Stephens v Greyhound Racing Victoria

[2014] VMC 6

IN THE MAGISTRATES COURT OF VICTORIA

AT MELBOURNE

Case No. D11051675

JOHN RAYMOND STEPHENS	Plaintiff
v
GREYHOUND RACING VICTORIA	Defendant

---

MAGISTRATE:	Magistrate B R Wright
WHERE HELD:	Melbourne
DATE OF HEARING:	23 January and 6 February 2014
DATE OF DECISION:	18 March 2014
CASE MAY BE CITED AS:	Stephens v. Greyhound Racing Victoria

REASONS FOR DECISION

---

Catchwords:

Workers Compensation – Rejection Of Claim – Injury To Neck - Whether Injury Arising Out Of Or In The Course Of Employment – Alternative Journey Claim Involving Interstate Trip - Whether “Travelling For The Purposes Of The Worker’s Employment” – “Substantial Interruption” – Accident Compensation Act ss. 5(1A), 82(1), 82(2C), 83(1)(b) & (2)(c)

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G Worth	Nowicki Carbone
For the Defendant	Ms G Cooper	Wisewoulds

HIS HONOUR:

1 Mr Stephens is a 63 year old former CEO of Greyhound Racing Victoria. He claims benefits, namely weekly payments and reasonable medical and like expenses, pursuant to the Accident Compensation Act 1985 (“the Act”) for an alleged work related injury to the neck, which resulted in a two level interbody fusion from C5 to C7.

2       Mr Stephens alleges that his neck injury occurred throughout the course of his employment, having regard to his general duties and work activities. Further or in the alternative, it is alleged that he suffered an injury to his neck on 3 March 2012 while walking between the terminal and undercover car park at Tullamarine Airport on his return from a work conference in Sydney (“the airport incident”).

3       His workers compensation claim was denied on the basis of his injury not being work related. A s.103(5) defence was not proceeded with.

4       Mr Stephens was the CEO of Greyhound Racing Victoria for some 12 years until his resignation in about April 2012 effective as at 3 August 2012, which was his last day worked.

5       As the CEO he was essentially responsible for all aspects of greyhound racing in Victoria in respect of which there are about 13 metropolitan and regional courses which hold about 700 meetings per annum. He said he would work up to 12 hours per day, five days a week at his desk, use a computer and attend work meetings. In addition, he would attend metropolitan and country race meetings at each Victorian course a couple of times per year. The country meetings were at the larger regional centres, the furthest being Sale and Warrnambool, to which he would drive his car.

6       There would be management meetings of various types with stakeholders such as the government, Tabcorp and various segments of the greyhound Industry. He did a PhD from 2000 to 2007 which was supported and sanctioned by Greyhound Racing Victoria as it was on theory based methodology which would assist the Greyhound Racing Victoria.

7       He would have to attend interstate and New Zealand conferences every three months with other greyhound racing bodies, which would involve him going away for two to three days at a time, taking one to two suitcases including conference materials. There was also ongoing supervision of some PhD students which was also approved by Greyhound Racing Victoria. He was a very busy person and said he would eat his lunch at his desk.

8       He said he first began noticing neck pain about five to six years ago. It was at the back of the neck just below the top of the shoulders. The pain would go across the top of the left shoulder and into the left upper arm. He would notice it particularly at the end of a long day. He would get it while sitting at his desk or while driving long distances to country meetings. He would have to take a break. The pain would occur about two to three times per month at his desk and while driving. Long periods of the neck in one position would appear to be a trigger for the pain.

9       On Thursday 1 March 2012 he flew to Sydney for a work conference with other interstate greyhound racing CEOs. He arrived in late afternoon at Homebush and stayed at a hotel there. That night there was a dinner and meeting of the CEOs to discuss the agenda for the following day's meeting. On Friday 2 March 2012 there was the conference itself at Homebush. That night there was a conference dinner at the Hilton hotel in Sydney from about 6.30 to 11.30 p.m.

