IN THE MAGISTRATES’ COURT OF VICTORIA 
AT LATROBE VALLEY
WORKCOVER DIVISION

Case No. J11872975  

JOHN FILOMENO	Plaintiff	
		
v   		
		
LIPSKA PTY LTD	Defendant	

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MAGISTRATE:	S GARNETT	
WHERE HELD:	LATROBE VALLEY	
DATE OF HEARING:	5 OCTOBER 2020 – via the OMC	
DATE OF DECISION:	29 OCTOBER 2020 	
CASE MAY BE CITED AS:	FILOMENO v LIPSKA	
MEDIUM NEUTRAL CITATION:	[2020] VMC 025	

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CATCHWORDS – Workplace Injury Rehabilitation and Compensation Act 2013 – 130-week Termination of weekly payments of compensation – Back injury and psychiatric injury/Pain Syndrome – Surveillance footage casts significant doubt on the veracity of the Plaintiff. 
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APPEARANCES:
	COUNSEL	SOLICITORS	
For the Plaintiff	Ms Fudim	Zaparas Lawyers	
			
For the Defendant	Ms Kusiak	Minter Ellison	

HIS HONOUR:
1	This matter proceeded by way of an Online Hearing on 5 October 2020. Mr Filomeno gave evidence and the parties tendered Court Books amounting to over 500 pages consisting of; Court documents, Claim forms, Claims Agent letters, Medical reports from treating doctors and Health records, reports from Medico-legal experts, Vocational reports, Surveillance film and Investigation reports.
2	The issue for determination is whether Mr Filomeno has a ‘current work capacity’ or has ‘no current work capacity’ which is or is not likely to continue indefinitely. The defendant submitted that Mr Filomeno has the capacity to be employed as an Inventory Clerk or Asset Protection Officer as detailed in reports tendered by them and authored by Ms Ash, Occupational Therapist/Injury Management Consultant at The Recovre Group which followed a Transferable Skills Analysis by Ms Grant, Vocational Advisor at Nabenet undertaken on 23 June 2017.
3	Ms Grant reported on 27 June 2017 that Mr Filomeno had completed Form 4 education, worked for Murray Goulburn as a Plant Operator/Monitor for 20 years and then worked as a Glazier for 12 months with the defendant. She noted that he had fluent English verbal communication skills, a reported low level of reading, writing and numeracy skills and no computer skills. Mr Filomeno told her that he has no formal qualifications but does have a heavy combination drivers’ licence and forklift licence and is motivated to return to work. In the initial report of Ms Ash dated 1 May 2019, she reported that the role of an Inventory Clerk is with a manufacturing business located in Leongatha where Mr Filomena resides. She stated that one staff member performs the role in what is a large manufacturing and processing plant. The Inventory Clerk role involves data-processing of inward goods as well as general administration tasks including ordering supplies, chasing late deliveries and contacting customers and suppliers. She noted that inwards goods are receipted within the computer system with clerks using various computer applications including Excel Spreadsheets with the work being performed in either a seated or standing position. She reported that Inventory Clerks are also required to attend meetings in other areas of the plant and perform filing, archiving duties and checking stock levels. These duties require walking, stair climbing, sitting or standing and lifting of binders weighing a maximum of 2-3kg. Ms Ash noted that Inventory Clerks require basic computer skills including email, internet, data entry processes and basic excel use and that on the job training is provided.
4	A further report was prepared by Ms Ash dated 15 July 2020 after she was provided with the medical reports of Dr Yong, Assoc Prof Varma and Dr Bloom. She noted that the suggested suitable employment as an Inventory Clerk was supported by Dr Yong and Dr Bloom. Ms Ash conducted a further worksite assessment of an Asset Protection Officer with a local Council based in Drouin which is a 50-minute drive from Leongatha. She stated that the role requires workers to visually inspect Council assets including; footpaths, crossways and storm water drains to determine whether they have been damaged during planned construction and related works. She said that Asset Protection Officers are required to visit the locations, take photos and complete basic checklist paperwork and then return to the office to upload the photos in the database and enter notes. She noted that there are no manual handling demands although bending may be required to take measurements. When at the office, alternation between sitting and standing and basic computer knowledge is required with specific tasks taught on the job. She reported that the driving requirement generally does not exceed 75 minutes per trip although several trips may be made each day and when onsite the Officer may be required to sweep areas or remove small piles of debris to obtain accurate photos. Ms Ash noted that there are no formal educational requirements for the role, but the person must be well presented, have good verbal communication skills and basic computer skills that are taught on the job.
5	Mr Filomeno is 54 years of age having been born on 15 February 1966. He was employed as a Glazier with the defendant from August 2014. On 23 June 2015, he sustained injuries to his back and a consequential psychiatric condition when he fell whilst getting out of a work van. He lodged a Workcover claim on 30 July 2015 for which liability was accepted by Allianz. Mr Filomeno ceased work on 29 July 2015 and has remained off work since that date and in receipt of weekly payments of compensation until 27 May 2018 on which date his payments were terminated as a consequence of a Notice of Termination dated 19 February 2018.
6	Mr Filomeno gave evidence that he ceased work on 29 July 2015 because he was experiencing lower back and left leg pain. He told the court that he has undergone various forms of medical treatment including surgery in November 2016 and it has been suggested that he may require further surgery. Mr Filomeno gave evidence that he suffers from anxiety and depression and is prescribed medication for this condition. He said that his pain level is generally between 6-7/10 but in the morning, it is more like 7-8/10 until he takes his medication. He said that activities such as walking, and bending increases his pain level but that he does have “good and bad days”. He told the court that he doubted that he could return to work and that if he did, he would not be able to work for too long as he experiences a very sore low back and leg pain. He said that he takes numerous medications and continues to be treated by Dr Kualtunge, General Practitioner, Dr Mittal, Pain Physician and Dr Agrawal, Psychiatrist.
