his thumb. He is a Haemophiliac but unsure of which type. He does have to get clotting factors for severe injuries. On questioning he is ok with physical therapy/deep tissue work. His R hip discomfort settled within 48 hours of the injury and has completely resolved. On examination today his c- spine is non tender and his pain is not reproducible on axial loading of the c - spine. He has point tenderness and swelling over his coracoid process. His ACJ is non tender, he has mild-moderate sub-acromial impingement. Internal rotation of the shoulder is preserved. I think his pain is likely related to the strain in the coracoacromial ligament/short head of the bicep[s] as well as subacromial impingement/bursitis. I think he should have some physiotherapy as well as an MRI of his R shoulder. In terms of his work he is fit for duties, but should not lift >10kg and only work above shoulder height if comfortable."
The suggestion of physiotherapy was taken up. The Plaintiff saw a physiotherapist, Ms Jane Stubbe, on three occasions, 11, 13, and 18 July 2018. When Ms Stubbe first saw the Plaintiff, he gave her a history of suffering pins, needles, and tingling, in the right arm, with pain in his thoracic and cervical spine. She took a history that the symptoms had been of much the same nature for the previous two weeks. She noted that the paraesthesia, that is, the pins and needles and sense of numbness, extended as far as the left hand intermittently. She obviously supplied physiotherapy. On the second occasion, 13 July 2018, she recorded that the right side of the Plaintiff's neck and upper trapezius had been very sore since her last treatment. The Plaintiff told her that his neck felt "bruised". His arm symptoms had remained much the same. Again, physiotherapy was provided. On the third occasion Ms Stubbe's report says this: "Neck and right arm were very painful for a day or so after last Rx, then right arm symptoms have been a lot better over the past couple of days. Pt still experiences pain the right Cx spine on neck movements, and arm symptoms vary depending on movement/position of neck. No neck/arm pain/symptoms when lying supine/prone." Again, physiotherapy was provided and the plan was that the Plaintiff should see her again in one week's time, but it does not appear that he did so. According to the chronology provided, MFI-1, the physiotherapy was organised by Mr Manthorp of the Defendant, but it seems more likely to me that it was organised as a result of the intervention of Ms Heritier and Dr Liedvogel.

