The District Court has recently reported a decision where it refused leave by a worker to appeal Workcover’s finding that he was an unreliable witness and not entitled to workers compensation.
Zamora v OCS Services Pty Ltd [2024] WADC 77 gives insurance lawyers, insurers and employers some guidance on the inconsistencies and other ‘red flags’ to look out for in the evidence when assessing a worker’s claim.
The facts:
- The worker was employed as a cleaner and fell when he was in the shopping centre toilets. He claimed to have suffered injuries to his back and arm. He was the only witness to the accident.
- The employer denied that the worker suffered any injury.
- The worker gave two witness statements about the circumstances of the injury, and was cross-examined at arbitration.
At Workcover, the Arbitrator found the worker to be an unreliable witness based on matters including:
- The Arbitrator’s assessment of the worker; and
- Inconsistent accounts as to how the injury occurred and what he was doing just prior to the accident;
- The worker’s failure to disclose his prior history of psychological conditions to the psychologist and psychiatrist that examined him.
- The worker having denied and then admitted using medication at the time of the accident and prior;
…I find that Mr Zamora did not provide accurate details of the slip and fall including the force of the fall nor did he disclose his prior history of psychological issue to the treating doctors and medico legal specialists.
- The worker became quite argumentative and angry under cross‑examination and deflected questions by accusing counsel for the employer of lying;
- The worker said that a neurosurgeon sat and laughed in the worker’s face during a consultation and did not examine him. The Arbitrator found this to be inconceivable.
Additionally, as to the ‘injury’, the Arbitrator found no evidence of a definite or distinct physiological change or physiological disturbance which was identifiable as a consequence of the accident. The Arbitrator came to this view after giving consideration to:
- Ambulance records showing no objective evidence of an injury.
- Radiological imaging showing no acute fractures or trauma malignment.
- Hospital records showing he was functionally able and principal diagnosis was ‘back pain’.
- Medical specialists found no objective evidence of injury and diagnosed soft tissue injury ‘by default’.
… the terms 'mechanical trauma' and 'soft tissue injury' are umbrella terms used to describe the subjective presentation of symptoms where a more specific diagnosis cannot be afforded and are non specific in this case as to be of little use in identifying the injury (paragraph 45).
Ultimately, Workcover found the worker had not established that he suffered the injury claimed.
The District Court refused the worker’s application to appeal the decision.
Takeaways for insurers and employers:
- If the worker is the only witness in their accident, that alone is not enough to say there is no injury under the Act. But in combination with other factors, the worker may struggle to convince an arbitrator that they suffered an injury at work.
- Always consider consistency as to the worker’s versions of events on how the injury occurred. Check the ‘history’ sections in specialist reports, and compare to the contemporaneous GP records and any witness statements.
- Consider the worker’s consistency and truthfulness relating to pre-existing conditions, treatment received, and any other important factors. Inconsistencies may suggest that the worker’s evidence about how the injury occurred is not entirely accurate.
Where the principal diagnosis is ‘pain’, ‘soft tissue injuries’, ‘non-specific’ symptoms or the like, consider whether there is any objective evidence such as clinical examination findings and imaging to show an acute trauma or change in pathology. Pain alone is not enough to establish that a person has suffered an injury or disease.
Written by Sydney Melville, Solicitor.