Millard v Victorian WorkCover Authority
[2018] VCC 138
•26 February 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-17-02593
| GREGORY CHARLES MILLARD | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 February 2018 | |
DATE OF JUDGMENT: | 26 February 2018 | |
CASE MAY BE CITED AS: | Millard v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 138 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to lower spine – pain and suffering only – whether consequences “very considerable”
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100
Judgment: Leave granted to bring common law proceedings.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Dimsey | Zaparas Lawyers Pty Ltd |
| For the Defendant | Mr C D N Griffin | Hall & Wilcox |
HIS HONOUR:
Preliminary
1 The plaintiff, Gregory Charles Millard, suffered an injury to his back in 2000. He underwent surgery and was able to return to his employment without significant ongoing symptoms. On 28 January 2011, he was undertaking what he described as heavy and demanding work when he suffered a further injury to his back, although to a different area than the earlier injury. He remained at work for a period, and ultimately consulted his doctor. Radiology showed a significant prolapse at the L5-S1 disc.
2 After the injury, he returned to work as a track rider and farmhand at various thoroughbred horse establishments. Eventually, he started work as a self-employed dogman on construction sites.
3 He alleges ongoing pain and disability in the lower spine, and a restriction on a range of domestic and recreational activities.
4 Helpfully, Mr Griffin, for the defendant, identified this to be a ‘range’ case. That is, the plaintiff had significantly recovered from the 2011 injury; alternatively, the symptoms and disability from the injury were not such as to prevent him from returning to employment as a track rider and construction worker, and the consequences of injury did not meet the “very considerable” test when compared with other injuries within the ‘range’.
5 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of Mr Millard’s employment with Jamco Sign Services Pty Ltd (“Jamco”) on 28 January 2011.
6 The body function said to be lost or impaired is the lower spine.
7 The application is brought under ss(a) of the definition of “serious injury” contained in s134AB(37) of the Act, and leave is sought in respect of pain and suffering only.
8 Mr Millard was the only witness called to give evidence and be cross-examined. Various affidavits, medical, radiological and vocational reports, and other material was tendered into evidence. I shall not refer to all of that material in the course of this Judgment, but rather those parts of the evidence and reports which appear to me to be most relevant and which I have relied upon in coming to the conclusions referred to later in this Judgment. The statutory scheme Act which prescribes and regulates applications of this nature, and the principal authorities of the Court of Appeal, are well known, and it is unnecessary for me to revisit the various relevant sections and those authorities.
Relevant background
9 Mr Millard is now fifty-one years of age. He is in a defacto relationship. He has three children. At school, he finished Year 9. He commenced an apprenticeship as a jockey, and worked as a jockey and track rider from age fifteen until thirty. He did various other jobs from time to time.
10 In 1998, he commenced work with Jamco installing large signs and banners at various places, including billboards, train stations and the like. When he started, he was working fifty to sixty hours a week.
11 In about 2000, he suffered an injury to his back (“the 2000 injury”). He returned to work, but in 2001, a neurosurgeon, Mr Andrew Danks, undertook a microdiscectomy at the L5-S1 level, to the right side. The operation was successful, and he was largely relieved of his lower back symptoms, and numbness and tingling into the lower leg. He was able to return to work and went back to riding horses.
12 He worked for Jamco on and off. In 2003, he lived and worked in Tasmania. At that time, he was riding both track work, and as a race jockey. According to his affidavit, in relation to his race riding, “I stopped riding because I was struggling to keep my weight low enough”.[1] In cross-examination, he accepted the last time he rode in a race was in Tasmania around 2003.
[1]Plaintiff’s Court Book (“PCB”) 8
13 Over his time as a jockey, he suffered a range of significant injuries involving fractures to various parts of his body. He recovered from all these injuries and was able to continue work, including riding track work.
14 In about 2005, he returned to Melbourne and again took up work with Jamco, working fifty to sixty hours per week. He says he was not suffering any difficulty with his lower back as a result of the 2000 injury, had no difficulties with sleep and was involved in a range of recreational activities. Horse riding has always been a passion, in particular, race riding. He went surfing and water skiing. He was able to undertake all his usual domestic activities.