Plaintiff continues to work

The Plaintiff continued working in his normal role with the Defendant. On 4 October 2018, he was visiting friends in Sydney and made an appointment to see Dr Albert Ng at the Plumpton Medical Centre on 4 October 2018. The first part of Dr Ng's history is this: "fell over at work 6 weeks ago & landed on R shoulder & R side of head c/o neck pain radiate to R upper limb & R finger a/w numbness since the injury seen the on site dr in the mine in NSW on the day of injury & started a WC Also seen a GP on the same day & had a few rest days works as casual & not entitled to sick leave, only WC leave h/o Haemophilia also was referred to a physio subsequently & did xray". That is the only mention of an x-ray shortly after the accident, and may well be one that was used by the physiotherapist. No copy of it is in evidence before me. Dr Ng requested that the Plaintiff undergo a magnetic resonance imaging ("MRI") scan of his cervical spine, thinking that there could be nerve root impingement. Dr Ng told the Plaintiff to return to the workers compensation doctor that he normally saw.
The Plaintiff was taking time off work. The Plaintiff told me in his evidence that he had symptoms that made working difficult for him, and therefore he needed to take time off work. However, it is clear that he did not make any complaint to the Defendant that he could not work because of symptoms alleged to result from the event of 13 June 2018.
I am about to quote some text messages which indicate that he may have been suffering from other conditions. I am also going to quote an email from his wife, which may also explain other reasons why he was taking time off work. On 26 October 2018, he sent a text message to Mr Manthorp in these terms: "Not feeling great think I have gastro bug you need to get someone over with Brendan". I assume that Brendan was another worker with whom the Plaintiff was supposed to work on 26 October.
The next text message is dated 28 October, and it asked Mr Manthorp whether there was work "tomorrow". Mr Manthorp replied that there was work available with Brendan, to which the Plaintiff gave a reply of "Ok". There is another text message which does not have a date. It may have been 29 October. There is a message from Mr Manthorp which says this: "Stix will be on site with you tomorrow". The plaintiff's reply was, "Yep".
The next message is merely dated "today". It may represent the 30 October 2018. It commences with a message from the plaintiff: "Mate not coming in not well again." That message was sent at 5.01am. The reply from Mr Manthorp was this: "Fark sake I had someone else that would [have] worked instead of you I have nothing for the rest of the week for you. Next week doesn't look promising either". The two messages which I have put together from Mr Manthorp were sent shortly after 5.01am.
At 1.08pm, the Plaintiff sent this message to Mr Manthorp: "Why that because im unwell that's not right I'm sorry mate but yesterday u said there was work now there [is] not". That induced this response from Mr Manthorp: "I said yesterday that I have 10 painters and work for 8. The ones that [want] the work and turn up will get it. Sorry but at this point I've planned all the work for this week. I don't have anything for you. If anything changes I can let you know but that's it at this stage." The Plaintiff responded with this message: "I really need work drew".
At 1.05pm on 30 October, the Plaintiff's wife, whose email address is under the name "Rachel Swan" but who signed herself as "Rachel Boyd", sent an email to a person known as Adam Whitley, who was employed by the Defendant. The email, after a greeting, is this: "Thank you for the time on the phone RE Christian Boyd.. he asked me to address this as he has anxiety and hates confrontation. As discussed Christian has experienced what he feels is bullying in the workplace. He has expressed numerous times to me about the way he has been spoken to not only one on one conversations but also times where he has been confronted by drew infront of other employees of yancoal employees. Im his wife Rachel and have needed my husband home on limited yet urgent occasions due to my health. Iv spoken to drew personally via the phone to explain my health conditions as i have cancer and needed christian... i understand that drew had put christian on show infront of brendon yesterday 29th oct 2018 and called him a liar and said he didn't believe anything christian says..not only was this degrading yet very unprofessional. I am concerned about Drew and his ability to address occasions that may or may not have occurred. Iv attached screen shots of most recent events. Christian understanding is better to be expressed to management in a confidential meeting at the most earliest convenient time. As Drew has cut his work and is not being very nice nor understanding. Also an injury has been overlooked as he has been injured at work and has been to scared to say anymore and to persue medical avenues as he didnt want to lose his job. Please let me know where to from here".
The penultimate paragraph clearly indicates that the Plaintiff was not telling anybody at, or in, the Defendant that he was taking time off work because of the effects of some compensable injury. Whether, for example, on 26 October, the Plaintiff had some form of gastric illness is unclear. It may have been just an excuse to cover the fact that he is having symptoms which he thought might stop him from working. Equally, it could be the excuse as to why he needed to have time off work in order to care for his sick wife.
Clearly, time was being taken from work by the Plaintiff when work was available for him. Clearly, there were a number of possible reasons for absence from work. They were, for example, that he did have some gastric illness or other ailment, a flu, or something of the type that kept him off work in late winter and early spring of 2018. Equally, his wife's illness may have demanded that he take time from work. Equally, his symptoms alleged, due to his compensable injury, may have required him to take time off work. Of the three possible sets of reasons, the only one the Plaintiff told me of was of his symptoms from his work injury. He was not challenged by the defendant in that regard. Therefore, I must accept what the Plaintiff said. I accept that his reasons for taking time off work was because of his symptoms resulting from the event of 13 June, albeit that his wife's illness may also have contributed to his absences.

