Walker and Comcare
[2011] AATA 315
•12 May 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 315
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/1990
GENERAL ADMINISTRATIVE DIVISION ) 2010/4740 Re PHYLLIS WALKER Applicant
And
COMCARE
Respondent
DECISION
Tribunal Ms N Bell, Senior Member
Dr MEC Thorpe, Member
Date12 May 2011
PlaceSydney
Decision The decisions under review are affirmed.
...................[sgd]...........................
Ms N Bell, Presiding Member
CATCHWORDS – Workers’ Compensation – incapacity to work – permanent impairment - displacement of intervertebral disc – lumbar and fracture of sacrum and coccyx - psychiatric sequela – credibility – surveillance recordings
Safety, Rehabilitation and Compensation Act 1988
REASONS FOR DECISION
Ms N Bell, Senior Member
Dr MEC Thorpe, Member1. In November 2003, at the Army and Airforce Canteen Service, Richmond, Phyllis Walker slipped and fell on her tailbone, injuring her back. She had been an employee of the Canteen Service since the mid 1990s. Comcare accepted liability, and paid compensation for incapacity to work, for the injury characterised as displacement of intervertebral disc – lumbar and fracture of sacrum and coccyx and for depressive disorder as a sequela of her physical condition.
2.
Ms Walker subsequently made a claim for permanent impairment. Comcare denied this claim in January 2009. In March 2009, Comcare decided that
Ms Walker’s incapacity for work had ceased and denied liability for incapacity payments and medical expenses.
3. Ms Walker contends continuing incapacity, associated medical expenses and permanent impairment.
4. The medical evidence from orthopods and psychiatrists was initially a stark contest of opinions in support of or against Ms Walker’s contentions of incapacity. When DVD evidence was put to those in support of Ms Walker’s contentions and they were asked to reconsider the histories Ms Walker had given them the lines between the medical opinions became less distinct.
5. Ms Walker’s credibility was called into question by Comcare. DVD, documentary and lay evidence was presented in support of Comcare’s contention that her evidence to the Tribunal and her histories given to medical practitioners greatly exaggerated, and at times fabricated, the effects of her injury. Ms Walker described a very severe degree of incapacity in her evidence to the Tribunal and in the histories she had given to medical practitioners.
6.
The lay evidence going to Ms Walker’s credibility was given by friends, past and present, and family. It emerged at least in part from either close associations or family disputes. In some instances it was corroborated by film or photographs.
The relevant evidence may be summarised as follows.
ms walker
7.
Ms Walker said that at the Canteen she was on her feet all day serving, making the food, sweeping, cleaning, mopping, carrying, bending and carrying delivered items, including electrical goods sold by the Canteen, for a distance of
20 metres.
8. She said that on 21 November 2003 when she suddenly turned she landed on her tailbone, lower back and left wrist. She said that prior to her slip, her back was problem free.
9. Ms Walker said that in 2004 she was referred to a pain management clinic and was treated by the psychiatrists there for her lack of appetite, her loss of memory and concentration and her depression. She said she went back to the Canteen on a return to work program making sandwiches, seated for 2 to 3 hours but found that severe back pain made this impossible.
10. Ms Walker said that in 2005 her partner was diagnosed with cancer. He died in July 2008, having been severely incapacitated for 4 or 5 months. She said that once her partner became incapacitated her son Ronald would come from Canberra to help her "on a regular basis", "every couple of weeks", “over a weekend, sometimes it could be 3, 4 days".
11. Ms Walker said she is currently taking Mersyndol Forte, 6 to 8 per day but it only dulls the pain. She said her pain is in her left loin region away from the mid line and over the sacrum. She said she has extreme pain on prolonged sitting. She also said she is unable to carry a bucket of water but might be able to manage a half full bucket. She said she is unable to bend.
12. In 2004, just after her partner was diagnosed with cancer, she and her partner drove to Townsville to see her partner’s friends. Ms Walker said her partner did all of the driving and that they stopped every 3 hours to accommodate her back pain. She said this three week trip was something her partner wanted to do.
13.
A range of the allegations about the genuineness of Ms Walker’s claim, made by Caroline Walker, Phyllis Walker's deceased partner’s sister, and
Caroline Walker’s partner, William Byrnes, were put to Ms Walker. Ms Walker denied the allegations and said that her partner and his sister had a serious argument in August 2007 and Caroline Walker did not go to her brother's funeral. She offered this as a reason why the allegations had been made.
