Ammon v Murray Goulburn
[2016] VMC 20
•25 OCTOBER 2016
| IN THE MAGISTRATES’ COURT OF VICTORIA |
AT LATROBE VALLEY
WORKCOVER DIVISION
Case No.F13515208
| IAN AMMON | Plaintiff |
| v | |
| MURRAY GOULBURN CO-OP CO LTD | Defendant |
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MAGISTRATE: | S GARNETT |
WHERE HELD: | LATROBE VALLEY |
DATE OF HEARING: | 13 & 14 OCTOBER 2016 |
DATE OF DECISION: | 25 OCTOBER 2016 |
CASE MAY BE CITED AS: | AMMON v MURRAY GOULBURN |
MEDIUM NEUTRAL CITATION: | [2016] VMC020 |
REASONS FOR DECISION
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Catchwords: Termination of weekly payments and medical treatment expenses on grounds worker no longer incapacitated and any incapacity no longer due to work related back injury – Pain Syndrome – Reliance on Surveillance.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Horner | Maurice Blackburn |
| For the Defendant | Mr Richards | Minter Ellison |
HIS HONOUR:
1 Mr Ammon is 44 years of age and was employed as a Milk Transport Driver with the defendant from August 2009. On 11 May 2014, he sustained injuries to his back when pulling a tanker hose into a vat room when the reel jammed causing him to fall onto his left side.
2 Mr Ammon lodged a WorkCover claim for which liability was accepted by Gallagher Bassett in accordance with the provisions of the Accident Compensation Act 1985. Mr Ammon had limited time off and returned to work on modified duties and reduced hours.
3 By way of a Notice dated 4 May 2015, Gallagher Bassett gave notice to Mr Ammon of its intention to terminate his weekly payments of compensation from 21 May 2015 and his entitlement to medical treatment expenses from 4 June 2015 on the grounds that; he was no longer incapacitated for work; any incapacity for work no longer resulted from or was materially contributed to by his work related injury; and, he no longer required medical treatment.
4 As a consequence of the decision by Gallagher Bassett, the defendant withdrew the provision of modified duties to Mr Ammon on 5 May 2015 and he has not worked since that date.
5 Mr Ammon gave evidence as did Mr Van Lieshout, the defendant’s Return to Work Co-Ordinator. The parties tendered numerous documents and medical reports and surveillance films depicting Mr Ammon’s activities on 4 March, 25 March, 16 May and 21 May 2015 were played to the court.
6 Mr Ammon told the court that his job as a milk transport driver required him to drive a 30,000 Litre tanker to farms in the Gippsland area to collect milk and deliver it to factory outlets. He said that his conditions of employment required him to work between 9 and 12 hours per day, 6 days a week. He said that on average he would collect milk from between 6 and 13 farms in the Gippsland area travelling as far as Bairnsdale. He gave evidence that the milk hose was 28 foot long on a hydraulic reel attached to the tanker but if the hydraulics were not working he would need to manually drag the hose from the tanker. He said that the typical farm properties had a rough terrain and the access roads to the farms were difficult to traverse.
7 Mr Ammon gave evidence that on 11 May 2014, he was attending a farm and was in the process of unloading the hose reel when it locked causing him to fall onto his left side resulting in him experiencing pain from his left shoulder to his left buttock. He told the court that he attended the company doctor, Dr Edwards on 12 May who prescribed medication and allowed him to return to work. He said that he continued to experience pain and subsequently underwent an MRI scan, was referred for physiotherapy treatment and to Dr Neels Du Toit, Sports Medicine Physician who he last saw on 28 September 2015.
8 Mr Ammon said that he had limited time off work and was able to return to work on modified duties in the office working 4 hours per day 3 days per week. He told the court that he subsequently changed doctors to Dr Perry at Leongatha Healthcare on the advice of his Union and was referred by Dr Perry to Mr Chan, Neurosurgeon in March 2015, for an opinion and has also sought psychological treatment from Mr Huson for pain, anxiety and depression for which he has been prescribed Zoloft medication.