No work since 30 October 2018

In any event, it is clear that since 30 October 2018, the Plaintiff has not done any work for the Defendant, and indeed, a questionnaire completed via the Defendant at the request of a private investigator indicates that the Plaintiff's services had been "terminated" by the Defendant "due to slowing of workload and attendance issues." There was no evidence that there was an actual slowing of work. However, it is clear that there were problems with the Plaintiff's attending work up until the end of October 2018.
The Plaintiff did not seek any medical treatment again until he went to The Heights Medical Practice at New Lambton Heights, where Dr Ulrich Liedvogel conducted his normal practice. It is clear from Exhibit G that the Plaintiff attended upon him on 20 May 2019 and gave a history of the event on 13 June 2018. Dr Liedvogel's notes then set out the earlier history that he had recorded in the letter, I assume, to Yancoal. His notes then continued: "Today - ongoing mid thoracic pain with R sided ulnar nerve neuropraxia also lower back pain with bilateral - lateral cutaneous nerve of the thigh neuropraxia". The doctor noted that the Plaintiff required an MRI scan and that he wished to make a worker's compensation claim, but the doctor told him that, as he worked for Hunter Valley Operations, there was a conflict of interest and that he could not treat the Plaintiff.
It is clear from the complaint made by the Plaintiff to Dr Ulrich Liedvogel that he was then complaining of lower back pain with bilateral‑lateral cutaneous nerve symptoms in his thighs. That is as I understand it, the first complaint of low back pain. The Plaintiff, in the contemporaneous documents Exhibit C and Exhibit W complained only about the right hip and right shoulder. The same complaints were made on the day of the accident, 13 June 2018, to Dr Debelak at the Singleton Medical Centre.
The Plaintiff then went to see Dr Peter Cooke at the Appletree Family Practice at Charlestown. The Plaintiff came under Dr Cooke's care on 27 May 2019, and as I understand it, has remained under his care since that time.

Did the Plaintiff injure his low back?

When the Plaintiff saw Dr Liedvogel on 29 June 2018, his complaints were limited to the neck, shoulder, on the right side and right hip. There were symptoms radiating from the right shoulder into the right arm. I have also set out the complaints recorded by the physiotherapist, Ms Jane Stubbe, on the three occasions that she saw the Plaintiff. There was reference in those records to a complaint of thoracic spinal pain. As I pointed out yesterday, par [1] of the Defence admitted that the Plaintiff injured his "neck, back, right hip and right shoulder" on 13 June 2018.
The question is, did the Plaintiff injure his low back at that time? I am not persuaded that he did. Although the Defendant admits "a back injury", there can be variations of what is meant by that. As I have pointed out over the years, the Workers Compensation Act 1987 differentiated in section 66 between the neck, the back, and the pelvis: De Gracia v State of New South Wales (1993) 13 NSWCCR 23; Clymer v RTA (1996) 13 NSWCCR 187. I pointed out the neck includes the cervical spine and the related soft tissues of what is popularly known as the neck. The pelvis contains the sacrum and the whole of the ilium and, of course, the sacrum contains spinal segments from S1 downwards to the end of the coccyx. Although doctors accept that that is part of the spine and, therefore, they class it as the 'back', it cannot, in law, be both the back and the pelvis.
However, the differentiation of body parts called for by s 66 Workers Compensation Act 1987 does not apply to popular English. In Learmont v Commissioner of Police [2015] NSWDC 136, I pointed out that the Plaintiff was seeking certification of a low back injury, but the injury reported was only to the "back". An analysis of the evidence showed that the area of the back in question was the thoracic spine. The Plaintiff lost that case. He appealed to the Court of Appeal and was equally unsuccessful: Learmont v Commissioner of Police [2016] NSWCA 137.
I accept the plea in the defence of an admission by the Defendant, that the Plaintiff injured his "back", but I can only infer from the contemporaneous evidence that it was an admission of an injury to the thoracic spine, not to the low back, in particular the lumbar spine. The lumbar spinal symptoms appear to me to have arisen sometime between the Plaintiff's stopping work for the Defendant on or about 30 October 2018, and his attending upon Dr Liedvogel on 20 May 2019, almost six months later.
Furthermore, that finding is borne out by the history recorded by Dr Cooke when he first saw the Plaintiff on 27 May 2019. The relevant part of Dr Cooke's history is this: "Spray painter in mines 6/18 Brand Infrastructure fell tripped scaffolding hit R side and hip to scaff was climbing thru uner oil tank to paint foot trpped by pipe ? cant rremenber ? L leg caught seen medical onsite ref GP Singleton for bruise hip Selected duties for2/7 Return to work sore next day 1/7 off, PH haemophilia 5/7 later work checked 2/7 numb R hand and arm neck sore sent work sit med Dr Ulli physio x3 XR ? neck radic 10/7 off MRI not done worked till xmas , no work was casual, other working U/B since then worked with neck pain constant and arm - numb R elb to 4-5th digits ulna) x3/wk lasts ½ hr and back pain 4/12 - aches lat thighs slight pains since 6 weeks after accinden". Clearly, there was a history of the onset of back pain some four months prior to seeing the doctor, which would date it back to January 2019. However, the evidence is clear that the Plaintiff last worked in late October, or at the least, in very early November 2018.

