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[2025] NSWDC 417
District Court of NSW
2025-09-05
Neilson DCJ
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Kedwell v Clarence Colliery Pty Limited [2025] NSWDC 417
Hearing dates: 3-5 September 2025
Date of orders: 5 September 2025
Decision date: 05 September 2025
Jurisdiction: Civil
Before: Neilson DCJ
Decision: In respect of claim for weekly payments and s 60 expenses, award for the defendant. In respect of claim under s 66, claim is dismissed. Leave granted for the plaintiff to make, in subsequent proceedings, a claim under s 66 once it is properly explored and expressed.
Catchwords: CIVIL – COMPENSATION – COAL MINING – Claim for certain weekly payments and expenses arising out of incapacity due to a disc protrusion alleged to have occurred on 20 September 2022, also lump sum claim – Injury could not have occurred, as admitted by Plaintiff in evidence – Court unable to ascertain how and when disc protrusion occurred – A disc protrusion is an injury, not a disease – Use of “nature and conditions of employment” to be avoided.
Legislation Cited: Workers Compensation Act 1987 ss 60, 66, 67
Cases Cited: Johnson v Donaldson Coal Pty Ltd and ors [2023] NSWDC 250; (2023) 40 DCLR (NSW) 269
Mirkovic v Davids Holdings Pty Ltd (1995) 11 NSWCCR 656 at 667
Texts Cited: Nil.
Category: Principal judgment
Parties: Plaintiff – Craig Anthony Kedwell
Defendant – Clarence Colliery Pty Limited
Representation: Counsel:
Plaintiff – Ms Welsh, E.
Defendant – Mr Doupe, S.
Solicitors:
Plaintiff – Brydens Lawyers
Defendant – Sparke Helmore Lawyers
File Number(s): 2024/00104288
Publication restriction: Nil.
"Over the course of the plaintiff's employment, he developed intermittent back pain due to repetitive heavy lifting in the course of his employment.
On 20 September 2022, the plaintiff was in the bathhouse at the defendant's premises where it was customary for employees to change from their everyday clothes into their work clothes. As the plaintiff was getting changed, he stood up from a bent position and felt sudden back pain with radiating pain down his right leg."
The plaintiff was born on 27 April 1971. He is currently 54 years old. He left school at the end of year 10. He then completed an apprenticeship as a fitter with Joy Engineering in the Hunter Valley. He then went into the coal mining industry. He worked at different mines, both underground and open cut, initially in the Hunter Valley. He then moved to the Appin mine where he worked for about two years before he was retrenched. He then moved to the Western coal fields and remains working there and has been working there for four years as at September 2024. He should now be seen as working for five years in the Western coal mines. He has been with his current employer, Clarence Colliery, since 1 November 2021.
At the relevant time the plaintiff was a leading hand fitter. I understand from a report of Dr Neil McGill dated 23 September 2024, that he has now become a shift engineer which appears to be somewhere lighter work than that which he did as a leading hand fitter. Like much work in a coal mine, the work of an underground fitter is heavy. It also involves work in confined spaces and spaces that are difficult to gain access to. To illustrate the type of work which he did that was heavy, the plaintiff tendered a number of "mechanical tradesman's daily shift reports" which he filled out for the work which he was doing.
He pointed out that the work that he did on the following days was particularly demanding, and involved what he considered heavy work. The relevant dates are 29 June 2022, 11 July 2022, 12 July 2022, 13 July 2022, 25 July 2022, 11 August 2022, 21 August 2022, 13 September 2022 and 15 September 2022. He also provided illustrations via photographs taken, I assume from the internet, of a continuous underground miner and its various parts, a shuttle car and a multi‑roof bolter.
I accept that most of the work which the plaintiff did was demanding and involved both heavy lifting and repeated bending and working in confined and awkward spaces. Such, however, does not mean that every ailment that a coal miner ever suffers was caused by his work. Over the years, the plaintiff has had problems with his spine.
"Off for a few nights…from work. Monday night had abdominal pain and radiating into the back. Now pain in the back. Nil trauma. Laying around. Stomach has settled down. Sweating on and off. …. Works in underground mine."
This appears to have been a complaint of low back pain, but it is clear that the doctor thought the plaintiff had a viral infection. His impression was "viremia." He prescribed Panadeine to be taken every six hours and he was to be reviewed after having swabs taken from his nose and his throat. The actions that the doctor directed indicate that he thought that the problem was viral rather than mechanical.
"At the L4/5 level, there is a small diffuse disc bulge, not significantly narrowing the canal or foramina.
At the L5-S1 level, there is a small right far lateral disc protrusion, slightly displacing the right L5 nerve root in its extraforaminal course. This is of questionable clinical significance. The canal and foramina are preserved. The S1 nerve roots exit normally.
COMMENT:
- Small right far lateral disc bulge is causing slight displacement of the right L5 nerve root in its extraforaminal course. This is of uncertain significance to the current clinical presentation.
