Ryan v Tomago Aluminium Company Pty Ltd
[2024] NSWPIC 243
•9 May 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Ryan v Tomago Aluminium Company Pty Ltd [2024] NSWPIC 243 |
| APPLICANT: | Samual James Ryan |
| RESPONDENT: | Tomago Aluminium Company Pty Ltd |
| MEMBER: | Lea Drake |
| DATE OF DECISION: | 9 May 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - The applicant was found to have a continuing incapacity for work as a result of his injury, but his capacity to work was found to be greater than that assessed by his treating specialist; Held – he was found to have a capacity to undertake work from 31 March 2023 in retail sales for 38 hours per week at $27 per hour earning $1,026 gross per week. |
| DETERMINATIONS MADE: | The Commission determines: 1. On 18 March 2021 the applicant was electrocuted in the course of his employment with the respondent. 2. As a consequence of his electrocution the applicant suffered subsequent cardiac complications and functional neurological disorder. 3. The applicant’s pre-injury average weekly earnings were $2,230.16 per week. 4. The applicant has had a capacity to undertake work from 31 March 2023 for work in retail sales for 38 hours per week at $27 per hour earning $1,026 gross per week. The Commission orders: 5. The respondent is to pay compensation to the applicant pursuant to s 37 as follows: (a) $1,784.13 per week from 24 March 2022 to 30 March 2023, and (b) $758.13 from 31 March 2023 to 14 September 2023. 6. The respondent is to pay the applicant’s reasonably necessary medical expenses pursuant to s 60. |
STATEMENT OF REASONS
BACKGROUND
Mr Samual James Ryan (the applicant) was employed by Tomago Aluminium Company Pty Ltd (the respondent) as a potline operator.
On 18 March 2021 the applicant was electrocuted in the course of his duties with the respondent. He was taken to Calvary Mater Hospital. Thereafter the applicant suffered cardiac symptoms and was referred to various specialists for treatment and opinions. The applicant states:[1]
[1] ARD page 1.
“Treatment
10. On 22 March 2021, I was advised that I could return to work, this was contrary to how I felt. I suffered from instability in my left foot, I had serious shortness of breath and was fatigued. 11. On 20 December 2021, I presented to Calvary Mater Hospital with a suspected heart attack, I suffered from intense pain in the centre of my chest, shortness of breath and dizziness.
12. On 10 February 2022, attended upon Dr H Cooke, Cardiologist who undertook investigations.
13. On 3 March 2022, Dr Cooke opined I had left ventricular hypertrophy.
14. In April 2022, I reported to Dr Cooke that I had developed daily headaches, sensitivity to light, continued breathlessness, fatigue, poor concentration and was collapsing with leg weakness. Dr Cooke referred me to Dr T Welling, Neurologist and Dr P Oakley, General Physician.
15. In May 2022, Dr Cooke referred me to Dr Sutherland, Neurologist.
16. On 19 August 2022, I attended upon Dr Wellings who noted my escalating symptoms, Dr Wellings opined that I should not have returned to work immediately and that it had taken a psychological toll on me.
17. On 19 August 2022, Dr Wellings spoke with Dr Elton, treating psychologist and both formally diagnosed me with Functional Neurological Disorder (FND).
18. On 11 November 2022, I attended upon IME Dr David Williams at the behest of the insurer, Dr Williams diagnosed me with Functional Neurological Disorder secondary to my electric shock. Further, Dr Williams opined that my ‘employment was undoubtedly a substantial contributing factor.’
19. On 23 November 2022, I attended another IME, Dr Vasantha Pothala who opined that ‘I (Dr Pothala) would have to conclude that employment was the main contributing factor’ towards my injury.
My Claim
20. On 24 March 2022. 27 September 2022, 9 November 2022 and 15 December 2022 the insurer had denied liability for weekly payments of compensation and reasonable
and necessary medical treatment.
21. In their most recent s 78 notice of 15 December 2022, EML made their determination contrary to the opinion of both IMEs they had engaged stating ‘EML does not consider the doctors paid due regard to the factual discrepancies involved and hence the opinions are not accepted.’
22. On 31 March 2023, I attended upon IME Dr Michael Edger in his Newcastle rooms for the purpose of a further medicolegal report addressing diagnosis, causation, capacity for work, and prognosis.