10      He stayed overnight at the hotel as there was no flight to Melbourne at that time. As he had his golf clubs with him, he played an 18 hole round of golf at the Lakes Course which is near Sydney Airport. The golf game had nothing to do with his work.

11      If it had not been for the golf game he said he would probably have taken the 10.00 a.m. flight to Melbourne. Instead, he teed off at 8.30 a.m. and played golf for about four hours. He was uncertain what flight he took to Melbourne. In examination-in-chief he said he arrived in Melbourne at about 3.30 to 4 p.m., whereas when he was later recalled he thought it was about 5 p.m. When this variation was pointed out to him, he thought it may have been closer to 4 p.m.

12      He only lives about 15 minutes or so from the airport. As soon as he got home he had to change to attend a greyhound race meeting at 6.30 p.m. at Broadmeadows.

13      He took with him to Sydney a medium size suitcase type (without wheels) which had his clothes and also two to three large folders of documents for the conference. He also had about 18 golf clubs in a smallish travel-type golf carry bag. The bags were too large to carry on the plane and were checked in.

14      After arriving back at Melbourne Airport he was carrying one bag in each hand. About halfway to his car, which was in the undercover car park, he noticed a severe pain to the same neck and left shoulder area. He put the bags on the ground, rested for about two minutes and then continued on his way home. He then went to the Broadmeadows meeting without any real problem.

15      The pain got worse on the next day (Sunday) and worsened during that week. He reported the problem to his second in charge and took Panadol and anti-inflammatories and used Voltaren cream with increasing frequency.

16      About two weeks after the airport incident he went to a physiotherapist but got worse over time. On 21 March he went to his GP Dr Vinci, who referred him for a CT scan. After that he was referred for an MRI and eventually to Mr Myron Rogers, a neurosurgeon, in early July 2012.

17      In view of his left upper arm wasting and sensory changes to the shoulder, arm and fingers, Mr Rogers advised a two level anterior cervical decompression with interbody grafting. This was done on 3 August 2012. He has not resumed paid employment since that date.

18      However, he had previously resigned from his position at Greyhound Racing Victoria on about 19 April 2012 as he said the new chairman wanted to take the organisation a different way. There was some conflict between them over this. He agreed to stay on until a new CEO was appointed and continued to work full time as normal.

19      

Meanwhile, the Ombudsman had been conducting an inquiry in to Greyhound Racing Victoria. Mr Stephens said he was interviewed for this on about

3 May 2012. The Ombudsman report was handed down on 20 June 2012. He agreed that the report did "not flatter" him. The Chairman said to him that it was better that he not come in to the office to work and to remain working at home.

20      There was a transition with the new CEO. He said he went in to the office for half a day about one to two days per week. He had one week off on doctor's advice in about June 2012, but otherwise continued to work. He eventually finished up on 3 August 2012, which was the date of his surgery.

21      Since then he has applied for three to four part time sessional work jobs at universities and missed out on one job at Deakin University. He believes he is fit for part time intermittent administrative work two to three days per week, but is not able to do full time work. He continues to do exercises, goes to the physio every two to three weeks, but is not on any medication.

22      He is the honorary Treasurer of the Huntingdale Golf Club and attends meetings there about once or twice per week and other finance meetings about six times per annum, together with Board meetings monthly. The club is building a new club house. Overall, he goes to the club about two to three times per week, including playing a round of golf about once to twice per week off a present handicap of 11. He drives to Bendigo fortnightly to see his daughter.

23      In cross-examination he denied he would be able to return to his pre-injury duties as he could not work extended hours or be in a fixed position for long on a regular basis. After a two hour meeting his neck is painful and is more painful the next day.

24      He believed he had mentioned his neck pain to his GP on occasions prior to 3 March 2012. He denied that the Ombudsman report had anything to do with his resignation, even if he had actually been interviewed on 3 April 2012, rather than 5 May 2012, which was an alternative date put to him in cross-examination.