- More diffuse disc bulges are present at L4/5 and L2/3, not significantly narrowing the canal or foramina."
One can see that there was thought to be some slight protrusion of the disc at the L5-S1 level which may or may not have been interfering with the L5 nerve root.
On 12 July 2019, Dr Sasitharan was a member of the Good Practice GP Surgery at East Branxton. The notes of that practice commence on 12 July 2019 with a visitation by the plaintiff on that day. The practice where Dr Sasitharan was when he received a copy of the MRI scans made earlier in 2019 is unclear. In any event on 12 July 2019, the plaintiff had presented to the doctor with neck pain. Dr Sasitharan diagnosed bilateral arm numbness and suspected a cervical disc prolapse. He referred his patient to Dr Peter Spittaler, a well-known and well respected neurosurgeon.
Dr Spittaler saw the plaintiff on 29 August 2019, and inter alia recorded this:
"The patient had developed paraesthesia in his left hand and foot about four months ago which led to exclusion of cerebrovascular disease by MRI of the brain. He also had the MRI done of his cervical spine and lumbar spine. On the MRI of his cervical spine, he has quite severe disc degeneration at C5/6 and C6/7 without any canal stenosis but he does have foraminal stenosis at both of these levels. He doesn't have any arm pain but he has persisting paraesthesia in the hands which affects him more during the day than at night. On examination there is a negative Tinel's in both hands."
Dr Spittaler suspected that the plaintiff had bilateral carpal tunnel syndrome, and he referred the plaintiff for nerve conduction studies of the hands. However, during this period in 2019, the plaintiff was also consulting a chiropractor. He commenced attending upon the Little Sprouts Chiropractic Clinic on 21 June 2019. The chiropractor, Mr James Fulcher, diagnosed problems with C5 and C6, C6 and C7 and L3/4 and L5/S1. They are four separate discs, two in the cervical spine and two in the lumbar spine.
On 5 July 2019, Mr Fulcher noted that the plaintiff's low back was tender. On 9 July, he diagnosed a left L3 "drop". I am not familiar with chiropractic but it may mean that the doctor thought there was a problem resulting from the L3 nerve root which may have been causing some deficit in the L3 distribution.
On 12 July 2019, the plaintiff first attended on the Good Practice GP Surgery at East Branxton where he saw Dr Sasitharan. He complained of neck pain and a diagnosis was made of a left sided disc prolapse leading to the referral to Dr Spittaler. On 1 August 2019, the plaintiff saw Mr Jeremy Thomas at the Chiropractic Clinic and Mr Thomas diagnosed a problem at the lumbosacral level.
There was then a gap of almost two and a half years before the plaintiff next attended the chiropractic clinic. The plaintiff attended again on 11, 18 and 25 March 2022, but in respect of what appears to have been a cervical problem. On 8 July 2022, the plaintiff consulted Mr Thomas again at the Chiropractic Clinic concerning low back pain and "upper back" tension, by which I infer he meant a problem in the thoracic spine. He noted tenderness to palpation and a decreased range of movement both at the lumbosacral level and at T3/T4. The same problem was recorded by Mr Thomas on 22 July.
On 9 September 2022, Mr Thomas received a complaint of low back pain as well as pain on the left side of the rib cage. Again, he noted tenderness to palpation and a decreased range of movement at the L5-S1 level and what may be a right iliac strain.
On 12 September 2022, another chiropractor, Mr David Ng at Little Sprouts Chiropractic Clinic noted the plaintiff was having trouble putting on his pants and wearing shoes and getting in and out of his car. He noticed pain and decreased range of movement at the L4/L5 level as well as at the thoracolumbar junction. Mr Ng provided "treatment" for both the L4 and L5 vertebra.
On 16 September 2022, which was a Friday, the plaintiff again attended upon Mr Ng and told him that he felt better but was still sore. On that day, the plaintiff was able to get in and out of his car. Again, Mr Ng noted pain and decreased range of motion at the L5 level on the right hand side and proposed to treat the plaintiff's L5 vertebra.
On Monday, 19 September 2022, the plaintiff attended upon Mr Ng at the Chiropractic Clinic and said that he had back pain worse over the weekend. He also recorded a history that the plaintiff was "getting blood tested, liver, kidney ?" That seems to me to indicate that a medical practitioner may have thought the plaintiff was suffering from some illness that might have been viral. Mr Ng noted pain and decreased range of movement at the L3 level and at the right S2 level. He noted a right "drop" at the S2 level.
19 September 2022 was a rostered off for the plaintiff. 20 September 2022 was a Tuesday. That is the day that the plaintiff alleges that he sustained an injury in the defendant's bathhouse when he was getting ready to go to work. However, before he did so, a number of things must have occurred.
He went to the Family Circle Medical Practice at Hamilton. There he saw a general practitioner, Dr Ehsan Mozafari. That doctor wrote a certificate to this effect:
"Mr Craig Kedwell has a medical condition and will be unfit for work from 19 September 2022 to 19 September 2022."