23. In his report dated 31 March 2023, Dr Edger opined that it is more probable than not that the frank injury of 18 March 2021 was a substantial contributing factor to my ongoing injury stating: ‘Functional neurological disorder can have many triggers, but in this case the evidence points strongly to the electrocution and stress of this event being the only identifiable trigger to the onset of the functional neurological disorder and resulting capacity… It is highly unlikely that he will be able to return to any type of pre-injury duties at Tomago Aluminium.’
24. Given the clear learned opinion of Dr Edger, and the fact that it is in concert with the learned opinion of both IMEs Dr Williams and Dr Pothala, on 2 May 2023, I sought review pursuant to s 287A of the Work Injury Management and Workers Compensation Act 1998.
25. On 17 May 2023, the Insurer maintained their declinature of liability in a s 287A
Notice despite the preponderance of medical evidence.
26. Accordingly, I now seek the assistance of the Personal Injury Commission to determine my claim and the Insurer decision to deny liability for my ongoing Functional Neurological Disorder.”
MATTERS IN DISPUTE
The issue in dispute is whether the applicant has any continuing incapacity for work. The respondent alleges that the applicant is not a witness of credit and is malingering and exaggerating his symptoms.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
Mr Greg Young of counsel, instructed by Mr Wayne Dever of MRM Lawyers appeared for the applicant. Mr Tom Grimes of counsel, instructed by Mr Robert Passas of BBW Lawyers, appeared for the respondent.
I am satisfied that the parties to the dispute understand the nature of the application and the will’s will endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
The respondent sought leave to cross-examine the applicant at the conciliation and arbitration. That application was opposed.
Having considered the issues the Personal Injury Commission (Commission) determined that there had been no undue delay in the respondent’s notice to the applicant’s representatives and that allowing the application would be in the interests of justice.
The following documents were in evidence before the Commission and considered in making this determination:
a. Application to Resolve a Dispute (ARD) and attached documents;
b. Reply to ARD (Reply) and attached documents;
c. Application to Admit Late Documents (AALD) dated 21 December 2023 and attachments;
d. AALD dated 19 February 2024 and attachments;
e. AALD dated 22 February 2024 and attachments;
f. four surveillance DVDs lodged on 21 December 2023;
g. five surveillance DVDs lodged on 5 February 2024;
h. a report provided by investigators engaged by the respondent;
i. submissions lodged by BBW Lawyers for the respondent dated 6 March 2024, and
j. submissions lodged by MRM Lawyers for the applicant dated 28 March 2024.
Evidence
The applicant made oral submissions at the conciliation/arbitration. These were followed by written submissions. I have extensively extracted the respondent’s written submissions on the evidence and the applicant’s response. They are forensically detailed and there is no purpose to be served by a summary. References to the recording are noted as sound file numbers (SF).
Evidence relied upon by the respondent regarding the applicant’s bank accounts
The respondent submits that the applicant made the following concessions during cross examination:
(a) the bank accounts contained in the respondent’s second AALD dated
21 February 2024 (2AALD) are not shared with his wife and he does not share this account with his wife,[2] and(b) the money spent in the bank accounts in 2AALD would be money spent by the applicant. [3]
[2] SF 14.21.
[3] SF 14.38.
The respondent relies on the entire bank accounts at 2AALD as indicating that the applicant is able to travel to shops, to appointments for his children and on holidays. The respondent submits that the frequency of the applicant’s purchases contradicts the applicant’s alleged lack of functionality and severely impinges on his credit.
The respondent also relies on the following evidence in cross examination regarding the applicant’s functionality
He drops and picks up his twins to kindergarten each day. [4]
[4] SF 22.29.
He takes his oldest two children to cross fit on Tuesdays and Thursdays.[5]
[5] SF 24.27.
He takes his twins to physical therapy to Newcastle (1 hour each way) once a fortnight.[6]
[6] SF 25.25.
He will drive his children to Newcastle to attend Back to Bounce. [7]
[7] SF 38.28.
He will attend Bunnings frequently [8] to obtain plants; straw for his chickens and material for general maintenance of his house.
[8] SF 48.17.
Applicant’s response on the issue of bank accounts
The respondent alleges that the applicant’s spending and cross-examination on “functionality” do not support the allegations of incapacity.
The respondent’s counsel meticulously questioned the applicant on several purchases made after the accident from local gyms, physiotherapists and health food and body supplement stores.
The applicant candidly answered each question explaining that most of the purchases were for his four active and sporty children. Otherwise, he and his wife continue to buy health drinks and protein powders to maintain a healthy lifestyle.
