Kuffer v ISS Hygiene Services
[2014] VMC 9
•15 MAY 2014
| IN THE MAGISTRATES COURT OF VICTORIA |
AT LATROBE VALLEY
WORKCOVER DIVISION
Case No. D12472896
| MICHAEL KUFFER | Plaintiff |
| v | |
| ISS HYGIENE SERVICES | Defendant |
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MAGISTRATE: | S GARNETT |
WHERE HELD: | LATROBE VALLEY |
DATE OF HEARING: | 5 & 6 MAY 2014 |
DATE OF DECISION: | 15 MAY 2014 |
CASE MAY BE CITED AS: | KUFFER v ISS HYGIENE SERVICES |
REASONS FOR DECISION
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Catchwords: Termination of weekly payments: no longer incapacitated & termination at 130 weeks: current work capacity – no current work capacity. Credit issues – surveillance material not viewed by treating doctors – worker demonstrating signs of abnormal illness behaviour and narcotic dependent – requires pain management program and rehabilitation/re-training.
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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 Kuffer is aged 35 years and commenced employment with the defendant on 19 April 2010 as a Service Technician. He sustained injuries to his back as a consequence of a motor vehicle accident in the course of his employment on 10 August 2010.
2 Mr Kuffer ceased work on 16 August 2010 and has not returned to work since that date. The defendant’s workcover agent accepted liability for his claim in accordance with the provisions of the Accident Compensation Act 1985 and he received weekly payments and payment of medical treatment expenses.
3 On 7 September 2012, Allianz gave Mr Kuffer notice of their intention to terminate his weekly payments of compensation and medical treatment expenses from 20 October 2012 on the grounds that; he was no longer incapacitated for work; he no longer required medical treatment; his medical treatment expenses were not reasonable or necessary and were not for an injury which entitled him to compensation under the Act. In support of their decision, the Agent relied on a medical opinion of Dr Barton dated 16 May 2012 and 17 August 2012 together with surveillance taken of Mr Kuffer in March and July 2012.
4 On 11 September 2012, Allianz gave Mr Kuffer further notice of their intention to terminate his entitlement to weekly payments from 9 February 2013 on the basis that he would have received 130 weeks of weekly payments and that he had a current work capacity or if no current work capacity it was not likely to last indefinitely. In making this decision the Agent relied on Dr Barton’s opinion, surveillance material, an opinion of Dr Jager, psychiatrist and a vocational assessment from Ayres Management.
5 Mr Kuffer was the only witness to give viva voce evidence with the parties tendering numerous documents, medical reports and vocational assessments. Mr Kuffer told the court that he completed year 11 at school and then worked with the Australian Army for a period of 13 months as a Private before being medically discharged as a consequence of sustaining left and right ankle fractures. He said that he then completed a Certificate III in Aged Community Care before commencing work as a Personal Care assistant in Nursing Homes and Aged Care facilities for 3-4 years. Following that employment he then worked as a Delivery Driver which required him to deliver car parts to various garages and mechanics in the metropolitan area. Mr Kuffer gave evidence that he commenced work as a Service Technician with Pink Hygiene Services and then with the defendant from April 2010. He told the court that his duties required him to collect and replace sanitary bins, install air fresheners and soap dispensers and perform general cleaning duties.
6 Mr Kuffer gave evidence that on Tuesday 10 August 2010, in the course of his employment, he was involved in a motor vehicle accident sustaining injury to his back. He said that at the time he was stationary intending to turn when an 18 seater bus rear ended his vehicle. He told the court that he managed to keep working as a “jockey” for the remainder of the week performing lighter duties but could not cope and has remained off work since.
7 Mr Kuffer gave evidence that he has been treated by numerous doctors and underwent two surgical procedures, the first by Mr Johnson, Orthopaedic Surgeon, on 17 November 2011 in the form of a bilateral L4/5 laminectomy, and the second by Mr Patrick Chan, Neurosurgeon, on 6 January 2012, in the form of an L4/5 decompressive laminectomy and discectomy with rhizolysis of the L5 nerve roots.
