Vile v Centennial Myuna Pty Ltd

Publication restriction: Nil.

Judgment

1. HIS HONOUR: The plaintiff is a coal miner. He claims weekly payments of compensation between 5 December 2023 and 15 January 2024, and from 29 November 2024 until 14 February 2025, and then again from 5 June 2025 to date and continuing. His last claim is under s 11(2) of the Workers' Compensation Act 1926 (‘1926 Act’), as its operation is continued by the Workers' Compensation Act 1987 in respect of those who work in or about a coal mine. The plaintiff also claims his expenses under s 60.

Background and Work History

2. The plaintiff completed his secondary education in Year 10 at the Rutherford High School. Between 1986 and 2007 he had various roles as a factory hand. Inter alia, he worked for Prydes Sweets, for Bunnings, and for Industrial Galvanizers. In 2007, he started working as a trainee multi‑skilled mine worker with TESA at the Myuna Colliery, and commenced working at that colliery for Centennial Coal in 2008. He continues to be employed by Centennial Myuna Pty Ltd, albeit that he is currently not working.

Injury and Treatment

3. The plaintiff injured his right knee at work on 15 October 2023.

4. After his injury, he was taken to the Lake Macquarie Private Hospital, where he was treated at its Emergency Department. The notes recorded at the Lake Macquarie Private Hospital are contained as an annexure to the records of the Weston Medical Centre, which are Exhibit B. Those notes are these:

"Working in underground mine, uneven flooring caused his foot to slip. Twisting injury to right leg, did not fall to ground. Complaining of ongoing pain to medial aspect of knee. Minimal swelling. Has been able to weight bear since injury. Reduced range of movements due to pain. No paraesthesia. No referred pain to knee or hip. No previous injuries to knee. Pain currently settled, declining analgesia."

5. On examination, the attending medical practitioner noted that there was minimal swelling of the knee. He noted tenderness of the medial aspect of the right knee. There was an adequate range of movements, albeit that the range of movements was limited by pain, and the doctor noted no laxity of either the anterior cruciate ligament or the posterior cruciate ligament, but did note that there was tenderness over the medial meniscus, plus, plus. Plain X‑ray revealed no bony abnormality. The plaintiff was provided with a Tubigrip dressing, as well as crutches, and was given analgesics. He was also advised to obtain an MRI scan of his right knee, and was given an appropriate certificate.

6. The MRI scan of the right knee was conducted on 18 October 2023, and was reported by Dr Ken Thong, a well‑respected radiologist in the Hunter Valley. Dr Thong's report of that MRI scan is this:

"Small irregular inferior oblique tear seen in posterior body medial meniscus, please see saved key image. No parameniscal cyst. Rest of medial meniscus normal. Lateral meniscus intact. Minimal joint effusion. No local bone bruise.

Cruciate ligaments and collateral ligaments intact. Articular cartilage normal. Quadriceps and articular tendons normal. No Baker's cyst.

Conclusion

Small medial meniscal tear. Minimal joint effusion."

7. On 23 October 2023, the plaintiff attended upon Dr Samarasinghe at the Weston Medical Centre and gave that doctor a history of the right knee injury that occurred on 15 October 2023. The doctor viewed the MRI report and inserted in the notes of the practice a diagnosis of a tear of the right meniscus, presumably meaning the right medial meniscus, as indicated by Dr Thong in his radiological report, and is also clear from the notes of the Lake Macquarie Private Hospital.

8. On 6 November 2023, Dr Samarasinghe referred his patient to Dr Lynette Reece, an orthopaedic surgeon. Dr Reece saw the plaintiff on 2 November 2023. On examination, she noted that the plaintiff still had a limp, and that he was struggling to bend his knee. However, she thought that the swelling of the knee was not large, but it was causing the knee to "stiffen up". She expressed this view:

"Looking at the MRI, it is a very peripheral tear, and I feel that if we can get the inflammation to settle down, we may be able to get him back to work and not operate. If I dealt with the peripheral tear, I would be taking out a lot of meniscus, which would increase the risk of him [sic] getting arthritis. So if we can leave as much meniscus there as possible and not operate, that would be much better."

9. She prescribed an anti‑inflammatory medication, which also had a painkilling function, and she hoped that that would cause the problem to settle down. She reviewed the plaintiff on 23 November 2023, but there had been not much improvement. She therefore elected to subject the plaintiff to arthroscopy, with the prospect of carrying out a medial meniscectomy if the result of the arthroscopy indicated that she ought do so.