One must, as usual, decry the use of the future tense when the past tense was the appropriate tense to use. However, on that morning Dr Mozafari wrote a request for an MRI scan of the plaintiff's lumbar spine. The certificate to which I have referred is Exhibit 7. The request for the MRI scan is Exhibit 6.
On 20 September 2022, the day now in question, the plaintiff was due to start work at 2pm. He worked for ten hours. His shift finished at midnight. He must have consulted Dr Mozafari prior to going to work. Normally when the plaintiff was working for Clarence Colliery, he was staying in a house that he had bought at Portland because his normal place of abode with his wife is at Greta in the Lower Hunter Valley and that the distance between Greta and Portland is a drive of some three hours.
When the plaintiff saw Dr Neil McGill on 23 September 2024, Dr McGill recorded this history:
"He is currently performing his normal duties. He works four shifts, Monday to Thursday. Each shift is ten-12 hours. He does a three‑hour drive on Monday morning to reach work and has a similar duration drive after completing his Thursday shift."
It would appear, that for the shift that he was supposed to perform on Monday, 19 September 2022, the plaintiff did not drive to Portland but stayed in Newcastle. He attended on Dr Mozafari, who is in inner Newcastle on the morning of 20 September 2022, and then must have driven up to Portland to attend the Clarence Colliery.
The question that now rises is whether the plaintiff was injured on 20 September 2022, as is alleged in the statement of claim. The plaintiff told me in his evidence that he went into the bathhouse to change his clothes from the clean clothes he was wearing to the "dirty clothes" in which one works in a coal mine. He told me that he was getting changed at approximately 1.40pm. He said that he took his shirt off. There was a basket which he said dropped down or may have been pulled down and, when he took his shirt off, he turned to the right to put his shirt in the basket. When he did so, he noticed shooting pain up and down each of his legs. He said that he reported the event in the bathhouse to the deputy, Mr Wayne Perry.
In cross‑examination the plaintiff eventually agreed that he did not bend over. He merely took off his shirt and twisted to the right to drop the shirt into the basket. He kept his hands at 90 degrees essentially to the floor of the bathhouse. Common sense indicates that one does not bend to take off one's shirt. That is exactly what the plaintiff displayed by his action in the witness box and eventually he conceded that he did not bend over. Nevertheless, he had this shooting pain in his legs and that caused him not to return to work on the following day, Wednesday, 21 September 2022.
On that day, he attended upon Mr Thomas at the Little Sprouts Chiropractic Clinic at 2.19pm. His complaint was of shooting pain in his right leg. Mr Thomas noted tenderness to palpation and a decreased range of movement at both L5 and S1 but also at C6/7. He treated the plaintiff's L5-S1 disc but on the left hand side. On this occasion he recorded a plan in his notes. They were for the plaintiff, light duties with no bending or lifting. The plaintiff did not work on either 21 September 2022, which was a rostered day, and he did not work on the next rostered day which was 22 September 2022.
On Friday, 23 September 2022, he attended upon Mr Thomas again and complained of right sided sciatic pain. Mr Thomas noted that the right sided pain was a true sciatic pain radiating down to the knee. However, he noticed no weakness in the musculature. Again, he found tenderness to palpation and a decreased range of movement at the L5-S1 level and also at the T11/T12 level.
On the same day, the MRI scan that had been ordered by Dr Mozafari on 20 September 2022, was performed. The report of it is Exhibit H. The radiologist was Dr Moreira. The report is this:
"The sagittal alignment is normal. The facet joints are unremarkable.
There is a transitional vertebrae characterised by partial lumbarisation of S1. Between S1 and S2 there is a rudimentary disc.
Mild osteophytosis is noted at the vertebral bodies. Multiple small Schmorl's nodules are noted in the lumbar level associated with end place oedema consistent with Modic 1 degenerative changes.
There is dehydration of the intervertebral discs throughout.
At the L1/2, L2/3 and L3/4, the discs are morphologically normal. The spinal canal and foramina are capacious.
At L4/5, there is a mild disc bulge which causes mild compression on the lateral recesses and the mild bilateral foraminal stenosis.
At L5-S1 there is a large right sided foraminal protrusion associated with an annular fissure. It impinges the exiting L5 nerve root. Posteriorly and on the left side there is a small bulge which is non‑significant.
Conus medullaris, cauda equina and paraspinal muscles show normal signal intensity.
COMMENT:
Moderate degenerative changes of the lumbar spine. Highlight is given to small Schmorl's nodes associated with end plate oedema as well as L4/5 and L5/1 disc disease, worse at L5-S1 on the right side where there is associated annular fissure and nerve impingement."
