Very considerable consequences for overstating serious injuries22 December 2016
On 2 November 2016, the County Court of Victoria dismissed legal proceedings seeking serious injury certification for pain and suffering arising from injuries sustained during employment. Sparke Helmore represented the Defendant.
The Plaintiff, who was formerly employed as a member of the ground crew at Tullamarine Airport, allegedly sustained a lower back injury when moving a mobile staircase to an aircraft in June 2010. Following the incident he returned to lighter duties involving office work but never returned to normal ground crew duties. His employer paid for him to undertake a Certificate IV in Training and Assessment and he later gained full-time employment with another company as a Health and Safety Manager. His new employment involved working family-friendly hours and a substantial increase in his salary. The Plaintiff subsequently submitted a serious injury application under the Accident Compensation Act 1985 (Vic) seeking certification for pain and suffering only. The application was rejected and the Plaintiff issued proceedings in the County Court of Victoria seeking serious injury certification. He alleged ongoing consequences including pain, restriction of movement and reliance on medication. He also stated his inability to perform household tasks and interact fully with his family as well as difficulties sleeping.
After hearing evidence from the Plaintiff and his wife, and considering the medical opinions in the context of that evidence, the Court was satisfied that the Plaintiff's injuries and consequences that flowed from it were permanent. It also accepted that the Plaintiff suffered further consequences, including an inability to wash his car or mow his lawn and restrictions in the household activities he could do. It was accepted that the Plaintiff should avoid repetitive bending and lifting of objects lower than 60 cm off the ground. It was also accepted that he suffered from some interference with his sleep, however, the Court did not accept that it was with the regularity that he claimed.
Although the Court found that the Plaintiff had sustained permanent consequences as a result of the injury, it expressed reservations about the reliability of the Plaintiff's evidence and that he was not entirely forthcoming about the level of pain and disability.
It was determined that the Plaintiff took modest amounts of pain medication but had exaggerated the frequency of use and was not satisfied that he required frequent medication. He took the medication only occasionally and it was at the lower end of the scale of pain-relieving medication.
The Plaintiff gave evidence of time taken off work allegedly on account of his injuries. After considering his evidence and the evidence contained in medical materials, it was found that the Plaintiff had exaggerated the time he took off from work.
The Court also considered the alleged regularity with which he had obtained osteopathic treatment, noting that the Plaintiff had received minimal treatment since 2011. It concluded that he significantly overstated the regularity of such treatment in histories provided to independent medical examiners, which had consequences for the weight given to the corresponding medical opinions by the Court.
As these were key factors for the Court in assessing the Plaintiff's experience of pain, it concluded that the Plaintiff's pain was less frequent and less severe than alleged. The Court concluded that the consequences of the Plaintiff's injury were modest, even when considering the longevity of these consequences.
In dismissing the Plaintiff's application for serious injury the Court found that it was not satisfied that the consequences for the Plaintiff were "very considerable" compared to other cases concerning possible impairments or losses.