7	During cross examination, Mr Filomeno told the court that he did not consider the surgery he underwent in November 2016 improved his condition. He told the court that as he has trouble when walking, he uses a walking stick. He said he has difficulty in bending, and this has remained the same since the incident at work. During cross examination, Mr Filomeno was shown surveillance footage taken on 2 November 2017, 4 November 2017 and 11 June 2020. The surveillance film taken on 2 November 2017 at a shopping centre indicated Mr Filomeno walking without apparent restriction and without the aid of a walking stick and getting into his car whilst carrying lawnmower blades. The initial surveillance film taken on 4 November 2017 between 10.46 a.m. and 11.20 a.m. depicts Mr Filomena attending a property with two others cutting tree branches with a chainsaw whilst up the ladder and on the ground. It depicts him ascending and descending the ladder on numerous occasions whilst carrying rope and a chainsaw and carrying the ladder from one location to another. Mr Filomena undertakes these activities for a prolonged period and without apparent restriction. The film also shows him carrying tree branches and putting them onto the rear of a tray truck. He performs all these activities for a duration of 34 minutes without having a rest break. Mr Filomena told the court that he was in pain whilst performing these activities but agreed that the surveillance footage did not depict any sign of him experiencing limitation of movement.
8	The second period of surveillance footage on 4 November 2017 commenced at 1:55 PM and continued for a period of 35 minutes. It showed him driving the tray truck, returning to the rental address, cutting branches with a chainsaw, loading branches onto the tray of the truck, bending to pick up branches, lifting a large branch onto the back of the truck with his arms outstretched above his head, tying branches on the tray with a rope and holding the chainsaw with his left hand whilst dragging branches with his right hand. It appeared that he performed all these tasks without any apparent restriction. Mr Filomeno conceded that these activities involved frequent bending, lifting and twisting but told the court that he “pushed through the pain” in order to complete these tasks. He agreed that in order to do so his pain was not “severe”.
9	The third period of surveillance on 4 November 2017 commenced at 2.51 p.m. and continued for a period of 15 minutes. It once again showed Mr Filomeno lifting and loading branches onto the truck, using the chainsaw to cut smaller branches and then walking along the roof of the house sweeping debris with a broom. It also showed him climbing up and down a ladder which was leaning against the guttering, cleaning the gutter and then sweeping the ground with the broom. He appeared to perform these tasks without apparent restriction. The final surveillance footage on 4 November at 3.52 p.m. lasted for a period of 16 minutes and showed him sweeping with a rake, bending over a fence and then using a broom to sweep.
10	Mr Filomeno agreed he attended the house and performed the various duties depicted in the video from approximately 10.46 a.m. to 4.08 p.m. on 4 November 2017. He agreed that the footage did not depict him limping at any stage, have difficulty walking or demonstrate any obvious signs that he was experiencing back pain. However, he told the court that he did experience back pain and the medication he was taking at the time enabled him to perform those tasks. Mr Filomeno was referred to the symptoms he complained of to Dr Agrawal, Psychiatrist, when he saw him on 24 October 2017, 11 days prior to the surveillance film. The report from Dr Agrawal dated 22 September 2020 noted; “He continued feeling snappy, tired, depressed and having thoughts of having had enough but did not think about suicide. He continued to have pain complaints. He kept changing postures and was walking in the room off and on. He said he was unable to go out for shopping and unable to do the same job he was doing before. He also stated he could not lift heavy objects and was unable to mow even the lawn. However, he was able to dress himself with a lot of difficulties, able to cook food for himself, able to shower and walked less than 500 m with some difficulties. During the assessment, he continued to show signs of pain in the form of walking in the examination room or sitting on the right side of his buttocks. Mr Filomeno conceded that the history he gave to Agrawal was incorrect. Dr Agrawal also reported that when he saw Mr Filomeno on 14 November 2017 (10 days after the surveillance footage was taken): “I observed him walking with a limp and putting more weight on the right side of his hip. He showed no improvement in his mental state”.
11	Mr Filomeno was also referred to his attendance with Professor Teddy, Neurosurgeon on 27 October 2017 (8 days prior to the surveillance film). Mr Filomeno told Professor Teddy that; “at present, his low back pain is very considerably worse than his left leg pain”. Professor Teddy reported that; “on examination he exhibited a great deal of pain related behaviour and walked with a crouched posture and concerned about pain over an apparent lump in his left flank”. Mr Filomeno agreed in cross examination that he did not demonstrate any crouched posture whilst performing the activities as shown on the surveillance film 8 days later, on 4 November.
12	Mr Filomeno was cross-examined concerning the history he gave to Dr Slesenger, Occupational Physician, who assessed him on behalf of his lawyers on 24 April 2019. Mr Filomeno told Dr Slesenger that; he assisted a fellow worker to chop down a tree in January 2018. He advised that he used a light chainsaw and a broom (he climbed up a ladder onto a roof). He advised that after these activities, he had an increase in pain and was unable to leave his house for up to 3-4 days. He advised that this was a one-off activity as he was required to clear the tree on an investment property. Mr Filomeno told the court that this was a correct account.