On Monday, 26 September 2022, Mr David Ng at the Little Sprouts Chiropractic Clinic recorded that the MRI had been performed on the preceding Friday and the plaintiff was to see his general practitioner that day. The plaintiff saw Mr Ng at 9.42am. The plaintiff undertook to send a copy of the report of the MRI scan to the chiropractic clinic as soon as possible. The chiropractor noted that the lower back pain had eased but the pain was mainly pulling on the right side between the back and the knee. The feeling was one of tightness. Clearly that is a reference to sciatica.
On this occasion, the chiropractor taped the plaintiff's low back. I note with some bemusement that the taping was said to be at no charge because that was the first occasion on which it had been performed for Mr Kedwell. Later on that day, the patient saw Dr Sasitharan at the Good Practice GP Surgery. Dr Sasitharan recorded this:
"Patient needs MRI. Patient working underground. Work. Patient put clothes in basket. Then patient got shooting pain both legs 20 September 2022, Tuesday afternoon."
The doctor diagnosed L5 nerve root compression and provided the plaintiff with a certificate of unfitness for work between 26 September and 27 September 2022. His final remark was this: "Review if problem persists." The doctor appears to be unaware of the fact that an MRI scan had been performed on the preceding Friday, at the request of another medical practitioner, and furthermore it appears that the plaintiff did not tell him that the MRI scan had been performed.
The next relevant date is 29 September 2022. That was a Thursday. On that day, the plaintiff saw both the chiropractor and a general practitioner, albeit it is not clear who the plaintiff saw first. It appears to be likely that he saw the chiropractor before he saw a general practitioner.
The chiropractor was a Mr Jeremy Thomas at the Little Sprouts Chiropractic Clinic. The records of the clinic indicate that the plaintiff saw Mr Thomas at 12.07pm. Subjectively, the chiropractor's notes tell me that the plaintiff complained of numbness in his right great toe. Objectively, according to the records, he complained of tenderness to palpation and a decreased range of movement both at the L5/S1 level and also in the pelvis. However, there were also complaints noted in the thoracic and cervical spine.
As far as the right lumbosacral disc level was concerned, the chiropractor referred to that as "category 3". I do not know what that means. However, his plan was to refer the plaintiff to a doctor to follow up. On that day I know that the plaintiff attended Dr Chau at the Good Practice GP Surgery. The notes made by Dr Chau are these:
"Presented for pain relief. Chronic back pain, recent MRI. Patient takes ibuprofen/paracetamol. Walking, opening bowels, passing urine (chronic prostate issues). Pain travelled from right buttock to below the knee on the right. Dull ache. Dysfunctioning, can't sleep or work."
The past mental history recorded by Dr Chau merely indicated that the plaintiff was no longer taking quetiapine. He then recited again the medications that the plaintiff was taking and then referred to the MRI. He made this comment about the MRI: "Suggestive of radiculopathy with clinical symptoms of sciatica."
Dr Chau then carried out an examination. He noted that the plaintiff's gait was not antalgic and thought that there was normal power in the lower limbs and a full range of movement. However, he noted focal back pain in the lower right back and, as far as Dr Chau was concerned, it was at the L4/5 level. The impression, which he recorded in his notes, was of radiculopathy, or musculoskeletal related back pain and then an acute exacerbation of "chronic issues". He laid out this plan:
"1. Discuss conservative management, regular analgesia, plus trial of Lyrica at night - may need titration.
2. To book back to see Dr Sasi re further management, e.g. injection/referral to specialist.
3. Discuss the benefit of physiotherapy - and keep mobilising.
4. Red flag and safety discussed."
Dr Chau re-prescribed quetiapine and Lyrica.
On the following day the plaintiff returned to see the chiropractor. On this occasion he saw Mr David Ng at 9.34am. Mr Ng obtained a history that the pain was settling down, but it was still hurting the plaintiff. On examination he noted pain and decreased range of movement on right side at the lumbosacral level. He again diagnosed a problem with the lumbosacral disc. That day was a Friday.
On the following day, Saturday, 1 October 2022, the plaintiff returned to see Mr Ng, who obtained a history that the plaintiff was getting better, but he was still not sleeping well. Again, there was a finding, as before, of pain on the right side of the lumbosacral level.
On Tuesday, 4 October 2022, the plaintiff went to see Dr Sasi, that is Dr Sasitharan, at the Good Practice GP Surgery. Dr Sasi noted that the MRI scan had been performed. He noted the problem of a disc prolapse at the lumbosacral level and the plaintiff told him that he felt tired. Dr Sasitharan arranged for the plaintiff to have an Alto Imaging CT scan guided cortisone injection at the lumbosacral level to treat a lumbosacral disc prolapse, and that procedure was performed on the following day, 5 October 2022. Exhibit G is the report of the radiologist who carried out the procedure, Dr Moreira. The lumbosacral level was injected with a solution, which included two local anaesthetics, Celestone and bupivacaine.
