Roberts v Fuchs Lubricants [2001] NSWCC 196 (23 August 2002)

Last Updated: 10 December 2009

NEW SOUTH WALES COMPENSATION COURT

CITATION: Roberts v Fuchs Lubricants [2001] NSWCC 196


PARTIES:
Craig Roberts
Fuchs Lubricants (Australasia) Pty Limited



CASE NUMBER: 51462 of 2001 of 2002.00


CATCH WORDS: Elements of Workers Compensation; Entitlements & Liability


LEGISLATION CITED:


CORAM: Hunt C

DATES OF HEARING: 22/08/02

DECISION DATE: 23/08/2002


LEGAL REPRESENTATIVES

FOR APPLICANT:
Mr M Choat instructed by Kells the Lawyers
FOR RESPONDENT:
Mr S Lowe instructed by Sparke Helmore


JUDGMENT:

1. This is a claim pursuant to Sections 66 and 67 in respect of the permanent impairment of the back and loss of use of both legs at or above the knees. The case falls into two distinct parts; firstly there is the question of the quantum of entitlements pursuant to Sections 66 and 67 and secondly the question of whether or not Part 20.81 of the Workers Compensation (General) Regulations 1995 applies to this worker.

2. Regulation 20.81 is headed “Exemptions for coal miners - 1996 amendments”. It provides:

A worker employed in or about a mine to which the Coal Mines Regulation Act 1982 applies is exempt from the operation of the amendments made by the following provisions of the Workcover Legislation Amendment Act 1996, with effect from the date of assent to that Act:
(a) Schedule 1.2 (Employment required to be a substantial contributing factor),
(b) Schedule 1.4 (Reduction in maximum lump sum compensation amounts),
(c) Schedule 1.6 (Deduction for previous injuries and pre-existing conditions and abnormalities)

3. If that regulation applies to this applicant the two latter provisions will impact on the case.

4. The applicant testified that at the time of injury he was employed by the respondent as a Service and Sales Engineer. The respondent has a head office in Newcastle but the applicant rarely visits it. He has an office in his home at Horsley and spends four days a week at various mines in the southern coal field. There are six or seven mines with whom the respondent has contracts. Of the four days spent at the mines, three are spent underground and one on the pit top analysing oil samples and/or conferring with the engineers and managers of the mines.

5. The applicant’s function while underground is to take samples of oil from the various mining machines. The samples are taken to the surface for analysis and reports provided to mine management and to the respondent. On odd occasions the applicant has gone to Queensland to cover for staff shortages.

6. Mr Lowe for the respondent argued that the Regulation refers to coal miners and not just anybody who happens to be injured while doing some work at a coal mine. He pointed out that coal miners have a separate workers compensation scheme which is insured by Coal Mines Insurance.

7. He referred to the head note to the Regulation “Exemptions for coal miners” and to the second reading speech of the Minister for Industrial Relations, Mr Hills on 11 March 1982 when introducing the Coal Mines Regulation Bill, the Coal Mining (Amendment) Bill and the Miscellaneous Acts (Coal Mines Regulation) Repeal and Amendment Bill. He also referred to the explanatory notes of the Workers Compensation (General) Amendment (Coal Miners) Regulation 1997 and the Workers Compensation Transitional Amendment Regulation 1997. He submitted that all of these made repeated references to coal miners.

8. I note however that Mr Hills’ speech refers to persons employed in coal mines as opposed to coal miners.

9. Finally Mr Lowe submitted that the applicant is in no different position from a courier who is injured while delivering a parcel to a mine.

10. Mr Choat for the applicant suggested that all the Court need do is assign to the regulation the simple meaning of its words. He referred to Regulation 1.3A which provides that explanatory notes to the regulations do not form part of the regulation. He distinguished a courier’s fleeting visit to a mine from the activities of the applicant who spends four days a week in or about a mine.

11. Neither Counsel referred the Court to any decided case which might help in determining this matter, in fact, Mr Lowe said that he and his instructing solicitor had researched the issue and concluded that the question had not previously been addressed.

12. Clearly the benefits which flow from the Regulation apply to and have been applied to a wider range of people than those who operate the machines which cut coal. It applies to the likes of engineers, surveyors, mine deputies and fitters who spend considerable time underground. It also applies to coal preparation plant operators, train loaders, yard foremen, bath house attendants, storemen and clerks provided they work within the physical boundary of a mining lease. The only distinction between the foregoing workers and this applicant is the nature of their employer. They work for coal mining companies while the applicant works for a company which services coal mines.