25      He said his claim had nothing to do with seeking revenge on Greyhound Racing Victoria. He agreed he had flown to the United Kingdom in 2013 but found this all right as he travelled in business class.

26      Before going to the medical evidence I will summarise the only other lay witness evidence.

27      Mr Peter Caillard, the Chairman of Greyhound Racing Victoria, was called to give evidence. He said he was appointed about September 2011 and had dealings with Mr Stephens on a daily basis. He had a very good relationship with him. He said that Mr Stephens was a person of "utmost integrity".

28      He thought the Greyhound Racing Victoria, and Mr Stephens personally, were unfairly criticised in the Ombudsman report. He said Mr Stephens resigned in April 2012 without giving any reason. He asked him to stay on longer despite Mr Stephens being in a difficult position, as a part favour to him and to Greyhound Racing Victoria.

29      He wanted Mr Stephens to stay until August 2012. However, the Ombudsman report in June 2012 raised what he described as a “bit of heat and publicity”. He suggested that Mr Stephens work from home, which he agreed to do.

30      He agreed Mr Stephens worked long hours at work and attending meetings. He remembered Mr Stephens complaining of neck and shoulder pain but could not say when this was. He said this was not in 2012, but later.

31      He knew Mr Stephens was concerned about back surgery. Mr Caillard had had back surgery in the past. He did not believe that Mr Stephens mentioned any work cause for his pain, as he would have remembered such an allegation.

32      He said Mr Stephens had to sit at a desk and work on a computer, but this was not to the extent of say, a full time typist. Mr Stephens' job was really managing staff, attending meetings and dealing with stakeholders. Overall, he summarised Mr Stephens as being a person of great integrity. Certainly, I found Mr Stephens to be an honest witness as well who did not embellish any of his evidence and conceded some aspects of evidence that actually went against him.

33      Mr Caillard thought that Mr Stephens was unfairly attacked over the Ombudsman report. I accept Mr Caillard's evidence on behalf of the defendant that he was a person of utmost integrity who continued to assist Greyhound Racing Victoria, despite him being in a difficult position because of the Ombudsman report.

34      His general practitioner Dr Vinci was called to give evidence. She was unable to find any mention of neck pain in her clinical notes prior to 21 March 2012. On 29 August 2013 he told her he had a five year history of neck pain. Otherwise, she gave evidence of his treatment after 21 March 2012 as I have outlined as part of his evidence.

35      She opined that he could now only work two days per week with limitations on computer and above shoulder work and needing regular breaks. She thought his work duties, that is long periods of computer work, were a significant contributing factor to the otherwise age-related degenerative changes in his neck.

36      Three short reports were tendered from his treating surgeon, Mr Myron Rogers. One report was to the GP after the first medical examination and another was an operation note. Nowhere does he mention any work history or causation. In fact, he took a history of him first noticing left arm symptoms in March 2012. There is no reference to any opinion as to the work relationship to his cervical and referred limb symptomology or the need for surgery. Mr Rogers was not called to give evidence.

37       A medical certificate from Mr Rogers said that Mr Stephens was unfit for work after spinal surgery from 3 August 2012 to 19 September 2012. In the last note of 19 September 2012 he said that there were "no restrictions on his activities".

38      The physiotherapist notes were tendered. The initial history on 30 March 2012 was of pain to the left side of neck to the forearm. There was a specific note of golf bag in left arm and suit bag in right arm on the day that he had pain.

39      Mr Peter Kudelka, orthopaedic surgeon, was called to give medico-legal evidence on behalf of Mr Stephens. He saw him once on 12 September 2013. He took a history of long hours working in the office and driving as well and one incident "carrying heavy bags at Sydney Airport."