9 Mr Ammon gave evidence that he continues to experience constant lower back pain on his left side which spreads from his left hip region to his right hip region and on occasions he experiences referred pain down his left leg. He said that activities such as walking and getting up from a seat aggravate his pain as does walking on uneven ground. He also told the court that he limps if he is “off balance”. He also said that he suffers from sleep disturbance and also takes 6 to 8 Panadeine Forte tablets each day and 200 mg of Celebrex. He told the court that he remains employed with the defendant but they are unwilling to provide him with modified duties. Mr Ammon said that he consults Dr Perry and Mr Huson each month and does not consider that he would be able to perform his pre-injury duties as they were heavy in nature, required prolonged sitting whilst driving the tanker and required him to drive over rough terrain. He told the court that he receives sickness benefits and pays for his own medical treatment.
10 In cross examination, he told the court that although he returned to work on modified duties there was little work for him to do and most of the time he simply sat in the office reading the paper. He disputed that he performed all of the duties indicated in the reports from Nabenet, the rehabilitation provider. During cross examination, the court was shown video surveillance of Mr Ammon taken on the 4th and 25th March and 16th and 21st May 2015. In general terms the surveillance material depicted Mr Ammon; walking along a footpath after departing work carrying a shopping bag and entering his car without any apparent difficulty (4 March); walking around his workplace carrying a cardboard box, walking down concrete steps and standing still for a prolonged period and walking across a roadway without any apparent difficulty (25 March); sitting in his car and then standing next to his car at his son’s local football game and then walking onto the ground during breaks in the game and standing by the coaches box for prolonged periods followed by him standing at the rear of his car for a lengthy period talking to others (16 May not 15 May as stated in the Investigation Report); attending his son’s football training session, getting out of his car and walking across to the clubrooms where he remained for a prolonged period without demonstrating any signs of apparent discomfort (21 May).
11 Although there was some dispute concerning the dates and times of the surveillance, Mr Ammon accepted that he was depicted in the footage and he performed the activities as depicted. The surveillance reports tendered indicate that surveillance was conducted on 2-4 March, 24-25 March 2015 and 16, 21 and 28 May 2015. The reports also indicate the total time of surveillance was 38 hours on those dates of which the court was shown approximately 25 minutes of surveillance on 4 of the 8 occasions.
12 When questioned about his apparent lack of restriction as depicted on the video surveillance, Mr Ammon answered by telling the court that he has experienced constant back pain since the injury occurred and was taking medication to relieve the pain on those dates. He disagreed with the suggestion that he has been exaggerating his symptoms and level of disability and disputed that he was fit to return to his pre-injury duties.
13 The parties tendered numerous Return to Work Plans and reports from Nabenet. The reports indicate that Mr Ammon returned to work on modified duties immediately following his injury and was provided with administrative duties consisting of; data entry, manual filing, photocopying, answering phones, assisting site visitors and auditing and performing the role of site reviewer throughout the plant. Importantly, having regards to the issues to be determined in this matter, a report from Nabenet dated 27 August 2014 indicated that the physical job demands of his pre-injury employment included; standing when working on a farm, frequent walking when on the farm and walking with the hose to the vat area, constant sitting whilst driving the tanker (up to 5 hours each way), pulling/carrying 15 kg when pulling the hose to the vat area, frequent reaching when reaching for the hose on the tanker, frequent use of stairs when climbing in and out of the tanker and bilateral constant use of hands when performing all duties.
14 Mr Van Lieshout gave evidence that he was involved in discussions with Nabenet, Mr Ammon and his treating doctors regarding his return to work on modified duties. Whilst he was unable to state with any certainty the particular duties Mr Ammon was performing he told the court that as far as he was aware he was occupied during the 3 to 4 hours he was at work on modified duties. He could not recall Mr Ammon complaining to him that there was not enough work to do. He said that he could not recall Mr Ammon demonstrating any signs of discomfort when he observed him including when he had to walk up two flights of stairs to visit him in his office. He confirmed that the defendant withdrew its offer of modified duties on the basis that the Agent advised it that Mr Ammon no longer had a work-related incapacity and therefore the employer no longer had an obligation to provide modified duties.
