February 26, 2014

Video surveillance of a machine operator who continued to wear a sling after being told by his treating doctors to discard it has produced mixed outcomes for his frozen shoulder injury compensation claim.
Sameula Feta, a 56-yr-old paint booth worker of Samoan ethnicity and living in Australia for 15 years, claimed the booth hoist control on which he was required to “exert repetitive pressure for its activation”, had unexpectedly jerked upwards causing his shoulder to overextend.

His employer, NIBF of Innisfail – Far North Queensland’s largest metal foundry and one of Queensland’s oldest manufacturing companies – denied the controller or the hoist were defective and asserted, despite previous complaints having been recorded, its machinery has no part to play in the February 2008 injury.

Partly because the hoists were scrapped and replaced the following month, the judge ruled Feta’s shoulder injury was a consequence of “using a hoist which the employer knew was not functioning properly and had been the subject of prior complaint”.

The actual defect was a deficiency in the hydraulic air supply.

The court decided that had Mr Feta been warned not to leave his hand on the controller when activating the ascend button, the injury would not have occurred. Notwithstanding that finding, WorkCover urged the court – by producing video surveillance evidence –  that the symptoms he complained of were exaggerated and unconnected to the hoist event.

Feta was able to satisfactorily explained away film evidence showing him driving, putting air in his tyres, filling up his car with petrol and lifting boxes into the boot of his car because his GP had told him to drive and perform other activities as a way of exercise for his shoulder and arm.

Taken with the medical evidence, the video was instrumental in preventing a claim for income loss after the date on which it was shot in December 2010. But WorkCover Queensland failed to convince the court that the footage entirely subverted Feta’s overall creditability. He was despite some inconsistencies, considered by Brisbane’s District Court, to be reliable and generally truthful.

Loss of income for the physical and psychological injuries over nearly three years up to December 2010 was allowed at $95,000. Total damages awarded were $111k.

Fetu v Northern Iron and Brass Foundry Pty Ltd [2013] QDC 093 Brisbane Robin QC DCJ 8/04/2013

Categories: Personal Injury , Litigation & Law Practice

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