You may remember the case of former PM Julia Gillard’s house keeper’s workcover claim for an injury she sustained to her back while straining to fit a sheet on Julia Gillard’s king-size mattress in 2012. The house keeper had initially some issues with her claim, also re-injured herself and now it turns out that she was accused of “fraud” by means of surveillance. However recently the AAT overturned the decision of Comcare to cease her claim for compensation. The article gives some worthy tips re surveillance.
Here is a recent decision of Power v Comcare(2015) AATA 471 in which the AAT overturned a decision of Comcare to discontinue a claim for compensation brought by a house attendant who allegedly injured her back whilst working at The Lodge.
Facts of the workcover claim’s legal case
Between 23 March and 9 November 2010, Ms Power was employed as a casual house attendant at The Lodge in Canberra. On 18 October 2010 the she injured her back whilst making a bed at The Lodge, which was part of her house keeping duties. She then allegedly re-injured her back cleaning a bathroom at The Lodge on 25 October 2010. In February 2011, the she lodged a claim for worker’s compensation in respect of a back injury. It was accepted in the first instance by Comcare which later varied its determination by replacing the accepted condition with an aggravation of a pre-existing condition in the lumbar spine.
Subsequently Comcare commissioned video surveillance of the injured house keeper which was conducted on a number of consecutive days in December 2012 and January 2013. The footage showed the house keeper walking in various different locations, sitting, driving her vehicle, shopping, getting items out of her car as well as getting in and out of her car and various other everyday type activities.
On 6 June 2013, Comcare decided that the house keeper no longer suffered from the effects of a compensable injury and, as such, the house keeper was no longer entitled to compensation for medical expenses or payments for incapacity for work. In response the house keeper applied to the Administrative Appeals Tribunal (AAT) for a review of Comcare’s decision. At the Tribunal hearing evidence was given by one of the medical witnesses that the injured house keeper’s activities in the video were not compatible with her description of severe pain and physical limitations. Another doctor observed that there was nothing in the video footage that suggested a person who is not entirely comfortable and able to carry out a wide range of activities without difficulty.
By contrast, another medical expert asserted that whilst the house keeper was significantly exaggerating her back condition, there was nothing in the surveillance which was inconsistent with her still suffering the effects of compensable injury. In that regard this particular expert observed that there were two activities shown in the video:
- when the claimant squatted to pick up her shoes; and
- when she bent her knees before brushing some crumbs off a seat before sitting down, which suggested the injured house keeper was moving so as to protect her back.
A further medical witness gave evidence to the effect that what the injured house keeper was seen doing on the video was very mundane and pedestrian. This expert commented that the surveillance evidence showed the injured house keeper doing what he would expect her to be able to carefully undertake.
In response to the surveillance evidence tendered by Comcare at the Tribunal hearing the house keeper gave evidence that for her to have been able to perform the activities she is seen doing on the video, she must have been wearing her TENS machine and she must have had an injection of Toradol on each of the days on which the video was undertaken.
In that regard, three of the medical witnesses who gave evidence at trial acknowledged that the injured house keeper may benefit from the placebo affect when using her TENS machine or taking Toradol.
Having had the benefit of the medical witnesses’ evidence, Comcare’s submissions and the injured house keeper’s submissions, the Tribunal’s Senior Member, Dr James Popple, found that injured house keeper was wearing her TENS machine at all times during the video and that she was not seen doing anything in the video that was inconsistent with her still suffering, at that time, from the effects of a compensable injury.
In that regard, the Tribunal placed significant weight on the two separate activities shown by the surveillance where the claimant can be seen moving in a way that suggested that she was protecting her back. In addition, the Tribunal was mindful that whilst the expert medical witnesses were, for the most part, critical of injured house keeper’s presentation in the video, they agreed that the she does not do anything in the video which was inconsistent with their assessment of her capacity to work.
Therefore, notwithstanding the Tribunal’s view that injured house keeper exaggerated her symptoms and that her evidence was not entirely reliable, it found that Comcare had not discharged the onus of demonstrating that the effects of injured house keeper’s compensable injury had ceased. In light of those findings, the Tribunal made various orders, the practical effect of which was to reinstate injured house keeper’s claim for compensation in respect of the costs of her medical treatment for her injuries and to remit for Comcare’s determination, the question concerning whether Comcare is also required to pay the injured house keeper compensation for incapacity for work.
Even in those cases where an injured has given a particularly dramatic or exaggerated account of his or her injuries’ symptoms and restrictions, caution should be exercised in placing too much reliance on the potential impact that surveillance might have on the outcome of the claim, if the surveillance content is confined to footage of the injured worker participating in reasonably sedentary or menial activities of daily living. Such footage may even be relied upon by the injured worker’s legal representatives as a basis for affirming their client’s restrictions and difficulties.
When assessing the probative value of surveillance in a matter where the injured worker is suspected of misrepresentation or exaggerating the impacts of his or her injuries, the defendant and the insurer must consider not only the types of activities displayed in the surveillance, but also the level of ease or comfort with which the injured worker is able to perform them.
As part of its trial preparations in a case where surveillance is to be relied upon, the defendant and the insurer should anticipate potential submissions injured worker’s legal team may provide to explain their client’s conduct in the surveillance. For example, injured worker’s medical records and pharmaceutical benefits history statement should be scrutinised to determine if an injured worker was in fact being prescribed analgesic medication or supplied with medical aids during the relevant periods, which might otherwise explain the injured worker’s capacity to participate in certain activities the subject of the surveillance.
You can read the full text of the legal case here: Power and Comcare  AATA 471 (30 June 2015)
Note the IMEs (or expert witness for the defense):
43. Comcare says that the video demonstrates that Ms Power did not then suffer—and, therefore, no longer suffers—from the effects of the compensable injury. It cites Drs Talbot and Stubbs in support of this argument.
44.In his report of 15 April 2013, Dr Talbot said that Ms Power’s behaviour and mobility, as revealed on the video “was not compatible with her description of severe pain and physical limitations”. He said that “she appeared quite unlike the person with very slow hesitant movements and frequent expressions of pain who presented to me for my recent assessment”. Dr Talbot added that it was not possible to determine, from the video, the level of pain that Ms Power was experiencing. But he did say that “the footage certainly made me very suspicious that, during my assessment, she was exaggerating her pain both in the history she supplied to me and in her performance during the physical examination”.
45. Dr Talbot’s 15 April report had been prepared without access to the entire video. He provided a further report on 24 May 2013, having viewed the remainder of the video. In the latter report he said that the further footage showed Ms Power had “engaged in activities that according to her medical report, she should be unable to participate in”. He gave, as examples, bending freely into the rear seat of her car; picking up her shoes; changing her shoes; walking briskly; and getting in and out of her car.
46. Dr Stubbs, in his report of 19 December 2013, said that “[n]othing in that video footage suggested a person who is not entirely comfortable and able to carry out a wide range of activities without difficulties”.
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