15 According to his affidavit, he claims, of more recent times, he has had a problem with the intimate relationship with his partner, as a result of his subject back injury. In April 2011, he attended a specialist, Mr Phillip McCahy, urologist, complaining of erectile dysfunction for ten years; that is, to around the time of his first back injury. He said that problem was treated.
The incident and the consequences
16 On 28 January 2011, he was working for Jamco at its warehouse. He was preparing “vinyl advertising skins” to install on billboards. These were large and heavy items and he had not done the job before. Normally there were more employees to assist. He was working in a bent over position lifting and manoeuvring the skins. He started to feel pain during the course of the day and was stiff and sore when he returned home that evening. He remained working, although said that the pain increased, and he suffered referred pain into his left buttock, left leg and left foot. The pain was in a different area to that experienced after the 2000 injury.
17 He went to see his general practitioner, Dr DeSilva, on 11 March 2011. That practitioner referred him back to Mr Andrew Danks. Mr Danks organised an MRI scan which –
“… demonstrated a significant left posterolateral disc prolapse at L5/S1, which was compressing the origin of the S1 nerve root.”[2]
[2]PCB 27
18 Mr Millard had time off work, was prescribed pain-relieving medication, including Panadeine Forte, and was referred for physiotherapy treatment.
19 Mr Danks recommended against surgery. He considered the injury was an exacerbation of pre-existing disc degeneration, albeit on the opposite side of the spine to the area affected in the 2000 injury. Mr Millard did not return to Mr Danks again.
20 Mr Millard said that he was provided with a book containing a series of back exercises by Mr Danks, and he has actively pursued a home exercise program involving exercises and stretching. He finds this assists. He has seen a chiropractor several times.
21 Mr Millard remained working with Jamco until April 2011. He had a disagreement with his boss about a site inspection, although he said that that was not the reason he left employment. He advised his boss, after he had seen a doctor, that he had a significant problem with his back and that the pain and disability had become worse. He said his boss told him he did not want him to come back to work, and Mr Millard agreed that was an appropriate course in the circumstances.
22 In around 2011 or 2012, he started work for a thoroughbred horse establishment called Hillstone Thoroughbreds (“Hillstone”). He was employed as a farm manager and his work involved feeding and looking after horses which were placed at Hillstone to spell or for confinement. He said back pain was present when he was working, in particular, when he had to carry buckets of feed, or when he had to lift or bend. His duties included grooming and rugging the horses, and clearing out the stable. He occasionally repaired fences.
23 In 2013, he spent six months as a track rider at the Seymour Racecourse. According to his affidavit, he said he would have liked to have ridden at race meetings but was unable to do so because of his back problem.
24 In 2014, in addition to his work at Hillstone, he started working at Lindsay Park Thoroughbred Stud (“Lindsay Park”) near Euroa. He would ride track work at Lindsay Park for two hours each morning and, in addition, work about 30 hours per week at Hillstone. At Lindsay Park, he mainly rode track work, although, in addition, mucked out the stables and helped with the feeding. He would occasionally lift bales of hay which he found difficult. He used a chainsaw on occasions to collect firewood. He would drive a tractor sometimes to clear out paddocks. There was standing and walking at both jobs.
25 In May 2015, a horse rolled on top of him in the course of track work, and he suffered a significant fracture to his right leg. This required time off work and a period of rehabilitation.
26 Mr Millard was taken to a report of Nabenet,[3] a vocational provider, in which he was said to have described the activities in which he was involved, both at Lindsay Park and Hillstone.[4] He disagreed the recording of the activities was entirely accurate. He accepted he did about fifteen hours of track riding each week and a range of farming and horse-related tasks. In the course of track work, he said it was difficult with his back symptoms to properly restrain and guide a galloping horse. At the time he injured his leg in 2015, he was working about thirty hours per week at Hillstone, and fifteen at Lindsay Park. He got back to approximately those hours twelve months after his leg injury.
[3]DCB 43
[4]DCB 43-45
27 He owns a property at Yarck and has recently renewed his relationship with his defacto partner and children. There are a few horses on the property for his children. It is sometimes difficult for him to get on and off a horse because of back pain. When he was working at both Lindsay Park and Hillstone, he would commute between jobs, Lindsay Park being near Euroa. He would stay at his sister’s house in Pakenham and travel to Hillstone nearby. He would then drive for some two hours to Euroa and stay the night to work at Lindsay Park. He said the driving was difficult and he had to move in his seat, and stop from time to time.