8 Mr Kuffer told the court that he currently suffers from a dull ache in his low back, a burning feeling in his groins, an occasional sharp stabbing pain in his legs and stabbing pain in his feet. He said that since the second operation he has used a walking stick and crutches for his comfort and safety and as an aid for leaning. He told the court that he cannot sit for longer than 15 minutes without experiencing pain in his groins and numbness in his legs and feet. He said that if he stands without the aid of crutches for longer than 5-10 minutes he experiences pain and cannot walk for distances greater than 200 metres without experiencing increased pain. He also said any movement involving twisting, bending, squatting or kneeling aggravates his pain as does lifting greater than 1 kg.
9 Mr Kuffer gave evidence that he is currently prescribed what can only be described as a “cocktail of medications”. He said that he takes; Lyrica 500mg twice per day; two panadol osteo twice per day; 80 mg of oxy contin per day; 5 mg twice per day of Endone; two tablets twice per day of panadol slow release; 50 mg twice per day of Endep; 6-8 tablets per day of temazepam; vitamin B medication; and, dexamphetamine for ADHD which he was diagnosed as suffering from the age of 15 years.
10 Mr Kuffer told the court that since being in receipt of weekly payments he has never undertaken or indeed been offered any form of re-training by Allianz. He said that he has very basic computer skills despite undertaking a basic computer course prior to joining the Army and did complete a one day electrical safety competency course through the ‘Mens Shed’. He said that apart from completing hand written progress notes as a Personal Care Assistant, he does not have any experience in producing documents or performing clerical duties.
11 Mr Kuffer was subject to a detailed cross examination focusing on his alleged level of pain, physical restrictions and the need for and use of a walking stick and crutches. He said that he commenced using a walking stick prior to the first surgical procedure in November 2011 and then commenced using crutches after the second operation in January 2012. He told the court that he feels more secure and comfortable using them in surrounds of which he is unfamiliar so that he can lean on them if necessary. He said that if he knows the area his concerns are less of a problem but if he feels pain he needs to lean on something or if he knows he will be standing for long periods of time. He also confirmed that he obtained a motorised scooter in mid 2012 to assist his mobility and that none of these items were obtained on the recommendation of his treating doctors.
12 Mr Kuffer confirmed that he moved from Dandenong to Leongatha in January 2013 for financial reasons and in late 2013, due to travelling issues changed doctors from Dr Rosenblum in Elsternwick to Dr Tilak in Leongatha. He told the court that the drive from Leongatha to Elsternwick takes 90 minutes but he would regularly take up to 3-4 hours as he would require breaks during the journey and on occasions would stay with his uncle overnight. He told the court that his driving ability is not impaired notwithstanding his medication intake. He said that Dr Tilak has introduced other medication to reduce his reliance on Oxycontin. He also told the court that in recent months he has undertaken a program at Korumburra Hospital to strengthen his back and to lose weight. He told the court that as at the date of injury he weighed 126 kg which increased to 164 kg and it has now reduced to 154 kg.
13 Mr Kuffer gave evidence that his condition has got worse over time but is now improving. He disputed that his job as a Service Technician was light in nature and told the court it required heavy lifting of nappy bins, use of a trolley, lifting of goods from his work van, climbing stairs and performing some tasks on his hands and knees. Mr Kuffer agreed that he was able to drive 6 weeks after the second surgery was performed and was involved in another car accident involving three vehicles. He also agreed that since ceasing work he has gone fishing on a number of occasions but has not been able to fish from a boat since 2011.