13	Mr Filomeno was also cross-examined about the history he gave to Dr Bloom, Occupational & Environmental Physician, who examined him on behalf of the defendant’s lawyers on 29 June 2020. Dr Bloom was provided with a surveillance report and the accompanying DVD footage from 2 & 4 November 2017. Dr Bloom reported; “Today I again asked Mr Filomeno if he had been able to engage in any physically demanding activities after his surgical procedure, and alluded to the surveillance video footage that depicted him working in very physically demanding tasks and circumstances over a two-day period in November 2017, some 12 months following his back surgery. Mr Filomeno’ s response was that he does recall helping out with clearing branches of a tree that were interfering with a rental property of his. He said that he was only active over a period of a maximum of 30 minutes, with breaks within those 30 minutes, and this activity only occurred on one day. He said clearly that following that 30 minutes of activity he was unable to move for a week, and it took him a whole week to recover”. Mr Filomeno told the court that he could not recall telling Dr Bloom that he was only active over a period of 30 minutes and had breaks during that period. He also said he could not recall whether he was unable to move for a week after and that it took him a whole week to recover. Dr Bloom also reported that Mr Filomeno told him in relation to the surveillance footage that; family members had undertaken the felling of the tree branches, that he had only helped with the small branches by putting them into the utility vehicle, and that he could only sustain these activities for 2-3 minutes at a time, being active in this way for no more than a total of 30 minutes on one day only. He said that it took him a whole week to recover from that 30 minutes of activity because “I couldn’t walk”. Mr Filomeno told the court that he could not remember telling Dr Bloom that he was only active for 30 minutes and had breaks in between. He conceded that he did tell Dr Bloom that he only helped with the small branches for a maximum of 30 minutes and that the others cut the branches and agreed that he had used the chainsaw but he said he only “cut the little ones”. Mr Filomeno also conceded that he did in fact do this work for approximately five hours.
14	Mr Filomeno was also referred to his consultations with Dr Kualtunge, General Practitioner, on the 1st and 15th of November 2017, which indicated an absence of any complaint of an increase in back symptoms following his tree lopping activities on 4 November. Mr Filomeno told the court that he thought he had told his doctor. He disputed that he has exaggerated the severity of his symptoms to doctors and the court when giving evidence but agreed with the proposition that the surveillance film demonstrates that he does have a capacity to work.
15	Prior to Mr Filomeno being shown the final surveillance footage, which was taken on 11 June 2020, he told the court that he had trouble when walking and therefore used a walking stick to assist him. The film depicted him at a shopping centre walking freely whilst carrying shopping without the aid of a walking stick and getting into his car without any sign of restriction. He conceded that it did not appear in the film that he had any difficulty walking and it did not demonstrate any limp, but he told the court that he was experiencing back pain at the time.
16	During re-examination, Mr Filomeno told the court that he would not be able to perform the tree lopping activities as depicted in the film now because his condition has deteriorated, and he may require further surgery. He also told the court that since that time his medication has been increased. He also told the court that following the tree lopping activities he was housebound for several days; he could not apply any pressure to his left leg or back and had to use a cold pack to reduce swelling. He also said that he did not believe he could return to work because his back would swell up and that his capacity to walk varies which requires him to use a walking stick 70% to 80% of the time to relieve the pressure on his back.
Medical Evidence
17	The parties tendered over 400 pages of medical material which included reports from treating doctors since 2015, numerous radiology reports, medico-legal reports and vocational material. I do not intend to provide details of all these reports but rather will summarise the contents of those reports relevant to the issues to be determined.
18	 Dr Kualtunge in a report dated 10 May 2019, diagnosed that Mr Filomena suffers from; progressive chronic and mechanical low back pain and bilateral sciatica pain; chronic mechanical neck pain; spondylosis and a chronic adjustment disorder with depressive symptoms. Dr Kualtunge noted that Mr Filomeno had been referred to a pain specialist, Dr Mittal, a neurosurgeon and spinal surgeon Dr Aliashkevich and that he had undergone a hemilaminectomy at L4/5 and L5/S1, discectomy and interspinous segmental fixation in November 2016. He also reported that Mr Filomeno had an anterior myocardial infarction and stent inserted on his left coronary artery in April 2017. Dr Kualtunge also reported that Mr Filomeno was referred to a Psychiatrist, Dr Agrawal and Orthopaedic Surgeon, Mr Thomas in June 2017 and a Psychologist, Ms Drent in September 2017. He noted that Mr Filomeno underwent a ketamine infusion for the reduction of opioid medications in May 2018 and had a left L5/S1 facet injection in March 2019. Although he was provided with the surveillance footage, he made no comment about it.
19	Dr Kulatunge stated that Mr Filomeno continued to present with depressive symptoms in the context of an ongoing pain syndrome, that he continues to experience back pain which radiates to his left leg, has pain in the neck and numbness of his fingers, is unable to stand for more than 15 minutes or to sit for more than 20 minutes at a time as he experiences pain. In a report dated 17 July 2020, Dr Kulatunge stated that Mr Filomeno continues to suffer from lower back pain which radiates to his left leg, pain in the neck and numbness of the fingers and struggles to do many domestic activities such as cleaning. He noted that Mr Filomeno is unable to stand or sit for longer than 15 to 20 minutes at a time and struggles to walk further than approximately 150 to 200 m as a result of experiencing pain. He reported that Mr Filomeno is prescribed numerous medications which include; Clonidine 50mcg daily, Duragesic 25 patch every 3 days, Lyrica 225mg, Lexapro 20mg tablet daily, Valdoxan 50mg daily and Seroquel 100mg daily. Dr Kulatunge opined that Mr Filomeno does not have the capacity to work on a consistent and reliable basis as a consequence of his mental and physical injuries due to the fact that he is unable to stand or sit for more than 15 minutes, is unable to walk more than 200 metres at a length and that his condition may further deteriorate in the future.
20	Dr Allashkevich, Neurosurgeon and Spinal Surgeon, in a Postoperative Summary Report dated 9 November 2016, noted that Mr Filomena underwent a decompressive explorative hemilaminectomy L4/5 and L5/S1 and lateral recess decompression, Interspinous segmental fixation (AXLE), postero-lateral bone graft L4/5, rhizolysis, epidural fat graft on that date. Dr Allashkevich was hopeful that Mr Filomeno would obtain good symptomatic benefit from the operation and would be able to return to his normal activities within a few weeks.
