A Westpac bank, and its scheming workcover collaborator, was recently ordered to halt its refusal of injury compensation to a customer server who fell to the floor when the back of a chair collapsed in December 2006. Westpac and workcover claimed that the injured customer server, Ms Tara Andrews, was an opportunist whose only injury was a temporary aggravation of pre-existing symptoms and any further problems were brought on by a four hour road trip she took a few months later!
Workcover and Westpac ordered to halt their refusal of injury compensation
Westpack “suspicions” ran deep and their efforts to deny injury compensation to Ms Tara Andrews were really outrageous.Their unfounded suspicious may have been based on the fact that Ms Andrews personnel records made evident that she was already an “unhappy” bank employee who had been frequently flagged at performance reviews as “needing development”.
Ms Andrews had apparently also “failed to mention a particularly uncomfortable gem fields road trip” – that she had complained about to her GP – to IME specialists Greg Gillett, Paul Licina and John Morris because “she did not think it relevant”.
Westpac (and their insurer) were pretty convinced they had their nail for the coffin when a Dr Morris stated that she was “maximising her complaint” and that her ” motivation for rehabilitation was poor”.
However, unbiased and ethical pain specialist John Agar-Wilson believed Ms Andrews’ pain genuine and defended any “abnormal illness behaviour” as being possibly a sign of that of a patient in real distress!
Dr Agar-Wilson did , however, also observe that Ms Andrews had 75% of the normal range of trunk flexion but a 45% range in the straight leg raising of both limbs.
Of course, Westpac and its collaborator WorkCover, jumped on this latter “finding” and stated that it was nothing more than an obvious indicator of inappropriate pain behaviour, typically looked for by doctors to screen out malingerers!
These so called“Waddell’s signs”, elicit by behaviour on examination that is indicative of deliberate or psychologically induced symptom exaggeration or “abnormal illness behaviour”. Yeah, yeah….right.
Needless to say that WorkCover mightily clutched at this: Ms Andrews was a fraudster, a malingerer whose chair-fall injury was short-lived and whose lawsuit should be thrown out altogether, with zero damages and an order she pay their trial costs.
However Dr Gillett, had recorded a 7% impairment and stated it being a permanent aggravation of a previously asymptomatic spondylolysis of L5/S1. He had also noted that Ms Andrews did not show any Waddell signs.
Dr Gillett – in considering the potential impact of the journey to the gem fields – firmly stated that the crucial issue was whether Ms Andrews still had pain between the fall caused by the collapse of the chair and the journey. His well respected opinion, thankfully, won the case.
As summarised by his honour the Judge
“A continuum of symptomatology from the collapsing chair incident onwards would be indicative of a permanent [injury] being caused by that incident. Absent such a continuum then whatever injury may have resulted from the collapsing chair could well have resolved by the time of the car trip”.
“There was no evidence that the car journey was other than on a normal bitumen road or that the vehicle or seat were somehow defective so as to produce “some abnormal force coming on to her spine”. Indeed Dr Gillett made it clear that he would not normally expect car travel to cause the resulting injury.”
WorkCover, desperate by now, made a big fuss out of the fact that Ms Andrews was dishonest for failing to disclose she was consulting solicitors when her statutory claim was still current and rehabilitation was being provided. Oh Really?
The failure to mention the car trip discomfort to the specialists was accepted by the court as an innocent omission from a “genuine and credible” claimant.
Loss of future earning capacity was assessed at $335,000.