40      Overall, in his report, he thought that Mr Stephens injured his neck while working as a CEO and spending long hours at the desk, doing travelling and carrying luggage. He thought the airport incident was a significant contributing factor as it significantly worsened his symptoms leading to surgery. He was less certain as to the degree of contribution by his normal work duties and activities. He thought that Mr Stephens was not totally disabled and could do clerical, administrative or office work which was semi sedentary and not involve travelling. He noted continuing neck stiffness, right hand weakness and sensory changes.

41      He maintained those opinions in cross-examination. As to the airport incident, he thought that lifting a bag in the left hand would be more likely to cause left sided neck and shoulder problems. However, he would need to brace his other side to carry that bag in the left hand. In the present case, lifting bags in both hands would be likely to cause strain to the neck and both shoulders, according to Mr Kudelka.

42      Two medico-legal reports were tendered from Professor Myers, vascular surgeon, on behalf of Mr Stephens. He examined Mr Stephens twice in December 2012 and December 2013. He also took a history of "heavy work activities" including long hours at a desk, using a computer, long drives from home to Warrnambool, as well as using computer extensively for a PhD. He also had a statement from Mr Stephens detailing the airport incident with worsening pain from the next day.

43      In his first report he thought that the long term strain using a computer in the course of work activities, together with further aggravation by carrying heavy bags for the meeting "precipitated the development of disability". In his second report he took this further stating "the employment was the sole contributing factor" (emphasis added) and he had "no fitness for pre-injury employment”, doubting whether he could obtain employment on even a part time basis.

44      Finally, medical reports were tendered by the defendant from Mr Kevin Siu, neurosurgeon, and Dr Tonkin, general physician, who examined Mr Stephens on 11 December 2013 and 11 October 2012 respectively.

45      Mr Siu took a similar history of his long work activities involving driving to attend meetings. He also took a history of carrying luggage and golf clubs from the airport terminal to his car in March 2012.

46      Mr Siu did not consider employment was a significant contributing factor to the claimed injury. He thought that carrying a heavy golf bag (or maybe even luggage) was related to his surgery in that it could well have resulted in “minimally contributed” nerve compression, thereafter requiring decompression surgery. He thought Mr Stephens could resume pre-operative duties as an administrator, avoid long drives of six hours in a day and not sit for hours at the computer desk. Otherwise, he thought his capacity for employment had not diminished.

47      Dr Taubman took a detailed history of work activities in the airport incident "carrying two bags". He thought that the cervical degeneration was purely age related, developing gradually over many years. He did not believe "the worker's employment was a cause" but made no differentiation between Mr Stephens' general work activities and the airport incident, except for saying, "his condition manifested in March 2012 following a trip to Sydney". He made no specific comment about work capacity, which probably is due to the fact he examined Mr Stephens just two months after surgery.

48      In this case Mr Stephens bears the onus of proof on all issues. Both Counsel  supplied relatively lengthy and detailed helpful submissions on the evidence and legal principles involved in this case.

49      As to liability, I am unable to accept that his general employment duties played any more role than a temporary symptomatic exacerbation of pain from his pre-existing cervical degeneration.

50      His PhD finished as far back as April 2007. I do not believe his GP is sufficiently qualified to express an opinion on this point. As far as Professor Myers is concerned, his opinion that work was the sole contributing factor is, I believe, excessive. He talks about "heavy work activities" and "long term strain using a computer" which overemphasises Mr Stephens’ duties on the evidence before me.

51      Mr Stephens was not expected to, and would not, have worked excessively long hours at a computer. Mr Rogers expresses no views about any work relationship one way or the other. I agree with Mr Kudelka that the work duties may have played some part in his cervical degeneration, like all his day to day activities.

52 However, I am unable to find his employment in general was a significant contributing factor to any aggravation and acceleration of his underlying cervical degeneration having regard to the relevant definition in s.5(1B) and s.82(2C) of the Act (see also, Popovski v. Ericsson [1998] VSC 61, at para 61).

