We’ve said it a million times, the most important thing is to be honest about your injury, condition, restriction(s), to be yourself at all times, to be aware that you will likely be under some form of surveillance at some stage during the life of your claim, and that you should never forget that you also need to give your lawyer(s) and barristers the very best opportunity to secure the best outcome for you!
Important info that any injured worker should know – be HONEST
As shown in this very recent (June 2013) Victorian legal case [Topaltsis v Crane Distribution Ltd  VCC 844 (28 June 2013)], the injured worker sought leave to commence a proceeding claiming for pain and suffering damages, for a low back injury by reason of injuries suffered by her in the course of her employment with the defendant.
Whilst in her affidavits the injured worker explains in details the extent the injury is affecting her, on cross examination, the injured worker was said to have” presented as a poor historian who exhibited an extremely poor memory and a tendency towards evasiveness”. Unfortunately her Facebook was also “investigated” by the defendant and video surveillance showed she was capable of doing much more than what she claimed.
(i) The plaintiff was questioned as to her symptoms as at January 2011. It was put to her that she consulted her physiotherapist on 20 January 2011, who recorded at that time:
“No back pain, hips a bit achy, but been doing heaps of walking. Uncle over from Greece.”
The plaintiff was asked:
“Q: It was the position as you described it to the physiotherapist?—
A: I’m sure I described – I can’t remember exactly what I told her but I’m just going by what I’m seeing what she has written herself.
Q: Do you disagree that that’s an accurate account of how you were reporting your symptoms to her?—
A: I mean here it’s got no back pain. I wouldn’t say no back pain at all.
Q: So you would not have no back pain?—
A: I could have I can’t remember.”
(ii) It was put to the plaintiff that in March 2011, she had presented to her general practitioner, who had recorded a history that her back was much better.
“A: I can’t recall back – – –
Q: It might have been?—
A: I can’t recall.
Q: Do you think it’s right that you told the GP that you continued with intermittent lumbar pain and were having physiotherapy?—
A: I can’t recall.”
(iii) It was put to the plaintiff that in June 2011, she presented to her general practitioner with intermittent lumbar back pain, to which the plaintiff responded, “I can’t recall”. When pressed on this issue as to whether her symptoms were present continuously or intermittently, the plaintiff responded:
“I can’t say back then how it was, I mean, with my back pain.”
(iv) The plaintiff was asked whether in April 2012, she had told her general practitioner that she was suffering intermittent back pain, to which she responded:
“A: I really can’t recall exactly what I said – what words.
Q: About a year ago it is fair, would you describe your symptoms as then being intermittent, that is not always there but coming and going and not as being severe? So the two things I’m asking you. Did it come and go, was it not severe, as at 12 months ago?—
A: I sound like a parrot but I can’t, I’m sorry I can’t recall exactly. The pain – I’ve always had back pain. Intermittent, like that word, I can’t recall.
Q: In the last 12 months what do you say about whether your condition has got better or worse or stayed the same. What’s your impression?—
A: My impression is how I feel I’ve, I deal with the back pain every day.”
(v) The plaintiff was asked as to her presentation to her general practitioner in November 2012. It was put to her that she had provided a history that her back pain was “not flaring up too much, using less analgesics”, to which she responded: “I don’t recall saying those words”. The plaintiff was asked:
“Q: Is it possible, did you tell him that?—
A: I don’t recall. I can’t recall.
Q: Was that the position just a few months ago that your back wasn’t flaring up too much and you were using less pain relief?—
A: The pain relief I was still using, less, I don’t recall how many tablets but I use pain relief every day.
Q: Is it the position that in January 2013 you were having intermittent low back pain?—
A: I can’t recall.
Q: Was it the position in February this year that you only had occasion low back pain?—
A: It wouldn’t be occasional. I have lower back pain. … I wouldn’t use occasional I still have ongoing back pain … I constantly have pain in my back. There are times where it’s higher the pain but there is constant – I feel constant pressure on my back. I can feel that. … I can’t recall exactly what I would have said but I would have said I do have back pain on a daily basis.”
(vi) The plaintiff was questioned as to whether a few months ago her “back was not flaring up and you were using less pain relief”, to which she responded:
“The pain relief I was still using, less I don’t recall how many tablets but I use pain – relief every day.”
(vii) The plaintiff was questioned as to how often she had the symptoms emanating from her back into her leg, to which she responded:
“A: I do have pain in my leg like that runs down my bottom to the left but how often do I get it? I can’t say exactly how often but it is there.
