Australia: Evidence inconsistencies not enough to stop a compensation claim

The decision of Le v Victorian WorkCover Authority [2017] VCC 920 provides an interesting example of a worker's compensation claim, where the reliability of the plaintiff is at issue. The case highlights that applicants with prior drug histories, who fail to disclose such histories, doesn't necessarily mean their evidence is brought in to question. It also raises the point that sometimes credit arguments are best left to damages disputes rather than serious injury applications.

Background
The Plaintiff alleged she suffered an injury to her lower back on 12 December 2013 while working as a cleaner and that, as a result of her injury, she was permanently restricted in the work she could perform.

The Plaintiff had a history of drug abuse including addiction to heroin, which she did not disclose to her general practitioner who prescribed her Tramal for the pain.

On 8 January 2014, a CT scan taken of Ms Le's lumbar spine demonstrated a broad-based posterior disc bulge at L4-5.

In December 2014, the Plaintiff witnessed her brother's death in a traffic incident. Subsequently she was referred to a psychologist and was diagnosed with PTSD. In her assessment, the psychologist stated that the Plaintiff would be unfit for employment for the foreseeable future and that she considered her psychological prognosis to be poor.

The Plaintiff's long-term relationship ended shortly after her brother's death. She then commenced a new relationship with a man who was violent toward her. She sought an intervention order in April 2015.

The Plaintiff acknowledged that she had lapsed into heroin use in 2015 and 2016 and said that she had last used heroin approximately four months before the hearing. She also acknowledged that she had purchased Tramal medication on the street.

The Plaintiff gave evidence that she continued to suffer constant lower back pain. She said it was difficult for her to bend and touch the floor, which made it challenging for her to get dressed and clean the house. She described her daily activities as speaking to friends at a coffee shop in Footscray and sometimes playing the pokies. When she did play the pokies, she said she would stand due to the pain.

Ms Le's reliability as a witness
The Defendant argued the Plaintiff was not a credible witness and that she had intentionally overstated the significance of any lower back pain suffered. They also submitted the physical effects of the Plaintiff's injury had resolved and her current presentation was non-organic.

The Defendant relied on the following matters to demonstrate Ms Le was unreliable:

  • In her first affidavit, Ms Le stated that she was not able to return to work on modified duties as her employer had lost its contract after she had ceased work. During cross-examination she said she was not aware the contract had been terminated.
  • Although she had been seeing Dr Green since June 2013, she did not tell him about her history of heroin addiction until November 2015 or that she was purchasing Tramal on the street.

Judge Tsalamandris held that the inconsistencies with the Plaintiff's evidence in her affidavit and under cross-examination did not reflect on her credibility but demonstrated that she was a relatively simple woman with a poor memory. Her Honour was not surprised the Plaintiff concealed her drug use from her general practitioner and did not consider this to reflect upon her reliability as a witness.

Judge Tsalamandris did not accept the Plaintiff's evidence about when she last used heroin or how often she purchased Tramal. However, she did not consider the Plaintiff's unreliability in respect of her drug use to be so significant as to challenge the reliability of the remainder of her evidence.

The injuries subject to the claim
Judge Tsalamandris held that only physical consequences arising from the injury were to be considered. It was accepted that the Plaintiff suffered a significant psychiatric reaction following her brother's death and other psychological traumas in the Plaintiff's life as well as her history of substance abuse. It was further accepted that the Plaintiff's psychiatric condition was so severe that it may incapacitate her for employment in the foreseeable future.

It was held that any loss of earning capacity that the Plaintiff suffers as a consequence of her psychiatric condition was to be disregarded. The consequences of the non-compensable psychiatric condition would be relevant in assessing future economic loss in a damages trial but were not relevant to the test for the serious injury "gateway".

The "very considerable" test
After concluding the Plaintiff had suffered the requisite loss of earning capacity of 40% or more, her Honour turned to consider whether the consequences for Ms Le met the "very considerable" test. Justice Tsalamandris found, given the Plaintiff's injury restricted her to (at best) only part-time work, that the pecuniary disadvantage to the Plaintiff was so great that the loss of earning capacity could be described as very considerable.

We would like to acknowledge the contribution of Samantha Marsh and Ilona Strong to this article.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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