The next relevant medical attendance by the plaintiff was upon Dr Sasitharan on Monday, 11 October 2022. He recorded that the plaintiff had had the cortisone injection seven days earlier, but the plaintiff told the doctor that his pain level was still 7 out of 10. Dr Sasitharan formed the view that the plaintiff needed referral to a neurosurgeon. On examination, he noted right‑sided sciatica. He wrote a referral letter to Dr Peter Spittaler, a well known neurosurgeon in the Lower Hunter Valley. He also appears to have changed the drugs prescribed for the plaintiff on that day. The letter of referral to Dr Spittaler is Exhibit F. Dr Spittaler appears to have seen the plaintiff on 31 October 2022.
Exhibit 1 is a report made by Dr Dhan Thiruchelvam, an upper gastrointestinal and obesity surgeon, practising at the Newcastle Weight Loss Surgery. The report is addressed to Dr Ehsan Mozafari, who was the doctor that the plaintiff saw on Monday, 19 September 2022, and who ordered the MRI scan, which has already been discussed.
Whether the plaintiff saw Dr Thiruchelvam on 20 October 2022 is unclear. Sometimes reports are written days after the appointment was made. Dr Thiruchelvam diagnosed class 2 obesity and back pain, as well as noting a prior appendectomy and prior ENT surgery. Dr Thiruchelvam diagnosed class 2 obesity and expressed the view that the plaintiff qualified for undergoing bariatric surgery. Dr Thiruchelvam reports that he had given the plaintiff an appropriate informatory pamphlet and then expressed this: "Then we will work him up and keep you informed of the progress." What came of that consultation I do not know, but it appears that there were a number of things which were concerning the plaintiff.
I now turn to the plaintiff's consultation with Dr Spittaler on 10 October 2022. The first sentence of the doctor's report of 31 October 2022 greets the referring general practitioner and thanked the general practitioner for the referral. The report continues thus:
"Eight weeks ago, he developed right-sided sciatica and soon after developed some weakness of dorsiflexion of the foot (although on examination he does not have a complete foot drop). He is struggling as he feels there is some weakness in his ankle and he has to concentrate when he is walking underground. He has had chiropractic and is taking analgesics. His MRI demonstrates a foraminal right L5/S1 disc prolapse and this would certainly fit with the distribution of the plaintiff's pain and also his weakness.
Two out of three patients with sciatica improve in the first six to eight weeks. Craig is getting towards the end of the time that I would be happy to treat him expectantly and with the weakness one is inclined to recommend surgery and I discussed with Craig today a right L5/S1 foraminotomy and microdiscectomy. I have given him some literature regarding the procedure and I have organised to review him in early December to see whether he has improved; if not, I will recommend surgery before Christmas."
One will note that the plaintiff gave no history of any injury occurring to him at work.
On the following day, the plaintiff attended upon the chiropractic clinic and on this occasion saw Mr Jeremy Thomas. The plaintiff told the chiropractor that his surgeon had suggested surgery in around two weeks' time if there was no improvement. That is clearly consistent with Dr Spittaler's report of 31 October 2022. The plaintiff saw the chiropractor again on 4 November 2022. One may assume that the plaintiff continued to see the chiropractor in November. For example, there were consultations on 4, 8, 16, 23 and 30 November 2022, as well as on 2 December 2022.
Dr Spittaler wrote a further report on 5 December 2022. That referred to a Telehealth consultation that he had with the plaintiff on that day. The report continues thus:
"His pain has improved, but he has persistent intermittent weakness of his leg which is irritating him and making it difficult for him to continue working, and on this basis, I have recommended surgery as I discussed with him last visit. I warned him of the risks of right L5/S1 foraminotomy and microdiscectomy, including general anaesthesia, infection, nerve root injury and failure. The patient is going ahead with surgery next week."
The plaintiff continued to see the chiropractor after that consultation. He saw the chiropractor again on 6, 8, 12 and 14 December 2022.
"The Williams Retractor was used, and with magnification, the Midas Rex, and punches I drilled into the L5 hemilamina and the L5/S1 facet joint to open the foramen. When I was happy the root was widely decompressed, haemostasis was secured and the wound was closed in multiple layers using subcuticular monocryl for the skin."
I recite that merely to show the difference between this procedure and the previously traditional laminectomy, in which the whole of the lamina was removed before decompressing the disc. It now is only necessary to drill out part of the lamina in order to obtain a window to the disc which allows for the decompression of the nerve root.
I am favoured with a report of Dr Spittaler of 19 December 2022 addressed to Dr Sasitharan, in which Dr Spittaler points out that post operatively the plaintiff had improvement in the strength of his right foot, and he was discharged on the second day after surgery. The subcuticular did not need to be removed. Dr Spittaler organised for a review of the plaintiff in his rooms six weeks after surgery.
Essentially the plaintiff's claim closes on 30 January 2023. Thereafter he returned to work. One good thing which appears to have resulted from this is that the plaintiff obtained a promotion. He was seen by Dr Neil McGill, a consultant rheumatologist, on 23 September 2024 for the defendant. Dr McGill obtained this description of his current work:
"He is a shift engineer. For the first two hours, he organises what the trades workers will need to perform that day, from an office. He then works in the workshop for the remainder of the day, servicing diesel machines. He reported that the work is not physically demanding as there was a lot of lifting equipment available in the shop."