21	Dr Mittal, Pain Physician & Specialist Anaesthetist reported on 23 July 2020 that Mr Filomeno was first seen on 18 September 2015 on referral from Dr Kulatunge. Dr Mittal stated that the majority of Mr Filomeno’s pain is localised in the left lower back and the left lower limb which has been consistent since his initial injury and has not altered despite surgical intervention. He noted that Mr Filomeno has trialled several medications which have been either non-beneficial or have been limited by significant side-effects. He noted that Mr Filomeno has been provided with the option of repeat surgery in the form of an L5/S1 fusion by Mr Etherington or a spinal cord stimulation, both of which he has declined. Dr Mittal diagnosed that Mr Filomeno is suffering from; discogenic disease at the level of L4/5 and L5/S1; chronic neuropathic pain in the left lower limb secondary to the left L5 nerve root compression; facetogenic pain particularly at the L5/S1 level on the left-hand side; left sacroiliac joint arthropathy	/inflammation; failed back surgery syndrome; exacerbation of pre-existing osteoarthritis in his left hip; chronic bilateral knee pain, secondary to abnormal gait pattern and a major depressive disorder and anxiety.
22	In relation to employability, Dr Mittal stated that in light of his age, limited transferable skills, occupational experience and lower back injury as well as his psychiatric condition and its consequences, Mr Filomeno does not have a current work capacity to perform work on a consistent and reliable basis. He noted that the degree of his pain has always remained high despite several interventions and treatments and this has had a significant impact on his mental state. He noted that his background pain is of high intensity and he has a limited function on a day-to-day basis. In relation to the suggested suitable employment, that being of an Inventory Clerk, he stated; this is essentially a desk job working at the computer with provision for the worker to sit or stand or alternate at will. It requires use of bilateral hands full keyboarding and mouse tasks with periods of data entry not exceeding 60 minutes and more typically in the vicinity of 30 minutes before a change of task arises. In his opinion, Mr Filomeno does not have the capacity to be able to sit or stand for more than 10 minutes at a time and if he were to stand at a stand-up desk, he would require a gait aid to be able to have adequate balance and in that context would not be able to utilise bilateral upper limbs to engage in computer tasks. Additionally, given the severity of his baseline pain, he does not believe that Mr Filomeno has the capacity to be able to concentrate consistently on a task that requires data entry and needs to be performed with a certain level of accuracy and concentration. Furthermore, he noted that Mr Filomeno has specific physical limitations preventing him from working being; difficulty with prolonged sitting, standing and walking for more than 10 minutes; difficulty with forward bending, kneeling, squatting, crouching, pushing or pulling activities; difficulty lifting weights greater than 2-3kg and difficulty climbing up or down stairs or walking on uneven ground. In his opinion, Mr Filomeno’s incapacity is likely to continue an indefinite basis for the foreseeable future. He considers his prognosis to be poor and that he is likely to suffer from chronic pain and resulting dysfunction well into the foreseeable future.
23	In a report dated 22 September 2020, Dr Agrawal, treating Psychiatrist opined that Mr Filomeno has a chronic adjustment disorder with depressive symptoms. He reported that during a consultation on 23 June 2020, Mr Filomeno was upset with constant invalidation with various independent examiners and the prolonged legal processes in relation to his entitlements. Mr Filomeno told him that he continued to suffer with pain and did not notice any change in the level of his pain and was seeing a psychologist on a regular basis. He told him that his mood remains low, with low motivation and energy but with some degree of hope. Dr Agrawal noted that Mr Filomeno was using a stick to support himself whilst walking and kept changing his posture due to pain during the assessment. He stated that Mr Filomeno requires ongoing psychiatric treatment involving regular assessment of his mental state and monitoring of his treatment by a psychiatrist and a psychologist with involvement for psychotherapy in managing his depression and chronic pain disorder issue. From a psychiatric viewpoint, he considers Mr Filomeno has no capacity to perform work on a consistent and reliable basis and that his mental health has been substantially affected by the ongoing pain syndrome and he has not made much progress with the existing medication and psychologist support.
24	A report of Ms Drent, Psychologist, dated 20 July 2020 was tendered. She noted that Mr Filomeno is receiving regular care from his general practitioner, psychiatrist, pain management specialist and psychologist. He told her that he is receiving medication for depression and anxiety and that his reported pain is persistent, affecting his sleep, activity and mood. She also noted that his treating pain management specialist has prescribed patches which have offered some reduction in the level of his pain, but he is concerned about the addictive implications of their continued use. Ms Drent reported that regular counselling is being provided with the aim of reducing his anxiety and distress and to increase his optimism and positive coping skills as well as problem-solving for matters that are linked to his stress. She opined that Mr Filomeno suffers from depression, anxiety, stress and symptoms of post-traumatic stress. Ms Drent reported that at a recent interview, Mr Filomeno told her of his fatigue, low motivation, low sense of self-worth, loneliness, boredom, worry and poor sleep hygiene. Apparently, Mr Filomeno told her that he would prefer to be employed, however his capacity to work regularly and reliably from his perspective and that of his treating doctors been reduced considerably and in order to return to the workforce he would require; a geographically available position that meets the requirements of his physical, educational, vocational skills restrictions as well as an effective, non-addictive pain management regime; an assessment of the impact of other medications prescribed; a planned retraining process and phased entry over some months; and, the ongoing availability of physiotherapy and aqua therapy.
25	Mr Etherington, Spinal Surgeon, provided a report dated 19 May 2019. Mr Etherington stated that from his point of view he was still trying to define the source(s) of Mr Filomeno’ s pain as well as trying to see if it is related to his previous surgery in November 2016. Mr Etherington considered the incident at work constituted an aggravation of pre-existing degenerative problems associated with chronic pain and accompanying mental health issues. He expected that because his symptoms have been persistent since June 2015, they will continue until the doctors have a better idea of where his pain is coming from. He noted that it is possible that he may require further surgery. Although Mr Etherington was provided with the surveillance footage, he made no comment on it.
