In this alert, Partner Robert Tidbury and Law Clerk Hannah Burnett discuss the 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
Between 23 March and 9 November 2010, Shiree Power was employed as a casual house attendant at The Lodge in Canberra. On 18 October 2010 the claimant injured her back whilst making a bed at The Lodge, which was part of her house keeping duties. She then allegedly reinjured her back cleaning a bathroom at The Lodge on 25 October 2010. In February 2011, the claimant 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 claimant which was conducted on a number of consecutive days in December 2012 and January 2013. The footage showed the claimant 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 claimant no longer suffered from the effects of a compensable injury and, as such, the claimant was no longer entitled to compensation for medical expenses or payments for incapacity for work. In response the claimant applied to the Administrative Appeals Tribunal for a review of Comcare's decision. At the Tribunal hearing evidence was given by one of the medical witnesses that the claimant'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 plaintiff 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 plaintiff was moving so as to protect her back.
A further medical witness gave evidence to the effect that what the claimant was seen doing on the video was very mundane and pedestrian. This expert commented that the surveillance evidence showed the claimant 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 plaintiff 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 plaintiff may benefit from the placebo affect when using her TENS machine or taking Toradol.
Decision
Having had the benefit of the medical witnesses' evidence, Comcare's submissions and the claimant's submissions, the Tribunal's Senior Member, Dr James Popple, found that the claimant was wearing her TENS machine at all times during the video and that the claimant 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 the claimant's presentation in the video, they agreed that the claimant 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 the claimant 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 the claimant's compensable injury had ceased. In light of those findings, the Tribunal made various orders, the practical effect of which was to reinstate the claimant'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 claimant compensation for incapacity for work.
Key points
- Even in those cases where a claimant 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 claimant participating in reasonably sedentary or menial activities of daily living. Such footage may even be relied upon by the claimant'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 claimant 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 claimant 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 the claimant's legal team may provide to explain their client's conduct in the surveillance. For example, the claimant's medical records and pharmaceutical benefits history statement should be scrutinised to determine if a claimant was in fact being prescribed analgesic medication or supplied with medical aids during the relevant periods, which might otherwise explain the claimant's capacity to participate in certain activities the subject of the surveillance.
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