Gavin Hayhow v Coles Myer Limited

[2008] VMC 16

IN THE MAGISTRATES COURT OF VICTORIA

AT LATROBE VALLEY

WORKCOVER

Case No. W01462778

Gavin Hayhow	Plaintiff
v
Coles Myer Limited	Defendant

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MAGISTRATE:	S Garnett
WHERE HELD:	LaTrobe Valley
DATE OF HEARING:	6 & 7 October 2008, 20 November 2008
DATE OF DECISION:	15 December 2008
CASE MAY BE CITED AS:	Gavin Hayhow v Coles Myer Limited
REASONS FOR DECISION

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Catchwords: offer of suitable employment/return to work plan; video surveillance; need for

physiotherapy treatment; Cedar Court Rehabilitation program; ongoing

incapacity.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Carson
For the Defendant	Mr Zydower
HIS HONOUR:

1.  Mr Hayhow, aged 41 years, aggravated an underlying degenerative condition in his back because of work performed by him in the course of his employment as a storeman/grocery assistant with Bi-Lo Supermarkets.

2. He issued these proceedings in response to four decisions made by the defendant to terminate his entitlements pursuant to the provisions of the Accident Compensation Act 1985.

3. The decisions were:

1. 31 July 2006 - to terminate physiotherapy treatment in accordance with s 99(1) from 20 August 2006 on the grounds that the treatment was no longer reasonable;

2. 28 August 2006 – to terminate weekly payments of compensation in accordance with s 93D(3) & (4) from 28 August 2006 on the grounds that he did not make every reasonable effort to return to work in suitable employment at his place of employment or participate in a return to work plan;

3. 27 September 2006 – to refuse to accept liability for a Cedar Court Rehabilitation Program in accordance with s 99(1) as it was not a reasonable expense; and,

4. 5 December 2006 – to terminate weekly payments of compensation and medical and like expenses in accordance with s 114(1) & (2) and s 99(1) from 5 January 2007 on the grounds that he was no longer incapacitated for work nor was any incapacity due to an injury which arose out of or in the course of his employment and medical treatment was no longer a reasonable expense.

History

4.  Mr Hayhow’s duties required him to perform manual work comprising loading, pushing and pulling stacked supermarket trolleys. The medical reports indicate a history of back problems and medical treatment prior to commencing employment with Bi-Lo at Wonthaggi in September 2004. The defendant accepted liability for his claim, which was lodged in February 2006. At that time, he was working 25 hours per week having voluntarily reduced his hours from 38 hours per week on 2 January 2006.

5.   Because of increasing back pain, he consulted Dr Thornton on 2 February 2006 who subsequently certified him as being either totally or partially incapacitated for work because of his injury. Dr Thornton arranged for a CAT scan and referred Mr Hayhow to Dr Patrick, Rheumatologist, who arranged for him to undergo an MRI scan.

6.  The scans indicated degenerative changes at L4/5 and L5/S1 and a synovial cyst arising from the L4/5 facet joint extending into the spinal canal compressing the theca and proximal left L5 nerve root sheath.

7.  It is not in dispute that Mr Hayhow’s employment aggravated his underlying degenerative condition. Dr Thornton and Dr Patrick gave evidence on his behalf and a number of medical reports were tendered from them and Dr Palit, Rehabilitation Physician, Ms Fitzgerald Physiotherapist and Mr Kudelka Orthopaedic Surgeon.

8.  The defendant tendered medical reports from Dr Barton Occupational Physician, Mr Williams Orthopaedic Surgeon, Dr Baynes Occupational Physician, Mr Scott Orthopaedic Surgeon and Dr Littlejohn Rheumatologist.

9.  Ms Fenwick, Office Manager at Bi-Lo gave evidence on behalf of the defendant that Mr Hayhow was:

- at work on full time (25 hours) light duties from 12 February 2006 to 12 March
2006;

- off work from 14 March to 25 September;

- at work on light duties for 4 hours on 25 September and again on 26
September;

- on annual leave from 2 October to 8 October;

- at work on light duties on 9 October for 4 hours; and,

- off work since 10 October 2006 to date.