26	Mr Awad, Neurosurgeon and Spinal Surgeon assessed Mr Filomena for medico-legal purposes on behalf of his lawyers on 2 November 2018 and 31 January 2020. In his initial report, he noted that Mr Filomeno has had various treatments for his back pain including extensive physiotherapy, extensive pain management including 24 nerve blocks, swimming and various other conservative treatments. He also noted that he underwent a spinal decompression and fixation by Mr Aliashkevich in November 2016 but that he continues to be in pain and remains symptomatic. Mr Filomeno told Dr Awad that he continues to suffer from constant lower back pain which is at best 5/10 and can be as bad as 8-9/10. He also told Dr Awad that he has poor sleep and has a walking time of 15 minutes at best and a sitting time of 10 to 15 minutes. He also complained of left buttock and right leg pain. Dr Awad diagnosed that Mr Filomeno aggravated a lumbar spondylosis condition which required surgical intervention. He opined that Mr Filomeno does not have the physical capacity to undertake his preinjury employment and will struggle to undertake alternative light duties as well. He recommended that he continue to participate in a pain management program. Mr Awad was provided with the surveillance footage taken in November 2017 and January 2018 (not produced in evidence) and stated that it did not alter his opinion on the basis that the events shown should be taken in context of what Mr Filomeno’s condition is on certain days, what medication he is taking beforehand and how aggravated his condition is at the time. He considered the surveillance footage to be relatively irrelevant.
27	In his second report dated 31 January 2020, he obtained a history from Mr Filomeno that he continued to experience ongoing constant low back pain which can vary anywhere between 6-9/10, that he continues to have poor broken sleep on a regular basis, a walking limitation of approximately 10 minutes and a sitting limitation of approximately 10 minutes. He also told Dr Awad that he continued to experience left buttock and left leg pain which can be as bad as 7/10 and experiences some altered symptoms in his right leg with some pain with his left leg being worse. Dr Awad reported that Mr Filomeno continued to receive pain management with Dr Mittal, uses fentanyl patches and takes oral medication in the form of escitalopram daily, quetiapine daily, mirtazapine daily and Lyrica daily, and also noted that he takes four different cardiac medications. Mr Filomeno told Dr Awad that he continues to live alone but gets assistance from a family nearby who help him with cleaning and washing. On examination, Dr Awad reported that Mr Filomeno continues to walk with an antalgic gait and requires the use of a walking aid. He noted that he continues to have a poor flexion to about 40 degrees and only a few degrees of extension. He noted that he continues to subjectively have some numbness in the L5 distribution on the left, but some degree on the right as well.
28	In relation to work capacity, Dr Awad opined that Mr Filomeno does not have the physical capacity to undertake his preinjury employment and realistically, taking into account his age, education, training, skills, work experience as well as the nature and severity of his lumbar spine condition, it is unlikely that he will be able to procure any alternative suitable employment and if he does, it would be unlikely that he would be able to carry out this consistently and reliably.
29	Mr Filomena tendered medicolegal reports from Dr Slesenger, Occupational Physician, dated 10 May 2019 and 27 July 2020. In preparing his initial report he had been provided with a voluminous number of treating doctors reports, radiological investigations, the Nabenet Transferable Skills Analysis dated 27 June 2017 and the surveillance material. Mr Filomeno told him that he can only dress slowly, generally spends his days indoors watching TV but does visit his family and performs light shopping activities. He also told Dr Slesenger that he is assisted in performing domestic tasks by his sister and friends, can perform light domestic duties and light gardening tasks but can only drive his automatic car for up to 5 to 10 minutes.
30	In relation to the tree lopping tasks depicted on the surveillance footage, he said that he used a light chainsaw and a broom and as a consequence he experienced an increase in pain and was unable to leave his house for up to 3 to 4 days. Mr Filomeno told Dr Slesenger that he left school during year 10 and then worked on the family farm and was then subsequently employed as a sales agent and then a factory hand at a Murray Goulburn milk factory 20 years. He also told Dr Slesenger that he does not have any computer skills, has poor literacy skills and has difficulty reading and writing.
31	On 24 April 2019, Dr Slesenger observed that Mr Filomeno; struggled to manoeuvre from the seated to a supine position; was able to dress and undress; was able to climb in and out of the chair and couch with some difficulty; and, manoeuvred around the consultation room either with a stick or using the furniture for stabilisation. Dr Slesenger also observed that Mr Filomeno used a stick in his right hand and walked with a pronounced left sided limp leaning heavily on the stick on the right side. After reviewing the numerous treating doctor reports, radiological investigations and surveillance material, he opined that Mr Filomeno suffers from a mechanical injury to the lumbar spine and an aggravation of degenerative disease for which he has undergone operative treatment together with chronic lower back pain with left leg radiating features without evidence of radiculopathy. He is also of the opinion that there is at least in part a psychogenic element to his presentation based on the clinical examination findings and the surveillance footage which indicates that his capacity is greater than that which is currently demonstrated and described. He recommends the following physical restrictions; no pushing, pulling, carrying or lifting over 5 kg; no prolonged static postures, no over shoulder reaching, no repetitive bending or twisting, no sustained forward reaching and no exposure to whole-body vibration. Dr Slesenger also stated that he has reservations whether Mr Filomeno is likely to be able to return to work on a consistent and reliable basis given the variable nature of his symptoms and based on his past employment history, his literacy skills, his lack of computer skills and qualifications, that he is unlikely to be able to return to work in a role for which he has suitable training and experience on a consistent and reliable basis.