28 According to his affidavit, Mr Millard said he stopped work for Lindsay Park in July 2017. There were ongoing back problems when riding horses. In that same year, he started to get work as a self-employed dogman on construction sites around Melbourne and some country areas. He stays with his sister in Pakenham and travels to Yarck to be with his family on weekends. He says the work is relatively light, and he has to secure loads which arrive by truck, and then direct the crane driver to lift the loads and place them on the site. He says he has time to walk around, rest and stretch. The amount of work varies, and it depends upon when he gets a call to go to work on a site. In cross-examination, he said there were days when he did not work because of his low-back pain.[5]
[5]This was not mentioned in the course of his affidavits, nor in the histories to the various doctors
29 He earns between $400 and $1,500 gross per week. He says he would not be able to return to work at Jamco installing signs.
30 As to treatment, he rarely goes to a doctor about his back problem and that has been the case now over several years. He said he is not the sort who likes going to doctors and does not like taking prescription pain medication because of its side effects. On the occasions he has been to doctors, the clinical notes would indicate he does not complain of back problems. He takes occasional Panadol and Nurofen, several times per week, when his back is sore. He saw a chiropractor a year or so ago and continues with his exercise and stretching program.
31 He said there were some days when he does not have any back pain.
32 In his affidavit, he described that his back now felt weak, with pain in the left lower area, most of the time. He said the pain is worse at night and radiates to his buttocks. If he sits too long, including in a car, the pain gets worse. He is not able to carry things that are heavy nor able to do the physical work he used to do before 2011.
33 He says his sleep is affected and he regularly wakes at night. It is difficult to shower and change his clothes, in particular, put his shoes and socks on. He is able to do a lot less around the house and his partner helps with the heavier aspects of housework. He says his intimate life with his partner is affected. He is not able to be as active with his children as he was before, although has been fishing with them once or twice. He has been to the football with them, and even kicked a football, but not a long distance.
34 There is occasional numbness in his left heel and a grabbing sensation in the left hamstring. He cannot enjoy wakeboarding or water skiing as he did before.
35 He has always had a love of horses and now finds it more difficult to horse ride, in particular, getting off horses. He cannot ride them at a full gallop, and could not ride in races.
36 Mr Millard’s partner, Ms Emma Barlow, provided an affidavit generally supportive of his complaints of low-back pain and restriction. She said she has noticed he has difficulties with sleeping, and their intimate life has decreased. He is unable to participate in physical activities with his daughters. She described him as a very stoic and hardworking person, not the type to stay at home.
Medical opinions
37 Mr Andrew Danks, who saw Mr Millard after the 2011 injury, received a history that the pain in Mr Millard’s back had been increasing since the incident and was severe at the end of the day, with the development of left sciatica. He noted Mr Millard had been off work for four weeks before he first saw him in April 2011. He said the MRI scan –
“… demonstrated a significant left posterolateral disc prolapse at L5/S1, which was compressing the origin of the S1 nerve root. … .”[6]
[6]PCB 27
38 Mr Danks reviewed Mr Millard in July 2011:
“… He told me that he was making a satisfactory recovery from his left sciatica. He reported some ongoing, mild symptoms particularly when driving, but reported that these tended to settle quite quickly with a change of posture. There was no evidence of worrying, ongoing symptoms or signs. We discussed future plans in terms of further rehabilitation locally and then the possibility of retraining. … We agreed that there was little benefit in further surgical review so I advised further follow-up with Dr De Silva.”[7]
[7]PCB 27
39 Mr Danks considered the disc prolapse to be an exacerbation of underlying and pre-existing disc degeneration, and on the opposite side of the site where the previous microdiscectomy had been performed.
40 Mr Millard was examined by Dr Ales Aliashkevich, neurosurgeon, in October 2017. That practitioner described the radiology as indicating –
“… [a] large focal left-sided extrusion located at the LS/S1 level compressing the proximal left S1 nerve root sheet (scil sheath) measuring up to 1 cm in diameter … .”[8]
[8]PCB 35
41 Mr Millard complained of chronic pain in the lower back, occasionally radiating to the left buttock and hamstring area, and causing intermittent cramps. There was pain after driving for forty minutes or walking on steep ground. Pain medication caused diarrhoea. There was complaint of restriction in domestic activities, including chain sawing.
