Written by Peter CarterApril 27, 2019
Global resources company Glencore has been ordered to pay $1 mil in compensation to an underground miner for an injury complicated by depression that a forensic psychiatrist reported to be faked.
Daniel Walker’s duties at the Newlands mine in the Bowen basin included cutting coal and building underground roadways.
In April 2013 he was operating a high-powered hydraulic drill to secure a section of the mine roof when his right hand was slashed by the boom of the roof bolting machine.
The back of his hand gushed blood and white joint tissue could be seen at the bottom of the wide, deep wound which was scrubbed and dressed in the on-site first-aid facility.
Walker was on his way to a GP the following morning for further medical treatment when the mine co-ordinator phoned to ask him to report for “suitable duties”.
Knowing that had he missed the shift, the event would be classified as a “lost time injury” adversely affecting bonuses for the whole crew, Walker showed up as requested with his right hand heavily bandaged.
Rather than light duties, the injured miner was sent back to roof bolting work where – as you would expect – the dressing was continuously contaminated with coal dust, oil and other irritants.
He finished the shift changing his bandage on several occasions. The next morning, his swollen hand was throbbing with pain.
An ambulance officer at nearby Glenden detected a fever and referred the 26 year old to a Mackay hospital where the wound was drained and debrided.
After about two weeks absence, he returned to underground work in pain and with reduced grip strength feeling unable to “pull his weight” in the crew.
The severe pain in the hand persisted and he developed severe depression.
He was offered a settlement in July 2013 after disputing his dismissal from employment. By deed he released Newlands from any further claims arising out of those matters.
In resisting his claim for injury compensation, Glencore – a self-insurer – asserted that the injury should be treated as one with minor orthopaedic symptoms and nil complications.
Because the pain in his hand had no distinct orthopaedic basis, Justice Graeme Crow acceded to that contention – when the matter came before him in the Supreme Court at Rockhampton in March – and reasoned that Walker could not be suffering from a chronic pain disorder.
Rather, ruled the judge – in accepting views shared by pain specialist James O’Callaghan and orthopaedists Robert Cook and Trevor Gervais – the condition present was one of “chronic neuropathic pain”.
Glencore also made a case that the deed of release precluded any personal injury claim to the extent it related to the redundancy.
That contention was expressly rejected by Justice Crow.
“It is plain that the matter in the contemplation of the parties to be compromised was the plaintiff’s claim for unfair dismissal, [not] the causal effects of the redundancy on the plaintiff’s psychiatric condition”.
The court nevertheless conducted an exhaustive investigation into the cause and extent of that psychiatric condition.
Walker took up a sales position in mid-2014 with Wurth – a specialised tool supplier – from which he was terminated in September 2015 over number of matters including excess sick leave taken without medical certificates.
His dismissal coincided with one of his deepest states of depression considered by Psychiatrist Jim Rodney to have arisen from the chronic pain which had in turn been caused by the hand injury.
The extent the redundancy played a significant role in his mental condition was considered by Dr Rodney to be “an unknown part of the equation”.
Colleague Alfred Chung on the other hand did “not believe that Mr Walker has a psychiatric injury as a result of the work injury” despite having initially diagnosed a major depressive disorder.
Chung also thought, much of Walker’s symptomatology was faked in pursuit of “secondary gain factors perpetuated by ongoing litigation” and that his hand symptoms “are not genuine”.
He concluded the redundancy was a major contributing factor to the condition.
Justice Crow noted in relation to Dr Chung’s evidence, how unhelpful it was for any expert to state “I do not believe….” a person has a psychiatric illness “without explaining why”.
He flatly rejected Chung’s opinion and report.
Rather than “exaggerate or attempt to obtain secondary gain” as Chung had postulated, Walker had done “precisely the opposite,” Crow emphasised.
Not only had he complied with his employer’s requests by going underground after his injury, he had eventually “successfully obtained suitable re-employment and had downplayed the nature and extent of his symptoms”.
He rejected Chung’s suggestion that Walker had “ordered his life” to maximise his litigation outcome but rather, had gained work despite his limitations as a result of “sheer determination” and had admitted to “vast improvements” in his physical and mental health from time to time.
Indeed, Glencore itself was forced to withdraw any contention that Walker’s account of his symptoms was dishonest.
In escalating the 6% right-hand whole person impairment – attributed by Dr Cook – from a “moderate” (ISV 6) to the top end of the range (ISV 15), Justice Crow recorded several notable observations.
“Assessment of permanent impairment is important in proper qualification of an ISV but it is by no means the only relevant matter. In addition to the penetrating right-hand injury, Walker has undergone surgery and developed a neuropathic pain disorder. Also bringing the assessment up to the high side of the band were Walker’s young age and right-hand dominance.
Dr Rodney’s initial PIRS assessment in 2016 of 17 would likely have delivered, noted the judge, an ISV assessment exceeding 30. In 2018, Rodney reduced this to a PIRS 5, precluding any basis on which the court could, for general damages, go beyond ISV 15 at trial. For ISV 15, Walker was awarded a mere $23k.
“One of the (many) fallacies in the assessment of psychiatric impairment based on a PIRS is that it is intended to be an assessment of permanent psychiatric impairment when medical evidence almost invariably shows that psychiatric conditions and their effect can vary significantly over a period of time,” observed his honour.
Past loss of income over the 6 years from accident date was assessed with a 25% discount at $360k.
Future loss of earnings discounted by one third, came in at $541k, making a total assessment of $1.109 mil damages. After deduction of pre-payments, the net yield to the now 32-yr-old former miner was just short of $1 mil.
Newlands ceased operations in June 2016 and many miners who received redundancies at that time have since been reemployed at other underground coal mines in the region.
Glencore is currently being investigated for commodity trading manipulation in the USA.