Barker v Bellambi Coal Co Ltd [1994] NSWCC 2; (1994) 10 NSWCCR 11 (3 February 1994)

[1994] NSWCC 2; (1994) 10 NSWCCR 11 (matter no 4416-93)

BARKER v. BELLAMBI COAL CO LTD

Compensation Court of New South Wales: Duck J

3 February 1994

For what injuries compensation payable - "Injury" - Contraction or aggravation of disease - Worker with injured knee suffering further injuries - Workers Compensation Act 1987, section 4(b)

G. Little, for the applicant

B. Odling, for the respondent

Cur adv vult

DUCK J: The applicant is a retired coal miner.

He was born on 13 August 1933.

He took voluntary retirement from his employment with the respondent on 28 January 1993.

He first suffered injury in the course of his employment with the respondent on or about 3 September 1977. The details of the way in which he was injured are not presently relevant; the injury suffered was principally to his right knee.

On 27 October 1977 the applicant underwent surgery: right lateral meniscectomy and an excision of some cystic material in the meniscus as well. After the procedure, his surgeon Dr J.B.E. Stephenson expressed the opinion that the applicant then suffered a disability of 10 per cent loss of efficient use of his injured right leg by virtue of his injury and the meniscectomy.

As was observed later by Dr W.J. Lyons in his report of 23 September 1993 (Exhibit 4):

" ... Osteo-arthritic deterioration can be quite rapid following such a procedure ..."

The applicant commenced proceedings for damages against his employer as a result of the injury of 3 September 1977. The proceedings were ultimately settled on terms which have not been disclosed in the present proceedings.

The settlement apparently involved the payment to the applicant of a lump sum (Transcript at 5).

The applicant was subsequently injured on two further occasions:

1. On 22 October 1984 he fell down some steps at work on to both knees.

2. On 2 February 1986 he fell over a buffer rail and injured his knees.

The applicant said that after the 1984 accident his right knee was worse than it had been, it was swelling all the time, he had pain in the back of it and there was muscle wasting in the quadriceps muscle.

After the 1986 accident the applicant said his right knee got gradually worse.

The applicant was asked this question:

"Q. Before 1984, had you had any trouble with your left knee?

A. Not as bad as the right knee, just swollen, you know, it got better in time like. It still has got problems but it's not going to be 100 per cent."

He was asked:

"Q. After 1986 what were they like?

A. The right knee's got gradually worse ever since."

Later the applicant was asked:

"Q. By the time you were retrenched or took the V.R.S., what was the condition of your knees then?

A. The right knee steadily got worse.

Q. What is your left knee like now?

A. Not as good (sic) as the right knee, it's still got problems with it but not as bad.

Q. Are the knees having any effect on your day to day living?

A. The right knee is."

Against that background, the applicant claims compensation pursuant to section 16 in respect of permanent loss of efficient use of both his legs. He also seeks compensation pursuant to section 11(1) on the basis of partial incapacity for work occasioned by injuries to his legs.

As regards the right knee, there is reasonable uniformity of medical opinion. Dr Bracken has said that the applicant has disability in the right knee which amounts to permanent impairment of the right leg at or above the knee equivalent to 30 per cent of the total value thereof. He said that, in his opinion, the injuries of 1984 and subsequently to the right knee were responsible for one third of his current level of disability.

Dr Lyons considers that the applicant has lost 30 per cent of the function of his right lower limb at and above the knee and the disability is permanent. He considers that the major aetiological factor, possibly three quarters or more, relates to the 1977 injury and the surgery. He observed that the applicant has gross osteo-arthritic degenerative changes in his right knee joint causing a severe valgus deformity. Dr Bracken made a similar observation.

Dr Casey's report expresses his opinion more elliptically. He thinks that the deficiency at the right patello-femoral joint amounts to 5 per cent impairment of lower limb function at or above the knee. He attributes two thirds of any limitation of knee function to the degenerative change related to the lateral compartment as opposed to the patello-femoral joint and one third to the latter joint.

