Millership v State of Victoria

[2022] VCC 309

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-20-02734
CI-20-02735
CI-20-00223

CHERYL ANNE MILLERSHIP	Plaintiff
v
STATE OF VICTORIA	Defendant

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JUDGE:	HIS HONOUR JUDGE PILLAY
WHERE HELD:	Melbourne
DATE OF HEARING:	8 March 2022
DATE OF JUDGMENT:	21 March 2022
CASE MAY BE CITED AS:	Millership v State of Victoria
MEDIUM NEUTRAL CITATION:	[2022] VCC 309

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

Catchwords:              Serious injury application – Injury to lungs as result of silicosis – Heavy smoker – Ceramics teacher – Separate and distinct consequences from silicosis from arthritis and chronic hip and low back pain – Emphysema

Legislation Cited:      Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)

Cases Cited:Peak Engineering & Anor v McKenzie [2014] VSCA 67

Judgment:                  Application granted

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr I McDonald QC with Ms F Blair	Adviceline Injury Lawyers
For the Defendant	Mr R Stanley	MinterEllison

HIS HONOUR:

1Ms Cheryl Millership contracted silicosis while employed by the Department of Education as a teacher between 1983 and about 2018. The fact that she has silicosis and that it was caused by her employment with the Department of Education is not in dispute. The only issue before the Court is whether the impairment consequences arising from her silicosis meet the test set out in s 325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic). The Defendant argued that because her condition was stable and she remained in employment she could not demonstrate that her impairment consequences were more than significant or marked. As part of their submissions, the Defendant pointed to a number of other physical impairments, such as chronic arthritis and low back problems. They submitted that these injuries caused impairment consequences which could not be separated from those impairment consequences arising from her silicosis as required in Peak Engineering & Anor v McKenzie.[1]

[1] [2014] VSCA 67

2For the reasons which follow, I reject the Defendant’s arguments. I find that the impairment consequences flowing from Ms Millership’s silicosis can be isolated as required. I am further satisfied that those impairment consequences amount to a finding of serious injury.

Brief relevant factual background

3Ms Millership was born in 1962.

4She began smoking at about the age of 21. She smoked anywhere between 10 to 20 cigarettes a day from that time.

5She completed a Bachelor of Education in Arts and Crafts in 1983.

6In 1983 she began working at Brighton High School as a teacher of ceramics and art. She described that “[p]art of [her] work involved teaching ceramics”.[2] Between 1985 and 1993 she worked at Elwood High School as an arts and ceramics teacher.

[2]Plaintiff’s Court Book (“PCB”) 58, at paragraph [4]

7At about the age of 30 she developed back pain and thereafter began smoking marijuana at night to help with her back pain. Her back pain has been chronic since that time.

8She moved to Mornington Secondary College teaching arts and ceramics between 1994 and 2001.

9From 2001 to 2006, she took a break from being a full time teacher and did a number of other things which are not relevant here.

10In 2007, she began working at Mount Erin College, a public high school, as an arts and ceramics teacher at the Somerville Campus. She moved to the Frankston Campus in 2008 and reduced from full time work to a 0.8 full time load. She deposed “most of my teaching load was teaching ceramics”.[3]

[3]PCB 58, at paragraph [9]

11In 2012, she began to develop respiratory symptoms which involved a dry cough. By 2014, Ms Millership’s teaching load returned to “a full allotment of ceramics teaching”[4] at the Frankston Campus at Mount Erin College.

[4]PCB 61, at paragraph [21]

12On 31 May 2018, her symptoms of coughing were such that she was referred by her treating doctor, Dr Lydia Arnold, to Peninsula Health. She saw Dr Raymond Wong, a respiratory registrar, who took a history that she was experiencing coughing in the morning and the production of sputum.[5]

[5]PCB 119

13Dr Wong considered that she had evidence of silicosis given her occupational history of being exposed to silica particles in the course of teaching ceramics. On 29 August 2018, Dr Wong saw her again and confirmed his advice. He also advised her to cease smoking.

14Returning to the chronology. She gave evidence that as a result of her arthritis causing chronic back and hip pain, she reduced her teaching load in 2018 to 0.6.

15On 19 October 2018, she lodged a WorkCover claim alleging she had contracted silicosis at work. This claim was accepted.[6] She presented the school with a letter from Dr Wong which advised that she had occupationally induced silicosis and that she should no longer work with ceramics. The school shut the ceramics program in its entirety. Ms Millership continued teaching art.

[6]PCB 93-94

16She came under the care of Dr Ryan Hoy, treating respiratory physician, in July 2019. He considered that she had a chronic condition and that she needed to stop smoking as it may affect her lung function. He also diagnosed her with emphysema related to her smoking.