Medical Evidence
15 Dr Perry, General Practitioner, reported that when he first consulted with Mr Ammon on 31 July 2014, examination findings indicated symptoms of lower back and left sacroiliac pain, with radiation into the left leg. Mr Ammon told him that he had difficulty in walking and sitting and suffered from sleep disturbance. He noted that he was taking medication and demonstrated tenderness at the L2/3 and L5/S1 intervertebral spaces and left sacroiliac joints and walked with an antalgic gait. Dr Perry reported that Mr Ammon subsequently underwent a local anaesthetic and steroid injection and radiofrequency denervation procedure as well as receiving hydrotherapy and physiotherapy treatment and was trialled on numerous medications including Palexia, Lyrica, Neurotin, Durogesic and Norspan. Dr Perry noted that Mr Ammon suffers from chronic pain and is experiencing significant stress and lowered mood. In his report dated 1 May 2016, he stated that Mr Ammon’s neuropathic pain continues and that he continues to use Celecoxib and a paracetamol Codeine combination for analgesia and more recently Sertraline. He opined that Mr Ammon has also developed anxiety and depression, secondary to his chronic pain state, combined with frustration over his inability to return to his previous job. He noted that he has referred Mr Ammon to Mr Huson for psychological treatment.
16 Dr Perry opined that Mr Ammon has a chronic pain state suggestive of a central pain syndrome secondary to his initial work-related injury affecting his lower back and left buttock and has developed a secondary depression and anxiety which is compounding his pain management. He is of the opinion that he will be unable to return to his pre-injury duties.
17 Dr Du Toit reported that he first saw Mr Ammon on 17 June 2014 and noted that an MRI Scan demonstrated mild desiccation at the L4-L5 level and mild facet changes at the L4-L5 and L5-S1 level bilaterally. He diagnosed that Mr Ammon most likely had facet related back pain and possibly pain from the sacroiliac joint. Dr Du Toit administered a facet joint injection and prescribed Endep. He noted on examination that Mr Ammon had an antalgic gait, signs of irritability of the left hip joint and tenderness to the left lower lumbar sacroiliac joints and facet joints. In August 2014, he administered a left sacroiliac joint and dorsal interosseous ligament injection which gave Mr Ammon short term relief. He then performed a left L5-S3 radiofrequency denervation procedure on 17 October 2014. By December 2014, Dr Du Toit believed Mr Ammon was developing neuropathic pain stemming from the nerve origin without any specific structural nerve injury. He reported that he last saw Mr Ammon on 28 September 2015 at which time Mr Ammon reported ongoing significant lower back and buttock pain made worse with bending and prolonged sitting.
18 Dr Du Toit recommended that Mr Ammon consider a left sacroiliac joint injection to improve his symptoms short term and also consider a peripheral or sacral nerve stimulation to manage his back and buttock pain long-term. He opined that Mr Ammon has developed chronic neuropathic pain causing hypersensitivity and burning across the back and buttock areas and has also become depressed. He doubted that Mr Ammon would be able to return to pre-injury duties but with appropriate management should be able to return to alternative duties.
19 Mr Chan, Neurosurgeon, provided a report dated 23 March 2015 and opined after conducting an examination and reviewing the MRI scan dated 5 June 2014 and bone scan dated 30 January 2015, that Mr Ammon had mechanical lower back pain and suggested that he continue treatment with Dr Du Toit.