Further treatment

Dr Cooke arranged for the Plaintiff to undergo an MRI scan of both his cervical spine and his lumbar spine. A note made under the heading "Actions," indicates that he believed there could be radiculopathy coming from the C8‑T1 intervertebral disc space, which would indicate the T1 distribution, or perhaps the doctor meant the C8 distribution because the C8 nerve root does innervate the lower upper limbs.
The MRI scan was not, in fact, performed until 18 December 2019, some six months later. The report has been made by Dr Laura Mason. As far as the cervical spine is concerned, Dr Mason reports this: "C4/5: There is mild loss of disc height. There is anterior vertebral body osteophytosis, and uncovertebral joint hypertrophy. There is no disc protrusion. There is no canal stenosis. There is right sided facet joint hypertrophy. There is severe foraminal stenosis on the right, with a degree of compression of the exiting nerve root possible. There is bone marrow oedema on either side of the facet joint on the right. C5/6: There is minor loss of disc height. There is a minor central disc protrusion. There is no canal stenosis. There is mild uncovertebral joint hypertrophy and facet joint hypertrophy more prominent on the left side, with mild foraminal narrowing on the left. C6/7: Disc height is preserved. There is no disc protrusion. There is mild foraminal narrowing bilaterally. C7/T1: Disc height is preserved. There is no disc protrusion. There is no canal stenosis. There is no significant foraminal stenosis."
Clearly, the appearance at C7-T1, which probably represents the C8 nerve root, which is the level from which the C8 nerve root leaves the spine, does not appear to be compromised in any significant way at all. However, there does appear to be degenerative disc disease at C4-5, C5-6, and C6-7, although the extent of the degenerative disc disease at C6-7 is less than one would expect.
Another way of speaking about cervical degenerative disc disease is cervical spondylosis. As far as the lumbar spine is concerned, there is again evidence of degenerative disc disease or lumbar spondylosis. Dr Mason thought that there was disc bulging at L3‑4 and at L4‑5, and at L5‑S1. There was no significant canal stenosis at any level, and only mild foraminal narrowing bilaterally at the L5-S1 level, but no evidence of compromise of the exiting nerve roots. In other words, really, there was nothing to suggest any significant damage to the low back, merely damage indicating longstanding degenerative disc disease/lumbar spondylosis.
The Plaintiff remained under the care of Dr Cooke in 2019. His second visit to Dr Cooke wasn't until 22 October, when he noted the Plaintiff had not been working for the last ten months, albeit that it appears he had actually not been working for the last 12 months. The next visit to Dr Cooke was on 10 January 2020. By that time, the Plaintiff had engaged a solicitor to bring proceedings claiming worker's compensation.
On 31 January 2020, the Plaintiff returned to see Dr Cooke and had a new complaint of low back pain radiating into the right buttock. According to a note made by Dr Cooke, the Plaintiff's solicitor had arranged for him to see Dr Leon Kleinman on 4 February 2020, and Dr Y.A.E. Ghabrial on 20 February 2020. There is no evidence before me that the Plaintiff actually saw Dr Kleinman. If he did, his report has not been put before me.
However, there is in evidence a report of Professor Y.A.E. Ghabrial following upon an examination on 12 February 2020, not 20 February 2020. Dr Ghabrial's report is dated 12 February 2020. As well as recording an examination on that day. Dr Ghabrial merely took a history that the Plaintiff sustained injuries to his neck, lower back, and right leg, as a result of a fall off scaffolding on 13 June 2018. Of course, a mere ipse dixit by the Plaintiff to Dr Ghabrial that he had injured his lower back in a fall from scaffolding does not prove the truth of that assertion. Furthermore, it is unknown to me what Dr Ghabrial knew about the extent of the fall.
It is clear from Exhibit B, a copy of a photograph, that the fuel or oil tanks in question were placed on concrete piers, on a concrete floor, in the open air. There were pipes leading into or away from each of the tanks. Those pipes were raised above the level of the concrete ground floor on metal supports. The pipes may have been 1 or 2 feet raised above ground level. The Plaintiff was walking on the pipes when his foot went between the pipes, causing him to lose his footing, striking his right buttock against an upright scaffolding and causing him to fall down a foot or two to the concrete below. It wasn't a fall, for example, from scaffolding that was 6, 8, or 10, feet above the surface of the ground.