The Defendant’s arguments

(a)     The stability and progression of the silicosis

17The medical evidence suggests that in the period from 2012 to 2018 there was progressive deterioration in lung function.[7] However, after 2018, the time when she was removed from all ceramics classes, that progressive deterioration had stabilised.[8] The opinion seems to be that while her respiratory impairment will not improve, it is unlikely there will be further deterioration.[9]

[7]PCB 107-111 see the report of Dr Jonathan Burdon 19/11/2018 and the Medical Panel opinion at PCB 52

[8]PCB 104 report of Dr Paul Fogarty

[9]PCB 105

18I am thus satisfied that the silicosis condition is permanent and is not currently deteriorating or improving such that the Court cannot make an assessment of the condition as required by the Act[10] as of the day of hearing.[11]

(b)    Are the impairment consequences unable to be isolated and assessed in accordance with Peak Engineering & Anor v McKenzie[12]?

[10]        Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)

[11]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at [19]

[12] [2014] VSCA 67

19In Peak President Maxwell said the following:[13]

“In a case of this kind, where two different injuries are concurrently producing pain and suffering consequences for the applicant, it will ordinarily be necessary to make findings about all of the pain and suffering consequences which are operative at the date of the trial. This would seem to be an essential pre-condition to the task of deciding which of the pain and suffering consequences are attributable to which injury. The matters identified in the previous paragraph were all directly relevant to the enquiry in the present case, and needed to be addressed squarely.”

[13]        Peak Engineering & Anor v McKenzie [2014] VSCA 67 at [24]

20And his Honour said further:[14]

“It is possible to imagine a case where the consequences of the original injury are so clearly separate and distinct from the consequences of the subsequent injury that no ‘disentangling’ is necessary.”

[14] Ibid at [25]

21The Defendant’s counsel pointed to a number of factors which were said to impinge on the claimed impairment consequences arising from the silicosis. First, that Ms Millership had longstanding chronic arthritic and low back pain. Counsel submitted that such longstanding pain was so significant that it must have curtailed some of her abilities. This was because it had necessitated the use of cannabis on a nightly basis to alleviate symptoms and had led to referrals to pain specialists. Counsel submitted that it was for the Plaintiff to demonstrate what these were and that they were separate and distinct from the impairment consequences flowing from the silicosis. Counsel submitted that it was undoubted the pain from the arthritis and low back condition were significant because it had on the Plaintiff’s own evidence caused her to reduce her work from 0.8 to 0.6 full time. Second, counsel submitted that Ms Millership had emphysema, contracted from her smoking, that had produced impairment consequences which overlapped with those caused by the silicosis.

22I consider this is not a case as alluded to by the President in paragraph [25] of Peak[15] where the consequences of the silicosis are completely separate and distinct from the consequences of these other injuries. I do, however, consider that the Plaintiff has made sufficient distinction in her material to isolate the impairment consequences related to the silicosis. For example, there is no suggestion that it was the silicosis that led to her reducing her work. In her affidavit she clearly deposed to it being as a result of the arthritis and chronic hip and low back pain.[16] In cross examination she suggested that there were a number of factors that led to the reduction in her hours.[17] Arguably this was an inconsistency in her evidence. However, it must be understood that at the time when her hours were reduced, she was still at that point employed in ceramics and had just been formally diagnosed with silicosis. Her condition had not stabilised at this time. Her evidence then given under cross examination is entirely explainable and understandable. However, I consider that the evidence in her affidavit is accurate and consistent with the recording of her long term treating doctor, Dr Arnold, around this time.[18] In those notes there is discussion of reducing work on account of the silicosis. Any inconsistency then does not tell against her.

[15] Ibid

[16]        PCB 59, at paragraph [11]

[17]        Transcript (“T”) 11, Line (“L”) 30 – T12, L2

[18]Defendant’s Court Book (“DCB”) 44-45

23In this regard I note that the Plaintiff does not put her case on the basis that she has reduced her hours due to silicosis. She does not rely on this as an impairment consequence of her silicosis.

24I consider that there is no further disentangling or isolation of the impairment consequences in relation to why she reduced her work necessary.

25Defendant’s counsel also submitted that any reliance on pain consequences were similarly entangled and could not be adequately isolated as being related to her silicosis. Once again, the Plaintiff does not rely on extensive pain consequences related to her silicosis. She openly deposes to having chronic low back pain which requires both strong pain relieving medication and also the taking of marijuana at night to alleviate her pain symptoms. She does depose to having chest pain in her upper chest when she lies down caused by silicosis. However, she does not say that she requires pain medication for this or that she has constant chronic pain associated with silicosis.

26In any event, given the history and the concessions made by the Plaintiff as to the chronic longstanding nature of her low back and arthritic pain, I find that I am not able to separate the pain consequences arising from the silicosis sufficiently to quantify the effect on her life. I therefore do not consider further any pain consequences associated with the silicosis.