53      As to the airport incident, even Mr Siu accepts that carrying luggage, whatever it may have been, would have materially contributed to an aggravation of cervical spondylosis in the circumstances. Mr Kudelka expresses a similar view. There is no opinion one way or the other from Mr Rogers. Dr Taubman makes no distinction between work generally and that incident.

54 Overall, I accept that the carrying of luggage, including golf clubs and a suitcase bag, in the circumstances was a significant contributing factor to the aggravation and heightened symptomology of his cervical degeneration and to the subsequent need for surgery, having regard to s.5(1B) and s.82(2C) of the Act. In any event, Counsel for the defendant concedes in her submissions that the injury was caused by the activity of carrying of heavy golf clubs, though she submits that this does not make the injury work related.

55      Despite the history noted by the physiotherapist, I am unable to make any finding as to which luggage was in which hand between the terminal and the car park. In any event, I accept Mr Kudelka's evidence that overall this did not make much difference as the suitcase was relatively heavy anyway.

56 The real issue in this case is whether the airport incident gives an entitlement to benefits under the Act as being a work related injury. As he was not formally working in the course of his employment at the time, it is necessary to look at the legislative provisions and case law.

57      When the airport incident occurred he was not strictly “in the course of his employment”. He was on his way home from a work conference in Sydney. The conference was one of many instances of work meetings, race meetings and conferences that he was required to, and did, attend both within, and more commonly outside, normal business hours. In addition, there is the fact that he had undertaken a PhD and supervised PhD students with the agreement, if not at the request, of Greyhound Racing Victoria. Also, he worked at home for the last two months at the request of the Chairman of the Greyhound Racing Victoria.

58      I do not find that that the injury occurred in an “interval or interlude” where the injury was sustained in an otherwise overall period of work. There were two separate work activities or functions in different states separated by almost 24 hours, including an attendance at his home to change his clothing.

59 Further, I do not agree with his counsel's submissions that the airport incident was part of his "course of employment generally". If that was the case, there would be no need for the other specific provisions in the Act that I will discuss shortly. Therefore, I do not need to go in to the issues raised by the recent High Court decision in Comcare v. PVYW (2013] HCA 41 as discussed by both Counsel in their submissions.

60      Having regard to the particular requirements of Mr Stephens's employment involving interstate and regional meetings and conferences, especially on the two days preceding the airport incident, he was required to and did undertake extensive travelling as part of his job.

61 Pursuant to s.83(1)(b) of the Act, an injury is deemed to arise out of or in the course of employment if it occurs "while the worker is, having regard to the nature of the worker's employment or any specific task which may require the worker to travel, travelling for the purposes of the worker's employment" (emphasis added).

62      I am satisfied that Mr Stephens was in fact travelling for the purposes of his employment, both having regard to his obligations to travel as part of his employment and the specific need to be at the conference in Sydney. In fact, defendant's counsel agreed with that in her submissions as well.

63      However, this raises the proviso set out in s.83(2)(c) that an injury occurred while "travelling for the purposes of a worker's employment is deemed not to have arisen out of or in the course of any employment if the injury occurred arising on or after any substantial interruption or substantial deviation from the worker's journey made for a reason unconnected with his or her employment”(emphasis added).

64      There was no evidence called that his golf game was in any way connected with his employment. Mr Stephens gave evidence that the Lakes Course was directly on his way to Sydney Airport. Understandably, the defendant made no specific submission that there was any substantial deviation as such. Therefore, I must determine what was the journey and whether there was any “substantial interruption” thereto.

65      Counsel for Mr Stephens submitted that I should not see the journey as being from the Sydney hotel to Melbourne, but rather as a trip from Sydney Airport to Melbourne. I agree with counsel for the defendant that this is an unreal and  artificial way of dealing with the issue. The point of the specific task was the conference in Sydney and therefore the relevant journey in this trip was from the end of the conference at the Sydney hotel to his Melbourne home.

