Rochow v Department of Education and Early Childhood
[2012] VCC 327
•28 March 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT WARRNAMBOOL
CIVIL DIVISION
Case No. CI-10-06160
| BARRY DAVID ROCHOW | Plaintiff |
| v | |
| DEPARTMENT OF EDUCATION AND EARLY CHILDHOOD | First Defendant |
| and | |
| CGU WORKERS’ COMPENSATION | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 15, 16 & 19 March 2012 | |
DATE OF JUDGMENT: | 28 March 2012 | |
CASE MAY BE CITED AS: | Rochow v Department of Education and Early Childhood & Anor | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 327 | |
REASONS FOR JUDGMENT
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Catchwords: Serious injury – pain and suffering consequences of shoulder injury – whether the pain and suffering consequences of the injury, when judged by comparison with other cases in the range of possible impairments or losses of body function, are fairly described as being more than significant or marked and as being at least very considerable. Legislation cited: Accident Compensation Act 1985 s.134AB.
Cases cited: Barwon Spinners Pty Ltd v Podolak.
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Bird with Mr I Fehring | Stringer Clark |
| For the Defendant | Mr P Elliott SC with Mr J Batten | Lander and Rogers |
HIS HONOUR:
1 Barry Rochow alleges that he suffered an injury to his left shoulder in the course of his employment with the first defendant on or about 9 April 2007. He seeks the leave of this Court to issue a proceeding to recover pain and suffering damages in respect of that injury.
2 His right to do so is governed by the provisions of s.134AB of the Accident Compensation Act 1985 (“the Act”). In order to obtain such leave, the Court must be satisfied on the balance of probabilities that the injury suffered by him is “serious injury”.[1]
[1]Section 134AB(19)(a).
3 The term “serious injury” is defined in s.134AB(37) of the Act, in so far as is relevant to this application, as a “permanent serious impairment or loss of a body function”.
4 The body function relied upon in this application is that of his left shoulder.
5 The term “permanent” is to be interpreted as meaning “likely to persist in the foreseeable future”.[2]
[2]Barwon Spinners Pty Ltd v Podolak& Ors [2005] VSCA 33 at [18] to [19].
6 The term “serious” is to be satisfied by reference to the consequences to Mr Rochow of any impairment or loss of the function of his left shoulder with respect to pain and suffering, when judged by comparison with other cases in the range of possible impairments or losses of a body function.[3]
[3]Section 134AB(38)(b).
7 The impairment or loss of a body function shall not be held to be serious for the purposes of this application, unless the pain and suffering consequences are, when judged by comparison with other cases in the range of possible impairments or losses, fairly described as being more than significant or marked and as being at least very considerable.[4]
[4]Section 134AB(38)(c).
8 The application relates solely to the pain and suffering consequences of Mr Rochow’s injury.
9 Counsel for Mr Rochow submits that, firstly, those consequences can fairly be described as being more than significant or marked and as at least very considerable and, secondly, that they are permanent in the sense described above. Counsel for the defendant disputes these submissions. It is these two issues that are to be determined.
Background
10 Mr Rochow is sixty four years old. He was educated up to Year Eight level. Since leaving school he has worked in a number of occupations including that of farm hand, labourer, forklift driver, stockman, driver, timberyard salesman and storeman, and as a handyman. His occupations have all involved manual work.
11 He had been employed at a timberyard operated by his brother for about four or five years until about 2003.
12 In about 2003, Mr Rochow moved to live in Winchelsea. He had purchased a lawn mowing business which was registered under the business name “Barry’s Gardening Services”. That business involved him carrying out various gardening tasks in Geelong and in the surrounding district.
13 Since about 2004, he has been employed by the first defendant as a general handyman and property maintenance officer at the Winchelsea Primary School.
14 By 2007, his sources of income appeared to have been from:
(a)Income from Barry’s Gardening Services, which he said occupied him for two to three days per week;
(b)Work at the Winchelsea primary school where he was employed by the first defendant for two days per week. This was later reduced to two days per fortnight due to budgetary restraints. He was able to choose which two days he worked there.
(c)He received benefits from Centrelink, which, as I understand the evidence, was a Newstart Allowance. The other income earned by him was of an amount which still entitled him to claim Centrelink benefits.
15 On or about 9 April 2007, in the course of performing his regular maintenance jobs at the Winchelsea primary school, he was required to trim low branches from some cypress trees within the school property. In the course of that work, he was using a saw to cut off a branch. The branch broke and began to fall in front of him. He put his left hand up towards it to take some of its weight. The branch was very heavy and pushed strongly against his arm. It thumped into his left shoulder as it came down. He fell to the ground, although managed to keep his feet. He experienced bad pain in his left shoulder and initially thought that he had dislocated it.
