Robbins v Hazeldene's Chicken Farm Pty Ltd

[2016] VCC 742

IN THE COUNTY COURT OF VICTORIA

AT WARRNAMBOOL

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-15-05381

TERRENCE CHARLES ROBBINS	Plaintiff
v
HAZELDENE'S CHICKEN FARM PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE O'NEILL
WHERE HELD:	Warrnambool
DATE OF HEARING:	2 June 2016
DATE OF JUDGMENT:	3 June 2016
CASE MAY BE CITED AS:	Robbins v Hazeldene’s Chicken Farm Pty Ltd
MEDIUM NEUTRAL CITATION:	[2016] VCC 742

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION

Catchwords:             Serious injury application – injury to right shoulder – whether pain and suffering consequences “very considerable”

Legislation Cited:     Accident Compensation Act 1985, s134AB

Cases Cited:Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292

Judgment:                Leave granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N Bird with Mr G Pierorazio	Maddens Lawyers
For the Defendant	Mr R Middleton QC with Ms D Manova	Thompson Geer

HIS HONOUR:

Preliminary

1       The plaintiff, Mr Robbins, suffered an injury to his right shoulder in the course of heavy lifting with the defendant, Hazeldene’s Chicken Farm Pty Ltd (“Hazeldene’s”), from March 2007 until his retrenchment in May 2013.  Eventually, he was referred to Mr Rohan Price, orthopaedic surgeon, who, in October 2013, repaired a full-thickness tear in the supraspinatus tendon of that shoulder.

2       Mr Robbins eventually returned to work and now works full time as a milker on a dairy property.

3       He complains of ongoing pain and a restriction in a number of recreational and work activities.

4 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 his employment with Hazeldene’s over the period March 2007 until May 2013.

5 The body function said to be lost or impaired is the right shoulder and the application is thus brought under ss(a) of the definition of “serious injury” contained in s134AB(37) of the Act. Leave is sought in respect of pain and suffering only.

6       Mr Robbins was the only witness called to give evidence and be cross-examined.  In addition, affidavits of himself and work colleagues, medical and radiological reports were tendered into evidence.  I shall not refer to all 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. 

7 The statutory scheme set forth in the 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

8       Mr Robbins was born in 1956 and is now fifty-nine years of age.  He was educated in Colac and did not complete Year 9.  He is married with adult children.  Over the years, he has worked in various labouring and manual jobs and commenced employment with Hazeldene’s in March 2007.

9       In 1996, he suffered a significant head injury and was off work for about four years.  The head injury caused pain in his neck region which has persisted through to the present time.  That pain is at the bottom of the neck in the centre and to the right.  There have been other ongoing problems relating to the head injury, including loss of balance and vertigo.  Over the years since, he has taken occasional medication for the pain, although has had very little treatment.  The symptoms which he was suffering from in 1999 are set out in a report of Mr William Maling, surgeon.[1]

[1]Defendant’s Court Book (“DCB”) 10 – 12

10      Subsequently, he returned to full-time work of a manual nature.

11      In 2006, he suffered a significant injury to his right foot which was run over by a construction vehicle.  He returned to work in July 2006 and to full-time unrestricted duties in October 2006.

12      Mr Robbins was able to work on a full-time basis with Hazeldene’s from March 2007.

The injury and its consequences

13      The work undertaken by Mr Robbins with Hazeldene’s was physical and repetitive, as described in his affidavit.[2]  In about 2011, he started to have pain and restriction in his right shoulder.  He took occasional Panadol.  He kept working through 2012, but the pain increased.  He started to get pain in his left shoulder also, as he was overcompensating by using his left arm.  By March 2012, he said he could barely lift his arm and reported it to his boss, who happened to be his wife, Debbie.  He remained working on light duties.  Acupuncture treatment did not help.  He was referred by his general practitioner to Dr Rohan Price, orthopaedic surgeon, and an MRI scan of the right shoulder of July 2013[3] showed a full-thickness tear of the supraspinatus tendon.

[2]Plaintiff’s Court Book (“PBC”) 5 – 6

[3]PCB 54

14      In October 2013, Mr Price performed an arthroscopic repair of the rotator cuff, having found a 3-centimetre full-thickness tear of the supraspinatus tendon. 