13. If the regulation were intended to apply to employees of coal mining companies only it would have been a simple drafting exercise for it to say so; it does not.

14. Mr Roberts’ presence in or about coal mines four days a week is not incidental to his employment like the courier driver, who might spend five minutes at the mine office, but it is a basic feature of his work.

15. I find that he is a “worker employed in or about a mine to which the Coal Mines Regulation Act 1982 applies for the purposes of Regulation 20.81.

16. On 24 June 1999 the applicant was taking an oil sample from the longwall at Tower Colliery. He stepped into a hole while carrying tools, stumbled and felt immediate pain in his low back. He made his own way to a nearby crib room where he rested. Over the next half hour pain spread to his right leg all the way to his foot and to a lesser extent into his left thigh. He had pins and needles in both thighs. After resting he was driven out of the mine.

17. He consulted Doctor Zietara who referred him to a rehabilitation practitioner Doctor Jones. He was given pain killers and some weeks later commenced physiotherapy for a number of months. After seeing Doctor Jones he went home in what he described as the worst pain he had ever experienced, sufficient to bring tears to his eyes. It also made him sick in the stomach.

18. On 3 August 1999 he underwent a CT Scan and was then referred to Doctor Pell and saw him on 7 September 1999. He arranged for an MRI Scan which was performed on 23 September 1999. Then on 21 October 1999 the applicant went to Saint Vincent’s Private Hospital where a Myelogram was performed. He described this as being extremely painful, to the extent that he needed oxygen to breathe and went into shock. On 22 October 1999 he underwent surgery. In January 2000 he went back to work and has had periodic time off since then.

19. He said that his right leg function has returned to some extent since the operation. The dropped foot which he suffered has been remedied. He still has pins and needles. He has back pain on a daily basis but the intensity of it varies. However he said he is never pain free. When the back pain is at its worst he is unable to bend to put on his shoes. He gets the most severe form of his back pain three or four times a year and he said that on these occasions it can take a week to resolve. He said that the top of his right foot is always painful but his thigh is alright except when he is suffering the back pain. In the left thigh he said he has pins and needles on occasions. His pain is only slight but he said that he has reduced strength and flexibility in that leg. He also has lost strength in his right foot.

20. He said that his sleep is disturbed by pain one or two nights per week. He currently takes Voltaren and Panadeine Forte on a daily basis. He continues physiotherapy and acupuncture.

21. He finds his work difficult because of the cramped position working on a longwall and also due to walking and riding on the rough surface of an underground coal mine. He used to play golf on trade days. Since his injury he has tried but was unable to continue. He is and was a Tai Kwon Do instructor. He still instructs but is unable to train for more than a couple of minutes at a time. He described it as his major interest outside his work and the loss of it is a great disappointment to him. He feels that his lifestyle has changed. He has reduced interaction with his thirteen and sixteen year old children and he said that his personality has changed from being easy going to moody and grumpy.

22. When cross examined he agreed that he is a qualified mechanical engineer who prior to his employment with the respondent worked with a manufacturer of mining machines. He agreed that in his job with the respondent he drives between fifty and seventy thousand kilometres per annum. He said that one week ago he received a promotion and will no longer work as a service engineer.

23. He said that he had no particular back pain prior to this injury apart from some minor strains. He said that he had not previously had his back x-rayed. He agreed that the operation did reduce the pain in his right leg. He said that after resuming work in January 2000 after about a month or so his back pain and right leg pain increased. Because of that he went back to Doctor Pell and was put on Voltaren.

24. Currently he cycles to build up strength in his legs but this causes pain. He does gymnasium work at home. He did say that his last major flare up in his back came for no apparent reason as he got out of bed but the previous followed a particularly heavy day working underground.

25. The applicant tendered radiological reports from Doctors Blumgart, Chapman and Durham. Doctor Blumgart reported on 3 August 1999 on a CT of the lumbar spine. He said:

There appears to be a large intra-foraminal disc protrusion involving the right L5/S1 intervertebral foramen. This is arising from the right L5/S1 disc which also shows some more central disc bulging and some central spinal canal stenosis.