10. Dr Reece practised the proposed surgery at the Maitland Private Hospital on 5 December 2023. Her operative report is before me. That includes the following description of the operation:

"Patient anaesthetised. Naropin was introduced into the knee. Using the normal portals, the knee was inspected. The patellofemoral joint had some lumpiness in the trochlea and the back surface of the patella, but with no break in the cartilage. The medial and lateral gutters were empty. Medial compartment and medial meniscus was [sic] inspected on the superior surface and inferior surface. There were no tears. There was a little bit of scuffing of the articular cartilage anterior medially. This was debrided back to a stable edge. Anterior cruciate ligament intact. Again, the meniscus was intact on superior and inferior surfaces. Knee washed out. Dressings applied."

11. In a letter of 14 December 2023, addressed to Dr Samarasinghe, Dr Reece reviewed the plaintiff post‑surgery on 12 December 2023. She described his operative wounds as 'beautiful', which may represent a feminine approach to orthopaedic surgery. She confirmed that there was no tear in the medial meniscus. Indeed, she confirmed that there was no tear in the lateral meniscus either, and therefore she did not remove any meniscal material. She went on to say this:

"He does have degenerative change within the meniscus, but it is contained, and therefore not a tear. It doesn't mean it is not painful."

12. After a short initial period of work, the plaintiff was certified as fit for restricted duties between 23 October 2023 and 4 December 2023. He was totally incapacitated between 5 December 2023 and 15 January 2024 as a result of the surgery that was practised by Dr Reece. He was certified as fit for restricted duties between 16 January 2024 and 27 November 2024, but then was certified as totally incapacitated between 28 November 2024 until 27 January 2025. Since 28 January 2025, he has been certified as being fit for restricted duties, but there has been a failure in recent time to provide the plaintiff with suitable employment during his partial incapacity.

Medical Opinions

13. There is really no dispute that the plaintiff was injured as alleged. He clearly indicated to me in the witness box noticing pain over the medial aspect of his right leg adjacent to the upper medial quarter of the patella. The case is really a medical one. There is a dispute as to what was the nature of the plaintiff's injury. On 14 March 2024, that is, after the surgery practised by Dr Reece, the plaintiff underwent a second MRI scan of his right knee. That has been reported upon by Dr Amanda Woodward. As far as the medial compartment is concerned, Dr Woodward said this:

"Medial meniscus. Small focus of vertically‑oriented intermediate signal at the body posterior horn junction not significantly altered from previous. Elsewhere, meniscus is normal in appearance."

14. I glean from that comment that Dr Woodward had available to her the radiological investigation reported upon by Dr Ken Thong, made on 18 October 2023. Dr Woodward in her report of her investigation noted mild chondral fissuring/oedema at the junction of the medial and "odd" facet. She thought that was more pronounced than at the time of the earlier investigation. She also found an abnormality on the Hoffa fat pad, but the significance of that is unclear to me. The impression which she expressed in her report was this:

"Features of old, small, complex tear at the body posterior horn junction of the medial meniscus, unaltered from study of 18 October 2023. Small focus of chondromalacia at the medial margin of the mid patella. Mild post‑arthroscopy scarring without complication."

15. There is also before me a further investigation, namely a CT scan of both knees performed on 24 July 2024, by Dr Ken Thong at the request of Dr Richard Verheul. The CT scan was of both knees. The report of the scan commences in this fashion:

"Both patellae are mildly subluxed laterally in neutral position, but become central in position and congruent with trochlear groove with 30 degrees of knee flexion. The following measurements were obtained..."

I do not list the measurements recorded by Dr Thong because their significance does not appear to me to be directly relevant to the current inquiry.

16. On the same day that Dr Thong carried out the CT scan of the knees, a bone scan of the right knee was performed by Dr Demetrius Voutnis. The only abnormality which Dr Voutnis' report suggests is a finding of "low grade increased signal in the patellofemoral compartment, notably at the medial articular facet".

17. The last report of Dr Reece that is before me follows upon her review of the plaintiff on 12 February 2024. In that report, Dr Reece noted that the plaintiff had returned to work, which he described as "fantastic". At that stage, the plaintiff was working underground for six hours each shift and for six hours aboveground. She thought that the plaintiff should maintain that regime because he was still yet unable to kneel on his right knee, and that walking on uneven surfaces, twisting, was causing some symptoms. She did not think that any further surgery was necessary. However, the plaintiff's symptoms did not settle, and eventually he was referred by Dr Samarasinghe to Dr Richard Verheul, a well‑known and respected orthopaedic surgeon who regularly treats patients with knee troubles.