66      It is a well settled law that whether there has been a “substantial interruption” is a question of fact. Also, the defendant bears the onus in this regard (see, Simons v. Herald & Weekly Times [1970] VR 131).

67 Both Counsel have been unable to point to recent decisions on this point. However, there have been a number of decisions on this issue pursuant to the Workers Compensation Act 1958 and the Accident Compensation Act 1985 prior to the substantial amendments to the journey provisions by way of Act 67 of 1992.

68      A number of these decisions are set out in Anderson and Rendit’s “Workers Compensation Victoria” (Butterworths, loose-leaf, 3rd Edition) at para 1895. The authors refer to a number of decisions both for and against workers in this regard, but caution that the cases decided against workers may also be partly attributable to the fact that the question of “materially added to the risk of injury" may have been considered as well. That further proviso was removed by Act 67 of 1992.

69      Thus, whether the substantial interruption involved activities such as going to a pub, playing golf or even going to church is irrelevant to these considerations. That being said the decided cases are only a guide.

70      In Higgins v. Buckingham (1953) WCR (NSW) 161 going to a pub and drinking for 30 minutes was not considered to be a substantial interruption. Whereas in Simons v. Herald & Weekly Times (supra), the Full Court of the Supreme Court of Victoria held that it was open to the Workers Compensation Board to find that drinking at a pub for 30 minutes was a substantial interruption. Presumably, this difference is not just due to different social standards at the dates of the respective decisions.

71      Understandably, both counsel have cherry-picked relevant cases from the above text favourable to their respective clients' cases, which I do not criticise in any way at all. I believe I really have to look at this issue in the context of the facts of this case.

72      On his evidence the direct trip from the Sydney hotel to his house would have taken about three and a half to four hours, allowing for check-in, waiting and a flight from Sydney, whereas the golf game put an extra four hours onto the trip. The fact that he checked out of the hotel one and a half hours earlier or so than normal so that he could play golf is irrelevant. It is the journey itself which is the important consideration.

73      An interruption of about the same length, if not more than, an uninterrupted journey is surely a substantial interruption (see, Cowling v. Webster (1947) 2 WCBD (Vic) 75). I do not believe the fact that he frequently took his golf clubs on work trips takes the matter any further.

74      Overall I am satisfied that there was a “substantial interruption” in this case which disentitles him to compensation benefits despite my earlier findings.

75      For the sake of completeness, I believe I should deal with the incapacity issue in case it is later determined that I am wrong in my findings on liability. In any event, I believe the parties are entitled to such a finding anyway.

76      As to capacity for work, Mr Stephens admits that he has been able to work at least part time lighter duties for some time. This is supported by all medical opinion. Although defendant's counsel submits that Mr Siu believes that he is, "fit for work and that his capacity for employment has not diminished", Mr Siu does place restrictions on his work consequential upon the surgery, that is avoiding long drives (not six hours in a day) and not sitting for hours at a computer desk.

77      Even accepting these restrictions, I do not believe that he is fit to resume his full time pre-injury duties as they were prior to his resignation. As Mr Kudelka put it, although the surgery has improved his symptoms his spine is not the same as it was. He would be expected to, and does, have neck stiffness and pain after a few hours of sitting.

78      On any view of the evidence he is not capable of performing the expected duties which led to him working up to 12 hour days at the office and regularly travelling (including driving) in Victoria and interstate as part of his duties.

79      His job was not a simple clerical or administrative job. He could only do lesser duties, albeit for less than full time hours. Thus, he has a “current work capacity” resulting from his neck problem.

80      The only evidence as to the cessation of his inability to work at all after the operation is the certificate from his surgeon which says that he was unable to work until 12 September 2012. As there is no other evidence on this point I find that his “no work capacity” ceased at that date and thus there has been a “current work capacity” thereafter.

81      However, in view of my findings he is not entitled to compensation, having regard to the circumstance of this case, the proceedings are dismissed.

- - -