In addition a large amount of disc density material is seen extending superiorly in the right lateral recess which shows a degree of expansion and is causing a prominent impression on the thecal sac. Some change is also present at the L4/5 level with disc density material in the anterior aspect of the spinal canal and some extension into the right lateral recess.

As mentioned above part of the change within the right lateral recess may be due to a sequestrated fragment. Correlation with an MRI Scan may be of benefit.

26. Doctor Chapman performed an MRI Scan and reported on 23 September 1999. He said:

There are degenerative changes in the lumbar spine. There is annular bulging as described at L3/4 and L4/5. There is further moderately severe annular bulging at L5/S1 with a small right focal protrusion. There is tiny amount of subligamentous disc material to the right of midline behind the L5 vertebral body. The appearances represent a marked improvement since the previous CT Scan. There is no definite nerve root compression on this occasion.

27. Finally Doctor Durham reported on a myelogram and a post myelogram CT Scan. She said:

Moderate disc bulge plus central disc protrusion at L4/5, with potential for compression of the L4 nerve root peripherally.

28. There were tendered two reports of Doctor Malcolm Pell the surgeon who operated on Mr Roberts. He said:

He underwent surgery on 22 October 1999. There was a large chronic disc bulge at the L4/5 level, which was incised and cleared of a moderate amount of degenerative disc material. The L5 nerve roots were decompressed laterally. At the lumbar sacral level the S1 nerve root was decompressed laterally. There was a firm ridge of disc with no soft disc to be incised.

29. Following a review on 11 April 2001 Doctor Pell reported on 24 April 2001. On that occasion he said:

To examination, his lumbar spine movements were good to date. There was some tenderness of the L4/5 level bilaterally. There was no weakness able to be elicited today and reflexes were present. There was some minor sensory deficit on the outside of the right foot. I have explained to him that he has made good recovery considering the amount of weakness of his foot. For his ongoing back pain, this could well represent some facet joint problems. I have asked him to continue physiotherapy for a further month. If that fails to settle down the pain then certainly bilateral L4/5 cortisone injections should be undertaken.

30. The respondent relied on a mediolegal assessment of Doctor Pillimer dated 17 August 2001. That doctor assessed a 12 percent permanent impairment of the back and a 6 percent permanent loss of efficient use of the right leg at or above the knee and no loss of use of the left leg.

31. The applicant tendered a report of Doctor Deveridge of 25 May 2001 and that doctor assessed a 25 percent permanent impairment of the back, a 10 percent permanent loss of efficient use of the right leg at or above the knee and a 5 percent permanent loss of efficient use of the left leg at or above the knee.

32. The applicant also tendered a report of Doctor Bodel who was qualified by the respondent. He reported on 6 April 2001 and assessed a 20 percent permanent impairment of the back and a 5 percent permanent loss of efficient use of the right leg at or above the knee.

33. I found the applicant to be completely open and honest in giving his evidence and in fairness to the respondent it was not suggested otherwise. I accept the applicant’s complaints including the less than full efficient use of his left leg, particularly when attempting to train for Tai Kwon Do.

34. On the basis of the applicant’s evidence and the various medicolegal assessments I find that the applicant did suffer injury resulting in a 20 percent permanent impairment of his back, 7.5 percent permanent loss of efficient use of his right leg at or above the knee, 2.5 percent permanent loss of efficient use of the left leg at or above the knee. I also find that he has had pain and suffering past, present and future which equates with a most extreme case as 1:4.

35. On the basis of those findings I order:
1. That the respondent pay to the applicant compensation pursuant to Section 66 of $15876.00 in respect of 20 percent permanent impairment of the back.
2. That the respondent pay to the applicant compensation pursuant to Section 66 of $7441.87 in respect of 7.5 percent permanent loss of efficient use of the right leg at or above the knee.
3. That the respondent pay to the applicant compensation pursuant to Section 66 of $2480.62 in respect of 2.5 percent permanent loss of efficient use of the left leg at or above the knee.
4. That the respondent pay to the applicant compensation pursuant to Section 67 of $16550.00 in respect of pain and suffering which equates with a most extreme case as 1:4.
5. That the respondent pay the applicant’s costs inclusive of a second conference in the sum of $150.00.
I order a stay of twenty eight days be applied to that part of the award which exceeds $32,000 in total.

Mr M Choat instructed by Kells The Lawyers appeared on behalf of the applicant.
Mr S Lowe instructed by Sparke Helmore appeared on behalf of the respondent.