18. Dr Verheul's report of 29 May 2024 commences thus:

"He is a very fit and well 53‑year‑old underground miner with problems referable to his right knee. He had never had any problems until he had a resultant injury to the right knee after falling into a wheel rut. He had an immediate pop and pain. This was on 15 October 2023.

He then came to arthroscopy under the care of Dr Lynette Reece on 5 December 2023 under the MRI findings of a very peripheral medial meniscal tear located on the undersurface. It would appear to be a stable tear in nature, and realistically, the only way to deal with this tear would have been with a complete medial meniscectomy.

Nonetheless, the knee never felt right to Jason subsequent to that procedure. He had a further MRI performed, which demonstrated the same meniscal tear, no re‑section of the medial meniscus, but chondral changes on the medial aspect of his patella. You can see that these findings existed on his arthroscopy, and he has got corrugations running through the trochlear groove.

He is otherwise fit and well, and not on any prescribed medication.

His knee is very irritable to examination. He is tender on the anterolateral aspect of it, but not tender on the site of the medial meniscal tear. His hip rotates well, his skin is in good condition and his pulses are present.

I believe that Jason's hyperflexion injury has resulted in a patellofemoral impaction type situation, and that this is the source of his symptoms, and that further surgery is contraindicated.

The best way to try and move forward with Jason would be to provide him with a hyaluronic acid injection such that appropriate rehabilitation can then take place of [sic] his knee."

19. Dr Verheul caused that injection to be carried out on 18 June 2024. However, in a report of 16 July 2024, Dr Verheul noted that there was no response at all to that injection. That caused the further radiological investigation to which I have earlier referred. In a letter of 30 July 2024, Dr Verheul said this:

"I have just reviewed Jason Vile with his nuclear medicine scan and his CT scan. His offset is 20 millimetres, and this is certainly at the level that I would consider having a good positive response to a tibial tubercle transfer.

I have explained this to Jason, and I will seek approval from the insurers to perform a tibial tubercle transfer."

20. However, that permission was not given by the defendant's insurer. Nevertheless, Dr Verheul went ahead with the surgery, which he has described as Fulkerson's osteotomy. That was carried out at the Lake Macquarie Private Hospital. In a letter to the plaintiff's solicitors bearing date 18 March 2025, Dr Verheul has expressed the opinion that he had no doubt that the plaintiff's condition was "materially caused, precipitated, aggravated and accelerated by the nature and conditions of the plaintiff's employment". I decline on this occasion to commence another disposition on what is meant by "nature and conditions of employment".

21. However, it is inapt to describe what occurred on this occasion. The plaintiff had a frank injury to his right leg. He placed his left leg in a position where he thought it would be on stable ground, but it was not. He placed his leg into what effectively was a hole, such that his left leg fell to a much lower level than his right leg, causing a sharp bending of his right leg at the knee, leading to his feeling the popping or tearing sensation in the medial aspect of his right knee at the time of what was clearly a frank injury, which appears to have caused some relatively minor damage to the medial meniscus of that knee.

22. The medical issue before me is essentially whether the need for the surgery practised by Dr Verheul was reasonably necessary as a result of injury arising out of, in the course of, the plaintiff's employment with the defendant. The statutory test is "reasonably necessary". It is not "reasonable and necessary", which is a statutory test referable to another statute that is inapplicable to those who work in or about a coal mine. Something is necessary or it is not. The word "necessary" has a quality of absoluteness about it. If it is not necessary, then it ought not be done. However, the word "reasonably" qualifies the absoluteness of the necessity such that if it can be said that it is "reasonably necessary" that the surgery be practised, that is adequate. The need for the surgery need not in fact be absolutely necessary.

23. The defendant largely relied on an opinion expressed by Associate Professor Paul Miniter, an orthopaedic surgeon, in a report bearing date 22 October 2024, which is Exhibit 1. In that part of his report, under the heading "Introduction", Dr Miniter said this:

"On 15 October, he was underground in his usual job as a multi‑skilled underground miner, and he sustained an injury where his left leg gave way into a trench, causing a hyperabduction, an axial compression injury to the right leg. He recalls pain in the right knee region, and soon after this time underwent an MRI scan. I have seen this MRI scan, which I regard as not demonstrating any significant pathology. It was performed on 18 October 2023. I indicate to you that the scan itself shows no evidence of bone bruising. I note that there is no intra‑articular fluid. It does not indicate that there has been a significant injury.

A further MRI scan was performed on 14 March [2024], and this followed upon an unsuccessful arthroscopic knee procedure performed by Dr Reece. Dr Reece did actually perform an arthroscopy, and she appropriately indicated in her operation report that she could see no evidence of a meniscal tear. She did not perform any significant surgical management.

