A gap in the chain of causation – Surveillance footage trumps medical evidence

Namo v The Star Entertainment Group Limited [2022] NSWPIC 173 (21 April 2022)

The Applicant was employed as a full-time security guard for the employer, The Star Entertainment Group Limited. His duties involved prolonged standing, screening customers, checking identification, welcoming customers, and crowd control.

After approximately 3 months, the Applicant began to feel symptoms in both his hips and feet and commenced conservative treatment from late March 2019.

The Applicant commenced proceedings in the former Workers Compensation Commission in relation to his injuries. It was determined that he had suffered an injury to his hips and feet in the course of his employment with the employer, with the deemed date of injury being 24 March 2019.

Two years later, the Applicant sought lump sum compensation in the Personal Injury Commission under section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’) in relation to injuries to both feet and both hips as well as a consequential injury to the lumbar spine.

Issues for Determination

Pursuant to section 66(1) of the 1987 Act, the Applicant could only pursue his section 66 claim if his level of whole person impairment was found to be greater than 10%.

As the Applicant did not put forward any evidence that this threshold was met solely on the basis of the injuries to his hips and feet, the only issue for determination was whether the Applicant sustained a consequential injury to his lumbar spine resulting from the injury to his hips and feet.

The Applicant’s position was that he had developed a consequential condition to his lumbar spine, which resulted from the accepted injuries to his hips and feet, as he had limped and developed an altered gait because of those accepted injuries.

Decision

From the outset, Member Whiffin highlighted that it is been well established that it is not necessary for a worker to establish that the consequential condition is an injury within the meaning of section 4 of the 1987 Act. He observed the relevant test is whether the loss ‘resulted from’ the relevant work injury.

In support of his claim, the Applicant provided two statements along with independent and treating medical evidence. The employer, on the other hand, relied upon its own medical evidence and critically, surveillance footage obtained of the Applicant on various dates from 23 December 2020 to 4 January 2021.

The Member noted the surveillance footage showed the Applicant walking long distances and even running short distances without limping or an altered gait. He described the footage as “compelling and reliable” as the footage captures the Applicant “in an unprepared situation”. In light of the surveillance footage as well as the Applicant’s attempts to hide his prior back injuries, the Member could not accept him to be a witness of truth.

Accordingly, the Member stated at paragraph 89:-

“If I cannot accept the Applicant as a witness of truth, I also cannot accept that the complaints he made to the clinicians and his conduct during his consultations with them, were genuine. The reports from the clinicians do not therefore have sufficient independence from the Applicant for them to be able to corroborate his allegations of limping and altered gait.”

Having regard to the evidence put forward by the parties, the Member was not satisfied that the Applicant had suffered a consequential injury to his lumbar spine as result of limping or altered gait. He stated the unbroken chain of causation had not been established by the Applicant.

The Member dismissed the ARD in accordance with section 54 of the Personal Injury Commission Act 2020 on the basis that the proceedings were lacking in substance. There was no evidence that the Applicant’s whole person impairment was greater than 10% as required by section 66(1) of the 1987 Act and therefore, there could be no dispute for determination by the Commission.

Implications

Although privacy concerns are certainly a valid consideration, conducting a desktop or physical surveillance ought to be considered in circumstances where there is evidence of potential non-genuine symptoms by a worker. This case highlights that surveillance footage can provide compelling evidence to demonstrate inconsistent and / or malingering behaviour by a worker despite medical evidence indicating otherwise.

Should you have any queries concerning a particular workers compensation matter, please contact our team on either (02) 4929 9333 or (02) 8297 5900.