10. Therefore, Mr Hayhow worked 12 hours on light duties from 12 March 2006 to date.

11.Mr Hayhow gave evidence that he ceased work on 14 March 2006 because he was not given appropriate assistance and his back pain increased because of it. He stated that he was required to work in the fruit and vegetable department virtually on his own as his Manager only got a casual employee in to assist him. This was despite him being covered by a workcover certificate limiting his activities to no lifting over 5 kg, no pushing, pulling, bending, lifting or dragging. He attended Dr Thornton who certified him unfit for all work; “due to allocation of inappropriate duties”. He then commenced physiotherapy treatment twice per week until July 2006 and then intermittently until November 2006.

12.Mr Hayhow initially saw Dr Patrick on 10 March who arranged for the MRI scan. Once the results were received, he recommended that Mr Hayhow have a facet steroid injection, which he declined. By July, Dr Patrick suggested Mr Hayhow undergo assessment for a multidisciplinary rehabilitation program and referred him to Cedar Court for that purpose. Dr Palit reported that Mr Hayhow underwent the assessment on 17 July but Mr Hayhow was undecided as to whether to undergo it or remain under the care of Ms Fitzgerald. Dr Patrick has not seen Mr Hayhow since 6 July and reported that at that time he considered Mr Hayhow was fit for suitable duties and should undergo a self-based back strengthening exercise routine with intermittent physiotherapy.

13.Dr Barton examined Mr Hayhow for the defendant on 7 April 2006. He was of the opinion that Mr Hayhow sustained a soft tissue injury with referred symptoms to the left leg and that the steroid injection and physiotherapy as recommended by Dr Patrick was appropriate treatment. He was also of the opinion that Mr Hayhow was fit for suitable duties.

14.Mr Williams initially examined Mr Hayhow on behalf of the defendant on 20 July 2006. On examination, he found that Mr Hayhow performed a good range of movement in the thoracolumbar region and did not complain that movement caused pain. He diagnosed muscular ligamentous strain to the lumbar region and a type of chronic pain syndrome. He opined that the cyst found on MRI was an incidental finding not related to work activities. Mr Williams did not believe any ongoing treatment was necessary and that Mr Hayhow was fit for suitable duties.

Return to Work Offer

15.Mr Hayhow gave evidence that he did not return to work on 21 August 2006 as stipulated in the return to work offer because of a dispute with his employer in relation to the particular tasks he was required to perform.

16.The job offer tendered dated 14 August 2006 requested that he return to work on 21 August 2006. The job offer required him to undertake the following duties: customer service within kiosk area, filling of cigarettes, light cleaning duties, returning customer baskets to customer entrance, returning loose stock to fixtures and replenishing the magazine stand. Mr Hayhow was to work 4 hours per day, Monday, Tuesday and Thursday with the plan to be reviewed on 28 August.

17.As at 21 August, Mr Hayhow was covered by a certificate from Dr Thornton certifying that he was fit to work: “4 hours per shift, 3 days per week, 5kg weight limit, must not stand for more than 30 minutes at a time, be free to move about and rest breaks for 5-10 minutes each hour initially”. It appears from the evidence of Ms Fenwick that Mr Hayhow did not actually return to work until 25 September. This is consistent with the workcover certificates provided by Dr Thornton.

18.Mr Hayhow gave evidence that when he first presented to the workplace regarding the job offer he had to report to Ms Brown, the Dry Goods Manager/Store Manager. He asserted that she told him he had to do what she told him to do, including working on the registers notwithstanding what was recorded on the certificate. Ms Brown gave evidence denying this allegation. Mr Hayhow also gave evidence that when he returned to the workplace the following week he was once again directed to return and see his doctor because the certificate did not state that he was not to do register work. The certificate tendered and provided by Dr Thornton dated 29 August 2006 confirms that there was an issue regarding register work as it extended the previous restrictions by adding: “Register Work is Unsuitable. Office work, ticketing, facing shelves, would be suitable”. Further that: “Physiotherapy must continue. NB. I have not had a phone call from the employer regarding suitability or otherwise offered duties”.