14 The defendant played 2 DVD’s relating to surveillance of Mr Kuffer obtained on 13, 14 and 16 March 2012 and 21 July 2012. The first DVD ran for 7 minutes and 50 seconds which depicted him on 13 & 14 March - walking without apparent restriction, without the aid of a stick or crutches; getting into and out of a car; sitting on the bonnet of a car; walking along the side of a car in his driveway without use of a stick or crutches; on 16 March – using a stick and limping outside his home and getting into a taxi at 9.25 a.m.; at 11.15 a.m. walking along a footpath slowly with the aid of a stick when attending Dr Rosenblum’s rooms. The DVD relating to 21 July ran for 25 minutes and depicted Mr Kuffer – putting up streamers and balloons on a patio area at his home for his daughter’s 3rd birthday party; moving freely on the patio without the aid of a stick or crutches; on steps or a ladder putting balloons on an overhead rafter; stretching up to tie the balloons; getting into and out of a car without apparent restriction whilst carrying but not using a stick; walking briskly to and from a car; using a stick to cross a road to a cheesecake shop; exiting the shop carrying a cheesecake with the aid of a stick; leaning into and across the front seat of a car; sitting in the drivers seat of a car for a number of minutes, turning his head and neck frequently; reversing a car; getting out of the car at his home with apparent ease; bending; walking briskly across his patio; standing for a prolonged period with his arms above his head fixing items to the wall of his house; tying balloons to overhead roof beams on a number of occasions and for a prolonged period of time; bending over and straightening up to pick up balloons and streamers without apparent restriction; standing for a prolonged period without use of a stick; and, tying streamers to overhead beams.
15 Mr Kuffer agreed that he appeared to do the activities depicted with little restriction but said that he was in pain whilst performing all of those activities and that his level of pain does vary from day to day. He said that in the mornings he normally feels better because of the medication he takes. He agreed that the surveillance material depicted him performing activities without the use of a stick or crutches but once again re-iterated that his use of those aids was for his comfort and in case he needed them. When questioned as to his increased use on occasions he said that he may have been experiencing more pain or spasms at that particular time. Mr Kuffer told the court that he can move more freely when he is “free of a lot of pain”. When questioned as to why he appears more disabled when seeing doctors he explained that it would be due to having to drive to appointments and having to get into and out of his car or a taxi. When questioned about his history to Mr O’Brien who he saw for review on behalf of the defendant on 22 January 2014 that he was “unable to dress himself, requiring assistance from his wife, or he uses the various aids and was not capable of all the normal activities of daily living”, he responded by telling the court that “there was 2 years difference between the surveillance and his examination” and that he is “now in more pain than then”. Mr Kuffer also told the court that he “does not need to use the sticks at home as he is in comfort at home”.
16 Mr Kuffer disputed the suggestions in the vocational assessment from Ayres Management that he would be able to work as a clerk as he said it would require him to stand or sit in one position for up to 30 minutes and carry 5 kgs in each hand and squat. He also said that he would not be able to do that job because of the constant pain in his back and he is restricted in not being able to walk more than 200 metres a day. Mr Kuffer said that he wants to return to work, did not comment on the suggestion that he considers himself to be “washed up at 35 years of age” and said that he is on constant medication which the doctors are trying to reduce.
17 In re-examination, Mr Kuffer told the court that he prefers to be a passenger than drive because it is more comfortable and when he is required to travel by car he normally has a break along the way to ease his pain. When questioned about his activities as depicted on 21 July 2012 he said that he believes he would have rested after the party by lying on his bed. He told the court that the suggested jobs as outlined in the report from Ayres Management were not discussed with him and that he has no experience whatsoever in operating business machines, working with business or financial records or preparing documents or reports.