Dr Ghabrial described these injuries as "severe", but that is gainsaid by the findings made by Dr Debelak and by Dr Liedvogel. Dr Ghabrial carried out the examination one would expect an orthopaedic surgeon to carry out, and then expressed certain views. In a separate report he assessed a 35% impairment of the neck, a 27.5% impairment of the back, a 20% loss of efficient use of the right arm at or above the elbow resulting from the injury to the right shoulder and referred pain from the neck, and a 25% loss of efficient use of the right leg at or above the knee as a result of an injury to the hip. He did not believe that there would be any deduction necessary as the Plaintiff "had no pre‑existing conditions or disease or any previous problems" prior to 13 June 2018. That opinion is of no utility whatever. It is clear that the degenerative disc disease in the cervical spine and the lumbar spine would have pre‑existed the event of 13 June 2018. There is medical support for that proposition from Dr Christopher Harrington.
In a separate report of 14 April 2020, Dr Ghabrial expressed this view "I have assessed the permanent impairment of sexual organs at 32.5%." Dr Ghabrial took no history of any impairment of the Plaintiff's sexual organs. He conducted no examination of the Plaintiff's sexual organs, yet he provided such an assessment of the impairment of sexual organs, based on what I do not know. The report is of no utility whatever and it is hard to accept that a specialist in orthopaedic and spinal surgery would be able to express such an opinion. The fact that the doctor said that says much about his lack of impartiality and his lack of keeping within his speciality.
On 9 April 2020 the Plaintiff saw Dr Peter Spittaler, a consultant neurosurgeon, at the request of Dr Peter Cooke. The relevant part of Dr Spittaler's history is this: "The patient was injured in June 2018 when he was painting some fuel depot tanks at a mine. He was on the ground and was climbing through some scaffolding which was running between some pipe work. He was crouching, walking along and carrying paint when his foot caught. His body hit an upright quite hard and his foot was then released, and he fell to the ground. He had some right thigh pain, but his major ongoing problem has been right sided neck and shoulder pain. He is having no specific treatment at present because of his haemophilia, he can't take anti‑inflammatories and he has had no physiotherapy. There is no weakness in the shoulder. The MRI of the cervical spine demonstrates moderate degenerative change, but the relevant finding is quite severe right C3/4 and C4/5 foraminal stenosis and this would fit with the patient's right sided neck and shoulder pain."
The doctor's history that the Plaintiff had no physiotherapy is incorrect, but that is likely because the Plaintiff had forgotten the three attendances upon Ms Stubbe in July 2018. Dr Spittaler thought that it was possible that physiotherapy could lead to some reduction of symptoms, but he doubted that it would control symptoms. He recommended right sided C3/4 and C4/5 foraminotomies and warned him of the risks of that surgery. Dr Spittaler then commented in this fashion: "The patient is keen to undergo treatment if there is a prospect of helping him so I will approach [his] insurer for approval for the procedure."
The insurer of the Defendant did not approve of the procedure. It is still proposed to be carried out by Dr Spittaler. However, it is clear from the notes of Dr Cooke that the suggestion by Dr Spittaler that the Plaintiff might benefit from physiotherapy led to the Plaintiff's undergoing further physiotherapy. That is referred to by Dr Cooke in notes made by him on 4 June 2020 and 2 July 2020.
On 17 June 2020 the Plaintiff saw Dr Christopher Harrington, an orthopaedic surgeon, at the request of the Defendant's insurer. According to the history obtained by Dr Harrington, the Plaintiff developed "restless legs" about three months after the injury, and he then noticed back pain. He then linked the two of those conditions together. The important thing to note is that the onset of low back pain was well after the injury now in question. Under the heading "Current status," Dr Harrington reported this: "He has not returned to work. He feels that his neck pain has improved, in the absence of stress and strain of industrial painting. He is hoping to retrain, although he says he hasn't done any courses or looked into other work. He doesn't feel that his symptoms would tolerate ongoing work as an industrial painter/plasterer." A little later in that section of his report, Dr Harrington commented that the Plaintiff's main complaint was of right sided neck pain, intermittent paraesthesia down his right arm all the way to his hand. It is clear to me from Dr Harrington's findings on examination that he could find no objective signs of organic disability. His view of the MRI scan is that it showed no evidence of any neurological deficit or any impingement suggesting radiculopathy. He thought that imaging of the lumbar spine showed normal age‑related changes. He thought that there was some disc degeneration at the lumbosacral junction without radiculopathy, and that could not explain the allegation of "restless legs".