Counsel for the applicant submits that there are three distinct periods in the development and gradual improvement in the applicant’s injury:
(a) from the date of injury (18 March 2021) until the “heart attack” episode in December 2021 – the applicant attended the gym on one occasion in
November 2021 to bench press 150kg. He explained that he usually lifted far greater weight.The applicant has not returned to gym activity or bodybuilding since. The gym owner, Leroy Scott confirmed the applicant has not returned to the gym since November 2021 and his membership was cancelled in January 2022;[9]
(b) December 2021 to 30 March 2023 – after the applicant suffered the “heart attack” episode in December 2021, he was unanimously diagnosed by various specialists with functional neurological disorder (FND).
The alleged inconsistent activity referred to by the respondent was either prior to the “heart attack” episode in December 2021 or after Dr Edgar noted some improvement on 31 March 2023 when the doctor certified the applicant fit to work 12 hours per week,[10] and
(c) from 31 March 2023 to date and continuing – as stated above, Dr Edgar noticed some improvement in the applicant’s symptoms but maintained the diagnosis of FND causing partial incapacity.
As such, the surveillance should be considered in the context of the applicant’s improvement as it was conducted from 24 April 2023 to 24 June 2023.
The surveillance footage was over five days and only yielded 20 minutes of the applicant’s activities. The applicant was seen to be driving or carrying his then 4-year old daughter, Harper who suffers from cerebral palsy [see the medical report confirming Harper’s diagnosis].[11]
Even after viewing the surveillance reports, the respondent’s doctors (Drs Williams and Pothala) did not retract their previous diagnoses supporting the applicant but merely raised questions of possible malingering.
Williams in his supplementary report dated 24 July 2023 maintained: “In my opinion, the non-organic nature of Mr Ryan-Allen’s presentation has not changed. It remains possible that he has FND, unconsciously motivated. However, the new information discussed above can be readily interpreted as showing at least some conscious motivation aimed at obtaining a perceived benefit.” [12]
Even then, Dr Williams seems to be unaware of the three distinctive phases in the development of the applicant’s condition. Had the doctor been aware, he would understand the alleged inconsistent activities occurred either before or after the period when the applicant’s symptoms were at their worst (December 2021 to March 2023).
[9] ARD page 7.
[10] ARD page 71.
[11] ARD page 5.
[12] Reply page 166.
In contrast, Dr Edgar in his supplementary report dated 20 November 2023 (ARD page 74) found the surveillance was “inconclusive”. The doctor was aware the surveillance post-dated his initial examination. Overall, Dr Edgar maintained his support for ongoing partial incapacity due to FND.
Respondent’s submissions as to the gym activities
The applicant has provided the following history in respect of this gym activities since the date of injury on 18 March 2021:
(a) Dr Elton’s report dated 23 August 2022 stated “These symptoms are distressing and have resulted in signficant disruption to Sam’s life, including loss of role and impact on identity (inability to work or train/engage in high performance physical exercise)”;[13]
(b) Dr Vasantha Pothala’s report dated 23 November 2022 stated “He was a powerlifter and also a competitive lifter….After the shock incident he lost all of that. He lost the ability to get out of bed and feels “everything is a burden”[14] and “he stopped exercising or walking”;[15]
(c) Dr Elton’s report dated 12 December 2022 stated “…inability to work or train at the gym…”,[16] and
(d) Dr Edger’s report dated 31 March 2023 stated “He has not attended the gym since the injury, but tries to do yoga and breathing control exercises” [17] (our emphasis).
[13] ARD page 167 point 7.
[14] ARD 60.
[15] ARD 62.
[16] ARD131.
[17] ARD 70.
The following evidence indicates the applicant partook in gym activities post the date of injury:
(a) the applicant attended the respondent’s gym 19 times from 3 June 2021 to December 2021,[18] and
(b) Facebook photos dated 23 November 2021 noted showed the applicant lifting 150kg six times. The applicant’s narrative on the post stated “First Heavish bench session in well over 12 months working up to a top set of 150kg.” [19]
[18] 1AALD 19.
[19] 1AALD 16.
The applicant conceded that he did five repetitions of 150kg bench press on
23 November 2021.[20][20] SF100.02.
The applicant conceded he also did some lighter accessory work on the bench press on
23 November 2021.[21][21] SF100.18.
The respondent submits that the work out on 23 November 2021 is in direct contrast to his statement which alleged “However, I would be able to do little more than ride the stationary bike for any more than 15 minutes”.[22]
[22] ARD 10.22.
The applicant alleged that following his gym work on 23 November 2021 he suffered chronic fatigue, headaches, dizziness and chronic pain.[23]
[23] SF1.02.