Medical Evidence
18 At the outset, it should be noted that the only doctors to view the surveillance DVD’s prior to expressing an opinion were Dr Barton and Mr O’Brien. It is not in dispute that as a consequence of the motor vehicle accident on 10 August 2010, Mr Kuffer sustained an L4-5 disc injury with the development of spinal canal stenosis and nerve root compression which ultimately led to spinal surgery being performed on 17 November 2011 and 6 January 2012. A more recent MRI scan performed on 25 August 2013 indicated foraminal narrowing from disc bulge and facet joint disease with minimal degenerative changes at the left S1 joint and post operative changes at L4-5. Mr Johnson, Orthopaedic Surgeon, reported that an MRI performed on 24 August 2010 demonstrated multi level spinal degeneration with a small central prolapse at L4-5 causing a degree of central canal stenosis. At review in February 2011, he recorded that Mr Kuffer was extremely disabled and the reason for it and the anatomical diagnosis had not been demonstrated on the MRI. He also reported that a CT myelography on 24 March 2011 demonstrated moderately severe spinal stenosis at L4-5 and degeneration at L5-S1. He opined in August 2011 that the aim of the surgery subsequently performed by him in November was to improve Mr Kuffer’s leg symptoms and may not make any difference to his back pain. He also noted and agreed with Mr O’Brien’s concern (who examined him for the defendant on 4 May 2011) that Mr Kuffer was demonstrating “gross illness behaviour”. An operation report from Mr Chan, Neurosurgeon, confirmed that he performed an L4-5 decompressive laminectomy and bilateral rhizolysis on 6 January 2012 with an improvement in leg pain and referral to rehabilitation. On 31 January 2012, he reported that he expected Mr Kuffer to be fit for suitable duties 6-8 weeks after surgery, avoiding lifting of weights above 8 kg, avoiding bending and prolonged sitting, with frequent breaks as required. He also reported that after 6-8 weeks post surgery Mr Kuffer should undergo more intense physiotherapy to improve his back strength, stability and flexibility.
19 Dr Lewis, Rheumatologist, reported that when he initially saw Mr Kuffer on 6 October 2010, he was extremely disabled but did make significant functional gains during an inpatient stay at Epworth after receiving a ketamine infusion. He noted that his condition subsequently deteriorated and he demonstrated significant pain behaviours with his depression, anxiety and stress levels being very high. By May 2012, following two surgical procedures, he reported that surgery had not altered his condition and was reporting chronic pain across the back radiating into his legs and ankles and was experiencing great difficulty sitting erect and could only mobilise with a stick with a sitting tolerance of 5 minutes and standing tolerance of 10 minutes. Dr Lewis noted a high medication intake. He diagnosed that he suffered from a chronic pain syndrome and a narcotic dependence which would preclude a safe return to any form of work and required psychological support and ongoing pain and drug management.
20 Mr Kossmann, Orthopaedic Surgeon, assessed Mr Kuffer on 10 October 2013. After reviewing medical reports provided by Mr Johnson and Mr Chan together with the MRI scan dated 25 August 2013, he opined that Mr Kuffer appears to have an incomplete caudia equine syndrome with incontinence. He suggested further investigation by a neurologist, gastroenterologist or colorectal surgeon, possibly an EMG and further MRI. Mr Kossmann is of the opinion that Mr Kuffer has no work capacity.
21 Dr Symons, treating Psychiatrist, reported on 2 November 2012, that he began treating Mr Kuffer in November 2001. He noted a psychiatric history of Attention Deficit Hyperactivity Disorder, depression and periods of alcoholism. Dr Symons reported that Mr Kuffer had been diagnosed as suffering from ADHD from the age of 15, was prescribed Ritalin, and had experienced symptoms associated with this condition including; very poor concentration, disruptive behaviour, emotional overactivity, easily stressed and agitated, uncontrollable outbursts and impulsivity. Dr Symons noted that subsequent to the motor vehicle accident on 10 August 2010 Mr Kuffer had a very positive attitude about participating in rehabilitation but was feeling distressed and frustrated as a result of his inability to support his family and engage in family activities. Following a consultation on 2 November 2012, Dr Symons noted that Mr Kuffer was experiencing a psychological reaction to his injuries and their effect on him which has also exacerbated his pre-existing ADHD. He noted a considerable amount of emotional distress, degree of depression, lack of interest and motivation, frustration and hopelessness. He did not believe Mr Kuffer was displaying abnormal illness behaviour. He noted that he was an active member of the ‘Mens Shed’ working on woodwork projects with the use of hand held tools which would explain the notation by Dr Barton who had assessed him on behalf of the defendant on 15 May 2012 regarding the state of his hands. Dr Symons reported that Mr Kuffer expressed to him a strong desire to return to work but was unable to do so because of his pain exacerbated by his emotional state. Dr Symons suggested that he be engaged with vocational rehabilitation to undergo suitable re-training and explore possible work options. Amongst other treatment recommendations he suggested access to a formal pain management program.