He has risen from a leading hand engineer to the shift engineer, doing less physically demanding work.
"On review on 26 October [2023] I took a more detailed history regarding this. Mr Kedwell told me that prior to the incident on 20 September last year he had for several weeks been doing heavy work lifting parts of machinery underground. He had had some mild lower back pain after doing this and he had seen his general practitioner, who had referred him for an MRI.
On 20 September the patient told me that he was at work and was in the bath house at the colliery getting changed into some work clothes. As he bent to do this he developed sharp lower back pain. He then had the gradual onset of right leg pain and right leg weakness.
The patient told me that he reported this incident on the day it happened and tried to make a formal claim three days later, but his supervisor would not record it. A workers compensation claim was then lodged by your firm [Messrs Brydens] in January of this year.
The patient went to work on the day of the incident, but had gradually worsening back pain. He was unable to work the following day. He had a steroid injection performed at the request of his general practitioner in early October 2022 [5 October 2022] and then saw me late October 2022. His MRI of the lumbar spine demonstrated a foraminal right L5/S1 disc prolapse [MRI of 23 September 2022]. When I examined him he had marked weakness of the right foot and told me he had difficulty walking underground..."
"I think the employment was the main contributing factor to the injury. I do not think that the incident in the bath house was really the significant incident. I think the heavy lifting for the weeks prior has led to some weakening of the annulus of the disc and bending to get changed was the 'straw that broke the camel's back'. To state it another way, I doubt that Mr Kedwell would have developed sciatica and weakness in his foot had he not been lifting for several weeks prior to the incident in September last year."
"I think that the injury was a consequence of the patient's employment. Whilst the incident in the bath house may have been the trigger, I think the significant factor was the lifting prior."
"I think the surgery was a direct result of the injury on 20 September and the work duties for several weeks prior and I base that opinion on the history. There appeared to have been a sentinel event and the most likely explanation for that is that the disc prolapse, which was caused by what would seem to be a reasonably minor incident, that is the bending to change. That then led to the relevant sciatica and objective weakness in the foot."
"Craig was involved in a workplace injury. [This is an opinion that might be offered by a lawyer, but is not one for the opinion of a doctor.] He had been working for 33 years in various coal mines, but for the last three years he had been working for Centennial Coal Mine. He had back pain initially in 2013. He presented to his GP with back pain, but he was subsequently diagnosed as being prosatitis [sic]. He underwent treatment for his prostatitis and his back pain resolved. By about 2018, he started to develop intermittent back pain which was not continuous, he feels that it was related to the lifting in his job. He did, however, manage this with chiropractic treatment and he had flare ups every now and then from work, but the pain would settle. On 20 September 2022 when he was working for Centennial Coal Mine, he had back pain from the repetitive lifting he was doing underground and he was proceeding to treat this with chiropractic treatment. Unfortunately, however, in the midst of this flare up on 20 September 2022, he was in a bath house getting changed for work when he stood up from a bent position and he felt sudden back pain with radiating pain down the right leg. It was very severe pain, and it was associated with some weakness in his right foot. He went and saw his chiropractor who said he had an L5/S1 disc prolapse and recommended that he see a GP."
The report continues giving a history, but it is not necessary for me to quote that.
"Q. Your opinion as to whether the worker's condition was caused and/or materially aggravated by the general nature and conditions of the worker's employment as described to you (rather than by a frank injury)? If so, what was the relevant period of employment?
A. As stated, the degeneration of the L5/S1 disc most likely occurred as a result of the nature and conditions of his employment, but his main problem was a frank injury resulting in the L5/S1 disc prolapsed and the right sided L5 radiculopathy."
The only thing that could constitute a frank injury on the history taken by Dr Herald was the event on 20 September 2022, when the plaintiff was in the bath house changing for work, when he stood up from a bent position and felt sudden back pain, with pain radiating down the right leg.
A vertebral disc can be thought of as being an oval golf ball. It comprises two elements, the annulus fibrosus and the nucleus pulposus. The annulus is a hard outer lining. The nucleus pulposus is soft material. The rupturing of a disc generally occurs when there is a tearing of the annulus fibrosus, allowing the nucleus pulposus to escape through the tear in the annulus to impinge upon the spinal cord and/or nerve roots. It was the impinging nucleus pulposus that was removed by Dr Spittaler in the operation that he performed on 14 December 2022.
The question is when did the annulus tear? When one carefully reads both Dr Spittaler’s and Dr Herald’s reports, the annulus tore when the plaintiff stood up from bending over when he was changing his clothes. The problem here is that the plaintiff admitted in his evidence that he was not bent over when he noticed the onset of pain in his leg. Indeed, he indicated that he was standing up, he had taken off his shirt and he was moving his arms to his right side at an angle of 90 degrees to his torso to put them in the basket, which was on the chain which had been pulled down to take his clean clothes. It would then be taken back up at a higher level of the bath house to protect it.