The applicant alleged that these symptoms lasted for four days. [24]
[24] SF102.14.
The respondent submits that the applicant’s evidence as to chronic symptoms for four days post 23 November 2021 is in contrast to the following evidence:
(a) The applicant conceded he did not take time off work for the four days he suffered the chronic symptoms. [25]
(b) The applicant attended the work gym on 26 November 2021. [26]
(c) The applicant attended the following shops during the four day period:
(i)23 November 2021: Woolworths; Donut King; Terry White Chemist: Aldi; Bakers Delight. (2AALD14);
(ii)24 November 2021: Gillieston Heights Take Away Shop: (2AALD15);
(iii)25 November 2021: The Whistler (Maitland), Hunter Kebabs (Maitland) (2AALD15), and
(iv)26 November 2021: McDonalds (2AALD15).
[25] SF102.20.
[26] 1AALD17.
During cross examination the applicant conceded his children do not go to any other fitness centre except for CrossFit Indulgence. [27]
[27] SF32.55.
During cross examination the applicant alleged that post December 2021 he has not attended a gym. [28]
[28] SF13.55.
Noting the applicant maintained that none of his family attend other gyms, the respondent submits that the following evidence indicates that applicant has attended gyms since December 2021:
(a) 12 May 2022: Anytime fitness Rutherford: $36.49;[29]
(b) 29 May 2022: Hunter Strength: $6.50, [30] and
(c) 27 April 2023: PCYC: $15 and $15 and $407.[31]
[29] 2AALD39.
[30] 2AALD42.
[31] 2AALD94 and 95.
The respondent’s experts have commented on the significance of the gym activities as follows: Dr David William’s report dated 24 July 2023 “Mr Ryan-Allen explicitly told Dr Edger in March 2023 that he had ‘not attended the gym since the injury’. This differs from what he told Dr Pothala in November 2022, and is directly contradicted by the evidence of his weight-lifting photos from November 2021”.[32]
[32] 1AALD165.
Applicant’s response on the issue of gym activities
The applicant made appropriate concessions under cross-examination about the one occasion he attended the gym to exercise in November 2021 confirmed by the photographs posted by him on Facebook.
However, the weights lifted at the gym must be placed in the context.
The applicant previously lifted far greater weights and qualified for Australia’s Strongest Man competition.
Also, the applicant was unable to return to the gym work. He suffered the “heart attack” episode in December 2021 and since then the medical evidence has unanimously diagnosed FND.
Contrary to the respondent’s submission at paragraph 17, the applicant candidly answered questions about the modest purchases for health drinks and protein powders.
With respect there is no evidence to support the respondent’s suspicions that the applicant has returned to gym activity or body building since November 2021.
Respondent’s submission as to the fear of driving
The applicant has provided the following history as to his functionality: Dr Cooke’s report (treating cardiologist) report to Dr Patrick Oakley General Medicine John Hunter Hospital dated 14 April 2022 stated, “He is now reporting a fear of driving his car due to progressive leg fatigue.”
The respondent relies on the following evidence as to the applicant’s continued driving contrary to the history provided to Dr Cooke: the applicant travelled to Nambucca Heads and Port Macquarie and Newcastle from 19 April 2022 to 22 April 2022.[33]
[33] 1AALD35.
Applicant’s response on the issue of the applicant’s driving
The respondent’s submissions at paragraphs 19 and 20 refer to histories recorded by
Dr Cooke in April 2022 when the applicant’s symptoms were at their worst.In answer to cross-examination on his driving and the Centrelink Carer applications, the applicant explained that his symptoms fluctuate. When they are severe then the symptoms referred to in the Centrelink application are accurate.
The applicant explained that the surveillance only briefly showed him driving and carrying his 4-year old daughter, Harper. The activities filmed were on “good days”.
Respondent’s submission as to application for carer’s pension for applicant’s wife
The applicant and his general practitioner completed a Centrelink Carer’s Form dated
13 September 2022 (A140) which stated the following:“Wife had to stop working to care for Sam. Needs assistances with anything that requires standing. Also needs support with finances, appointments and organisation.” [34]
[34] A143.
The applicant conceded he gave Dr Penna the history to complete the Centrelink carer’s form dated 13 September 2022. [35]
[35] SF105.47.
The applicant conceded that his wife did not stop working on 13 September 2022. [36]
[36] SF105.55.