22 Dr Gill, Consultant Psychiatrist, assessed Mr Kuffer on 31 October 2013. He reported that since January 2012, Mr Kuffer has experienced intermittent depressed mood and loss of motivation and was experiencing chronic pain problems, deterioration in his vision and hearing, urinary incontinence and sleep disruption with sleep apnoea, fluctuating depression, severe weight gain, difficulties with concentration and memory and irritability. He also noted that he is dependent upon narcotic analgesic medications for pain relief. Dr Gill diagnosed Mr Kuffer as suffering from ADHD with an adjustment disorder and fluctuating depressed mood as a consequence of the effects of the injury on 10 August 2010. He does not believe Mr Kuffer has the capacity to perform any work on a permanent, sustained, consistent or reliable basis.
23 The defendant tendered medical reports from Mr Battlay, General Surgeon, Mr O’Brien, Orthopaedic Surgeon, Dr Barton, Occupational Physician, Mr Shannon, Orthopaedic Surgeon and Dr Jager, Consultant Psychiatrist. Mr Battlay assessed Mr Kuffer on 5 October 2010. He noted the results of the MRI scan dated 24 August 2010 but commented that Mr Kuffer was exhibiting a degree of illness behaviour and that psychological factors were contributing to his condition. Mr O’Brien assessed Mr Kuffer on 28 April 2011 and 22 January 2014 and provided supplementary reports following those examinations. On the basis of his initial assessment he reported that Mr Kuffer was presenting with signs of gross illness behaviour as all movements were accompanied by extensive groaning and was unable to weight bear without use of a stick. Despite viewing the MRI scan report of 18 February 2011 and lumbar myelogram 24 March 2011 he was unable to confirm the presence of major organic pathology. In a supplementary report dated 17 August 2011, he referred to a report from Dr Jager dated 6 July 2011 referring to a surveillance report dated 1 April 2011 (which was not tendered) which in his opinion indicated a substantial non organic component to Mr Kuffer’s presentation. After being provided with reports from Mr Johnson, Mr Cunningham (not tendered) and Dr Lewis, Mr O’Brien provided a further supplementary report dated 5 October 2011 where he noted that a complaint of back and leg pain aggravated by lumbar extension is a specific symptom of spinal canal stenosis and that investigations do indicate this condition. Mr O’Brien supported Mr Johnson’s view that surgery was indicated. At re-examination on 22 January 2014, he obtained a history from Mr Kuffer that he continued to have back and leg pain following surgery and used a stick and an electric scooter over the past 12 months to mobilise. Mr Kuffer told him that he experiences constant low back pain radiating into his legs and feet together with pain in both hips and groin, numbness in the legs above the knees and into the calves and feet and pins and needles in the toes with the numbness aggravated by standing or sitting longer than 15 minutes and the pain aggravated by any activity.