Q: Every few months?—
A: It depends on activities my day, what I’ve done.
Q: So I could be every few months?—
A: I cannot say exactly.
Q: Well, can you do your best please?—
A: It could be, could be less. I can’t say exactly how often it is.
Q: Less often than every few months, you say it could be less, you mean less often than every few months. So perhaps every six months?—
A: No, it wouldn’t be six months.
Q: It’s more frequently than every six months you get pain in your left leg?—
A: I would say yes.
Q: But you couldn’t say how more frequently?—
Q: During 2011 were you making an effort to walk frequently for exercise?—
A: I can’t recall how often I would walk.
Q: In 2011 did you walk for exercise?—
A: I did try to walk.
Q: How often?—
A: I can’t recall how often.
Q: More often than once a week?—
A: I can’t recall.
Q: You really don’t know?—
A: Well I can’t say exactly two years ago how many times I walked. No.”
(viii) The plaintiff was taken to records of her general practitioner, Dr Vasquez, which contained regular entries of the plaintiff presenting with back pain. On 21 March 2013, the following entry appears:
“Occasional flare up of the pain.”
On 19 February 2013, the following entry appears:
“Comes in to update certificate. Occasional low back pain.”
On 21 January 2013, the following entry appears:
“Having some intermittent low back pain.”
The plaintiff was asked whether it was the position in January 2013 that she was having intermittent low back pain to which she responded:
“I don’t know”
When pressed as to whether she had made such statements to Dr Vasquez the plaintiff said that she did not recall the words she had used when speaking to Dr Vasquez but maintained that she suffered from constant back pain which varied in intensity.
Given the above entries in the records of Dr Vanquez which are in turn consistent with the earlier entries in the plaintiff’s medical records as to the presence of a pattern of lumbar symptoms often described as intermittent and which are aggravated by activity and involve periodic flare ups, I do not find the evidence by the plaintiff as to the presence of constant symptoms of back pain to be persuasive.
(ix) The plaintiff was asked how long she continued with her gym program which she commenced in 2009. Her response was that she was not sure. The following exchange took place:
A: It would have been a couple of months easy.
Q: Just two months or so?—
A: No it would have been more – long than that but the exact time I’m not sure.
Q: Well roughly?—
A: I can’t remember.”
(x) The plaintiff was asked as to whether she had been fishing since her injury.
“A: I might have gone but I know that consequences I was – yep, it really affected my back.
Q: How many times have you been fishing since you suffered your injury?—
A: Not even a handful – not – maybe once, I think, twice – maybe more. Just once, and I realised I couldn’t do it.
Q: So you think you’ve been once?—
A: Could have been once.
Q: No more than once?—
A: I wouldn’t think so, no.
Q: Where did you go when you went on the fishing trip?—
A: I can’t recall exactly where I went.
Q: Was it in the Bay?—
A: It would have been.
Q: Have you been away for fishing weekend since you suffered your injury?—
A: Not that I recall.
Q: Can you recall a fishing trip when you towed the boat and went somewhere? There were occasions when you and Arthur would tow his boat and go away for the weekend?—
A: I know we have towed been to Lakes Entrance, but exactly when, I think it might have been, gee, early 2000. I can’t remember exact dates. … We might have gone a way with a fishing boat but it doesn’t mean I actually went to the boat. His brother has a house. We might have gone to Lakes Entrance at the house but not specifically fishing myself.
Q: Because it would be inconsistent with what you’re saying about your restrictions if you went away with the boat and slept on the boat, wouldn’t it?—
A: I would think.
Q: Yes, it would?—
A: I would think.”
(xi) The plaintiff said that since her injury she had been on an interstate trip to Darwin. When asked what she did there, she responded: “Look around town”.
The plaintiff was asked specifically whether she had travelled to the Kakadu National Park. The plaintiff said that she had taken a coach tour to Kakadu, and was asked:
“Q: You took a coach into Kakadu and what did you do at Kakadu?—
A: Had a look around.
Q: And what did that involve?—
A: Having a look in the wild like the park.
Q: And going to waterholes?—
A: There was one waterhole, yes.
Q: Did you swim in the waterhole?—
A: I did.
Q: Did you do anything else when you were in Kakadu?—
A: No. Waterholes, had a look at the National Park.
Q: Did you go rock climbing?—
A: I wouldn’t say rock climbing, no.
Q: What did you do, then?—
A: I just had a look around in the National Park.
