Hidasi v Metropolitan Mine Helensburgh

File Number(s): 2024/00197469

Publication restriction: Nil.

Judgment

1. HIS HONOUR: Currently before me is an application for a closed period redemption in respect of the period from 22 July 2023 to 23 April 2025. The matter was settled at a conciliation conference and the parties have come to some understanding between themselves as to what is to occur from that date, the conciliation conference being held on 24 April 2025. There is no direct evidence before me as to what the accommodation is that the parties have reached.

2. On my view of the evidence available, the claim for weekly payments amounts to about $87,500 during the relevant period. I have been told, and it is consistent with the amount claimed in the statement of claim, that the outstanding s 60 expenses amount to $3,175.45. In rough round terms, the closed period is worth approximately $90,000. The closed period redemption is for $50,000, which represents a clear compromise between the parties.

3. The only injury relied upon in the statement of claim is an injury that occurred on 21 October 2022. The pleading is this:

"Our client sustained an injury to his left elbow. He was lifting a cable from his waist up to hip height and suddenly felt a sharp pain in his left shoulder. He was diagnosed with tennis elbow by his treating GP. As a result of the shoulder injury, our client experienced left side neck pain."

4. From the histories contained in the medical evidence, the situation is that what the plaintiff directly injured on 21 October 2022 was his left elbow. For example, Dr Peter Bentivoglio, a well-known and respected neurosurgeon, was qualified by the plaintiff's solicitors and obtained this history:

"He was lifting some cable from his waist to above his head, and he developed some left elbow pain. He took the day off, saw his local doctor, and the local doctor diagnosed a lateral epicondylitis. He got back to normal duties the next day.

However, in December the pain started radiating from his left elbow into his neck and left shoulder, and he actually had to stop work in December 2022, and he has not been back to work since that time. He has never had any prior neck issues. He first reported the neck and shoulder injury in mid-January 2023."

5. An MRI scan was performed on 13 February 2023 and showed multi-level degenerative changes at all levels of the cervical spine, between C3 and C7. There was uncovertebral joint canal stenosis at the C5-C6 level. There was a disc bulge with cord compression at that level, but no cord changes, but there was severe bilateral foraminal stenosis, greater on the left side than the right. At C6-C7 there was also uncovertebral joint disease with left foraminal stenosis.

6. Dr Bentivoglio went on to say this:

"He undoubtedly had pre-existing multi-level degenerative disease caused by the nature of his work, which is quite advanced for a 43 year old man."

He went on to say this:

"I do not believe the injury has caused the changes in his cervical spine, however, I do believe the injury has exacerbated those changes in his cervical spine."

7. Pain caused, for example, by lateral epicondylitis, or tennis elbow, as it is popularly known, will be experienced around the elbow itself and may, because of some nerve root irritation at the elbow, cause symptoms below the elbow, going into the hand. Medically, the idea that pain would start at the elbow and then extend up until the shoulder and into the neck is unacceptable. However, pain could start at the neck and pass into the shoulder and then down the arm, a condition known as brachialgia.

8. It is clear from Dr Bentivoglio's report that he attributes to the type of work the plaintiff did, as an underground coal miner, the exacerbation of degenerative changes in the cervical spine. Indeed, one may also postulate that the changes themselves could have been aggravated, or accelerated, by the type of work the plaintiff was doing as an underground coal miner. The plaintiff's claim, if properly pleaded and properly investigated, would be successful.

9. The plaintiff claims in the statement of claim, essentially, a declaration of liability for the surgery proposed by Dr Cherukuri, a neurosurgeon. Whether such a declaration would be made goes to another issue in the case, that is, whether it is reasonably necessary, as a result of any compensable injury, that the plaintiff undergo the spinal surgery. There can be much debate about that type of relief.

10. However, if properly pleaded, and on the evidence available, properly argued, the plaintiff would be successful in his claim, as far as I can ascertain. For example, the defendant has qualified Dr Michael Davies, also a neurosurgeon, who attributes the onset of symptoms, perhaps, to physiotherapy that was being administered to him as a result of his complaints about the elbow and/or shoulder. If the physiotherapy was for the treatment for a compensable injury, then any injury caused by the physiotherapy would be work related. There is case law to that effect. It is not a separate injury, but results from the original injury, which put the worker off work. Dr Davies supports the proposition that the plaintiff is physically incapacitated for the full work of an underground coal miner.

11. It is clear from Mr Hidasi's evidence that he is reluctant to pursue this agreement, which he has been advised to accept, and it appears to me that the advice that has been given to him may not be based on a proper understanding of all the evidence currently available. In my view, the compromise in respect of the closed period, is too great. The plaintiff has dependent upon him three children, all of whom would be in high school by now. His children are aged 17, 15 and 12. That directly affects the amount of compensation that would be paid to him after the first 26 weeks of incapacity, which includes the whole of the closed period. The compromise, as I say, is too great.

12. The application for closed period redemption in a sum of $50,000 is refused.

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