24 Mr O’Brien obtained a history from Mr Kuffer that he was not capable of the activities of daily living, was unable to dress himself, experienced urinary incontinence for which he was due to see a neurologist, was impotent, had difficulty walking and could not walk without aids but was able to drive short distances. Mr O’Brien noted that the signs exhibited were quite subjective and he could find no objective signs to explain his reported urinary incontinence and impotence. He opined that he could not identify specific pathology and that Mr Kuffer presents with chronic non-specific postoperative back and leg pain complicated by psychosocial factors. He regarded Mr Kuffer as presenting with signs of illness behaviour with his reported restrictions suggesting marked incapacity not assisted by his extensive medication intake. Mr O’Brien does not consider him fit for the suggested suitable employment options as set out in the vocational assessment report of Ayres Management. In his supplementary report dated 16 April 2014, following his viewing of the surveillance material dated 21 July 2012, Mr O’Brien commented that the activities depicted was completely contrary to Mr Kuffer’s presentation to him in January 2014. Notwithstanding the time difference between the surveillance film and his re-examination, he opined that it appeared Mr Kuffer was “far more physically active” than demonstrated on examination. On the basis of the physical activity on the surveillance material, he opined that Mr Kuffer would be capable of undertaking employment. He stated that the job options in the vocational assessment report would appear to relate to light physical duties noting that “one cannot specifically confirm whether this patient could undertake full-time employment on the basis of a relatively short period of surveillance material available”.
25 Dr Barton, examined Mr Kuffer on 15 May 2012 and provided a supplementary report dated 17 August 2012 after viewing the surveillance DVD taken on 21 July 2012. Dr Barton reported that he was told by Mr Kuffer that his condition had not improved following surgery and that he continued to experience extensive and severe back pain aggravated by sitting, standing, bending, twisting and any physical activity. Mr Kuffer complained of experiencing pain extending into both groins, down the front of the thighs and below the knees into the ankle and toes. Dr Barton reported that Mr Kuffer demonstrated illness behaviour during the consultation and complained of pain and grimaced extensively. He also reported that Mr Kuffer’s hands were significantly calloused and roughened with the explanation being given that he works on fishing sinkers in his garage. On the basis of a history being given to him by Mr Kuffer that his vehicle was “pushed 100 metres up the road” as a result of the collision, Dr Barton questioned Mr Kuffer’s credibility at the outset. He stated that in his medical opinion “it is medically implausible that a vehicle could be hit from behind by another vehicle and moved 100 metres further forward with sufficient damage to stop the vehicle from subsequently being driven”. Dr Barton opined that Mr Kuffer has adopted a disabled role and was intent on never working again. He also noted that his dose of narcotic analgesic and Lyrica was inappropriate and was reflective of his overall pain behaviour problem. Dr Barton was of the opinion at that stage that Mr Kuffer would remain incapacitated indefinitely whilst he maintained a sick role and was taking high doses of narcotic analgesics.
26 Dr Barton provided a supplementary report dated 17 August 2012 following being provided with and viewing the surveillance DVD taken on 21 July 2012. In his opinion the activities of Mr Kuffer depicted on the DVD “casts considerable doubt on the worker’s claim to be incapacitated”. He also noted the vocational assessment report of Ayres Management dated 30 April 2012 and expressed the opinion that Mr Kuffer probably had a capacity for his pre-injury duties and a capacity for suitable work without any particular restrictions.
27 Mr Shannon, examined Mr Kuffer on 7 November 2013 for the purpose of providing an impairment assessment. Apart from similar complaints of pain as given to other doctors, Mr Kuffer also complained of being incontinent and told him that he had worn an incontinent pad on the day prior to the examination and also provided a history of having erectile dysfunction. He told Mr Shannon that he was taking Lyrica, Panadol Osteo, Nexium, Endone 5 mg 8 times per day, 120 mg of OxyContin, Durogesic patches and sleeping patches, all prescribed by Dr Tilak. Mr Shannon diagnosed that he suffers from mechanical back pain associated with lumbar disc degeneration and spinal canal stenosis, without objective evidence of radiculopathy. He opined that Mr Kuffer suffers from a pain syndrome with a significant element of abnormal illness behaviour. He commented that on the available evidence he does not have a caudia equine lesion and assessed him as having a 5% whole person impairment according to the AMA Guide 4th Edition.