20 Mr Kossmann, Orthopaedic Surgeon, assessed Mr Ammon on behalf of his lawyers in April 2016. He was provided with reports from Dr Du Toit, Dr Edwards, Mr Troy, Dr Barton, the surveillance investigation reports and DVD footage of the surveillance. Mr Ammon told Mr Kossmann that he continued to experience pain in his lower back radiating into his left buttock and told him that he has become depressed and has been prescribed antidepressants. Mr Ammon also told Mr Kossmann that he takes medications in the form of Twynsta, Nexium, Physiotens, Celebrex, Panadeine Forte and Zoloft. Mr Kossmann diagnosed that Mr Ammon has pain in the lumbar spine on the basis of degenerative changes with disc desiccation at the L4/5 level with a small disc protrusion into the right neural exit foramina and pain in the sacroiliac joint. Mr Kossmann recommended that he continue to undergo treatment in relation to pain medications, physiotherapy, hydrotherapy and possibly acupuncture. He suggested that Mr Ammon may also benefit from left sacroiliac joint injections and considered any peripheral or sacral nerve stimulation as a last resort. He opined that Mr Ammon does not have a capacity to return to his pre-injury work or any other physically demanding work as he is not able to walk for long distances, on uneven ground, up and down stairs, on inclines/declines, climb up and down ladders, kneel, squat or carry heavy items weighing more than 5 kg. He stated that Mr Ammon would be fit to carry out light/modified duties.
21 Dr Barton, Occupational Physician, assessed Mr Ammon on behalf of the defendant on 12 August 2014 and 19 April 2016. On the first assessment date, Dr Barton noted that Mr Ammon had a significant limp favouring his left leg and that he stood throughout most of the consultation and struggled to get up and down from the chair and examination couch. Dr Barton considered that there was a degree of illness behaviour exhibited by Mr Ammon. Dr Barton did not believe that Mr Ammon had radicular problems and suggested that he be encouraged to exercise and go back to work on a graduated return to work program. After reviewing a medical report from Dr Du Toit dated 15 September 2014 he did not consider that radiofrequency denervations would be of assistance. In a report provided subsequent to Mr Ammon undergoing a radiofrequency denervation of the left sacroiliac joint he noted that it was of little benefit.
22 Dr Barton reviewed Mr Ammon on 19 April 2016 and obtained a history from him that he experienced left sided lower back pain which is present all the time and spreads into the left buttock and down the left leg. On examination he recorded that Mr Ammon moved slowly and carefully and had trouble getting up and down from the chair and examination couch. He also noted that there was much grimacing and complaints of pain. He stated that Mr Ammon presented with a considerable degree of illness behaviour and that the worsening of his problems reflects a chronic pain problem and that any mild mechanical back problem has resolved. Dr Barton opined that Mr Ammon is fit and capable of normal work. On reviewing the surveillance material he was provided with, he noted that Mr Ammon was seen to walk in a free and easy manner, at different times carrying a bag and a small box, crossing the road and entering his vehicle and generally moving in a free and easy manner throughout. In his opinion, the surveillance video support the notion that Mr Ammon is not as disabled as he portrays and his presentation during examination suggests some deliberate exaggeration of his apparent underlying problems.
23 Mr Troy, General Surgeon, assessed Mr Ammon on 23 January 2015 on behalf of the defendant. He obtained a history from Mr Ammon that he was still experiencing discomfort in his right lower back and at times into the left side more so than the right. Mr Ammon told him that he could sit for 15 minutes and stand for 15 minutes before experiencing pain in the right lower back. He also told him that he could walk for 100 m and has difficulty sleeping. After conducting an examination and reviewing the MRI scan he opined that Mr Ammon had degenerative lumbar discs at the lower lumbar spine and an acute left sacroiliac joint injury. He did not consider at that stage that Mr Ammon was fit for his pre-injury duties but would be fit for alternate duties. After reviewing the surveillance DVD and report dated 14 April 2015 (depicting surveillance carried out in March 2015) Mr Troy opined that Mr Ammon was fit for his pre-injury duties.
24 Mr Carey, Orthopaedic Surgeon, examined Mr Ammon on 1 September 2015 for the purposes of an impairment assessment. Mr Ammon told him that he had constant pain in the left side of his low back, left buttock and a burning pain down the back of his left leg from his buttock to his foot. He also told him that he has developed discomfort over both hips and suffers sleep disturbance. Mr Carey opined that Mr Ammon has chronic back and left lower limb symptoms in the absence of radiculopathy and exhibited features suggesting a chronic pain syndrome. He assessed Mr Ammon as having a 5% whole person impairment in accordance with the AMA guides.
