Evidence 'totally at odds' with woman's injury claims

Evidence

By Maria Karlsson-Lilas on 2 August 2018 A woman's pursuit of damages for pain and suffering has been rejected because she failed to present believable evidence.

Facts and background


The woman, who was employed by the Victorian Country Fire Authority, slipped and fell on a wet kitchen floor in the course of employment in April 2013. She sustained an injury to her lower back. The records of the doctor she saw for workers compensation purposes revealed that her injury gradually improved and had resolved by July 2014. She had subsequently left the workforce in January 2016, aged about 55, due to a psychiatric injury arising from workplace bullying.

The woman eventually sought leave to pursue a claim for pain and suffering consequences of the injury that she sustained to her lower back in April 2013, according to the Accident Compensation Act 1985 (Vic).

To support her case in the County Court of Victoria, the woman submitted an enormous amount of documents covering not just the April 2013 incident but her physical health problems in general. They included shoulder symptoms, osteoporosis, fractured ribs, Behcet’s syndrome, haemorrhoids, breathing problems and plantar fasciitis as well as elbow and knee problems.

There were records of her having been treated by an array of specialists, and it became clear that she had not provided comprehensive or consistent histories to them. For example, although there were records of her having had spinal traumas in 2005 and 2009, when examined by a surgeon engaged for the employer in March 2017, she claimed that prior to April 2013 she had ‘no past history of low back problems whatsoever’.

The issues


The issues for the court involved the woman’s credibility and the effort of extracting relevant medical and factual information from the body of material she had provided.

Considerations


In court, the woman repeatedly tried to distinguish her pre-work injury back problems from the April 2013 event and sought to minimise the non-compensable injuries and conditions – in the process revealing that her medical knowledge was considerable.

Judge Jordan said: ‘It was very informative to have the opportunity to not only hear her evidence but also to observe her demeanour over a very lengthy cross-examination that went for three days. I found her an unreliable witness in a number of important areas’.

For example, she had had a bone scan in 2012 informing her that she had significant osteoporosis in her lumbar spine. Yet, she kept trying to pass off her lumbar spine problem as having arisen wholly from the accident in April 2013.

The woman had sworn in her affidavit that her only form of social activities was her involvement with Toastmasters, but she told the court that she did ‘back to back’ cruises. Her Facebook pages showed that she worked as a marriage celebrant and was able to officiate at all sorts of events, ceremonies and celebrations, including corporate functions, trivia nights, charity events, etc.

Judge Jordan said: "Her evidence was so unacceptable regarding this extensive advertising site and posts that it could be described as deceptive. It is totally at odds with the description of how severely she says the low back condition limits her socially and generally."

The employer’s defence was that the woman had not proved any low back impairment that satisfied the test of ‘serious injury’, as required by the Act.

Decision


Judge Jordan agreed with the employer and was not satisfied the woman had proved that she had sustained any permanent low back impairment in the April 2013 incident. Her application was dismissed.

The bottom line: Courts expect parties to provide rational and consistent evidence to support their causes. Those who fail to do that cannot expect to succeed.

Read the judgment


Roffey v Victorian WorkCover Authority [2018] VCC 925 (26 June 2018) 

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