14. Ms Walker was asked to show the Tribunal how far she could bend. What followed was not bending but rather a leaning to the right with her right hand proximal to her right knee, approximately three quarters of the way down her right side. It was not a bend. She said she finds it harder to bend when she is carrying something.
15. During her cross examination, Ms Walker observed the film evidence summarised below. When it was put to her that she was bending, as she clearly was, she denied it notwithstanding the unmistakeable film images. She said that for most of the day that featured in the film, during which she was helping a neighbour to move house, she was sitting in a car or inside a house, but agreed she had gone back and forward between the houses “a few times”.
16. Ms Walker agreed that a driving trip to Townsville; a trip on which she drove to Queanbeyan to attend her mother’s funeral, taking four and a half hours and two stops on the way; weekend trips with her deceased partner; and an excursion on a boat, all occurred after her 2003 fall. She also agreed that a photograph of her mounted on a horse was taken after her fall, but denied that a photograph of her working in the garden was taken after 2003. She said she had been given help to mount the horse. She agreed she had flown to Mackay last year for a holiday.
film evidence
17. A DVD of 11 to 20 August 2008 showed little of note, except an absence of marked restriction of movement as Ms Walker drove, walked and stood.
18. In a DVD of Wednesday 27 October 2010, Ms Walker was filmed over the course of a day carrying a number of boxes between a house and a car. It was impossible to tell what the contents of the boxes were. Ms Walker said none of the boxes was heavy and they contained only Tupperware and tea towels. The Tribunal observed Ms Walker carrying some sixteen boxes. However, one of the boxes appeared, from her awkward and somewhat struggling stance, to be heavy and at least one other required another person to carry it with her. On a number of occasions she was shown to lean into the back of a hatchback car to place or lift a box and on one occasion she bent at 90 degrees far into the backseat of a car to retrieve a box. Our observation was that she showed no signs of pain or discomfort. We note that 38 minutes of film were presented from a full day’s surveillance and that the first time at which she was recorded carrying a box was shortly after 9.00 am and the last was at about 3.20 pm.
19. Film of the next day showed that Ms Walker did not leave her house until after 11.00 am and then late in the day when she checked her letter box. She was wearing her dressing gown. There was nothing remarkable about her movements, although she claimed she was limping. We did not observe her to be limping as she asserted.
dr bentivoglio
20. Dr Bentivoglio, orthopaedic surgeon, diagnosed a minor un-displaced fracture of the sacrum, based on the report of a bone scan which suggested the possibility of a healing fracture. Dr Bentivoglio said he did not look at the scan himself.
21.
Dr Bentivoglio saw Ms Walker on three occasions: 2005, 2007 and 2009.
In 2005, he found a loss of half range of movement in the lumbar spine but no paravertebral muscle spasm; in 2007 he found a loss of two thirds of range of movement together with muscle spasm; and in 2009 he found a loss of more than two thirds range of movement and muscle spasm.
22. Dr Bentivoglio took a history from Ms Walker of constant low back pain, pain on sitting and standing, an inability to garden, sweep, vacuum or change the bed, difficulty walking and that her symptoms are made worse by activity.
23. Dr Bentivoglio viewed the film of Ms Walker. Initially he suggested that it may simply have been a good day in the course of a fluctuating condition. However, on closer questioning, he said her presentation in the film, lifting and carrying boxes and bending through the course of the day, was not consistent with “a person with a back problem”. He agreed that his diagnosis relied a great deal on what she had told him she is able to do.
24. Dr Betivoglio also said it is not possible to feign a muscle spasm and a loss of approximately two thirds of range of movement would be expected of a person with muscle spasm. He agreed, when it was described to him, that the “bend” Ms Walker demonstrated to the Tribunal was not a true bend.
dr new
25. Dr New, Ms Walker’s treating orthopaedic surgeon, reported in 2003 that “there may be a fracture of the sacrum.” In December 2004, he reported in a letter to Comcare that Ms Walker has “relative instability at L4/5 accentuated by spondylosis in the adjacent posterior intervertebral joints”. No further mention was made of a fracture.
dr billet
26.
Dr Billet, orthopaedic surgeon, said there was no sign of a fracture of the coccyx. He said he examined the bone scans of 2 April 2004 and
13 September 2004 and found they showed some increased uptake, but considers bone scans to be ineffective in detecting a fracture. He said that MRIs are better for this purpose but the MRI of 4 May 2004 just showed a slight increase in signal in the sacroiliac and no fracture.