32	On 18 July 2020, Mr Filomeno told Dr Slesenger that he continued to experience ongoing severe and constant pain in the lower back radiating into both legs with his back pain dull and stabbing in nature. He said that his pain is aggravated by cold weather and is partially relieved with lying in bed and relieved with medication. He also told Dr Slesenger that in recent months he had developed left leg weakness, that he continues to be prescribed numerous medications and receives ongoing psychological and psychiatric treatment. Dr Slesenger remained of the opinion that Mr Filomeno is unlikely to be able to return to work performing either suitable alternative duties or preinjury duties on a consistent and reliable basis and that none of the suggested suitable employments would be able to be performed by him on a consistent and reliable basis. He also stated that in view of evidence of radiculopathy (left leg wasting) that he may require further assessment and imaging. In relation to the specific suitable employment options as suggested by Ms Ash (Recovre) in her reports dated 1 May 2019 and 15 July 2020 he opined:
Inventory Clerk: that Mr Filomeno could not return to work in this role as he has no experience and does not have the necessary computer or literacy skills and would be unlikely to attend work consistently and reliably;
Asset Protection Officer: that Mr Filomeno could not return to work in this role as he does not have the computer skills or literacy skills necessary. In addition, having regard to the field tasks to be performed he would not have the driving or walking capacity and is unlikely to attend work consistently and reliably.
33	Dr Ingram, Consultant Psychiatrist, assessed Mr Filomeno on behalf of his lawyers on 10 March 2020. He opined that Mr Filomeno is suffering from a chronic adjustment disorder with depressed mood and anxiety. Although stating that his work limitations are largely related to his pain, Dr Ingram is also of the opinion that his psychological problems would make it difficult for him to work because of the effect they have on his motivation, concentration and energy levels. He supports the use of ongoing antidepressant medication and psychotherapy and is of the opinion that he would find it difficult to work full-time because of the effect his depression has on his motivation, concentration and energy levels.
34	The defendant tendered a number of initial reports and supplementary reports from: Dr Doig, General Orthopaedic & Trauma Surgeon, who examined Mr Filomeno on 26 October 2015, 7 January 2016, 16 May 2016, 20 December 2016 and 28 August 2017; Dr Bloom, Occupational & Environmental Physician, who assessed Mr Filomeno on 18 March 2019 and 29 June 2020; Dr Yong, Specialist Occupational Physician who examined Mr Filomeno on 15 April 2020; and Assoc Prof Varma, Consultant Psychiatrist, who assessed Mr Filomena on 6 May 2019 and 17 January 2020.
35	On his initial examination, Dr Doig diagnosed that Mr Filomeno was suffering from an intervertebral lumbosacral disc herniation with radiculopathy down the left leg because of the work incident. After his assessment of Mr Filomeno on 16 May 2016, he considered that he would be fit for alternative duties with physical restrictions, regular rest breaks and retraining in a permanently sedentary job. In his report dated 3 January 2017 he noted that Mr Filomeno underwent back surgery on 9 November 2016 and was unfit for any work. At his examination on 28 August 2017, he noted that Mr Filomeno had suffered a heart attack in April 2017 and then had a coronary stent insertion and at that stage he had no work capacity. In his report dated 6 December 2017 he concluded, after viewing the surveillance footage taken on 4 November 2017, that Mr Filomeno had a current work capacity for the jobs outlined in the Transferrable Skills Analysis Report dated June 2017 as he appeared to have no restrictions with respect to bending, twisting and squatting and did not appear to require breaks from long distance driving or sitting and standing.
36	On 18 March 2019, Dr Bloom obtained a history from Mr Filomeno that he had completed Year 10 at a Technical School, then undertook; labouring jobs as a farm hand for 2 years; casual work including fish processing and packing for 12 months; tractor work; delivery driver and servicing agent of cash registers for 7 years; machine operator for 20 years with Murray Goulburn; and then as a glazier with the defendant for 12 months. Mr Filomeno told Dr Bloom that in his opinion, surgery and the various forms of treatment he has undergone has not resulted in any improvement in his function whatsoever and that he remained very disabled. In particular, Dr Bloom reported that Mr Filomeno said; that since his injury he has been unable to do anything physical, that he is even unable to wash two dishes and that because of his back pain and left leg pain he has to sit down halfway through wheeling out his trash bin. Mr Filomeno also told him that despite the treatment he has been physically extremely limited and as a result of this he has been physically inactive. Mr Filomeno also told Dr Bloom that; he estimated his sitting tolerance to be between 5-10 minutes; a standing tolerance of between 10-15 minutes; he requires the aid of a walking stick all the time; is unable to squat or kneel; would require the use of a handrail for support if required to negotiate steps or stairs; is unable to climb a ladder; estimated his lifting and carrying tolerance to vary between 2 and 5kg.
37	Dr Bloom noted that Mr Filomeno has undergone various forms of treatment including; interventional injection treatments involving multiple medial branch blocks, sacroiliac joint injection and epidural injections in addition to the decompression surgery performed on his back. On examination, he reported that Mr Filomeno’s presentation was dominated by non-organic behavioural signs and that it was obvious to Dr Bloom that he was trying to demonstrate a state of total disability/invalid status. Dr Bloom opined that the radiological findings are consistent with multilevel degenerative disc disease and spondylosis but do not demonstrate a serious or persisting physical injury.
38	On reviewing the surveillance footage from 4 November 2017, Dr Bloom stated that his impression was of a man undertaking physically demanding labouring work in a vigorous and uninhibited/unrestricted manner and there was nothing in his level of activity or manner to suggest any restrictions or physical incapacity. Dr Bloom concluded that Mr Filomeno’s presentation was consistent with a chronic pain syndrome secondary to adverse psychosocial and motivational factors and that his back condition is no longer related to the claimed injury.