15      Mr Robbins was seen by Mr Price on a number of occasions post surgery and the shoulder improved.[4] 

[4]PCB 23 – 31

16      By April 2014, Mr Price described a full range of movement in the right shoulder with minimal pain.  Mr Robbins’ strength was improving.  In cross-examination, Mr Robbins denied that he had told Mr Price he had little, if any, pain.  He said the pain was not minimal and he had a number of sore spots around the right shoulder.  According to a letter from Mr Price to the treating general practitioner, Dr Gray, of July 2015,[5] Mr Price noted Mr Robbins had returned to work and was milking 900 cows a day.  He said Mr Robbins described “niggling discomfort” around the shoulder from time to time, most noticeable with overhead activities.  He noted some weakness which he said was common following rotator cuff repair. 

[5]DCB 1

17      On examination, Mr Price said he had full active elevation and supraspinatus power was intact, with minor discomfort.  Because of this, he arranged plain x‑rays[6] but that he felt there may be a small re-tear but given his functional level and minimal symptoms, it was probably not worthwhile addressing.

[6]No x-ray report was available

18      In about October 2014, Mr Robbins started work as a casual milker on a dairy farm.  He described his work in the course of cross-examination.  He works two shifts a day from about 4.45am to 9.00am and again from 2.30pm to 6.00pm.  He milks 750 cows in each session.  He works some Sundays, altogether 90 or 100 hours a fortnight.  The work involves herding the cows with a 4-wheel drive motorbike and then affixing milking cups.  He holds the cup under the cow with his left hand, and fixed it with his right hand. The work is about at waist height. He has to open some gates.  He says when he gets home after work he feels tired, sore and worn out.

19      Mr Robbins has little current treatment and sees his general practitioner only from time to time.  He has not been back to see Mr Price as he said Mr Price indicated there was nothing he could do for him.  He takes prescription codeine tablets, two before each work session, and each day takes an anti-inflammatory. He occasionally takes stronger pain-relieving medication.

20      In his affidavit, he described a range of domestic and recreational activities in which he is restricted.[7]  He is able to wash and dress himself, albeit with some difficulty.  He has difficulty reaching up to cupboards and shelves and usually holds groceries in his left arm.  He does some modest gardening and still fishes from his boat with his son.  He cannot wash the car or windows as the circular motion hurts his shoulder.  He mows the lawn, but the mower jars his shoulder.

[7]PCB 7

21      If he turns onto his right shoulder at night, he wakes.  He has difficulty with pushing and pulling motions such as raking leaves.  The current pain in his shoulder is different from that at the base of his neck arising out of the 1996 accident.

22      In his affidavit, he said that every hour of the day he is affected in some way by his right shoulder problem.[8]

[8]PCB 8

23      Mr Robbins says he struggles with the job and is uncertain about how long he can continue with the milking.  At work, he has recently had the assistance of another milker.

24      Affidavits from co-workers, Reece Lucinsky, and Aaron Gorfine, were tendered. Both say Mr Robbins has difficulty with parts of his work and struggles to keep up with his jobs.  Mr Gorfine noted Mr Robbins was never one to complain although recently he was unable to increase his hours because of right shoulder problems.  Mr Gorfine detailed some examples of the areas of difficulty which he observed in Mr Robbins’ work.[9]  He said he had modified Mr Robbins’ duties. He did not think Mr Robbins would continue long in the dairy industry.

[9]PCB 16

Medical opinions

25      According to a report of the treating general practitioner, Dr Mark Trotter, it was expected Mr Robbins would make a full recovery from his surgery and be able to participate in active duties without restriction.[10] 

[10]PCB 21

26      More recently, Dr Gray, from the same clinic, reviewed him in 2015 and 2016 on a number of occasions.  Dr Gray said he had a good range of movement but general pain in the shoulder area related to his work.  He advised Mr Robbins to minimise his activities as long work hours would make his shoulder symptoms worse.  He said he thought Mr Robbins would have long-term restrictions as a result of the injury, and expected degeneration consistent with his age.

27      Mr Robbins was examined by Mr William Huffam, orthopaedic surgeon, in 2015 and 2016.  He described the original tear of the supraspinatus tendon as “quite an extensive tear”.[11]  On examination, he noticed obvious wasting of the muscles around the right shoulder.  He said Mr Robbins had “quite a severe dysfunction and impairment of the right shoulder which is completely compatible with his having sustained repetitive injuries to the shoulder in a job from 2007 which required heavy overhead lifting”.[12]

[11]PCB 51

[12]PCB 53

28      According to the history, Mr Huffam said Mr Robbins was only just coping with his milking duties and was seeing a doctor with the prospect of getting better analgesic medication.  He thought his condition would be unlikely to improve and that if the pain in the right shoulder became intolerable, consideration would be given to a total shoulder replacement.