27Turning to the impact of the emphysema. It is to be noted that the medico-legal opinion largely excluded the effect of the emphysema in its assessment of her current situation. Both Dr Jonathan Burdon and Dr Paul Fogarty fall into this category. They thus attribute her impairment consequences to silicosis. Dr Hoy notes the presence of emphysema radiologically but considers her symptoms related to silicosis. Both Professor Michael Pain and Dr Michael Jones do not consider there to be a diagnosis of silicosis. As the case proceeded on the basis that there was an occupationally induced silicosis present Professor Pain’s and Dr Jones’ opinions can be put to one side. I therefore find there are no impairment consequences attributable to the emphysema on the evidence.

28Otherwise, I consider that Ms Millership has sufficiently separated and identified the impairment consequences arising from the silicosis.

29These impairment consequences arise in the following ways. Most importantly Plaintiff’s counsel focussed attention on the fact that as a result of silicosis Ms Millership is no longer able to work as a ceramics teacher. He first noted that she had qualified as a specialist art teacher. Second, that she had always taught in ceramics from the time she joined the teaching ranks. Third, she had taught ceramics from 1984 until 2018 – a period of 34 years – a very considerable period. Ms Millership gave evidence that “[t]eaching ceramics was always what I loved the most”[19] and certainly from 2014 onwards she had had “a full allotment of ceramics teaching”.[20]

[19]        PCB 87, at paragraph [4]

[20]        PCB 61, at paragraph [21]

30I interpolate at this stage that there was no attack in closing submissions on Ms Millership’s credit. She struck me as a witness who gave honest, forthright answers. She was entirely respectful of the process. At times she conceded. These concessions were entirely appropriate when she was confronted with medical history which she could not recall. At times those concessions were against her interest and stand to her credit. For example, she was asked whether she had given an accurate history about having no pain in her chest when seen by the Medical Panel.[21] She said that she may well have said that. It was also suggested that she had not been forthright in disclosing the voluntary dog instructing work that she did with the Mornington Peninsular Dog Club. I would reject that submission. First, she had disclosed this to the Defendant’s medico-legal practitioner, Professor Pain. It is true that this history does not find its way into any affidavit. However, it is clearly disclosed to Professor Pain and she gave detailed evidence about this when questioned. It did not appear that she was seeking to hide any of these matters.

[21]PCB 41; T13, L23 – T15, L1

31It was also suggested that she had made some attempt to have her treating doctor omit her smoking history from her notes. I would reject that submission outright. As explained in the witness box by Ms Millership, she was embarrassed by her history of smoking marijuana to deal with her low back pain.[22] She had approached her doctor who recorded the following in the notes on 15 October 2018:[23]

“She also says that she would like the smoking cannabis to be left out of any information that is passed over to the lawyers.

…

She is happy for smoking to be disclosed but not cannabis.”

[22]        T37, L27-31

[23]DCB 44

32Her doctor advised her that this was not possible. She explained in evidence that it was this embarrassment that led her to ask her doctor about this possibility. I accept that explanation entirely particularly given that it is coming from a teacher who, no doubt, was concerned about her reputation and professional standing.

33Overall, then, I record my finding that I accept the Plaintiff as a witness of truth.

34I accept that Ms Millership had demonstrated a longstanding professional commitment to teaching ceramics. I find that it was a significant, valuable and enjoyable part of her life. Her affidavit speaks eloquently of the pride she had in her role as a ceramics teacher and the positive impact she believed that she had on students by teaching them ceramics. It is to be noted that when she was no longer able to teach ceramics, the school shut the entire ceramics program down. Ms Millership deposes to feeling a great sense of loss, not only for herself, but also for the students who were deprived of this significant creative outlet. I find that the deprivation of the ability to continue this valuable and enjoyable component of her professional life is a very significant consequence for her.

35In addition, she deposes to the silicosis producing consequences for her ability to walk. She freely admits to being able to walk on flat ground at moderate pace for about 2 kilometres. When she encounters an incline, she begins to get breathless. The same occurs when she is on the beach walking her dogs. This is an important factor for her as she has dogs and lives close to the beach. She walks there regularly. This breathlessness is something which she has to confront on a regular basis and curtails her enjoyment of these activities.

36She also deposes to experiencing breathlessness when performing heavier household tasks such as vacuuming. She says this requires her to take frequent breaks. Her evidence is that she can no longer do any lawnmowing because of the breathlessness which is induced after a short period of time. I accept these matters.

37She deposes also to coughing every day particularly in the morning, though she freely admitted that her coughing was not as bad as it used to be particularly since she ceased working with ceramics. This is a more minor matter but is also a consequence I have regard to.

38When coming to assess whether the impairment consequences rise to the level of being considered serious, and combining the impairment consequences as I have found above, I consider when measured against other possible cases in the range of cases that Ms Millership satisfies the test of having a serious injury. Consequently, I will grant her application.

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