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 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 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 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.
“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  VSCA 143 (18 June 2009)
[post dictated by workcovervictim and manually entered on behalf of workcovervictim who remains unable to physically type due to injury]
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