Q: So you didn’t go rock climbing?—
A: No the big rocks, no.”
12 The plaintiff was cross-examined as to a dialogue which appears in an entry recorded on her Facebook page dated 17 October 2011 as follows:
A: I do read that, yes.
Q: No, my question is, did you make that reply?—
A: I can’t recall personally if I put it in. It is on my Facebook and rocking climbing I do recall Kakadu was a very rocky park. I wasn’t like rock climbing.
Q: It wasn’t scaling a wall, is that what you’re saying? You weren’t scaling walls by climbing vertical walls?—
Q: So are you saying that you were doing boulder hopping across big rocks to get to waterholes?—
Q: What did you mean when you referred to rock climbing?—
A: I think it was just – like the postcard, how can I put it, the – what’s the word, the surroundings it was rocky on the ground.
Q: Really – rocky?—
Q: Rock climbing?—
A: Like rocky, the ground was like rocky.
Q: But rock climbing?––
A: But that term does not describe – rock climbing to me I suppose is – – –
Q: But they’re your words aren’t they?—
A: But I did not do rock climbing.
Q: Are they your words?—
A: They’re my Facebook page but did I put them in, look I really can’t recall three years ago exactly what I entered on my Facebook page but I’ve never done rock climbing.”
13 When further pressed as to whether she had made the above entry the plaintiff responded:
“Possibly I could, I can’t recall exactly, three or three years ago, three and a half years ago what entry I would have made but I did go to Darwin for three days.”
14 The plaintiff was cross-examined with respect to the number of further entries appearing on her on her Facebook page. She was taken to an entry dated 21 January 2010 which contained the following caption:
“Hey everyone, been away to Lakes Entrance, we took off for five days, hooked up the boat and off we went, time out and relaxed. Slept in the boat on the Tambo River. It was great, and of course I caught the biggest bream fish 44 cms, I told Arthur I should be called Lisa [Rex] Hunt, minus the kissing of the fish.”
15 The plaintiff did not deny making the entry but neither did she accept that she was the author of the entry, commenting:
“I’m trying to think back only because of what was happening with my father.”
16 The plaintiff was asked:
“Q: The last fishing trip you made to Lakes Entrance, did you sleep on the boat?—
A: Oh we did in the year 2000 I remember we slept on the boat.
Q: The last fishing trip you made to Lakes Entrance, do you recall sleeping on the boat?—
A: No, I can’t remember.
Q: But it’s possible?—
A: I honestly can’t remember if it was.”
17 In response to a question directed to the plaintiff from myself as to whether she recalled having made this particular entry, the plaintiff responded:
“I honestly can’t remember the entry, I think because of the timing – I can’t.”
18 The plaintiff was taken to a further photograph from her Facebook which depicted her with her uncle in the course of his visit from Greece. The plaintiff was asked:
“Q: There was a reference to you doing a lot of walking because your uncle from Greece was visiting?—
A: I know my uncle did a lot of walking while he was here.
Q: And we have a reference to you saying you had done a lot of walking because he was visiting?—
A: I can’t recall how much walking I would have done with him.”
19 In response to a question as to whether another entry on her Facebook as to activities which she had undertaken with her niece and nephew was made by her, and whether there was any reason for her to think that it was not made by her, the plaintiff responded:
“I can recall once we had an outing with a couple of girls and everyone’s phones became available and everyone was jumping on putting ridiculous comments. So it’s possible that anyone could grab my phone and made comments. It’s been done in the past.”
20 Having regard to the fact the relevant entry was made via the plaintiff’s mobile phone at 8.18am at a time at which the plaintiff was out with her niece and nephew, the plaintiff was asked:
Q: “You weren’t out and about with girlfriends?—
A: I wouldn’t have been out and about with girlfriends. I could have had a girlfriend over visiting. I can’t recall exactly.”
“I might – I would feel it. I would have a lot of pain doing it. I – possibly my body could do it but … I can’t say how many times I could do it. I’m sure my body could be it would be painful for me.”
22 Video surveillance was then shown to the plaintiff which depicted her sweeping her driveway and bending to collect material to place into a wheelie bin. The film was stopped at one stage and the plaintiff was asked whether she was sweeping with a broom:
A: “It must have been a broom.
Q: Yes, a large outside broom?—
A: Oh, a light broom, I’m not sure which broom but it looks like I could have swept a few leaves off the – – –
Q: Are you saying you were using a small inside broom?—
A: I’ve got like a soft inside broom.