As far as the neck was concerned, Dr Harrington expressed this view: "I believe he suffered a soft tissue injury of the cervical spine and he may have aggravated some pre‑existing spondylosis which was asymptomatic prior to his fall. This aggravation has now resolved. His current presentation is now entirely related to the pre‑existing cervical changes." Nevertheless, he went on to say this: "…I do not believe he is fit for pre-injury duties as an industrial spray painter as this could easily perpetuate an aggravation injury to the cervical spine."
Clearly Dr Harrington did not think that there was any ongoing true problem in the low back that could causally be related to the injury now in question. Of course, there is a problem in Dr Harrington's opinion about the Plaintiff's neck. Although he believes the aggravation had ceased, he would not return the Plaintiff to doing the work he had been doing prior to the injury, and which he was having difficulty doing, according to the plaintiff, since the time of the injury. That is an internal inconsistency. It is to be recalled that, up until 13 June 2018, the Plaintiff was working as a blaster and painter without any complaint whatsoever, and had been found fit by Coal Services Health to perform such work at the pre‑employment medical conducted by Dr Meredith on 18 September 2017.
Furthermore, it is hard to say how the doctor could say so dogmatically that the aggravation had ceased since the Plaintiff had continued to complain of cervical symptoms since the time of the injury now in question. Some of the Plaintiff's complaints are, in my view, exaggerated, but that often occurs in the litigious process, where a patient has to complain to doctors repeatedly about his problems and tell the Court about them, and the mere recitation of the problems causes a magnifying effect as to the extent of the symptoms.
I accept the broad thrust of Mr Boyd's evidence that he has had debilitating symptoms in his neck since the injury now in question on 13 June 2018. I do not accept that the aggravation has ceased and nor really does Dr Harrington, because he says, after all, the Plaintiff should not return to his old job.
A few days after seeing Dr Harrington, the Plaintiff saw, at the request of the Defendant's insurer, Dr Robert Wines, a consultant urologist, who could not find any objective evidence of any organic disability in the Plaintiff's sexual organs. No doubt Dr Wines was qualified, because of the opinion expressed by Professor Ghabrial, which I have had cause to criticise. At least Dr Wines took an appropriate history and conducted an appropriate an examination.
On 14 August 2020, the Plaintiff was referred by Dr Peter Cook to the Hunter Integrated Pain Service. His referral letter of 14 August 2020 is Exhibit J. However, there is no report from any of the doctors at the Hunter Integrated Pain Service, but that might be due to the onset of the COVID-19 pandemic which interrupted many forms of medical treatment.
It is clear to me from Dr Cook's notes of 10 July 2020, which was a COVID-19 telehealth call, that the Plaintiff was suffering from some psychological issues resulting from matrimonial problems. On 14 August 2020, the Plaintiff told Dr Cook that he had tried house-painting, but that had caused him soreness. It is clearly soreness in his neck that can be seen in the following entries in the notes. There was no evidence given about this attempt at house-painting, but one could understand that a qualified automotive/vehicle painter who had worked in his trade, and also sand-blasting and working in the mines, might try some "light duties" in the form of house‑painting, but clearly the Plaintiff thought that that increased his symptoms.
On 29 September 2020, Dr Cook noted that the insurer had declined liability for the surgery and, in fact, had denied the Plaintiff's claim. On 18 December 2020, Dr Cook referred the Plaintiff to the John Hunter Hospital for "surgery neck", and I assume that that is placing the Plaintiff on the public hospital waiting list to undergo surgery to his neck, the surgery recommended by Dr Spittaler. Such surgery, of course, was stopped during the COVID-19 pandemic. The Plaintiff still wishes to undergo it, and in a letter of Dr Spittaler of 8 October 2021, the doctor remains of the view that the Plaintiff's cervical and shoulder symptoms could be helped by the surgery initially proposed.