The respondent submits that the applicant’s evidence of “needing help for anything that requires standing” as at 13 September 2022 is in direct contrast with the functionality demonstrated by the following expenditure in the applicant’s bank account:
(a) 12 September 2022: Metro Cliftleigh; [37]
(b) 13 September 2022: Steam motion Pty Ltd; Gillieston Ht;[38]
(c) 14 September 2022: United Petroleum,[39] and
(d) 15 September 2022: Puma Energy; Farhams Butchery; Metro Cliftleigh, McDonalds Wallsend; CrossFit Indulgence. [40]
[37] 2AALD58.
[38] 2AALD58.
[39] 2AALD58.
[40] 2AALD58.
The applicant and his general practitioner completed a second Centrelink Carer’s form dated 9 October 2022[41] which stated:
(a) Sam struggles to get through the day both physically and mentally. Needing constant supervision and prompting; [42]
(b) in respect of mobility: walks the help of one person; [43]
(c) in respect of dressing: needs Help but can do about half unaided;[44]
(d) in respect of stairs: needs help; [45]
(e) in respect of bathing: dependant,[46] and
(f) in respect of transfer: minor help. [47]
[41] A153.
[42] A156.6.
[43] A157.
[44] A157.
[45] A157.
[46] A157.
[47] 1AALD61.
The respondent submits that the following expenditure in the bank accounts are in direct contrast to the level of care alleged required in the second Centrelink Carer’s form dated
9 October 2022:(a) 8 October 2022: MGN Pizza; Back to Bounce: City of Newcastle; McDonalds; BP Tighes Hill: SQ The Kiosk Gillieston;[48]
(b) 9 October 2022: The Whistler; Woolworths; [49]
(c) 10 October 2022: Petquarters,[50] and
(d) 11 October 2022: Smiggle East Maitland; SMP French Hotbread Maitland; Post Maitland Greenhill Fresh Food. [51]
[48] 1AALD61.
[49] 1AALD61.
[50] 1AALD61.
[51] 1AALD61.
Applicant’s submission on the issue of the carer’s application
The respondent submits at paragraphs 24 and 26 of its submissions that the applicant’s expenditure demonstrates activity inconsistent with the Centrelink carer’s form dated
13 September 2022.With respect there is no medical support for that submissions.
Moreover, the applicant candidly explained under cross-examination that he goes to the shops to assist with the care of his young family, especially as his wife works to support him and the family.
Respondent’s submission as to travel to shops
Dr David Williams’s report dated 11 November 2022 recorded the history from the applicant’s wife in respect of functionality during the examination on 4 November 2022: “Mrs Ryan-Allen emphasised the extent of her husband’s disability, pointing to day to day struggles and his inability to go to the shops and return.”[52]
[52] ARD 53.
The respondent submits that the following expenditure in the bank accounts are in direct contrast the to the history that he has an inability to successfully go to the shops and return on 4 November 2022:
a. 3 November 2022: Blooms The Chemist Gillieston; Gillieston Ht; Coles Rutherford; ASN Greenhills Centre East Maitland; Boost Juice Green Hills,[53] and
b. 5 November 2022: City of Newcastle; Gillieston Ht; Dan Murphy’s.[54]
[53] 1AALD65.
[54] 1AALD65.
The respondent notes that Newcastle is over 1 hour journey from the applicant’s house. The journey to Newcastle is totally inconsistent with the Carer’s forms or the history provided to Dr Williams.
Applicant’s response on the issue of travel to shops
The respondent alleges the applicant’s expenditure in November 2022 was inconsistent with his “inability” to go to the shops and return.
In particular, the respondent highlighted 5 November 2022 when the applicant paid the “City of Newcastle”.
The respondent submitted that as the applicant’s home at Gillieston Heights is over an hour from Newcastle (the writer’s search on Google Maps estimated the time at 44 minutes), such a trip was “totally inconsistent with the carer’s forms or the history provided to Dr Williams”.
With respect, it was not put to the applicant under cross-examination that he drove for over an hour from his home to Newcastle on 5 November 2022.
No opportunity was provided to the applicant to explain that payment to the City of Newcastle.
It is possible the applicant paid the City of Newcastle by EFTPOS and did not drive an hour as suggested.
Moreover, the respondent has no medical evidence to suggest a trip for over an hour on one occasion was inconsistent with either a diagnosis of FND or a finding of total incapacity at that time.
