Written by Peter CarterFebruary 19, 2013
The presentation is familiar enough. A labourer feels a twinge deep in his back after a heavy or awkward lift or pull but rather than report it, decides to takes it easy until end of his shift. Escalating pain over the next few days leads to an emergency room visit. The injury is eventually reported and diagnosed but the delay raises suspicion. Such was the history for 45-year-old warehouse picker Richard Adam, who despite “reservations about credit”, was believed in his account of such an injury he suffered in March 2010 when awkwardly heaving a stack of milk crates by use of a hook.
“It was late [in the day] and the onset of pain was seemingly transitory”. A sufficient explanation, according to the Supreme Court in Rockhampton, for his failure to immediately report the incident in compliance with a factory policy that workers were reminded of at a toolbox meeting just two days earlier.
Undeterred by this setback, labour-hire agency Skilled Group and host employer National Foods saved their best arguments for an attack on Adam’s contention that the accident would cause him a lifetime of lost income.
They had plenty to work with in terms of Adam’s conduct both before and after the milk crate injury.
Desperate to return to work, he told GPs in September 2010 (falsely, he later claimed) that he had fully recovered to gain medical clearance for a labourer’s job at a meatworks. Both doctors’ observed no significant disability.
Adding to the “confusing” picture, he only sought medical attention twice over 17 months and was incensed that his return to work program was for only two days rather than his customary six days per week.
Most damaging was the concealment of his four-week return-to-work at the abattoir, in his superannuation disability benefits claim and the withholding of a prior 2005 New Zealand back injury from his history to forensic medical specialists.
And very “variable symptoms” – ranging from the unobservable on the one hand to highly agitated the other – added to the “odd” impression that Adam gave. His counsel claimed these apparent inconsistencies were due to the Plaintiff’s contrarian personality, not dishonesty and His honour agreed that many of the seemingly adverse issues could be explained away and “no one of them is of itself compelling”.
But having to decide between an injury which fully resolved within a few months on the one hand and the permanent aggravation of pre-existing pathology on the other, his honour ruled that the “puzzling” evidence was more likely to be consistent with the former.
“I am satisfied there was an initial injury” but “what evidence there is points to a [full] recovery.” Dr Cook’s orthopedic support for the plaintiff case – although supportive – was of no use to his case in that it was “reliant upon the history provided and … [assumed an] honest presentation” by the plaintiff.
Vanquished on his loss of income claim, the three-day trial resulted in a judgment of just $16,000.