Before I leave the notes of Dr Cooke, I should point out that on 22 October 2021 the doctor recorded this: "Partner has salon manned phone swept moved chairs reach fold onset pains ribs that day , done gardening". In notes made on 12 November 2021 another medical practitioner at Dr Cooke's clinic recorded anterior chest wall pain and thoracic back pain. The history goes on to record this: "Moved a lot of heavy objects in garden 4/52 ago also worked in partner's hair salon moving heavy chairs etc has had intermittent anterior chest wall pain and thoracic back pain since worse on repeated movement not severe has not trialled any analgesia as of yet".
The inference I draw from those notes is that the Plaintiff's former partner, his former second wife, had a hairdressing salon, and the Plaintiff did some work in it answering the telephone, doing some sweeping, and moving heavy chairs and the like in the salon, no doubt to assist in the sweeping process. He also did some work in the garden and that caused the symptoms that caused him to complain to Dr Cooke on 22 October 2021, and also recorded by Dr Frostis when the Plaintiff saw her on 12 November 2021. The interesting thing about those consultations and that piece of history is the Plaintiff was never cross-examined about it. He was cross-examined about being able to sweep and he denied it. As I understand it, that is consistent with his experience of pain when he sought to sweep at his former wife's hair salon in October 2021.
The report of 8 October 2021 by Dr Spittaler follows upon a further re‑examination of the Plaintiff by Dr Spittaler on 10 September 2021 for the purposes of updating his notes, in order to prepare the report requested by the Plaintiff's solicitors. As to the Plaintiff's capacity to work, Dr Spittaler said this: "I do not believe that Mr Boyd will return to gainful employment in any occupation he would be considered suitable by virtue of his education, training or experience. He is very likely to get worsening cervical and lumbar symptoms if he attempts heavy physical work such as industrial painting." While Dr Spittaler went on to concede that the Plaintiff likely had pre‑existing degenerative disease in his neck and back, he thought the work injury had at least made those conditions symptomatic. I accept that as far as the neck is concerned.
The Plaintiff also has qualified Dr James Bodel, an orthopaedic surgeon. Dr Bodel assessed the Plaintiff on 7 September 2021 but by video conference. He was not able to examine the Plaintiff in person, which makes his assessment of him extremely compromised. Dr Bodel was very careful in telling me what he was not able to do to verify or otherwise confirm the Plaintiff's symptoms. He diagnosed a discal injury at C3-4 and C4-5 and also at the lumbosacral junction. The diagnosis of a discal injury at C3-4 and C4-5 is consistent with the opinion expressed by Dr Spittaler of there being a degenerative disc disease which had been rendered symptomatic by the accident, and which the doctor believed could be ameliorated by the surgery he proposes to carry out. I am not persuaded that there is a lumbosacral disc lesion at all. It is not confirmed either radiologically or by any objective sign of organic disability.
The final medical report before me again is from Dr Christopher Harrington who examined the Plaintiff on 19 January 2022 and who expressed essentially the same opinion as he had expressed in his earlier report of 22 June 2020. Dr Harrington took a history that the Plaintiff had not been looking for work. The Plaintiff was not cross-examined about that history, but equally he did not tell me that he had been looking for work, so it is consistent with the evidence.
As he had previously, Dr Harrington expressed the view that the Plaintiff would not be fit to return to work as a spray painter, but he thought that there were suitable employment options that the Plaintiff could undertake using his knowledge, "perhaps at Bunnings", or in some supervisory capacity. Although the doctor found what are thought to be inconsistences during the clinical examination, he pointed out that there was no evidence of exaggeration or malingering at his examination on that day.
Dr Harrington diagnosed a permanent impairment to the back, a permanent impairment of the neck, and loss of efficient use of the right arm at or above the elbow, and loss of efficient use of the right leg at or above the knee, but s 66 claims are not pressed by the Plaintiff in these proceedings.