Respondent’s submission as to surveillance
The respondent relies on the surveillance indicating the following:
(a) Monday, 24 April 2023 at 9:42am: mobile surveillance was initiated as the silver Holden vehicle departed with a male passenger, children in the back, and a female driver. They were followed to a Woolworths car park, where the claimant and his children entered the store, and the female driver left the scene. Between 9:52am and 9:55am, the claimant was observed in the vegetable aisle of the Woolworths grocery store with his three children, selecting items. We follow him through some aisles before seeing the claimant hold his daughter in his arms while his partner joined them. At 10:56am, the claimant's children returned to the vehicle on their own. By 11:08am, the claimant and his partner were seen returning to their vehicle with groceries. They are discreetly followed back to the residence. At 11:20am, the groceries were already unloaded, and the claimant was seen stretching his back. His partner left the area in the other vehicle, while the claimant and his children remained. The claimant checked the mailbox before entering the garage, which contained gym equipment, and closed the door remotely.[55]
(b) Monday, 1 May 2023: At 8:10am, the claimant was seen with his children, one in a school uniform, walking around the two vehicles parked on his driveway. The garage door was open, exposing the gym set inside. While preparing the black Nissan X-Trail, the claimant affixed two baby seats in the back seat and secured them. During this time, he bent over, stretched his arms, and moved around normally, with no signs of stress or discomfort. At one point, the claimant picked up one of his toddlers, swung them around, and placed them in the child's seat. The claimant's wife drove the car with the children, leaving the claimant behind. Moments later, the claimant departed the area in his car with registration EEI11N. He was discreetly followed to a Holden Service & Parts dealership, and later seen exiting the service centre holding a takeaway cup. The claimant's wife picked him up in the black vehicle, and they proceeded to drive back towards their provided address. At this point, we lose contact with the family. At 9:21am, the claimant was located within Maitland Riverside Shopping Centre in Kmart, pushing a trolley and about to pay for purchases. At 9:27am, the claimant, and his two small children, and his wife were seen exiting the shopping centre. The claimant is seen pushing the Kmart trolley towards their vehicle. The family then departed.
(c) Departed from the area, and contact is lost for the second time. [56]
(d) Tuesday, 23 May 2023: At 8:32pm, the claimant drove to High Street Maitland, which was a one-way road leading to a shopping mall. Upon entering the one-way road, the claimant parked parallel to the right. There is a preschool and primary school nearby, but we could not determine which one the claimant visited. The Claimant stayed in the vehicle and resumed driving shortly afterwards. We observed there was a teenage boy sitting in the backseat as the claimant's vehicle passed by our location. At 8:38am, while leaving the Maitland Shopping precinct, the claimant turned left onto the New England Highway. We experienced a delay due to oncoming traffic, causing the distance between us to increase and contact to lose contact.[57]
(e) Tuesday, 13 June 2023: At 8.20am, the Nissan X-trail departed the area with the claimant as the driver and school aged children in the front and back seats. He was followed to High Street Maitland where distance was gained as a safe distance was maintained, however contact was subsequently broken. Between 9.22am and 9.24am, the claimant was seen to drive back towards his residence and stopped his vehicle on the driveway. Within marginal time, he walked into the residence via the garage door and appeared to be holding something in his left hand as he moved out of view. [58]
(f) Saturday, 24 June 2023: At 9:53am, the claimant was identified driving with their family on the Newcastle Freeway, heading north. They exited towards the Hunter Valley region, but we were separated when we got stuck behind a slow truck on a one-lane road in Lovedale. The claimant drove at an excessive speed, and we lost contact as they gained distance. [59]
[55] 1AALD20.
[56] 1AALD21.
[57] 1AALD84.
[58] 1AALD87.
[59] 1AALD87.
Dr Vasantha Pothala’s supplementary report dated 20 July 2023 stated the following in respect of the surveillance activities as follows:
(a) “Given the physical surveillance and available evidence, it does cast doubts on the diagnosis.” [60]
(b) “….I also wonder, whether the symptoms are voluntarily exaggerated for secondary gain” [61]
(c) “Yes, surveillance does show evidence that was inconsistent with the symptoms recorded in my report dated 23 November 2022.” [62]
(d) “Yes, surveillance does show evidence that was inconsistent with the history taken in respect to the general difficulty with activities of daily living.” [63]
(e) “The core of his distress was secondary to his physical symptoms and reported impairment. From the surveillance, there is evidence that casts doubt on his physical symptoms and impairment.” [64]
(f) “From the available evidence and on the balance of probabilities it does appear that Mr Ryan-Allen at least has some capacity for employment from a psychiatric perspective.” [65]
(g) “Mr Ryan-Allen had expressed significant distress at my examination in relation to his weakness, inability to lift his daughter, lack of stability in his legs, inability to perform housework and other daily activities. It does appear that Mr Ryan-Allen was observed to perform theses functions without exhibiting any distress or discomfort.”[66]
[60] 1AALD160.1.