19.Mr Hayhow gave evidence that he once again returned to work after clarifying the register work issue with Dr Thornton and actually commenced work for three days but was not allowed to have breaks and was told he had to sit on a chair behind the register in the cigarette booth when resting rather than going to the tea room approximately 100 metres away. Mr Hayhow stated the ticketing duties performed required him to stand for long periods and reach up and down which resulted in his back and leg being extremely sore and he found it embarrassing to be required to sit on a chair in the cigarette booth. Ms Brown gave evidence that Mr Hayhow was provided with light duties, was given a chair to sit on at his designated work place within the store and that it was provided for his comfort and care. Ms Farrington who is employed as a “front end controller” by the defendant gave evidence as to the nature of the duties Mr Hayhow had to perform on his return to work. She confirmed that she was Mr Hayhow’s supervisor on his return to work and that she provided the chair for Mr Hayhow to sit on, as he required, in the service area. During cross- examination, she conceded she had 25-30 staff under her and therefore was not “watching” Mr Hayhow at all times during his return to work. Both Ms Farrington and Ms Brown disputed Mr Hayhow’s evidence that the store was a busy one and that his task of replenishing the cigarette dispenser involved repetitive bending because it was only the less popular brands that were stored on the lower shelves.

20.According to Ms Fenwick, the records indicate Mr Hayhow worked the second day on restricted duties, that being 26 September but his third day at work on restricted duties did not occur until 9 October, which was his last day at work with the defendant. On 10 October, Dr Thornton certified Mr Hayhow as being unfit for work with a notation: “Inappropriate duties have aggravated lower back condition, and unable to tolerate the 4 hours standing”. He again commented that physiotherapy should continue and on 6 November added that a Cedar Court rehabilitation program should be implemented as soon as possible.

21.Mr Hayhow also gave evidence of his activities since ceasing work, including those captured on video (to which I will refer shortly) and stated he currently takes medication in the form of voltaren, sleeping tablets on and off and “ice wave” pads to control his pain. He stated that his condition has stagnated; he has constant leg pain, cannot sit or stand for too long, experiences sleep disturbance and continues to consult Dr Thornton.

22.During cross-examination, Mr Hayhow gave evidence that the ticketing part of his return to work duties caused problems for him as it involved prolonged standing as well as being required to fill the bottom shelves of the cigarette dispenser, which required repetitive bending. His evidence as to the frequency required in replenishing the cigarettes was disputed by both Ms Farrington and Ms Brown. He conceded that he was able to sit whenever he needed to but felt like a fool being required to sit in the cigarette booth at the front of the store. He also conceded that he could perform the tasks set out in the job offer but the prolonged standing and bending to fill the bottom shelves of the cigarette dispenser caused pain. Mr Hayhow also acknowledged that he has conducted “garage sales” at his home, attended “auction houses” and brought, and sold goods on e-bay from home on his computer. He gave evidence that he has not looked for work because; “I had a job and it is up to me to decide what I can do”.

23.The defendant tendered DVD’s and surveillance log sheets relating to Mr Hayhow’s activities for the following dates: 29 & 30 May 2006, 16 & 30 June 2006, 9,13 & 14 September 2006, 8 & 9 November 2006, 27 & 31 July 2007, 22 & 24 September 2007, 12, 14, 16, 28 & 31 May 2008.

24.The video surveillance, whilst only a “snapshot in time”, clearly indicated that Mr Hayhow is active and is able to perform lifting and bending activities without difficulty. In particular, he was able to assist in carrying a chest and couch and tie it to a trailer without any apparent restriction on 8 November 2006, on 9 November 2006 he was able to vigorously unlatch a trailer from a car and drag the trailer a number of metres without apparent difficulty and on 28 May 2008 he was able to assist another in lifting a two-seater settee onto a trailer without apparent difficulty.