Aftermath of Injury
16 The following day, Mr Rochow consulted his general practitioner, Dr McDonald, who certified him unfit to work for three to four days.
17 In due course, he lodged a WorkCover claim in respect of the injury, which was accepted.
18 Dr McDonald treated him with painkillers and anti-inflammatory medication. He also organised an X-ray which showed no apparent abnormality. He was later prescribed Tramadol.
19 In due course he was sent for an ultrasound which disclosed a full thickness partial tear of the supraspinatus tendon of his left shoulder.
20 In early May 2007, he was referred to Dr Haidee Benning, an osteopath in Winchelsea. She commenced a rehabilitation program.
21 Over the following two years he underwent a number of ultrasound-guided corticosteroid injections into the tendon. These did not provide any lasting relief.
22 In early 2011, it appears that Dr Benning ceased to practise and he was referred to another osteopath, Dr Rachel Cooper in Torquay. He commenced seeing her in May 2011 and continues to see her periodically.
23 In May 2011, he was referred to an orthopaedic surgeon, Mr Robert Wood. He arranged an MRI scan an MRI of the shoulder which, as I understand it, confirmed the ultrasound finding. Mr Wood has discussed the prospect of surgical repair of the tendon with Mr Rochow. Following those discussions and further discussions with Dr McDonald, Mr Rochow has decided not to proceed with the suggested surgical procedure. His understanding of the situation is that an improvement in his condition cannot be guaranteed and may even result in his condition worsening. I shall return to this issue later in these reasons.
24 Since the accident in April 2007, Mr Rochow has continued working in various different jobs.
25 Firstly, he has continued in his employment with the first defendant at the Winchelsea High School, performing general maintenance duties two days per fortnight. He is able to choose which days in any particular fortnight he works. His duties in that position are varied. They include gardening duties including pruning, hedge work, cutting up logs with a small chain saw, and using a whipper-snipper in the school grounds. Also he performs general property maintenance such as changing light bulbs, repairing damaged chairs, cleaning filters of an air-conditioning unit, installation of a plinth board around the base of one of the buildings, construction of a book shelf, and a variety of general maintenance work around the school. These tasks are not necessarily repetitive and some of them may only be performed infrequently. Nevertheless, he does two days (16 hours) per fortnight performing those sorts of duties.
26 Secondly, he is employed by Elynwood Pty Ltd for sixteen hours per week as a cleaner at the same school. He works three hours and twenty minutes for each of the five days per week. This work involves cleaning of bathrooms and urinals, sweeping of floors, emptying of rubbish bins and other typical cleaning duties. As I understand it, the duties did not include polishing of floors or anything of that nature.
27 Thirdly, he is employed by the Bendigo Bank at Winchelsea for one hour, on two days per week as a cleaner. His duties there involve him emptying rubbish bins, mopping and cleaning toilets and vacuuming.
28 Fourthly, Mr Rochow is the proprietor of a business known as “Barry’s Handyman and Property Services”. This is a registered business name and is a business separate from “Barry’s Gardening Services”. The handyman and property services business involves him doing sundry jobs for clients which included from time to time, fencing and other sundry work. That business was not referred to in either of Mr Rochow’s affidavits. Neither party tendered any business records relating to that business. Mr Rochow gave no evidence as to the existence of any records of work performed by him in the context of that business since the accident or before. He conceded that he was usually paid cash for such services.[5]
[5]T. 17, 42.
29 In relation to the business “Barry’s Gardening Services”, Mr Rochow’s evidence was that he had allowed that business to “fold” shortly after his accident. His evidence was that he had purchased the business in Geelong in about 2003 when he finished working at his brother’s timber business. He had paid $8,000.00 for the round and then spent another $15,000.00 in set-up costs including mowing equipment, a trailer, a chain saw, lawn edgers, fuel tanks, shovels, saws and other tools. He said that he was still operating the business in Geelong in 2007. However, the person from whom he had bought the business had taken a number of customers back. His evidence was that he had allowed the business to fold and had not attempted to sell it or any of the equipment associated with it.
30 Mr Rochow’s evidence was that he regularly received help when performing home maintenance and handyman tasks from a friend, Michael, who boards at his home. His evidence was that Michael performed most of the heavier work involved in such work.
31 In cross-examination of Mr Rochow, he was shown an extract from the Winchelsea Star newspaper dated 3 March 2011 which contained an advertisement for Barry’s Handyman and Property Services. The advertisement included the following words:
“Carpentry and painting, decking and extensions, fencing, renovations, replacing window sash cords, general maintenance.”