[61] 1AALD160.1.
[62] 1AALD161.2.
[63] 1AALD161.2.
[64] 1AALD161.3.
[65] 1AALD161.3.
[66] 1AALD161.4.
Dr William’s report dated 24 July 2023 stated “…I do not believe these inconsistencies can be explained by an unconscious mechanism, confusion or forgetfulness.” [67]
[67] 1AALD165.
Applicant’s response on the issue of surveillance
The respondent at paragraphs 30(a) to (e) summarised the surveillance taken over five days in the period 24 April to 24 June 2023. No mention was made that only 20 minutes of footage was obtained over that period.
The respondent also did not refer to Dr Edgar’s report dated 31 March 2023 acknowledging an improvement in the applicant’s symptoms and certifying him fit for 12 hours per week.
The respondent was also very selective at paragraphs 31 and 32 citing parts of the supplementary reports of Drs Pothala and Williams. In particular, the respondent did not refer to the fact that both of their doctors maintained their diagnoses albeit with some observed inconsistencies.
As stated above, the alleged inconsistencies in the surveillance coincided with the improvement of the applicant’s symptoms noted by Dr Edgar in his report dated
31 March 2023.Not surprisingly, Dr Edgar in his supplementary report dated 20 November 2023[68] found the surveillance to be “inconclusive”. The doctor’s opinion should be preferred as he was aware the applicant’s symptoms had improved and the surveillance confirmed what the doctor had previously observed.
[68] ARD page 73.
Respondent’s submission as to Mrs Megan Ryan’s statement dated 25 September 2023
Mrs Ryan’s statement dated 25 September 2023 alleges as follows:
“…Prior to Sam’s injury, I worked 2 days per week, 6 hours per day. [69]
…After the Respondent Employer, Tomago Aluminium, denied liability for Sam’s injury, the financial situation at home meant that I had to work full time, in order to keep the mortgage and our other basic living expenses paid.”
[69] ARD page14.3.
The respondent submits that Mrs Ryan’s allegation of having to return to work full-time to fulfil the financial commitments is contrasted to the applicant’s evidence in cross examination as follows:
(a) in 2023, she worked two to three days per week, [70] and
(b) the respondent submits that the Mrs Ryan’s allegation of having to return to work full-time to maintain their mortgage is unsupported by the applicant’s bank accounts which show no evidence mortgage payments before or after the date of injury. [71]
[70] SF19.08.
[71] 2AALD.
The respondent submits that Mrs Ryan’s allegation of having to return to work full-time to fulfil the financial commitments is in internally inconsistent with her receiving a carer’s pension in respect of the applicant. [72]
[72] SF104.20.
Applicant’s response on the issue of the applicant’s wife’s statement
The respondent’s attempt to discredit the evidence of the applicant’s wife.
The respondent alleges it is inconsistent for Mrs Ryan to state she had to return to work full-time after the respondent denied liability, and yet she only worked part-time hours of work (two to three days per week) in 2023.
However, the respondent’s s 78 Notice was issued on 24 March 2022.[73] There is no inconsistency if Mrs Ryan worked full-time from March 2022 to late 2022/early 2023.
[73] ARD page 21.
As such, Mrs Ryan’s working hours in 2023 are not relevant to her credit.
The applicant’s submissions
The respondent submitted that the applicant was not a witness of truth and there should be an award for the respondent in respect of weekly compensation and medical expenses.
The alleged inconsistencies in the bank statements and surveillance have not been supported by the medical evidence to the requisite standard. Drs Pothala and Williams merely raised suspicions of possible malingering but maintained their original diagnoses.
In contrast, Dr Edgar reviewed the surveillance and maintained his support for the applicant’s claim for work-related ongoing incapacity, albeit on the basis of partial incapacity from
31 March 2023.Contrary to the respondent’s submission at paragraph 40, the applicant has limited transferrable skills especially restricted to 12 hours per week. The applicant is not fit to work as a concreter and there is very limited scope to either run or manage a fitness business/gym 12 hours a week.
The applicant claims a PIAWE of $2,230.16, which has not been challenged in the Reply. As such, the applicable rate under s 37 is $2,230.16 x 80% = $1,784.13.
Assuming the respondent made voluntary payments of weekly compensation from the date of injury (18 March 2021) to the s 78 Notice (24 March 2022), the applicant has already received 53 weeks of compensation.