Medical Evidence

25.Dr Thornton gave evidence that Mr Hayhow’s condition has stagnated, as he has not received appropriate treatment. He confirmed that Mr Hayhow told him that physiotherapy treatment was not assisting him. He conceded during cross- examination that the duties described in the job offer were suitable but that it was not appropriate that Mr Hayhow was required to sit on a chair at the front of the store during his rest breaks. After viewing the surveillance material Dr Thornton conceded that, he could not detect any impairment existing in Mr Hayhow’s movements and that they demonstrated Mr Hayhow had adequate flexion at those times. Based on those observations, and after acknowledging the limitation of video surveillance material, Dr Thornton was prepared to concede that Mr Hayhow could perform the duties offered by the employer whilst remaining of the opinion that he had not yet recovered from the injury. He added that Mr Hayhow believed he was victimised in his workplace.

26.Dr Patrick, after viewing the surveillance material was also of the opinion that it appeared that Mr Hayhow would have been able to perform the duties offered but like Dr Thornton noted the limited value of surveillance material. He conceded that his observations of Mr Hayhow in the surveillance material indicated that Mr Hayhow could perform activities without pain and free of limitation of movement. He could not give a firm opinion as to whether any ongoing symptoms were purely constitutional in nature or due to the aggravation of the underlying condition.

27.Mr Scott Consultant Surgeon provided a report to the defendant dated 15 August 2006 commenting on Mr Williams report dated 22 July 2006 and the suitability of the job offer. Mr Scott did not examine Mr Hayhow and although he expressed the opinion that the job offer was suitable, I do not find his opinion of assistance not having examined Mr Hayhow in person.

28.Dr Baynes examined Mr Hayhow on 31 October 2006 for the defendant. He was of the opinion that as at that date Mr Hayhow was fit for suitable work because of the aggravation of his underlying condition and that physiotherapy treatment was no longer necessary as it was only of temporary benefit to Mr Hayhow. After subsequently viewing the surveillance material he formed the opinion that as his observations of Mr Hayhow in the DVD was in direct conflict with Mr Hayhow’s complaints to him on examination on 31 October, any work related injury had ceased and Mr Hayhow was fit for his pre injury duties and did not require any treatment.

29.Mr Kudelka examined Mr Hayhow for the defendant on 24 May 2007. He was of the opinion that as at that date Mr Hayhow was continuing to suffer from the effects of the aggravation to his underlying degenerative condition and was fit for suitable work only.

30.Dr Littlejohn examined Mr Hayhow on 18 September 2007 for the defendant. He was provided with the surveillance report relating to Mr Hayhow’s activities on the 8th and 9th November 2006, which indicated to him that Mr Hayhow had a good range of motion. He diagnosed that Mr Hayhow had mechanical back pain due to the aggravation of his underlying degenerative condition because of his work activities and symptoms of chronic pain syndrome. Dr Littlejohn was of the opinion that Mr Hayhow was fit for suitable employment that avoided repetitive bending, twisting and a lifting limit of 5kg commencing 4 hours per day 2-3 days per week initially and then increasing under guidance from his doctor. He also expressed the opinion that Mr Hayhow was not fit for the job offer in question because “I think it is part of appropriate management of the pain syndrome component of his problem to return to a viable work activity”. He recommended Mr Hayhow undergo a rehabilitation program in conjunction with treatment from a psychologist and physiotherapist.

31.Mr Williams re-examined Mr Hayhow for the defendant on 4 October 2007, 14 months after his initial examination. He told Mr Williams that the job offered required him to stack cigarette packets on the lowest shelf and stand marking tickets and that he was not given the prescribed rest breaks. He also told him that he had to stop after a week because of increased pain in his back. On examination, Mr Williams found marked restriction of all movements of the lumbar spine associated with complaints of increased pain and a pulling sensation in the back as he attempted to move. Mr Williams noted the range of movement to be 25% of what he would have expected to be normal for Mr Hayhow. Mr Williams saw the surveillance report and noted Mr Hayhow demonstrated a much greater capacity than described at the consultation. He diagnosed that he has a chronic pain syndrome the symptoms of which have not resolved. He believed that Mr Hayhow is fit for the duties set out in the job offer and is fit for his normal duties. He opined that treatment was not necessary.

