Surveillance evidence defeats injured workers damages claim

workers-comp-surveillance

Again, in this legal case [Vic], an injured worker’s credit was significantly undermined by  workcover insurance’s surveillance video footage. Please remember at all times, and especially if you are undertaking legal proceedings (i.e. common law damages claim, serious injury certificate etc.) that the insurer (defense) WILL put you under surveillance, by means of “finding anything possible” that can be held against you and your case, as to minimise liability and/or a potential payout.

Surveillance evidence defeats injured workers damages claim

The Victorian Supreme Court clarified in dismissing an appeal that “a worker’s credibility becomes a factor in determining seriousness of their injury when the symptoms, effects and disabilities described are not in line with the injury“.

The workcover claim

In 2001, a female production worker experienced pain, numbness and pins and needles in her wrist and hand. She workers for 6 years assembling transformers for Atco Controls Pty Ltd.

The (injured) worker’s duties involved repetitive and rapid work. The cleaning tool and power screwdrivers used made her to feel vibrations in her hands and fingers.

In September 2001 the injured worker was diagnosed with bilateral carpal tunnel syndrome. She underwent surgery on her right wrist, which she claimed caused her even more discomfort. She then refused surgery on her left wrist.

The Hearing

The injured worker applied for leave to recover damages for pain and suffering and loss of earning capacity in the (Victorian) County Court.

She stated that she could not move her neck without pain, and that she continued to experience numbness and pain in both wrists and hands.

She also said that her right hand felt particularly weak and that she often “dropped things”, and that, as a consequence, she tried to avoid using her right hand and arm even though she is right-handed.

However the County Court judge found that the injured worker had failed to discharge the onus of establishing she suffered a serious injury. He even concluded that the worker had “hoodwinked a number of doctors” regarding her condition.

The surveillance

The judge also noted that his opinion of the worker had been “markedly weakened by viewing [surveillance] footage, which was dramatically and uncompromisingly contradictory of [the worker’s] evidence”.

The surveillance footage, which was filmed over a period of 1 year (!!!)  on no less than 7 different occasions (!!!), showed the “injured worker freely using her right arm and undertaking intricate hand and finger movements”.

On several occasions the surveillance footage showed that the injured worker was even carrying several heavy shopping bags with her right arm, and “without any apparent discomfort”.

The Appeal

The injured worker appealed against the decision, in the Supreme Court arguing that the judge failed to give sufficient weight to medical opinions and had placed excessive weight on his observation of the surveillance video.

The bench pointed out that if the injured worker’s symptoms and disabilities were invariably the symptoms and effects of carpal tunnel syndrome, then the assessment of serious injury would have been independent of her account and presentation.

However, the bench also pointed out that the injured worker’s evidence of her symptoms and degree of pain was not congruent to that of carpal tunnel syndrome, and the medical experts’ had over-relied on her history and account of symptoms.
The bench stated that the injured worker’s physical movements and demeanour/behaviour as shown on the surveillance footage, were inconsistent with the pain and symptoms she attested in Court and to doctors.

“The [injured worker’s] credit was, in our view, significantly impaired by the video footage, her evident exaggeration of symptoms to some doctors and her evasive responses in the related cross-examination.”

The bench found that many of the medical experts identified a significant non-physical component – namely depression – which contributed to her pain and suffering.

It noted that even her own treating surgeon concluded that her loss of earning capacity was not due to her physical injuries.

The bench pointed out that psychological and psychiatric consequences of a physical injury could not be taken into account in establishing a serious injury [WTF!]

And as such the bench found (on appeal) that given the damage to the injured worker’s reliability as a witness and the evidence of her treating surgeon regarding the non-phsyical component (depression) of her claimed impairment, the injured worker failed to discharge her onus of establishing that the consequences of her carpal tunnel syndromes were serious. End of story.

You can read the full case here: Sabanovic v Atco Controls Pty Ltd [2009] VSCA 143 (18 June 2009)

 

Please, when undertaking legal proceedings, always assume you are being filmed 24/7 and abide by your medical restrictions 24/7.

[post dictated by workcovervictim and manually entered on behalf of workcovervictim who remains unable to physically type due to injury]

 

 

 



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6 Responses to “Surveillance evidence defeats injured workers damages claim”

  1. And how much does it cost 1 year surveillance? Those hyenas are ready to loose money to scam the injured worker. I’m not a Doctor but If I had the same issue at my right hand and I carried shopping bags, well that was very very different than doing a repetitive 8/hour or shift with a professional power tool which constantly applies torque force to the body. Judges have no specific knowledge because they never used a power tool let it alone it was used by a woman who might not well support the stress it caused to her wrists.

    Another bully “marketing” show from workcover and another loss for the entire welfare system and loss for Medicare and Centrelink!

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    Xchangingvictim March 10, 2013 at 10:58 am
  2. Investigators are involved in a conspiracy with Workcover to deprive the injured workers of their lawful entitlements at all costs. It is always adviseable to say you have good days and bad days. Even if you are filmed carrying a shopping bag, it does not mean that you are not in discomfort. How many of these investigating companies, etc etc are owned by families and friends of Workcover. How many doctors are terrified of Workcover, with threats of subpoenas to attend court. I smile, when I am in pain, I still continue with my daily chores, for the simple reason I have to. As I said before, instead of harassing and ruining injured workers lives to the point of destruction, Workercover should do their job properly and have the interests of the injured workers at heart, instead of stealing from injured Workers. Stand up and fight for your rights. Good luck everyone, stay strong.

     

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  3. I read this stuff, and all I see is the anti-worker discrimination of the legal fraternity who wrote the law, and who’s livelihoods are made from it. Aargh! You could say I’m oversensitive because it was lawyers who bullied me at work, but then there’s loads of injured workers complaining about their unethical lawyers on here!

    A whole year of surveillance, and how many times did they film her having a “good enough” day to do her shopping. You can be sure the insurers refused her home help for that purpose!

    Poor woman looks like just another body on the Workover trash heap!

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    • Pauline, we know they all share rich business and workcover is NOT about recover and support BS all the way!

      Not all people recognise that workcover’s corrupted representatives and their closed business foes meet silently and they decide the future of injured workers and our welfare system, those scumbags meet and decide how to rip off our system. Interesting is a web link I found where “some” Lawyer firms meet at Worksafe and they make RULES about our life, the interesting part is that only “some” Lawyer firms are invited (including my dear ex Hounslow) and NONE of the workers’ representatives such as Unions from all Australia is present there to protect our rights!

      http://www.worksafe.vic.gov.au/forms-and-publications/file-resources/?a=16568

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      Xchangingvictim March 10, 2013 at 3:46 pm
      • I think I know the meeting Xchangingvictim. I got some minutes off the website once. It seemed they met to “adjust” the laws in the name of keeping legal costs down. They’re our lawyers and they’re selling us out. The stench of Conflict of Interest hangs heavy over the workover’s legal pit.

        Alone we injured workers don’t stand a snowball’s hope in hell of getting justice from this system. It’s so heavily weighted against us. But together, and with our families and friends, we may eventually be able to force the changes that will produce a better, kinder, fairer system for injured workers.

         

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        • Sometimes I think about the African people stolen from they home land and deported in US as slaves and sold like wild animals. Late on things changed and those “slaves” started fighting for their recognition in the society as free human!

          I think we injured workers are treated and threaten like slaves of the riches, we serve the whole Workcover network and we give wealth and work to anyone. Just think about what would be our democratic society without injured workers? It would be a HUGE loss!

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          Xchangingvictim March 10, 2013 at 8:13 pm