I think a reasonable inference from the way Dr Casey's opinion is expressed is that he believes that the applicant has suffered a 15 per cent permanent loss of efficient use of the right leg at or above the knee and that one third of that loss is attributable to the patello-femoral joint i.e. to the injuries of 1984 and 1986.

Having regard to the severity of the changes spoken of by Drs Lyons and Bracken and the extent of the valgus deformity they have described, it seems to me that 30 per cent permanent loss of efficient use of the right leg is nearer the mark than 15 per cent and I propose so to find. Of that 30 per cent it seems to me that it is reasonable to attribute one third to the injuries of 1984 and 1986. To the extent that such an approach is inconsistent with the opinion of Dr Stephenson following operation, it seems to me that any difference might reasonably be explained by osteo-arthritic deterioration following the surgery as was spoken of by Dr Lyons.

It will be seen then that prior to the injuries sustained in 1984 and 1986 the applicant had a knee that was less than perfect. Those injuries have contributed to its decline.

The 1977 injury and subsequent surgery have left the applicant with permanent loss of the efficient use of the right leg equivalent to 20 per cent of the total loss thereof. The injuries of 1984 and 1986 have imposed a further 10 per cent loss of efficient use. Applying the principles of Rodios v. Trefle (1937) 54 WN (NSW) 197, it seems to me that the latter injuries result in an entitlement in the applicant to be compensated for permanent loss of the efficient use of the right leg equivalent to one eighth of the total loss thereof. I will formally find accordingly in due course.

A claim is made for permanent loss of efficient use of the left leg resulting from the injuries of 1984 and 1986. The applicant's evidence relevantly has been set out above. The only medical opinion in support of the applicant's claim is that of Dr Bracken. It was that the applicant has suffered a 10 per cent permanent loss of the efficient use of the left leg. The doctor's opinion is necessarily based on the account of affairs given to him by the applicant.

It seems to me that the applicant's account of his symptoms is insufficient to justify a finding that the injuries to which I have referred have occasioned him permanent loss of efficient use of the left leg. While he may have experienced symptoms at the time of each of the falls, I am not satisfied on the available evidence that those falls have produced a permanent loss in the left leg as the applicant alleges.

As regards the claim under section 11(1), it seems to me reasonable firstly to conclude that, the permanent loss of the efficient use of the right leg occasioned by the later incidents has produced an incapacity for work that is partial rather than total. The parties have agreed that a worker comparable with the applicant still working in the mines would be earning at the rate of $900 per week. The applicant, of course, has since retired. The parties have agreed that a correct approach to measuring the extent of the applicant's partial incapacity is to find a figure that the applicant would be able to earn on the labour market as a 60 year old retired fitter, experienced in the repair of diesel engines, without the effects of the 1984 and 1986 injuries visited upon him. From that figure must be deducted the amount that the applicant is now earning or able to earn in some suitable employment. The evidence on this aspect of the matter is scanty and the parties invite the Court to use its expertise in finding suitable figures. Broadly speaking it seems to me that the applicant is a man who, now retired, after a career in mines, has the skills about which I have earlier spoken. He also has the consequences to his right knee of the injury in 1977 for which he has been paid damages.

As to the latter I note the terms of section 63 of the Workers Compensation Act 1926. No submission has been made about any possible effect on the operation of that section resulting from the transitional provisions of the Workers Compensation Act 1987.

He seems to me to be confined to doing work on bench tops or in locations to which he could gain access easily. I have doubts as to whether he would be interested in working or able to work a full week. It seems to me that the after effects of the 1984 and 1986 accidents are such that the difficulties he would have in gaining access to work sites have been increased to some extent, but the general nature of those difficulties would have troubled him whether or not he had the later injuries.

Doing the best I can, I think, but for the later injuries, he had a capacity to earn something like $450 per week in his retirement, but that by virtue of those later injuries that capacity has been reduced to something like $420 per week. These findings will result in an award in the applicant's favour pursuant to section 11(1) of $30 per week.

As regards the matter generally, although the applicant pleaded that he relied on the nature and conditions of his employment, it seems to me that there is insufficient evidence to justify a finding that he has suffered injury by virtue of such nature and conditions.