Q: So is that what you were using there?—
A: I can’t recall what broom I was using. I can’t see the broom like – – –
Q: Can you not remember it was on 13 January this year?—
A: I can’t recall what broom but I do have two brooms outside in the garden.
Q: Would you agree you were repeatedly squatting and bending down at right angles to your legs picking things up?—
A: I was picking something off the ground yes some kind of leaves or – – –
Q: Do you agree you were squatting down repeatedly?—
A: Squatting, I was picking, squatting? I was picking up items off the ground – – –
Q: With a dust pan and brush you were picking things up?—
A: It’s what it appears to, yes.
Q: And you were putting them in a bin, were you?—
A: It would have been.”
24 In my opinion, the video evidence did not depict the plaintiff performing any activity which was inconsistent with the nature of the injury with which she presents. It is rare that any video evidence could be persuasive as demonstrating a true capacity for activity having regard to the selective nature of such evidence which provides only a minuscule snapshot of activity from which the level of tolerance for repetitive activity is difficult to ascertain…
and so it goes on and on and on…and of course this injured worker lost her case (leave not granted), and must have made her lawyer look green.
Whilst I am not judging this injured worker in any way or shape, she may genuinely be suffering from poor memory/concentration, she did fail to keep a diary….and wrote damaging entries on Facebook and the surveillance footage also showed her doing things she claimed not being able to do….
In summary: please be honest
According to many decent lawyers there has definitely been a recent rise in workcover insurance companies defendants obtaining evidence from a variety of sources other than what has previously been considered the traditional sources to information. Let’s take the opportunity again to highlight the following:
Workcover insurance companies and defendants will be looking for information about activities that you can do, other injuries unrelated to your claim, and evidence of inappropriate (even criminal) behaviour, amongst other things. They will also routinely download your Facebook pages, just in case you were to alter them at a later date. Remember that even if you have in place the highest security settings, they will go snooping around in your friends and contacts Facebook pages to search for information about you. We simply recommend all injured workers to deactivate their Facebook accounts until their claims are finalised (especially when litigation, for example a common law claim, serious injury certificate). That is the very reason why aworkcovervictimsdiary’s Facebook account is no longer updated! We do not have anything to hide, but we are afraid that our followers will be targeted by PIs!
More often than not workcover insurance companies and their defendants engage a private investigator to observe and record you – this is most often done in an attempt to prove that your injuries are less severe than you have claimed. Again it is almost guaranteed you will be under surveillance if you commence legal proceedings.
Unfortunately insurance companies and defendants are within their rights to do this, as long as the PI does not trespass or threaten you in any way. If you believe you are under surveillance, let your lawyer(s) know, and simply go about your daily normal “activities”.
Surveillance evidence is only a problem (detrimental) if it shows something that is really inconsistent with what you have claimed, or told your lawyer(s).
3. Honest Conduct
If you are dishonest in relation to any aspect of your claim, this can be extremely damaging – and most decent lawyers will have to think very hard if they will continue to represent you. Dishonesty can be anything from the way in which the alleged accident/injury occurred, the types of injury sustained, especially the way that the injury affects you or if you have been engaging in any activities that you say you can’t do because of your injury. It’s really very important to be honest at all times, and in particular with your representing lawyer(s), and that you disclose everything you think may be important. If you’re not sure about something, simply ask/discuss it with your lawyer(s).
Needless to say that it is also extremely important to keep a DIARY and to make a few notes of all doctor, physio, etc visits and treatments, and any other relevant “activity” you may have had to undertake (i.e attend a funeral etc). Many of us – seriously injured workers- will have “long standing” treaters, and form “friendly” relationships – but one should never ever forget that what we say in their rooms is often transcribed into our files. So, please be yourself and be honest. If you feel really depressed at your scheduled physio session, please don’t put up a false “cheery” face up, but just tell him/her you’re feeling really flat and in a dark space. Don’t make an effort to make your treater feel better for the sake of it, even if it is tempting to sort of “reward” your physio, whatever for his/her ongoing attempts at making you feel better – just simply be honest and be frank: if the physio does not work of makes you worse say so! If you’re seeing your GP once a month for certificates and medication refill, you can tell him/her, “today I am feeling reasonable”, however, as my spouse/whoever can testify, last week or the week before I was totally bedridden in extreme pain and I feel that overall I am deteriorating”. Again, be totally honest. Don’t just talk about your symptoms on that particular day but give your GP a summary of the past 28 days (which you should have documented in your diary).
[posted on behalf of workcovervictim]
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