Conclusions

32.I found Mr Hayhow’s evidence as to his physical limitations, extent of incapacity and restrictions on daily living activities to be unconvincing. Whilst I accept that it was appropriate for him to clarify the requirement that he work on the registers with his doctor in relation to the job offer, I do not accept that the reason he ceased work was because the tasks required of him were too hard in that they involved repetitive bending and prolonged standing. I find that the reason he did not continue to work in accordance with the return to work plan was that he took umbrage at being required to sit on a chair in the register area. The duties required of him were light in nature and within the limits as set by Dr Thornton.

33.I accept the evidence of Ms Farrington and Ms Brown that the chair was provided for his convenience and not to “put him on display”.

34.The mobility demonstrated by him in the video surveillance both before and after the job offer was made, is a lot greater than he would have the doctors and this court believe. I found the video surveillance material in November 2006 to be particularly damning. There is no doubt that the activities and movements of Mr Hayhow as depicted on the DVD’s is much greater than the history he gave to his own doctors and those who examined him on behalf of the defendant.

35.I found the concessions made by Dr Thornton and particularly Dr Patrick during cross-examination after viewing the surveillance material to be important insofar as they related to the suitability of the job offer made.

ORDERS:

36.In relation to each of the decisions made by the defendant, which are under review, I make the following findings:

1.

Termination of Physiotherapy treatment from 20 August 2006 Mr Hayhow in his recovery. Dr Littlejohn believes it would only be reasonable if it assisted him to build and strengthen core muscles. If so, he considered that it should form part of a rehabilitation program, which may require 6-8 treatments. Dr Patrick opined in July 2006 that physiotherapy treatment should be intermittent but during his evidence did not believe that it would now assist his recovery. In May 2007, Mr Kudelka thought physiotherapy might help relieve symptoms. In July 2006 and October 2007, Mr Williams expressed the opinion that physiotherapy treatment was not necessary. In October 2006, Mr Hayhow informed Dr Baynes that physiotherapy treatment was of little help to him. Accordingly, I do not consider that the provision of physiotherapy treatment is reasonable and necessary and an expense which should be paid for by the defendant under the Act.

2.

Termination of Weekly Payments from 28 August 2006 participate in the return to work program was unreasonable. I find that the tasks required of him were suitable and he was fit to perform them. They were within the restrictions imposed by his doctor. His refusal to continue to perform those duties was because he felt he was being “put on display” by being required to sit on a chair in the service area at the front of the store rather than being permitted to have the necessary breaks in the canteen area, a distance of 100 metres away. I accept the evidence of both Ms Farrington and Ms Brown, that that was not the purpose and that it was for his care and comfort to allow him to take regular breaks in the immediate vicinity where he was required to work as stipulated by his treating doctor. I find that it was reasonable for him to seek clarification from his doctor as to whether register duties were appropriate and on that basis the termination of his weekly payments should not have occurred on 28 August 2006 but as from the date his ceased to participate in the return to work program.

3.

Cedar Court Rehabilitation Program consider that it would now be beneficial for him to do so which may assist his recovery and his ability to find suitable employment. Both Dr Thornton and Dr Littlejohn support his participation in such a program. The defendant should pay for the reasonable costs associated with it.

4. 2007

Termination of Weekly Payments and Medical Expenses from 5 January of mobility and activity of Mr Hayhow than he would have the doctors or this court believe, I consider that he is still suffering from the effects of the aggravation of his underlying degenerative condition by the work duties performed. Dr Thornton, Mr Kudelka, Dr Littlejohn and Dr Patrick (with reservation) support this finding. I also note that Mr Williams is of the opinion that Mr Hayhow suffers from a chronic pain syndrome due to the injury but is fit for his pre-injury duties. I prefer and accept these opinions rather than the opinion expressed by Dr Baynes.

In other words, I find that Mr Hayhow remains incapacitated for his pre-injury employment duties because of the injury sustained by him, which arose out of or in the course of his employment with the defendant.

In relation to ongoing medical treatment, I do not believe that the defendant is liable for any ongoing treatment expenses apart from the rehabilitation program referred to and anti-inflammatory medication, which may be, required from time to time as per the opinions expressed by Dr Thornton, Dr Patrick and Dr Littlejohn.