Until now, I have refrained from mentioning what has become the applicant's principal submission: it is submitted on the applicant's behalf that the deterioration in the applicant's knee is the result of a degenerative process in the knee, that is, an abnormal pathological change by way of degeneration. This amounts, it is submitted, to a disease. The submission goes on that the disease in the knee has been aggravated or accelerated by the injuries in 1984 and 1986. The submission goes on: the accelerated disease is itself an injury and the employer bears the responsibility for the disease in its accelerated state.

The submission raises a point of difficulty. If one turns to Mills Workers Compensation New South Wales, at paragraph 2015.63, the following appears:

"In any event, the judicial debate on the distinction between 'personal injury' and 'disease' (or 'aggravation of disease') is a sterile one. It is complex and confusing to the point of being incomprehensible."

I note with some small pleasure, the comment, in this context, of Blackburn CJ in Ansett Transport Industries (Operations) Pty Ltd v. Srdic (1982) 42 ACTR 45, when the Chief Justice found himself bewildered by the difficulty of applying the decisions to the facts before him.

Counsel for the applicant relied upon the High Court decision of Darling Island Stevedoring & Lighterage Co Ltd v. Hankinson [1967] HCA 10; (1967) 117 CLR 19, as supporting his submission. I note firstly that all the learned justices dealt with the facts then before them as showing that an injury simpliciter had been suffered by the applicant and that there was no need to resort to considerations of aggravation of a disease.

Secondly, I note the remarks of Barwick CJ at 25 to the following effect:

" ... As I have already indicated that acceleration, in my opinion, on the facts was a consequence of the injury but not the injury itself."

It seems to me that the same may be said of the present case. Here, the injury suffered was a blow to the knee in each of the falls in 1984 and 1986. It requires no resort to aggravation of disease to establish the injury. The fact that the injury may have produced an acceleration of the degenerate condition of the injured knee is not to the point. To resort to section 4(b) of the Workers Compensation Act 1987 and the definition of injury therein contained, seems to me, in the present circumstances, to be unnecessary.

I therefore make the following findings:

The applicant suffered injury in the course of his employment with the respondent on 23 October 1984, namely, injury to both knees.

The applicant suffered injury in the course of his employment with the respondent on 2 January 1986, namely, injury to both knees.

As a result of the said injuries the applicant was incapacitated for work either partially or totally for various periods up until 28 February 1993 in respect of which periods he has been paid either compensation or wages.

Since 29 January 1993 the applicant has been partially incapacitated for work as a result of the injuries referred to above.

The weekly amount which, during the period of partial incapacity, the worker would probably have been earning as a worker but for the injuries and had he continued to be employed as a fitter in the same or some comparable employment is $900 per week.

The amount the applicant is able to earn after injury in some suitable employment is $420 per week.

At all material times since 29 January 1993 the applicant has had his wife dependant upon him for support.

As a result of the above mentioned injuries the applicant has suffered permanent loss of efficient use of the right leg or the greater part thereof equivalent to one eighth of the total loss thereof.

Award

In the exercise of my discretion there will be an award for the applicant pursuant to the Workers Compensation Act 1987, Schedule 6, Part 18 and to section 11(1) of the Workers Compensation Act 1926 as follows:

$30 per week from 29 January 1993 to date and continuing.

Award for the applicant pursuant to the Workers Compensation Act 1987, Schedule 6, Part 6, clause 4 and to section 16 of the Workers Compensation Act 1926 in respect of permanent loss of efficient use of the right leg in the sum of $2,750.

Order the respondent to pay interest on the award of weekly payments from 29 January 1993 at 5 per cent per annum.

Order respondent to pay interest on the award pursuant to section 16 from 16 April 1993 at 6 per cent per annum with liberty to apply in respect of this order.

Order respondent to pay the applicant's costs pursuant to Part 29 of the Rules.

Certify to one qualifying fee.

Certify fee for counsel for additional conference and for advice on evidence.

Solicitors for the applicant: Maguire & McInerney

Solicitors for the respondent: Sparke Helmore Withycombe