32 Mr Rochow admitted placing the advertisement and stated that he could do all of the activities referred to at his own pace with the exception of replacement of window sash cords which was now beyond him since the accident.
33 Mr Rochow stated that he was intending to retire in approximately four months’ time when he reached the age of sixty five years.[6]
[6]T 62
34 During cross-examination Mr Rochow was shown DVD film of him working manually on 1 February 2011, 29 February 2012 and 3 March 2012. I shall discuss the film later in these reasons.
Diagnosis of Injury
35 The medical evidence concerning Mr Rochow’s injury to his left shoulder was essentially non-contentious. Mr Wood described the injury as one of left subacromial impingement with significant rotator cuff tear, some biceps tendinopathy and acromioclavicular joint disease. There is clearly a full thickness partial tear of the supraspinatus tendon.[7]
[7]Mr Wood PCB 44; Mr Brearley PCB 77, 80; Mr O’Brien PCB 86.
36 He is left with some restriction of movement, especially those movements above head height and some general stiffness of the left shoulder.
37 In October 2008, Mr Henderson noted muscle wasting of the left shoulder girdle musculature. However, Dr McDonald, Dr Benning, Dr Keeper, Mr Wood, Mr Brearley nor Mr O’Brien noted such wasting in any of their reports. I conclude that whilst there might have been some wasting evident in 2008, that is no longer the case.
Consequences of Injury
38 Counsel for Mr Rochow submitted that the matters set out at page 40 of the Plaintiff’s Court Book in a report from Dr McDonald dated 23 June 2011, adequately summarised the consequences of the injury to Mr Rochow. The consequences, as referred to by Dr McDonald, are:
(a)He is able to do some activities but is very restricted in the range of physical activities that he does with his gardening and maintenance job. He cannot do any whipper-snipping or mowing;
(b)He is restricted to lifting weights of five to ten kilograms maximum on the left hand side;
(c)Often when doing school maintenance, he needs to get assistance with lifting heavier or more awkward objects;
(d)He would be restricted in about fifty per cent of the activities he performs;
(e)He gets some tightness through the lateral and posterior shoulder radiating up into his neck;
(f)He is requiring ongoing analgesic and anti-inflammatory medications;
(g)He would be able to do somewhere in the order of ten to fifteen hours per week at a maximum at the current time (June 2011);
(h)His injury is permanent.
(i)Surgery, whilst it may alleviate his pain, will not improve the strength or the flexibility in range of movement. Rather, surgery will produce scar tissue which will leave it more vulnerable to further injury in the future;
(j)He is unable to play golf.
(k)Simple activities such as lifting his hand to wash his hair causes pain. He is restricted in putting his left arm into a jumper or a jacket.
(l)His sleeping is significantly affected.
(m)Driving for long distances will cause nagging ongoing pain.
(n)He will continue to require physiotherapy, chiropractic and osteopath.
(o)He is in an awkward dilemma because the more activities that he does, the better the range of movement but the more pain he will experience. If he rests and does not use the shoulder, the pain will dissipate but his range of movements and activity capacity will be significantly reduced.
39 Counsel submitted that Mr Rochow was stoic and that his stoicism ought not to be held against him in the context of this application.[8]I accept that this is a correct statement of principle.
[8]See Dwyer v Calco Timbers Pty Ltd (No2) [2008] VSCA 260 at para [3]; Haden Engineering Pty Ltd v McKinnon [2010] VSCA at para 47.
40 In this matter, Mr Rochow carries the onus of establishing that the consequences of his injury satisfy the threshold test of being more than significant or marked and being at least very considerable. Taking all of the evidence into account, I am not satisfied that he has discharged that onus.
41 I am required to consider the consequences for Mr Rochow of the injury as at the present time. I must take into account that he intends to retire from employment in approximately four months’ time. He gave no evidence that he intended to retire as a consequence of his injury or that he would have worked longer but for the injury. I find that his motive to retire is that, on his 65th birthday, he will qualify for a full pension. Whatever difficulties he experiences with his work duties will only continue for about four months.
42 I have considered a number of matters concerning the extent of the consequences of Mr Rochow’s injury:
(a)The DVD film of Mr Rochow taken in February 2011, February 2012 and March 2012 did demonstrate, in my opinion, that he is capable of performing a considerable range of manual duties. He was shown using a crow bar and a shovel with both hands in a manner that I consider was vigorous. It may be that he used his right arm somewhat more than his left but I would expect a right handed person to do so. I do not consider that he protected his left shoulder in performing those activities. In his most recent affidavit, Mr Rochow stated he felt useless in the garden and could only do the lightest of garden maintenance tasks.[9] This statement is not supported by the DVD film and I do not accept it.