28 Dr Jager assessed Mr Kuffer on 14 June 2011 and 5 December 2013. At his first consultation he was provided with a surveillance report dated 1 April 2011 relating to surveillance apparently conducted in March 2010 which was not provided to the court. Dr Jager formed the opinion at that time that Mr Kuffer had ADHD without ant psychiatric injury. Prior to his second assessment he was provided with reports from Dr Symons dated 2 November 2012 and the vocational assessment report from Ayres Management dated 30 April 2012. On that date Mr Kuffer told him that he was taking Pregabalin, Panadol Osteo, Durogesic Patches, Oxycontin, Endone, Nexium, Tramadol, Temazepam and 20-40 mg of Dexamphetamine. He opined that Mr Kuffer does not suffer from and diagnosable psychiatric condition as a consequence of the injury on 10 August 2010 and has the capacity to undertake the various duties and occupations listed in the vocational assessment report.
29 A report from Probe Group Pty Ltd relating to surveillance in March 2012 was tendered by the defendant. The report indicates that surveillance was conducted over a period of 15 hours on 13, 14 and 16 March with video/DVD footage obtained of approximately 8 minutes duration. A report from Neil Oates & Associates relating to surveillance on 21 July 2012 was also tendered.
30 The report from Ayres Management was prepared following an interview with Mr Kuffer on 24 April 2012. The author of the report, Ms Seneviratne, noted that Mr Kuffer has significant transferable skills and had expressed interest in returning to work as a long distance truck driver or transporting specimens and blood products. She identified suitable sedentary/light employment options as being; Car Rental Sales Assistant, Order Clerk, Dispatching/Receiving Clerk, Inventory Clerk, General Clerk, Stock Clerk, Sales Clerk and Betting Agency Counter Clerk. She noted that his stated physical tolerances which included; limited lifting and bending ability, standing/sitting for no longer than 10 minutes, walking no longer than 10 minutes with reliance on crutches, difficulties with reaching overhead, restricted ability to squat/kneel, restricted ability to push or pull, limited ability to drive up to 10-15 minutes and restrictions on his activities of daily living limits his ability to perform suitable employment to sedentary positions only where he can avoid significant manual handling and is able to alternate posture on a regular basis. She noted that he has sufficient computer skills which would assist him with in-house training/computer packages which could be accessed and learnt on the job. She also noted that there was no training/re-training identified as suitable. Ms Seneviratne also noted that when making her assessment she only relied on information given to her by Mr Kuffer and did not have access to any medical opinion.
31 Mr Kuffer tendered two reports from Mr Hartley, Senior Rehabilitation Consultant, from The O.R Group dated 14 September 2013 and 6 October 2013. Mr Hartley noted that contrary to the assertion made by Ms Seneviratne, Mr Kuffer has only limited computer skills, poor keyboarding skills, no skills relating to Microsoft applications and has only used minimal work based computer skills restricted to brief resident notations when working in aged care. Mr Hartley noted that Mr Kuffer has a varied work history in unskilled or semi skilled roles and is restricted because of physical limitations. He stated that Mr Kuffer would be unable to work in any job in an unrestricted manner and requires re-training to enhance his skills which at the time of his assessment would be difficult because of his stated memory and concentration issues, stated pain levels and medication regime.
32 Mr Hartley consider the suggested suitable employment options and expressed the opinion that none were suitable options due to his lack of skills and experience and reported pain and physical limitations.