The usual method of tearing the annulus fibrosus is because of two things, axial overload and torsional stress. The axial overload is putting too much weight on the spine. That of course can occur merely by bending over and, in particular, can be caused by picking up heavy weights. The torsional stress is in this case the moving to one side. However, there was no axial overload. The plaintiff was standing upright.
The problem I have with the opinions expressed by Dr Spittaler and Dr Herald is they do not have an accurate history. In the claim for compensation submitted by the plaintiff's lawyers, as pointed out by Dr Spittaler, the plaintiff said that his injury was witnessed by Mr Wayne Perry, who was his Deputy. However, the plaintiff denied that that was the case when he was cross-examined. He also said that he mentioned it to a number of other people, but that appears to be after the event. In his claim for compensation, he said that he reported it to Mr Liam Beecroft, although the plaintiff misspelt both those names, both the first name and the surname.
In evidence he referred to a number of other potential witnesses. He referred to Mr Mitchell Flucca, the health and safety manager, and to Mr Kip Miranda a check inspector, as well as Mr Perry, but when he actually told those gentlemen is unclear. Whether it was later and they refused to corroborate him because they were unaware of it, I do not know. However, no one was called to corroborate the plaintiff.
I also have the problem in that on the morning of 20 December 2022, the plaintiff attended upon Dr Ehsan Mozafari and obtained a certificate of unfitness for the preceding day, Monday, 19 September 2022, and also the referral for the MRI scan, which was actually performed on 23 September 2022 and confirms the diagnosis of a tear of the annulus at L5/S1, with the resultant protrusion. Why the plaintiff did not work on the 19th is not at all clear, but one must note that when the plaintiff saw the chiropractor at 10am on 19 September 2022, the plaintiff said that his back pain was worse over the weekend and that he is getting his blood tested and thought about the liver or his kidney and referred to both liver and kidney tests, I assume. They may have been ordered by Dr Mozafari. I just do not know.
The defendant relies upon opinions expressed by Associate Professor Paul Miniter, an orthopaedic surgeon, and by Dr Neil McGill, a consultant Rheumatologist, to whom I have already referred. Dr Miniter took this history:
"As you know, Mr Kedwell has had issues with lower back pain over many years. The correspondence that you have sent suggests that he had been seen by Dr Spittaler back in 2019 and that there was imaging in 2019, suggesting a right-sided L5 nerve root compression issue associated with longstanding lower back pain. He told me himself that he was well acquainted with a chiropractor who works in Rutherford. This gentleman has worked as an underground coal miner for many years.
The day allegedly of relevance to this matter occurred on 20 September 2022. He gave a very clear history of increasing levels of discomfort building up to that time and told me that he had been seeing his chiropractor on a weekly basis during that time. As you know, he and the chiropractor are well acquainted and he told me that as the weeks had passed, he had increasing levels of lower back pain, but no leg pain. He went to work on the day in question and when he did go to work, he had driven himself up from his residence in the Newcastle area down to the coal mine at Centennial. He got out of the car, went down to the bath house and was simply taking off his shirt to prepare himself to work when he felt a jolt of pain in his lower back with discomfort extending into the right leg. The pain was severe and he told me that he dropped to his knees. In any event, he continued to work and managed to complete the shift but at the end of the shift, he went back to the home that he had bought in the area, rang his wife and said that he was coming home. He then went off work and he basically was unable to work in a proper fashion between then and the surgical treatment, which was undertaken by Dr Spittaler in December of that year."
"This gentleman has clear evidence of longstanding lower back pain. There is clear evidence of previous issue with the L5/S1 disc and the MRI scan taken in 2019. There is no evidence that this gentleman injured himself in the workplace. He simply had increasing levels of pain for weeks prior to the episode described above and this culminated in an acute disc prolapse, which occurred as described in this report. The history is straightforward and genuine, but it is not caused by the workplace. I note that both Dr Spittaler and Dr Herald believe that there had been 'an injury', but I see no evidence to support this. Both doctors should be well aware that the medical literature does not support the concept of nature and conditions of employment being a contributor to the issues such as this. This gentleman simply has degenerative lumbosacral disc disease and has been well managed by Dr Spittaler following an episode of acute disc prolapse."
"On a Tuesday morning (he could not recall the month, but thought that it was in 2023), he arrived at work, removed his shirt in order to get changed, and then felt a 'thud' in the lower back radiating into both groins. Although the pain was substantial, worse than his usual back pain, he expected it would settle. He performed his normal work duties that day. Later that day, the pain radiated into the right lower limb. That night he was unable to sleep because of pain such that he did not attempt to work on the Wednesday and instead drove home. It was a struggle for him to get in and out of the car. His right lower limb pain was such that he slept on the lounge at home."