39	Dr Bloom opined that having regards to his age and the degenerative pathology in his back that Mr Filomeno should be able to work with the following restrictions: avoid prolonged static posture; limit repetitive bending and twisting; limit repetitive manual handling, pulling or pushing. He considered that Mr Filomeno would be fit for full-time suitable duties with these restrictions and physical tolerances in respect to sitting, standing, walking, driving, climbing, descending stairs and inclines, bending and lifting. In his supplementary report dated 1 May 2019, Dr Bloom considered the position as an Inventory Clerk to be suitable employment as the physical tasks required are essentially sedentary, with a sit/stand work station provided allowing for frequent changes in posture and no significant manual handling other than office files weighing no more than 3kg.
40	At a review assessment on 29 June 2020, Dr Bloom referred Mr Filomeno to the surveillance footage taken in November 2017. Mr Filomeno reportedly told Dr Bloom that he recalled helping out with clearing branches but that he was only active over a period of a maximum of 30 minutes with breaks in between and that following the activity he was unable to move for a week and it took him a whole week to recover. After overseeing a physical examination conducted by Dr Crompton, Registrar and trainee Occupational Physician and reviewing the radiological investigations, Dr Bloom concluded that Mr Filomeno is suffering from a chronic pain syndrome secondary to degenerative disc disease and spondylosis treated surgically with a poor outcome. He maintained his previous opinion that there is adequate evidence that Mr Filomeno’s presentation has been hugely impacted by adverse psychosocial/motivational factors. He further noted that he finds it difficult to take Mr Filomeno at face value based on the level of sustained activity as depicted in the surveillance footage. Notwithstanding that, Dr Bloom was prepared to accept that levels of pain and stiffness in chronic low back conditions do fluctuate, even on a day to day basis, the surveillance footage, in his opinion, is inconsistent with Mr Filomeno’s presentation and therefore cannot be ignored. Additionally, he noted that there has been a plethora of non-organic behavioural signs in his presentation and the level of activity demonstrated by Mr Filomeno on 4 November 2017 which puts his veracity in doubt. Dr Bloom conceded that if the activities performed by Mr Filomeno in November 2017 as depicted in the video surveillance represented an anomaly, and in reality he is significantly disabled, he is prepared to accept that his current condition continues to relate to the original injury, but doubts that it is the case. Dr Bloom opined that Mr Filomeno could undertake the duties of an Inventory Clerk as set out in the report of Ms Ash and the role of an Asset Protection Officer, with some latitude based on Mr Filomeno’s expressed minimal level of tolerance, that being; allowing him to take short rest breaks on longer journeys between sites.
41	Dr Yong assessed Mr Filomeno on 15 April 2020. He was also provided with numerous reports from treating doctors, medico-legal specialists, radiological findings and the surveillance footage taken in November 2017. After obtaining a comprehensive history, conducting an examination and reviewing all of the materials provided to him, Dr Yong opined that Mr Filomeno could perform work with the following restrictions: avoid repeated bending and twisting of the back; avoid repeated firm pushing and pulling tasks; avoid lifting more than 5kg on a repeated basis, vary his posture regularly between sitting, standing and walking; and, an initial reduction in working hours.
42	Dr Yong is of the opinion that Mr Filomeno is fit to perform the duties of an Inventory Clerk as the tasks required complies with the recommended restrictions. He stated that Mr Filomeno had informed him that he has poor computer skills but noted that in his previous employment with Murray Goulburn he was trained to operate a control panel and computer in order to run a calcium machine. Dr Yong stated that he would require further training in order to improve his general computer-based skills in order to perform the tasks required as an Inventory Clerk and any return to work would need to be on a graduated basis such as 4 hour shifts for 4 days a week with an expected return to full time hours over 6 months. Dr Yong opined that Mr Filomeno’s presentation was not consistent with how he presented in the surveillance footage.
43	Dr Yong was provided with the report of Ms Ash dated 15 July 2020 and then provided a supplementary report dated 16 July 2020 seeking his opinion as to Mr Filomeno’s suitability to return to work as an Asset Protection Officer. After reviewing the job description and tasks required, Dr Yong opined that the role would comply with the restrictions he believed were appropriate and considered it to be suitable employment.
44	Assoc Prof Varma assessed Mr Filomeno on behalf of the defendant’s lawyers on 6 May 2019 and 17 January 2020. He was also provided with the surveillance footage. He opined that Mr Filomeno suffers from an adjustment disorder with mild depression, secondary to his back injury, although commented that the surveillance footage showed a different picture. He considered his adjustment disorder was in remission and that he did not have any incapacity from a psychiatric perspective for suitable employment and has a capacity for pre-injury employment provided he is given approval from his pain doctors. In his subsequent report he commented that he had been provided with the medical reports of Dr Bloom and Dr Gill, Psychiatrist (not tendered), Dr Agrawal and Ms Drent and confirmed his previous diagnosis and his opinion regarding Mr Filomeno’s capacity for suitable employment. 
	Conclusion
45	 Mr Filomeno is aged 54 years and suffered a back injury on 23 June 2015 for which he underwent surgery performed by Dr Allashkevich in November 2016.	There is general consensus that the incident on that date aggravated an underlying degenerative condition of his spine and as a consequence he has developed an adjustment disorder with depressive symptoms/chronic pain syndrome and is taking numerous medications.
46	The primary issue for the court to determine is whether his credibility is so impugned by the video surveillance taken of him on 2 & 4 November 2017 and 11 June 2020, that his complaints to various doctors at that time and since as to the nature and severity of his symptoms and his inability to even undertake the normal activities of daily living, let alone employment, should be accepted by the court as truthful. His credibility was subject to significant challenge in cross examination.
