An “improbable” injury to a dump truck operator, on the job at a Thiess’ open-cut coal mine near Mackay for just two months, has yielded a $720k payout for income and other losses.
Oskar Krobath – an Austrian chef who migrated to Australia in 1987 – finally broke into employment in the Queensland mining industry with acceptance into a traineeship at the Burton Downs Coal Mine in September 2011.
The big break saw his annual salary jump overnight from $47k to $123k.
The injury occurred when the force of a 75 tonne load dropped by a giant Liebherr 996 excavator onto the dump truck’s tray was transmitted through the vehicle’s chassis, sending a jolt into Krobath’s spine.
The load dropped from the monster 36 m³ bucket included a rock estimated in mass at up to 15 tonnes.
Krobath – a consummate stoic – felt no pain until the next day when he went for his morning walk.
At his first GP consultation for back and leg pain 10 weeks later, he reported not having lodged a workers compensation claim and stated his preference was not to do so because he wanted to hold on to his high paying employment.
So severe was injury however, that he later required three lumbar discectomies.
Thiess refused the claim when it was eventually made, contending as “improbable”, the occurrence Krobath described. In support of its denial Thiess sighted Krobath’s delay in seeking medical treatment; the absence of any injury report from the employee until much later; and the digger operator recorded as being in control of the Liebherr machine having no recollection of the incident.
When the contest eventually came before the Supreme Court at Rockhampton in December 2018, Krobath was able to produce evidence – from within his employer’s own files – of four other very similar events occurring in the months leading up to his accident.
He was also able to call testimony from senior neurosurgeon Leigh Atkinson who swore to having “observed many instances of back pain caused by rocks hitting trucks in a similar manner over many years”.
Assessed by trial judge Justice Graham Crow as a “genuine, impressive, determined and stoic individual”, Krobath’s explanation – that as the most junior employee he was hardly in a position to file an injury report or a complaint against a senior excavator operator – was readily accepted.
Excavator operators “are the kings” of the mine,” he explained from the witness stand. “If you challenge them, they show you the door out. Supervisors didn’t like complaints.”
Likewise was Krobath’s delay in seeking medical treatment consistent with his stoic and persevering nature.
The mine’s operation records were far from perfect. Ultimately Judge Crow concluded that it was likely another operator – not the one who denied any knowledge of the occurrence – who had been in control of the digger at the relevant time.
Those findings made, his honour concluded there injured the injury had occurred as alleged and that Thiess had taken insufficient steps to prevent the errant operator’s conduct which had led to it.
Krobath‘s impairment acceptedby Thiess at 28% – with ongoing back pain and neurological symptoms – the likelihood of a fourth lumbar discectomy, a possible lumbar fusion and the insertion of a neuromodulation system in his spine were all attested to by his orthopaedic surgeon Paul Licina.
Even so, the employer contended the pain reported was fictional because, for example, during four hours in the witness box he did not “even wince or moan or make any other outward indication of this discomfort or stress”.
Not so ruled the court. His “enthusiastic and cheerful disposition” was simply a feature of his immense stoicism.
Had the injury not occurred, the worker had good prospects of being offered a “lifestyle roster” i.e. five days of work followed by four days off, then four days at work, followed by five days off.
Those rotations would have allowed him to also work the Eungella restaurant and kiosk business – about 100 km to the north of the mine – operated by his wife Marlies in his absence.
Despite the injured worker’s “passion” for that endeavour, the court concluded that but for the injury he would certainly have continued in his high-paying mining job.
A $200 pw “downward adjustment in coal mining worker earnings” in the period since the accident meant his earning capacity claim was referenced to a $1.7k net per week loss. The “discount” applied – at a high 35% – was due to pre-existing spinal degeneration that would have stopped him working to the usual age 70, on top of the usual contingencies.
Together with general damages of a mere $45k, the future earning capacity loss arrived at of $400k brought the total compensation to $815k.