29      Mr Robbins was also examined by Dr Umberto Boffa, occupational physician, in April 2016.  He noted complaints of chronic shoulder pain, but with no stiffness, and that Mr Robbins was independent in his activities of daily living.  He also noticed a loss of muscle bulk in the right shoulder.  He said the right shoulder pain was related to the rotator cuff injury and tendonitis.  He said there was also an aggravation of degenerative change in his neck.  He thought Mr Robbins would require right shoulder replacement surgery because of poor rotator cuff function.  He said he was restricted in right shoulder elevation beyond 2 kilograms.  He did not think he would be able to continue his milking duties.

The Plaintiff’s credibility

30      Mr Robbins gave his evidence in a straightforward manner.  I did not detect any exaggeration in his description of the symptoms.  I assessed him as a stoic man, well used to heavy manual work and long hours of employment and not embellishing the effects upon him of the right shoulder injury.  He has a long history of consistent manual work and has been able to return to work after significant injury to his head and foot.  That stands in his favour.

31      Mr Robbins very much reminds me of the description by Nettle JA (as his Honour then was) of the plaintiff in Dwyer v Calco Timbers Pty Ltd (No 2),[13] where his Honour said:

“… but for the way in which the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well not have disputed his claim.  …  But it would be unfortunate, and in my view wrongheaded, if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”[14]

[13][2008] VSCA 260

[14]At paragraph [3]

Conclusions

32      Mr Middleton, for the defendant, emphasised the opinion in particular of Mr Price, the orthopaedic surgeon, who, in a number of reviews up until 2015, concluded that Mr Robbins had a full range of movement, with only modest pain, and had made a successful recovery from the surgery.  I note, however that Mr Robbins, who I assessed as an honest witness, did not agree with Mr Price’s description of his pain.  Further, the problem was sufficient to have Mr Price refer him for an x-ray. 

33      Mr Middleton further submitted that Mr Robbins was having very little in the way of ongoing treatment and taking only modest analgesic and anti-inflammatory medication.

34      He emphasised Mr Robbins’ capacity to carry out his current employment.  He was working long hours in an arduous job, and in cross-examination, accepted he had no immediate plans to change jobs.  However, I note the comments of his co-workers, in particular his supervisor, Mr Gorfine, who has modified his duties so he can maintain the employment of a dedicated employee.

35      Mr Middleton referred me to Stijepic v One Force Group Aust Pty Ltd,[15] and the Court’s consideration of Sumbul v Melbourne All Toya Wreckers Pty Ltd.[16]  The Court said:

“So far as the respondents’ final submission is concerned, it is plain that Sumbul is not authority for the proposition that a return to alternative work is somehow determinative against a worker on the issue of pain and suffering consequences.  The most that can be said, and all we take Chernov JA to have been saying, is that if a worker successfully returns to alternative duties it will tend, in the absence of other relevant evidence, against a conclusion that the pain and suffering consequences of the compensable injury are serious.  But, as always, the evidence as a whole must be considered.  In this case, the appellant’s resumption of educational and employment activities, and his employment prospects, have played but a small part in our conclusion that the pain and suffering consequences of his compensable injury do not satisfy the statutory test.”[17]

[15][2009] VSCA 181

[16][2006] VSCA 292 at paragraph [24]

[17]Stijepic at paragraph [14]

36      I prefer the opinion of Mr Huffam of 2015 that Mr Robbins does have significant pain, dysfunction and impairment as a result of the right shoulder injury.  I accept that the prospects are he will be unable to keep working milking fifteen hundred or so cows a day.  I accept the evidence of his co-workers in that regard.  True it is Mr Price is the treating surgeon, and his opinion must be respected, but I assess his letters to the general practitioner of Mr Robbins’ progress as rather curt and reflective of his view that the surgery was successful in repairing the supraspinatus tear.

37      Of most important is the evidence of Mr Robbins himself.  I have no hesitation of accepting his complaints of chronic pain and the restriction in the activities which he has described.  He is a stoic man, making little of what is a significant right shoulder disability.  It requires him to take constant analgesic and anti-inflammatory medication and he is looking now for more relief. I accept his description of the difficulties he has in a range of domestic and recreational activities. I accept the opinion of his general practitioner and Mr Huffam that he faces the prospect of having to change his work duties.

38      In these circumstances, I am satisfied the consequences, viewed objectively, do meet the “very considerable” test the legislation requires.

39      I will make consequent orders.

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