Conclusion
33 Mr Kuffer sustained a significant injury to his lumbar spine as a consequence of the motor vehicle accident on 10 August 2010 requiring two surgical procedures. The most recent MRI Scan performed on 25 August 2013 indicates post operative changes at L4-5 with some facet joint arthropathy at L4-5 with moderate right sided foraminal narrowing and mild left foraminal narrowing from a disc bulge and facet joint disease. However, there is little doubt that he is exhibiting signs consistent with a chronic pain syndrome and abnormal illness behaviour. He gave evidence in periods of 45 minutes, 40 minutes and 65 minutes, standing in the witness box throughout with the aid of walking sticks on which to lean. The DVD surveillance evidence indicates that he has a much greater ability to stand, walk, bend and stretch above head level than he attempted to portray when giving evidence. I am surprised that his lawyers did not see fit to obtain a copy of the DVD surveillance material prior to hearing and forward it to Dr Rosenblum, Dr Tilak, Dr Symons or the medico-legal experts for comment. This was due to oversight, neglect or a forensic decision not to do so. Mr Horner was unable to provide an explanation. The lawyers were obviously aware of its existence as it was referred to and relied on by Allianz in their Notice dated 7 September 2012 justifying the termination of weekly payments and medical treatment expenses on 20 October 2012. As a result, I am left to speculate to some extent, on whether the surveillance material would have altered their opinions concerning the nature and extent of his condition and his capacity or incapacity to return to work and/or return to work in suitable employment. It would have also been of some benefit to have been provided with a report from his treating general practitioner, an up to date report from his treating psychiatrist and a report from the Urologist to whom he was referred to determine whether his complaints of urinary incontinence are physically based and as a consequence of the back injury.
34 Mr Kuffer’s evidence concerning the symptoms he experiences and his physical limitations together with his presentation in the witness box and his complaints to doctors was an attempt by him to paint a picture of being extremely disabled. His evidence that he uses a stick or walking sticks as a “comfort aid” in unfamiliar surroundings may be true and is most likely part and parcel of the abnormal illness behaviour he demonstrates and has demonstrated shortly after sustaining injury as reported by Mr Johnson, Mr O’Brien, Dr Lewis and Mr Battlay. I find that Mr Kuffer is greatly exaggerating the extent of his disability and discomfort having regards to the objective findings found on the medical examinations conducted and the surveillance material obtained. I make this finding acknowledging the limitations that should be placed on surveillance material of such short compass and which occurred nearly two years ago.
35 I find that Mr Kuffer suffers from symptoms associated with an aggravation of lumbar disc degeneration and spinal canal stenosis, a pain syndrome with abnormal illness behaviour as diagnosed by Dr Lewis, Mr O’Brien and Mr Shannon. I also accept and prefer the opinions of his treating psychiatrist, Dr Symons and Dr Gill that he suffers from symptoms of depression categorised by Dr Gill as an adjustment disorder as a consequence of the back injury sustained on 10 August 2010. Importantly, Mr Kuffer also has a significant narcotic dependence which needs to be addressed if he is to be able to return to any form of suitable employment. He also needs to participate in a structured pain management program as suggested by Dr Lewis and Dr Symons. Even after viewing the “relatively short period” of surveillance material and it being 18 months prior to his last examination, Mr O’Brien was still unsure whether Mr Kuffer could undertake full time employment and believed his prognosis poor notwithstanding that he then opined that he would have the capacity to undertake the suggested suitable employment as outlined by Ms Seneviratne.
36 At present, I do not consider Mr Kuffer has any capacity to return to work in suitable employment. It is unlikely that he will have a realistic capacity for suitable employment until he has undergone a pain management program and has significantly reduced his drugs of dependence. If successful, he should be provided with appropriate rehabilitation/re-training to enable him to return to the workforce in suitable employment.
37 I find that Mr Kuffer remains incapacitated for his pre-injury employment and suitable employment at this stage. I find that he has no current work capacity which is likely to last indefinitely, that is, until he successfully participates in and completes a pain management program, reduces his narcotic dependence and undertakes an appropriate rehabilitation/re-training program. He requires ongoing medical treatment in relation to his back injury, psychological condition and pain disorder. Accordingly, he is entitled to receive weekly payments of compensation and reasonable medical and the like expenses from 20 October 2012 in accordance with the provisions of the Accident Compensation Act 1985.
38 The notices of termination dated 7 and 11 September 2012 are set aside.
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