(b)Mr Rochow has continued to work in the same sort of jobs that he carried out before his injury. In fact, he had undertaken additional cleaning duties with the Bendigo Bank since the accident.
(c)The minor reduction in hours of employment with the Winchelsea Primary School was not the result of any incapacity or inability on the part of Mr Rochow to perform his duties but was the result of departmental budget considerations.
(d)Mr Rochow has continued to perform general handyman and maintenance tasks in the context of his business Barry’s Handyman and Property Services. Notwithstanding, he failed to mention the existence of that business in any of the 3 affidavits that he swore in support of this application. His counsel submitted that he had made a reference in his 3rd affidavit to “other small home maintenance jobs”.[10] But, in my view this was far from a frank disclosure of the business and the jobs performed by it.
(e)Mr Rochow conceded in his evidence that for much of the work performed by that business he was paid cash.[11] He was vague about what work the business had performed. He produced no records concerning work done by it. His evidence was that his boarder, Michael, performed much if not all of the heavy work and that he was paid for such work. There was no supporting affidavit from Michael. On the first day of the hearing, a gentleman sitting in Court was identified by Mr Rochow as Michael. Clearly, he was available to provide evidence.
(f)I am not satisfied that Mr Rochow has made a frank disclosure of the extent of the work performed by him in connection with the business.
(g)Mr Rochow deposed that he had stopped playing golf because of his injury. In somewhat dramatic terms, he described living opposite the local golf course and being saddened and bitter watching his mates play.[12] In sharp contrast, in oral evidence, he stated that he had stopped playing golf the year before the accident because “he didn’t want to play”.[13] In further contrast, later in his evidence he stated he had ceased golf because he and his partner had been required to care for her mother who had been ill. There was no evidence of Mr Rochow attempting to swing a golf club since the injury in order to determine whether or not it caused him pain and would restrict him in playing. In his affidavit he referred to having a handicap of 18 before the accident.[14] In his evidence he admitted that the handicap referred to a time many years earlier.[15] I am not satisfied that Mr Rochow gave up golf as a consequence of his injury. I find the references in his affidavits to that effect were not truthful.
(h)In his affidavit, Mr Rochow stated he had avoided making timber goods for the previous two years.[16] He did not correct this statement in his later affidavits. In cross-examination he admitted that he had constructed two wooden bench seats which were positioned at a local church.[17]
(i)I find that Mr Rochow’s gardening and woodwork activities were not as restricted as he had deposed. The DVD film indicated that he was fit to perform a wide range of such activities.
[9]PCB 29
[10]PCB 26
[11]T 17, 42.
[12]PCB 19, 28.
[13]T 53, L11-12
[14]PCB 19
[15]T 53, L15-16
[16]PCB 19
[17]Depicted in photographs at DCB 22
43.I have taken into account the evidence of medical practitioners who have examined and/or treated Mr Rochow.
44.Mr Wood has opined that Mr Rochow’s injury would exclude him from his pre-injury duties.[18] He was seemingly unaware that Mr Rochow had continued to perform most if not all of his pre-injury duties.
[18]PCB 44
45.Similarly, in June 2010, Mr Brearley reported that Mr Rochow was unfit for manual labour.[19] Plainly, he was unaware of the extent of the manual duties being performed by him.
[19]PCB 78
46.There is no dispute that Mr Rochow suffered an injury to his shoulder in the accident. The injury might well be described as one of significance or perhaps as being marked. However, taking all of the evidence into account, I am not satisfied that Mr Rochow has discharged the onus upon him of establishing that the consequences of the injury for him are more than significant or marked and are at least very considerable.
47.In view of my finding concerning those consequences, it is not strictly necessary for me to consider the issue as to whether those consequences are likely to continue for the foreseeable future. Counsel for the defendants had submitted that because his symptoms might be improved significantly by surgery, I should not find that the injury was permanent in the sense in which that term is used in part (a) of the definition. I consider that Mr Rochow’s decision not to proceed with surgery is a reasonable one having regard to the views expressed by Dr McDonald.[20] Had I found the consequences of the injury did satisfy the threshold test, I would have found they were likely to continue in the foreseeable future.
[20]PCB 40
Conclusion
47.For the reasons expressed above, I am not satisfied that Mr Rochow has suffered a serious injury as defined in the Act.
48.The application will be dismissed.
49.I shall hear the parties regarding costs.
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