If that is correct, the applicant makes a claim for the balance of the 130 weeks (77 weeks) under s 37 as follows:
(a) the respondent to pay the applicant weekly compensation pursuant to s 37 at the rate of $1,784.13 per week from 24 March 2022 to 30 March 2023;
(b) the respondent to pay the applicant weekly payments pursuant to s 37 at the rate of $1,784.13 – (12 hours at $30 p/h) = $1,424.13 from 31 March 2023 to
14 September 2023, and(c) a general order under s 60.
The respondent’s submission
The respondent submits that the Commission should find that the applicant is not a witness of truth.
The respondent relies on the many inconsistencies in the applicant’s reported disabilities and symptoms set against his demonstrated functionality established by his bank account activities and his surveillance by the respondent.
The Commission should not find the applicant suffers any incapacity on the basis of the respondent’s submissions and Dr Williams’s report dated 24 July 2023 wherein he states that the applicant is fit for pre-injury duties[74] and Dr Pothala’s report dated 20 July 2023 which states “From the available evidence and on the balance of probabilities it does appear that Mr Ryan-Allen at least has some capacity for employment from a psychiatric perspective.”[75]
[74] 1AALD166.3.
[75] 1AALD161.3.
The respondent notes that Dr Edger’s report dated 31 March 2023 concedes the applicant has the following capacity for employment:
“He ought to be able to work for 4-hour shifts, 3 days per week, in a non-manual handling capacity, in a physically safe environment, according to his tolerances as detailed in this report. This would avoid lifting objects over 5kg in weight, and he should have the ability to easily adjust his posture and sit down if required.” [76]
[76] ARD 71.7.
The respondent submits that the applicant has significant transferrable skills running his own fitness business and working as a concreter.[77]
[77] ARD 8.4.
There should be an award for the respondent.
CONSIDERATION
Whilst the bank records on which the respondent cross-examined raised doubts regarding the applicant’s expressed capacity I did not find them to be sufficiently persuasive to cause me to reject the applicant’s evidence as to capacity prior to 31 March 2023. The expenditure could have had many and varied credible explanations.
I have considered the surveillance evidence and investigators report. I have considered the medical evidence in conjunction with that material, in particular the medical opinions provided after consideration of the surveillance evidence. The medical practitioners acknowledge inconsistency between the surveillance material and the history provided by the applicant.
When considering the surveillance evidence I took on board the applicant’s counsel’s submission that the surveillance took place post 31 March 2023 on which date Dr Edgar had noted that the applicant’s condition had improved.
I am persuaded that the applicant still suffered from functional neurological disorder when he consulted Dr Edgar. On that date Dr Edgar considered that he had improved sufficiently to perform 12 hours work over three four hour days.
Having considered the surveillance evidence I reject Dr Edgar’s opinion as to the applicant’s capacity for work as at 31 March 2023. I do not accept the applicant’s presentation of his symptoms. I am persuaded that the applicant engaged in significant exaggeration of his symptoms when consulting Dr Edgar and at large for the purpose of maximising his entitlements.
I consider the applicant’s presentation of symptoms in the second Centrelink form dated
8 October 2002 and his spouse’s description of his symptomatology in her carers application to both represent gross exaggerations of the applicant’s situation, even taking into account fluctuations in symptomology.I am not persuaded that the applicant’s capacity for work varies on a good day/bad day basis to the extent referred to in his evidence.
I am satisfied that the applicant had improved well beyond the capacity for work assessed by Dr Edgar. I accept that he had a residual incapacity, but his capacity for work was much greater than that assessed by Dr Edgar.
When considering the applicant’s capacity for work I have considered real, not fanciful, employment.[78] I have applied s 32A. I have taken into account the surveillance evidence tendered before the Commission; the medical reports provided after consideration of that evidence; the applicant’s age, education, skills and work experience and my assessment of the applicant’s capacity for work arising from my consideration of his evidence.
[78] Wollongong Nursing Home v Dewar [2014] NSWWCCPD 55.
I am satisfied and find that the applicant could perform work in retail on a full-time basis in outlets such as Bunnings. The minimum rate for such work is $27 per hour on a permanent full-time basis of 38 hours per week, producing a gross weekly income of $1,026.
The applicant’s PIAWE are agreed at $2,230.16 per week, 80% of which sum is $1,784.13.
The applicant has already received 53 weeks of compensation.
SUMMARY
For the reasons set out above the Commission will make the findings and orders as set out on page 1 of the Certificate of Determination.
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