February 25, 2012

A “big four” bank was last week ordered to halt its refusal of injury compensation to a Gladstone customer server who fell to the floor when the back of a service centre chair collapsed in December 2006.

Tara Andrews was – claimed Westpac – an opportunist whose only injury was a temporary aggravation of pre-existing symptoms and any further problems were brought on by a four-hour road trip she took a few months later.
Their suspicion ran deep.  Possibly because her personnel records made evident that she was already an “unhappy” bank employee who had been frequently flagged at performance reviews as “needing development”.

Adding fuel to their distrust, Andrews had failed to mention a particularly uncomfortable gem fields road trip – that she had complained about to her GP – to forensic medical specialists Greg Gillett, Paul Licina and John Morris because “she did not think it relevant”.

Then, what was thought to be their nail for her coffin, came Dr Morris’s view that she was “maximising her complaint” and her ” motivation for rehabilitation was poor”. On the other hand, Rockhampton pain specialist John Agar-Wilson – who defended any “abnormal illness behaviour” as being potentially a sign that of a patient in distress – believed Andrews’ pain genuine. However, he unusually observed her to have had 75% of the normal range of trunk flexion but a 45% range in the straight leg raising of both limbs.

This, claimed Westpac and its collaborator WorkCover, was nothing more than an obvious indicator of inappropriate pain behaviour that doctors should look for to audit malingerers. “Waddell’s signs” are constituted by behaviour on examination that is indicative of deliberate or psychologically induced symptom exaggeration.

WorkCover clutched at such “signs”: the plaintiff was a fudger whose chair fall injury was short-lived and whose lawsuit should be thrown out altogether, with nil damages and an order she pay their trial costs.

However, Dr Gillett, who recorded a 7% impairment being a permanent aggravation of a previously asymptomatic spondylolysis of L5/S1, noted the plaintiff demonstrated no Waddell insignia. Gillett – whose authoritative views vindicated the plaintiff’s case – in considering the potential impact of the journey to the gem fields, opined that the crucial issue was whether the plaintiff still had pain between the fall caused by the collapse of the chair and the journey. As summarised by his honour:

“A continuum of symptomatology from the collapsing chair incident onwards would be indicative of a permanent [injury] being caused by that incident. Absent such a continuum then whatever injury may have resulted from the collapsing chair could well have resolved by the time of the car trip”.

There was no evidence that the car journey was other than on a normal bitumen road or that the vehicle or seat were somehow defective so as to produce “some abnormal force coming on to her spine”. Indeed Dr Gillett made it clear that he would not normally expect car travel to cause the resulting injury.

Not to be deprived, WorkCover countered in some desperation, Andrews was dishonest for failing to disclose she was consulting solicitors when her statutory claim was still current and rehabilitation was being provided. Really? The failure to mention the car trip discomfort to the specialists was accepted by the court as an innocent, if self-serving, omission from a “genuine and credible” claimant.

Loss of future earning capacity was assessed at $250 weekly – the value of one day equivalent off per week to cope with the ongoing effects of the injury – in a total assessment of $335,000. If banks had applied just a portion of such suspicion to prevailing lending practices over the same time period – who knows – perhaps we could have been spared some of the worst of the GFC.

Andrews v Westpac Banking Corporation [2012] QSC 022 Brisb McMeekin J, published 17/02/2012

Categories: Personal Injury , Litigation & Law Practice

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