27. Dr Billet considered that Ms Walker’s pain is due to underlying age related degenerative changes. His basis for this view was that the MRI showed decreased signal in all discs from L1 to S1, indicating an internal degeneration. He considered that the fall in 2003 caused soft tissue injury and a temporary aggravation of degenerative changes. He considered that the effects of the fall would have ceased after six months and left Ms Walker with the symptoms of her degenerative changes.
28. Dr Billet said that when he examined Ms Walker and asked her to flex, she could only manage 7 degrees. He noted that if she was unable to get her hand past her knee, as described to him, then she would be unable to sit down. He said it indicated to him that she was feigning. He observed that in the filmed activity she was capable of full flexion.
29. Dr Billet said that a back condition like the one complained of by Ms Walker would not fluctuate greatly. He said that if she could bend into a car and put boxes in then she has good movement. He also said that if she has pain then she would only be able to manage one or two boxes.
dr bertucen
30. Dr Bertucen, psychiatrist, diagnosed chronic pain syndrome and major depressive disorder. He originally attributed Ms Walker’s depression to the death of her partner and described it as a non work related depressive condition. He described Ms Walker as exhibiting, at his interview with her, psychomotor retardation with slow gait, shuffling feet, reduced pace of physical motion and gestures, and inadequate or very poor eye contact. He described her as unkempt. After viewing the film of Ms Walker he noted a discrepancy between her overall presentation at his interview with her and what he saw on the film.
31. Dr Bertucen said that very depressed people are more likely to remain reclusive and helping a neighbour to move is not, on the whole, consistent with major depression, but other factors such as degree of friendship and persuasiveness of the neighbour must be taken into account.
32. Dr Bertucen said that if he had seen the film before he interviewed Ms Walker his diagnosis would have been different and would have included a differential diagnosis of malingering or factitious disorder. He said it would have raised some very serious doubts in his mind about the veracity of the history Ms Walker gave him.
33. Dr Bertucen said that Ms Walker’s presentation at interview could not have been caused by ingestion of Mercyndol Forte.
34. He also said that Ms Walker’s trip alone to Queenbeyan in 2010 was inconsistent with her claimed psychiatric illness.
dr miller
35. Dr Miller, forensic psychiatrist, diagnosed pain disorder with depressive symptoms. She said that when she interviewed Ms Walker her presentation was so extreme she wondered whether she was heavily medicated.
36. Dr Miller said that Ms Walker’s behaviour in the film is very different to her presentation in the interview and raises the spectre of factitious disorder or malingering.
37. She said that people in pain avoid activities such as bending and that even slight bending leads to pain. She said that people with significant depression find it very difficult to do things because they lack energy and avoid interpersonal situations.
lay evidence for ms walker
38. Judith Houston, Ms Walker’s neighbour and the person to whom Ms Walker gave assistance with moving house in the filmed material viewed by the Tribunal, said that Ms Walker had been depressed and so she invited her to visit her new house on moving day. She said that Ms Walker did not lift anything heavy and in any event only lifted one box. She said she never complained of back pain on the day.
39. However, when Ms Houston was shown the DVD, she agreed that Ms Walker was shown to carry many more boxes than one and that one particular box appeared to be quite heavy and this could be seen from Ms Walker’s stance when carrying it.
40. Linda Gutnik, an old and close friend of Ms Walker, said Ms Walker had changed dramatically since her fall. She also said that she was aware of a dispute between Caroline Walker and her brother Raymond, Ms Walker’s partner. She also said that Caroline Walker had once tape recorded a conversation she (Linda Gutnik) was having with Ms Walker and provided the tape to another person.
41. Anne O’Brien, another old and close friend of Ms Walker, said that prior to her fall Ms Walker was outgoing and athletic. She said she is now physically restricted and has trouble walking and sitting. She said Ms Walker’s weight has drastically reduced and she is sometimes bedridden for a week at a time. She said she has taken Ms Walker to medical appointments on occasion.
42. Ronald Walker is Ms Walker’s son. He described his mother, prior to her fall, as very energetic and fit. He said she is now much slower, has lost her appetite, no longer gardens, and does not want to leave her house.
43. He said that three and a half years ago, before he became employed, he would visit his mother from Canberra where he lived every couple of days in order to help her. He said he would stay with her “from a couple of days to two weeks” to help her with housekeeping including mopping, sweeping and cleaning the shower. He said that before Ms Walker’s partner became very sick and incapacitated in about 2007, he provided Ms Walker with assistance around the house and her son did very little.