42 Mr Aliashkevich said that there was functional limitation, including the inability to sit or stand for longer periods, walk on steep slopes or uneven ground and carrying of weights in excess of 5 kilograms. He said Mr Millard could not perform repetitive activities like bending and twisting. He could not return to his pre-injury duties as a sign installer. He had the capacity to work as a dogman within certain limitations.
43 Mr Millard was examined by Mr Daryl Nye, neurosurgeon, in September 2011. He received a history of the onset of back problems after the January 2011 incident. Mr Nye described Mr Millard as presenting in a genuine manner. He described the left-sided disc protrusion as significant. He thought Mr Millard could resume his pre-injury duties but with restrictions. He said:
“Restrictions are necessary in any work situation having regard to the worker’s lumbar spine condition and engagement should not involve repeated bending or twisting movements of the spine, prolonged unrelieved periods of either standing or sitting and a lifting limit of 5 kg would be appropriate and such should not be conducted from below waist level.”[9]
[9]DCB 17
44 Mr Millard was examined by Mr Greg Etherington, spinal surgeon, in April 2013. He complained to Mr Etherington of being sore at the end of a day’s work at Hillstone. Despite his injury, Mr Etherington thought Mr Millard was able to function reasonably well with the degenerate L5-S1 disc. He said Mr Millard was able to manage his work six hours per day, five days per week, and this was about his full capacity. He noted the treatment was, at that time, predominantly self-managed exercise, walking and strengthening, with some yoga and massage. Mr Etherington encouraged him to continue that regime.
45 Dr Umberto Boffa, occupational physician, examined Mr Millard in September 2015. At that time, Mr Millard was working six hours per day, five days per week with Hillstone and Lindsay Park. The bulk of Mr Boffa’s report was directed to his right leg and ankle injury in the course of a track riding incident in May 2015. However, he said Mr Millard was fit for alternative duties providing they did not involve prolonged standing and walking and repetitive lifting and carrying of more than 10 kilograms.
46 Mr Roy Carey, orthopaedic surgeon, examined Mr Millard in October 2017. To Mr Carey, he said that he had resigned from Hillstone some years before but continued working at Lindsay Park, thirty hours per week. He said his track riding was restricted to “steady” riding which did not require him to race the horses with high stirrups.
47 Mr Millard told Mr Carey he was still taking over-the-counter pain medication, including Panadol and Panamax, although avoided anti-inflammatory medication. Mr Millard described his back and legs at that time as being “pretty good”.[10] However, he described constant left buttock discomfort, of varying intensity, worse if he walked up a slope. He said it was difficult to pick things up from the floor, and driving beyond forty minutes required a break. Mr Carey noted that since the incident of 2011, he had not returned to full-time normal duties after leaving Jamco. He noted continued low-back and left limb symptoms. He thought it was likely that he would have ongoing problems in the back and the left lower leg. He thought Mr Millard would be able to continue in his then current occupation into the foreseeable future, albeit with continuing discomfort and some disability.
[10]DCB 34
Analysis
48 I accept Mr Millard suffered a significant injury to his lower spine in the course of heavy lifting duties at Jamco in January 2011. He had pre-existing degeneration at that level and had undergone surgery to the same disc in 2001. However, I am satisfied that he largely recovered from that surgery to the point of being able to return to heavy duties at Jamco. I do not see this as an aggravation case, and Mr Griffin did not submit to the contrary.
49 I am satisfied that as a result of his work duties in January 2011, Mr Millard suffered a prolapse to the L5-S1 disc. This was an aggravation of the underlying degenerative disc disease at that level. The prolapse was substantial, and involved compression of the exiting L5 nerve. This has caused referred symptoms into the left buttock, numbness into the left hamstring and tingling and altered sensation to the toes of the left foot. On any view, the pathology at the L5-S1 level is significant, although that does not always translate into major pain and disability.
50 On any view, Mr Millard, with the injury he has encountered, has made a commendable return to employment, although not to the heavy lifting and manoeuvring duties he undertook at Jamco. It could not be said that his work as a track jockey and farmhand for Hillstone or Lindsay Park would be considered light duties. Riding a horse in track work, even although not at full gallop, would have a jarring effect on the spine, and was not at all easy to undertake in a man with significant degeneration at the lower levels. In my view, it is a measure of his passion for the sport that he has returned to the area.