25 After being provided with the surveillance videos in September 2016, he commented that the activities depicted did not seem to generate any problem, either in standing or walking. He noted that the activities did not demonstrate ‘and antalgic limp on the left’ and he was unable to detect any physical problem with Mr Ammon when examining the surveillance footage. Mr Carey stated that given the apparent ‘normality’ during the activities depicted he believed the prognosis was more hopeful than he had suggested. He noted however, that the basis for his assessment of Mr Ammon on 1 September 2015 was for the purposes of an impairment assessment and accordingly he did not obtain much detail as to Mr Ammon’s pain and disability.
26 Dr Shan, Consultant Psychiatrist, assessed Mr Ammon on behalf of the defendant on 27 September 2016. Mr Ammon told him that he takes 100 mg of Zoloft and has been seeing Mr Huson, psychologist, for approximately 12 months. He also told him that he feels unsociable and withdrawn and has given up interests and activities, such as coaching football, fishing and he no longer goes to football and cricket club meetings. He said that he experiences sleep disturbance due to his pain and discomfort and during the daytime feels tired and lethargic and can be irritable. Dr Shan referred to a medical report of Mr Huson (which was not tendered) and commented that Mr Huson has a ‘typical psychologists viewpoint of his patient’. Dr Shan diagnosed that Mr Ammon has an adjustment disorder with mixed anxiety and depressed mood. He assessed Mr Ammon as having a psychiatric capacity for any work that is within his physical limitations. He opined that the prescription of antidepressants is appropriate and he should continue to have counselling sessions with his psychologist for not more than 10 sessions every year over the next 2 years.
Conclusion
27 I accept and prefer the medical opinions of Dr Perry, Dr Du Toit, Mr Kossmann, Mr Carey and Dr Shan. In particular, I found the opinions of Dr Perry and Dr Du Toit to be highly persuasive. They have treated Mr Ammon for a prolonged period, their findings on examination have been consistent and Mr Ammon has accepted their advice and undergone all treatment recommendations made by them. I have also had regard to the fact that Dr Du Toit and Mr Kossmann have both recommended that Mr Ammon undergo further specific treatment in the form of a left sided sacroiliac joint injection and possible nerve stimulation to improve his condition which may in the long term enable him to have a greater capacity in returning to work. I find that Mr Ammon has a pain syndrome as a consequence of the fall when he injured his back on 11 May 2014. I find that he has also developed an adjustment disorder with mixed anxiety and depressed mood as diagnosed by Dr Shan.
28 I have concluded that Mr Ammon has exaggerated the extent of his symptoms and his level of disability by reference to the surveillance material shown to the court and his presentation to Dr Barton when assessed on 19 April 2016. Nevertheless, I accept his evidence that he continues to experience low back pain which is managed to some extent by his medication intake and that it does restrict him in performing the tasks which would be required of him in his pre-injury employment. I have also noted that even though the surveillance material ‘indicated’ that he was able to perform the tasks depicted with little or no apparent difficulty, the weight I have attached to this evidence is diminished by virtue of the fact that only 25 minutes of what is reported to be 38 hours of surveillance was shown to the court and only 4 of the 8 occasions on which surveillance was undertaken.
29 Accepting his evidence that he continues to experience pain across his lower back and the medical opinions referred to leads to a conclusion that he remains unfit for his pre-injury duties which were physically demanding and which required prolonged sitting whilst driving a milk tanker. Additionally, his current medication regime would not be conducive to him returning to work as a Milk Transport Driver.
30 I find that Mr Ammon has the capacity to return to work on suitable duties but continues to be incapacitated for his pre-injury employment.
31 Accordingly, he is entitled to compensation in the form of weekly payments from 21 May 2015 and to reasonable medical treatment expenses from 4 June 2015 in accordance with the provisions of the Act.
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