47	I find that his complaints of pain and physical limitations to his treating doctors and medico-legal specialists from late 2017 to date and his stated reliance on the aid of a walking stick, when viewed in the light of the surveillance material, impugns his credit to such an extent that the court cannot put place much weight on it. The surveillance film makes it difficult to reconcile the histories he has given to the doctors and his current stated complaints and physical restrictions. As a matter of fact, I find that he has exaggerated the effects of his injuries to both his treating doctors and the medico-legal experts. The evidence reveals that he exaggerated his level of symptoms and physical restrictions when he was seen by Dr Agrawal on 24 October 2017 and 14 November and when seen by Prof Teddy on 27 October 2017. There was an absence of any complaint by him of an increase in symptoms following his activities as depicted on the surveillance footage on 4 November 2017 when he was seen by his General Practitioner, Dr Kualtunge on 15 November 2017. Furthermore, he minimised both the nature and extent of the physical activities performed by him on 4 November 2017 as depicted in the surveillance footage when assessed by Dr Slesenger for medico-legal purposes on 24 April 2019 and Dr Bloom when assessed by him on 29 June 2020. Mr Filomeno also gave a false impression to Dr Agrawal on 23 June 2020 that he was totally dependent on the use of a walking stick for support notwithstanding the surveillance footage taken on 11 June 2020 which depicted him able to walk freely and without apparent restriction without the aid of a walking stick. Mr Filomeno’s ongoing complaints to his treating doctors concerning the nature and extent of his symptoms and physical restrictions is questionable having regards to his prior conduct. I find that the surveillance material supports a finding that Mr Filomeno is not as disabled or as restricted in his activities of daily living as he has portrayed to his treating doctors and medico-legal experts. The surveillance material and his presentation to the doctors demonstrates a deliberate exaggeration of both his symptoms and physical restrictions.
48	Notwithstanding my conclusion regarding credit, the court is still required to determine whether Mr Filomeno has the capacity to undertake the suggested suitable employments as an Inventory Clerk and/or an Asset Protection Officer as suggested by the defendant.
49	Mr Filomeno is entitled to continue to receive compensation in the form of weekly payments from the date of termination if he is found to have ‘no current work capacity’ which is likely to continue indefinitely. The expression ‘no current work capacity’ means a present inability arising from an injury such that the worker is not able to return to work, either in the workers pre-injury employment or in suitable employment. The expression ‘current work capacity’ in relation to a worker means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment.
50	‘Suitable employment’ is defined in S 3 of the Act and provides:
suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a)having regard to the following—
(i) the nature of the worker's incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker;
(ii) the nature of the worker's pre-injury employment;
(iii) the worker's age, education, skills and work experience;
(iv) the worker's place of residence;
(v) any plan or document prepared as part of the return to work planning process;
(vi) any occupational rehabilitation services that are being, or have been, provided to or for the worker;

(b) regardless of whether—
(i) the work or the employment is available; or
(ii) the work or the employment is of a type or nature that is generally available in the employment market;
and, for the purposes of Part 4, includes—

(c) employment in respect of which the number of hours each day or week that the worker performs work, or the range of duties the worker performs, is suitably increased in stages in accordance with return to work planning or otherwise; and

(d) employment the worker is undertaking or that is offered to the worker, regardless of whether the work or the employment is of a type or nature that is generally available in the employment market; and

(e) suitable training or vocational re-education provided by the employer, or under arrangements approved by the employer (whether or not the employer also provides employment involving the performance of work duties), but only if the employer pays an appropriate wage or salary to the worker in respect of the time the worker attends suitable training or vocational re-education.

51	Mr Filomeno’s current work capacity is required to be assessed in accordance with the principles set out in Richter v Driscoll & Ors In that case, the Court of Appeal held:
(1) as a matter of statutory construction, the definition of ‘no current work capacity’ requires that the worker’s inability to return to work in employment, whether that be the worker’s pre-injury employment or suitable employment, be caused by an injury: the focus is on the injured worker’s inability to engage in employment; 
(2) the return to work in employment requires more than a physical capacity to engage in a task or tasks because there is more to an ability to work in employment than the ability to perform a task that happens to be required in that employment. This is consistent with and confirmed by the definitions of ‘no current work capacity’ and, in particular, of ‘suitable employment’ which requires consideration of factors beyond an ability to perform a particular task; 
(3) neither the definition of ‘no current work capacity’ nor ‘suitable employment’ focuses solely upon a worker’s physical capacity to undertake a task. Rather, whether a worker has ‘no current work capacity’:
requires consideration of the worker’s ability to work in employment having regard to the entirety of the worker’s personal circumstances—these including the injury-caused incapacity and as well other circumstances personal to the worker bearing upon his or her ability not simply to perform physical tasks required by a particular employment, but to work in that employment as a settled member of the workforce.
52	Accordingly, I have assessed Mr Filomeno’s ability to work in the suggested ‘suitable employments’ having regard to the entirety of his personal circumstances and medical conditions and their compounding effect.
53    	On this issue, I accept and prefer the opinions of Dr Bloom, Dr Yong and Assoc Prof Varma and find that Mr Filomeno has both the physical and psychological capacity to carry out the functions of an Inventory Clerk and Asset Protection Officer as described in the reports of Ms Ash. I make this finding after carefully analysing these suggested suitable employments from both a physical and psychological aspect, the factors set out in S 3 of the Workplace Injury Rehabilitation and Compensation Act 2013 including his place of residence. Notwithstanding his age, limited education, somewhat limited work experience and medication intake (in relation to his back, psychological condition and heart condition), I find that he would be able to perform the tasks required in either job. The duties as an Inventory Clerk as described are; essentially sedentary, with provision of a sit/stand workstation which allows for changes in posture and limited manual handling. Ms Ash reported that on the job training is provided in relation to computer use. The duties as an Asset Protection Officer as described in the report of Ms Ash are also within the capabilities of Mr Filomeno with appropriate rest breaks as recommended by Dr Bloom and noting that the computer skills necessary would also be taught on the job.
54	Accordingly, Mr Filomeno is not entitled to weekly payments from 27 May 2018 pursuant to the Act on the basis that he has had a ‘current work capacity’ from that date.