Again, Dr McGill took no history of bending over whilst undressing, but merely of taking off the shirt, which is the same history obtained by Professor Miniter and the history that eventually was conceded in cross-examination. The comment to Dr McGill about getting into and out of the car mirrors a history recorded by Mr David Ng, the chiropractor, on 12 September 2022 and also on Friday, 16 September 2022.
If there is any light that could be shone on the current problem, it would come from Dr Ehsan Mozafari and there is nothing from him. There is no report from him. His records have not been tendered, nor has his absence from the witness box been explained.
I cannot accept that the plaintiff tore the annulus fibrosus of the lumbosacral disc in the bath house on 20 September 2022. The mechanism of injury is implausible. I accept that at some stage the lumbosacral disc ruptured in the sense that there was a tear of the annulus fibrosus leading to the extrusion of the nucleus pulposus of the disc, causing the disc prolapse. When that occurred, I do not know.
The last piece of work that the plaintiff relied upon was the work referred to that was performed on 15 September 2022, which was a Thursday. On the Friday, the plaintiff went to see Mr Ng and gave a history that he was better than he was on 12 September 2022, but his back was still sore. He said on that day he was able to get in and out of the car. The chiropractor noted a decreased range of movements at the lumbosacral level on the right side. However, he went again to see Mr Ng on 19 September 2022, and made a complaint of the pain being worse over the weekend. Then we have the problem of his seeing Dr Ehsan Mozafari on that day.
The evidence does not permit me to make any finding as to when the extrusion of the nucleus pulposus occurred, but it clearly had taken place by the time that the MRI was performed on 23 September 2022. It clearly was in existence when he saw the chiropractor on 21 and 23 September 2022. However, it may have existed when he saw the chiropractor on 12 September or 16 September 2022. I am in the hands of the plaintiff.
This brings me to another question and that is this: I have complained for years now, about legal practitioners using "nature and conditions of employment” and concentrate on what the Act requires, that is, either an injury or a disease: Mirkovic v Davids Holdings Pty Ltd (1995) 11 NSWCCR 656 at 667; Johnson v Donaldson Coal Pty Ltd and ors [2023] NSWDC 250; (2023) 40 DCLR (NSW) 269.
Clearly, there is a disease process in this plaintiff's lower back. The disease can be called either degenerative disc disease or lumbar spondylosis. The lumbar spondylosis is reactive to the degenerative disc disease, it is the degenerative changes shown on the vertebral bodies. However, for a disc protrusion to occur, there must be a lesion, a tearing of a disc, and that is a trauma, and so it is looked upon by both Dr Spittaler and Dr Herald.
I wholly accept that heavy and arduous work such as that performed by many in the coal mining industry can aggravate, exacerbate or cause a deterioration of a degenerative condition in the back. However, that does not mean that a disc will rupture. For a disc to rupture requires some form of trauma. I am not persuaded that the trauma alleged on 20 September 2022 occurred. That is, I am not persuaded the injury alleged in the statement of claim on 20 September 2022 occurred.
As far as the other allegation is concerned, the type of work the plaintiff did for the defendant prior to the rupturing of the lumbosacral disc may have made the degenerative condition worse, but did not cause the tearing of the annulus fibrosus of the disc. The need for the surgery performed by Dr Spittaler was caused by the rupturing of the disc, and the times that the plaintiff had off work in respect of which he claims compensation were because of the rupturing of the disc.
"Craig has suffered a 20% permanent impairment of his lumbar spine when compared with the most extreme case. This is based on the table of disabilities in s 66 of the Workers Compensation Act 1987."
A most extreme case concerns entitlements under s 67, not under s 66. The back is not the lumbar spine. If one consults the cases that have been decided, one can ascertain that the Act differentiates between the neck, the back and the pelvis. For example, lump sum compensation claims have been made for impairment of the back because of a problem with the sacroiliac joint, but the sacrum and the ilium are both part of the pelvis, and the appropriate lump sum is for impairment of the pelvis. The neck includes the cervical spine, but also includes the whole of the soft tissues of the neck, which of course go around to the front of the throat. The back is the area between the neck and the pelvis, and includes not only the thoracic spine and the lumbar spine but also the ribs, insofar as they form a framework for the back, and also the soft tissues, that is muscles, skin and ligaments that hold the body together. The lumbar spine is not the whole of the back. A 20% permanent impairment of the lumbar spine would be less than 20% of the back.
It would be unfair to the plaintiff to rely upon this assessment of Dr Herald because it clearly results from his opinion as to what was the cause of the lumbosacral disc protrusion. It does not take into account, for example, degenerative changes in the whole of the lumbar spine, nor does it take into account any degenerative changes in the thoracic spine, and I am confident, if his thoracic spine were x-rayed, there would likely be such degenerative changes.
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Kedwell
Clarence Colliery Pty Limited [2025] NSWDC 417
(1995) 11 NSWCCR 656