51 I was impressed with the manner in which Mr Millard gave evidence in the course of cross-examination. He was a straightforward and honest witness giving a fair account of the pain and disability he has suffered since the subject incident. There were no major credit issues put to him. Although his affidavit did say that he had restrictions in his intimate life with his partner, it is clear that he was dealing with erectile dysfunction for years before the subject incident. The problem now is his lower back pain rather than erectile dysfunction. Further, in evidence, he did say that he had harboured hopes of returning to racetrack riding, had he not been injured, but I am satisfied that the reason he has not is because he was not able to control his weight many years before. However, I accept his evidence that his back injury would likely prevent him in any event.
52 Those matters aside, I accept without reservation his complaints of ongoing pain in his lower back and referred pain to the left buttock, leg and foot. I assess him as a stoic worker, prepared to endure pain in pursuit of his passion, and to maintain employment. As was said by Maxwell P in Haden Engineering Pty Ltd v McKinnon:[11]
“… the cases recognise that some plaintiffs may be more ‘stoical’ than others. This means that such a plaintiff is, to an unusual degree, prepared to endure pain in order to maintain a desired level of function. The injury suffered by the ‘stoical’ plaintiff is not to be viewed as any the less serious merely because he/she manages to remain more active than might have been expected given the level of pain. In such a case, the ‘objective’ evidence of the disabling effect may be of less significance than usual.”[12]
[11](2010) 31 VR 1
[12]At paragraph [13]. See further, Sutton v Laminex Group Pty Ltd (2011) 31 VR 100
53 There is support for Mr Millard’s stoicism when one considers that over the course of his life as a jockey, he has suffered many significant injuries which would have debilitated most people. He has had a number of horse falls involving fractured bones, punctured lungs and injuries to various parts of his body.[13] In 2015, he suffered a serious leg injury. After all of this, he has, on each occasion, returned to work as a track jockey. He is indeed made of stern stuff.
[13]PCB 9
54 An assessment of whether the consequences to an injured worker meet the “very considerable” level requires consideration not only of the domestic, recreational, social and employment activities which have been lost, but also those which have been retained. In Mr Millard’s case, he has returned to employment, although not to the same hours nor to the same strenuous duties as before. He has been able to indulge his passion for horse riding, albeit limited to an extent. He remains socially active. He can drive longer distances, although with discomfort. He enjoys activities with his children and his partner.
55 Further, he has not had any medical treatment over the last three or four years, save for a home-based exercise program, occasional over-the-counter medication and massage.
56 Balancing all of the evidence, both lay and medical, I am satisfied that the consequences to this plaintiff do meet the statutory test. I say that for the following reasons:
(i) I accept Mr Millard’s evidence that since January 2011, he has suffered ongoing pain in the lower back which fluctuates according to the activities in which he is engaged, and referred pain and changed sensation into his left buttock, hamstring and foot;
(ii) There is clear evidence of injury at the L5-S1 disc with a significant broad-based prolapse and compression of the exiting nerve root at that level;
(iii) There is support from all of the doctors to the effect that he could only return to employment within certain limits. Those limits include a restriction on the weight of goods lifted, the ability to sit and stand, work involving repetitive movements, including bending and twisting, and sustained and forceful pulling. The opinion of almost all doctors is that he would not be able to undertake his pre-injury strenuous duties such as he was able to undertake at Jamco. To a man who has always made his living in physical active work of one sort or another, this is a significant restriction;
(iv) I accept his evidence that, although with difficulties maintaining his weight level, it was unlikely he was ever going to return to work as a race jockey; nonetheless, there are restrictions on the way he is able to ride horses, in particular, in a full gallop, the way he works with, and cares for them, and the way he is able to mount and dismount. Again, for a man for whom horses have been a lifelong passion, this is a significant restriction;
(v) I accept his evidence that there is some effect upon his sleep and he struggles to get a good night’s sleep, and some effect upon the intimate relationship with his partner;
(vi) There is some effect upon his capacity to undertake heavier domestic duties, waterski and surf.
57 Weighing in the balance what has been lost, and what has been retained as a result of the pain and disability caused by his back injury, I am satisfied the consequences to Mr Millard meet the “very considerable” test.
58 I shall grant leave to bring common law proceedings and make consequent orders.
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