This gentleman was referred to Dr Verheul for a second opinion, and Dr Verheul evaluated the up‑to‑date MRI scan and noted that it was normal, and then organised a CT scan, which was performed in July 2024. I draw your attention to the fact that the MRI scan of the knee taken in March does not demonstrate any significant chondral abnormality of the kneecap. The bone scan which has followed with the CT does not suggest he has a degree of increased TT‑TG distance, but it is minor, and as will be seen by my physical examination and history taking, it is more likely than not that this man has a hip problem. I note that the bone scan of the knee taken on 24 July 2024 demonstrates no abnormality. This is significant."

After carrying out the physical examination, the doctor expressed the view that the right knee was normal, as was the left knee, and the doctor was unable to see any evidence of patellar maltracking. He went on to explain that it in his view, the plaintiff had a hip problem. However, he does not actually diagnose the nature of the hip problem, and recommended investigations of the hip.

24. The defendant qualified, in addition, Dr Miles Coolican. By the time that Dr Coolican issued his first report to the defendant through its insurer, he had taken up residence at the Sydney Orthopaedic Research Institute, and in particular, was part of "The Knee Institute". Clearly, Dr Coolican's particular speciality as an orthopaedic surgeon is in surgery of the knee. His first report bears date 2 June 2025, and the second line thereof contains the caveat that he had not seen the plaintiff, and did not take a history from him, and did not examine him. He then comments upon the opinions of Dr Reece and Dr Verheul, and upon the imaging, and then upon the comment of Professor Miniter. He went on to express this view:

"If Mr Vile had suffered an injury to his right knee on 15 October 2023, there would be some abnormality visible on the MRI that was performed on 18 October 2023, some three days later. I reviewed this MRI and can find no structural damage anywhere within the knee. Whilst I acknowledge that there is some signal on the undersurface of the medial meniscus on its undersurface, this is commonly asymptomatic, and is much more likely to be a degenerative phenomenon. Significantly, Dr Reece does not mention any tenderness over the medial joint line, which one would anticipate in the presence of a meniscal tear. Significantly, Dr Verheul's report of 29 May 2024 specifically states that there is no tenderness over the medial meniscal tear, and accordingly, it is my opinion that the changes seen on the MRI are not a result of any injury, and in my opinion, Mr Vile did not suffer any structural injury to his right knee on 15 October 2023. I have no explanation for the patient's symptoms."

25. Fortunately, however, the defendant elected to assist Dr Coolican by arranging for him to interview and examine the plaintiff on 18 August this year. The history recorded by Dr Coolican is quite detailed and is worth repeating, because it is completely consistent with the oral evidence that the plaintiff gave in the witness box. The history is this:

"The history obtained from Mr Vile is that he is a 54‑year‑old male that presents with issues relating to his right knee. Mr Vile indicated he did not have any symptoms with his right knee until 15 October 2023 around 7.00pm, which was a Saturday, when he was working as an underground coal miner. He stated that he typically would work three 12‑hour shifts beginning on a Friday evening, and the last of these shifts was a Sunday evening. He was working underground and walked behind a miner, and inadvertently stood in a deep wheel rut with his left leg slipping into the rut, which was approximately 1‑1.2 metres deep. He remained weight bearing on his right leg, which stayed in position, and this resulted in abduction and flexion of the hip and knee, and there was a pop in the right, and quite significant pain, well localised along the medial joint line.

He had to stop working and was helped to a nearby crib where ice was applied, and a deputy and a co‑worker arranged a vehicle to pick him up, and he was taken to the surface. He was then transferred to Lake Macquarie Private Hospital emergency room where radiographs were obtained and excluded a fracture. He stated that he continued to work on light duties, but was referred by his GP to Dr Lynette Reece, who performed an MRI, and then an arthroscopy, with Dr Reece's arthroscopy report of 5 December 2023 describing some softening of the articular cartilage of the medial tibial plateau, and some 'lumpiness' involving the trochlea and articular surface of the patella without any break in the articular cartilage. There was no meniscal tear, and the anterior cruciate ligament was intact. Mr Vile indicated that he was unimproved by this surgery, with a persistent pinching feeling and stabbing sensation in the medial side of the knee.