Findings

I accept that the Plaintiff has an ongoing physical incapacity for work due to injury to his neck, sustained as a result of the event of 13 June 2018. Although there is a claim in the Statement of Claim under s 11(2) of the Workers Compensation Act 1926, as its operation is preserved for those who work "in or about a mine", no claim was pressed under that provision and, knowing that the Plaintiff has not been looking for work, the required mutuality could not be established even if the Plaintiff had indeed asked his former employer for suitable duties and it had declined to provide them to him. A claim is also made for total incapacity, but the Plaintiff does not press that. It is accepted that the Plaintiff has a capacity to earn. Mr Carney, on behalf of the Defendant, submitted that he had the ability to earn between $800 per week or $850 per week, and the quintessential work that the Defendant submitted the Plaintiff could do was work as a console operator in a service station where he would be required to work behind the cash register and occasionally stock shelves from time to time.
The Plaintiff's wages schedule is Exhibit A. It went into evidence because it was not traversed by the Defendant. However, under the heading "Probable earnings", what is recorded is $1,800 net per week. In this jurisdiction, in any workers compensation jurisdiction, one must work on gross, not net figures. According to Exhibit X, which has no date, the Plaintiff's average weekly earnings for the 12-month period prior to the injury were $1,752 per week based on 37 weeks' employment. At the time that Exhibit X was generated, the award or enterprise agreement gross amount rate of pay was $33.45 per hour. If I multiply that by 38 I get what I believe to be a current weekly wage rate of $1,271.10. Based upon what is contained in the wages schedule and the answer to question 9 in Exhibit X, it appears to me that at the time the Plaintiff stopped working his average weekly earnings were probably about $1,850 per week and that probably remains the case. I accept an ability to earn of $850 per week as a console operator. The difference is $1,000 per week.
The claim pleaded is from 4 November 2018. I have been told from the Bar table, without any objection, that the plaintiff has not been paid any workers compensation at all by the Defendant.

Award

For those reasons, I make the following award for the plaintiff: for $1,000 per week from 4 November 2018 to 3 May 2019, for $426.80 per week from 4 May 2019 to 30 September 2019, for $430.40 per week from 1 October 19 to 31 March 20, for $435.90 per week from 1 April 2020 to 30 September 2020, for $439.50 from 1 October 2020 to 31 March 2021, for $441.90 per week from 1 April 2021 to 30 September 2021, for $447.40 from 1 April 2021 to 31 March 2022, for $454.30 per week from 1 April 2022 to date and continuing, pursuant to s 11(1) of the Workers' Compensation Act 1926 as it is preserved for those injured in or about a mine.
I make a general order under s 60 for the payment of the Plaintiff's hospital medical and like expenses but not including any treatment of the low back condition.
I order the Defendant to pay the Plaintiff's costs.
Liberty to apply. 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: 15 July 2022

Workers Compensation Act 1926(NSW)

(1996) 13 NSWCCR 187

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