He stated that the 'return to work lady' suggested that he get a second opinion from Dr Richard Verheul, who arranged a high hyalauronic acid injection, which did not improve his symptoms. He then had a bone scan, followed by a tibial tubercle transfer in November 2024. He has not had any further surgery since Dr Verheul's operation, but after a period of rest, whilst the transfer tubercle healed, he has been undergoing rehabilitation. In particular, he has been using a stationary bike at a gym, as well as swimming and doing what he describes as easy walking. He has seen a physiotherapist for a period of time, but formal physiotherapy has been ceased. He says that his right knee is progressing well. He does not have any pain [in] the knee, and has good mobility. He cannot go for a run, and if a car comes close when he is crossing the road, he does not feel as though he could run comfortably. He stated that he was slow with stairs due to the lack of strength. The right knee does not swell."

26. The doctor then carried out an examination of the plaintiff's right knee. When asked what was the mechanism of the injury, Dr Coolican said this:

"Mr Vile suffered a twisting injury to his right knee whilst weight‑bearing under load. This was manifest with medial pain due to a small undersurface tear of the medial meniscus."

When asked to comment on the relationship between the plaintiff's injury and his work, the doctor expressed this view:

"In my opinion, Mr Vile's employment was a contributing factor to the medial meniscal tear, which has gone on to heal with relative rest. He described a twisting injury to the knee, flexed whilst weight‑bearing, and this is the typical mechanism of a meniscal tear. It was undisplaced and peripheral, and accordingly has a good chance of healing, which has occurred."

27. In supplementary opinions, Dr Coolican expressed the view that it is unlikely that the plaintiff would require further treatment. He then said that the tear that he has diagnosed has largely healed, and in particular, the tear involved the inferior articular surface of the meniscus. There is a prospect that the tear could recur, but that has become less likely with the passage of time. He was then asked to comment on other opinions, and expressed the view that he agreed with Dr Verheul that the plaintiff's symptoms were not coming from any hip pathology, so that Dr Coolican agreed with Dr Verheul that the opinion of Professor Miniter was incorrect.

28. When asked to comment on the plaintiff's ability to return to work, Dr Coolican said this:

"In my opinion, Mr Vile is fit to return to his pre‑injury duties in a graduated manner. Mr Vile indicated that at present no light duties are available, and accordingly he last worked on 7 June 2025, and has been using accrued long service leave, sick leave and annual leave. Prior to 7 June 2025, he was working both light duties, and whilst there was a graduated increase in his underground hours, which were increased fortnightly. In my opinion, he is fit to return to underground mining work, gradually increasing the hours of work..."

29. In other words, although the doctor is saying in one breath that the plaintiff is fit to return to his pre‑injury duties, that could only occur if there was a gradual return to those duties. Therefore, it is really a diagnosis of restricted or light duties on an interim basis. Section 11(2) of the 1926 Act is therefore clearly invoked.

30. Importantly, it appears now, on the probabilities, that the plaintiff had some damage, albeit not a complete tear, of the undersurface of the medial meniscus that has caused his symptoms, and that the appropriate treatment has been provided by Dr Verheul. The medical mystery as to the nature of the pathology is now fairly clear, because it appears to me that Dr Verheul and Dr Coolican really agree on it, and one can read through, as I have sought to do in giving these reasons, that there are clear signs of a persisting problem with the inferior surface of the medial meniscus from the time of the plaintiff's injury, which was clearly caused by the unusual sort of injury so clearly described by Dr Coolican in his last set of reports.

Judgment

31. For those reasons, the plaintiff is entitled to succeed in his claim. The parties agree that at all material times the plaintiff's probable weekly earnings, but for injury, have been $3,653 per week. It is also agreed that the current weekly wage rate has been at all material times $1,565.02 per week. For the first 26 weeks of incapacity, the plaintiff is entitled to be compensated at that rate on a weekly basis. After the first 26 weeks, the plaintiff is entitled to a full award for a man with one dependent child. The plaintiff has three children; his youngest son, Jasper, is still 20 years old, and is a university student. The plaintiff is entitled to claim him as a dependent until Jasper reaches the age of 21. The findings that I have made ought enable the parties to draw up an appropriate award in accordance with the information contained in Exhibit O.

32. The plaintiff is entitled to a general award under s 60 of the 1987 Act, including the cost of the surgery practised both by Dr Reece and by Dr Verheul. Although the pathology may have been difficult to detect and describe, it is clear that there is underlying pathology caused by the injury and the attempts by Dr Reece and by Dr Verheul to correct that pathology were reasonably necessary as a result of the injury that the plaintiff actually sustained.

33. I grant to the defendant credit for payments made to the plaintiff. As ought be clear to anyone who has regularly practised, much of the result of this litigation will end up in the plaintiff being re‑credited his annual leave, long service leave and sick leave, which he has needed to take during his absence from work when workers compensation was not being paid.

34. The defendant will pay the plaintiff's costs.

**********