44. He also said his mother had visited him in Queenbeyan after her partner’s death, driving there alone.
45. The above evidence is from friends or family of Ms Walker. This affects the independence of the evidence and lessens the weight it may be given generally. The point was made that, logically, these people, the people who know Ms Walker, are the only people who can provide such evidence. However, in a contest of credibility, more objective evidence must be given more weight. We note, in particular and by illustration, that Ms Houston’s evidence of Ms Walker carrying just one box on moving day was starkly contradicted by the film evidence and that those witnesses who said that Ms Walker’s movements are constantly restricted were also contradicted by the film evidence.
lay evidence for comcare
46.
Evidence was given by Caroline Walker and by Mr Byrnes.
Caroline Walker and Mr Byrnes had given evidence in other proceedings by
Phyllis Walker arising out of the fall. They provided statements that were based on the statements made by them in the other proceedings.
47. The statements made and evidence given by Caroline Walker and Mr Byrnes recounted a number of instances of Ms Walker elaborately feigning severe incapacity when attending doctors, discussing methods of feigning and engaging in activity that was inconsistent with the incapacity she claimed. The evidence of feigning included references to sudden changes of presentation on attendance at medical appointments and when answering the telephone, by altering her appearance and “dressing down”, and by taking medication immediately before an appointment in order to appear dazed and “zombatised”. The evidence of activity inconsistent with the claimed incapacity included playing poker machines for five hours on a number of occasions after the fall, reporting that she had gone on amusement rides in Queensland after the fall, mounting a horse (a photograph of this was admitted into evidence), and going on frequent driving trips with her deceased partner. Evidence was also given of Ms Walker having given her pain medication to her partner when he became very ill, giving it to Mr Byrnes when he suffered from migraines and generally not taking the medication herself.
48. When asked why she had gone to some lengths to make these claims against Ms Walker, including the provision of information to a personnel officer at the RAAF, Caroline Walker maintained she considers it is not right when people lie and “work the system”. It emerged that there had been a serious dispute between Caroline Walker and her brother with suggestions that her relationship with her brother had been impeded by Ms Walker. She said she was not able to attend her brother’s funeral because of her sister’s death at the same time.
49. Mr Byrnes gave evidence that he had accompanied Ms Walker to at least one doctor’s appointment where she altered her manner dramatically on entry into the doctor’s rooms so as to appear dazed and shuffling. Mr Byrnes also said Ms Walker had on one occasion given him a box of her Mercyndol Forte.
50. The evidence of Caroline Walker and William Byrnes is problematic because it is given against a background of family dispute and obvious resentment. The evidence was put to Ms Walker and she steadfastly denied it in every aspect that was negative to her.
consideration
51. We found the DVD evidence of Ms Walker’s capacity to engage in sustained movement, including walking, carrying and bending throughout the course of a day with no apparent difficulty undermined her contentions that she is incapacitated as claimed to the Tribunal and to the medical experts who examined and interviewed her. Her credibility was damaged by this film evidence and the medical opinion she called to support her claims was substantially shaken by it.
52.
We find that the degree of incapacity reported by Ms Walker in her evidence and in the histories she gave examining doctors differs considerably from the freedom of movement exhibited in the DVD over the course of a day. The extent of this discrepancy prevents a conclusion that she was simply having “a good day”. We conclude that, to the extent that she is incapacitated at all, she has exaggerated her incapacity greatly. In the face of the DVD evidence and her strange demonstration of bending before the Tribunal, it is more likely than not she is feigning her incapacity. We find support for this conclusion in the changed opinions of
Drs Benanzio and Bertucen after they viewed the DVD evidence and in the opinions of Drs Billet and Miller, both before and after they viewed the DVD.
53. Having reached this conclusion on the basis of Ms Walker’s evidence, the DVD evidence and the expert medical evidence, it is unnecessary for us to decide the contest of lay evidence, all of which evidence we find problematic for the reasons stated above.
54. We conclude that Ms Walker is not incapacitated as she claims and that from March 2006 to date she has had no entitlement to payments for incapacity or medical expenses. Given our conclusion as to Ms Walker’s claimed incapacity, we cannot be satisfied that she is permanently impaired.
decision
55. The decisions under review are affirmed.
I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member and Dr MEC Thorpe, Member
Signed: .......................[sgd].......................................................
AssociateDates of Hearing 6 September 2011, 22-25 November 2010,
18 March 2011
Date of Decision 12 May 2011
Counsel for the Applicant Mr Terrence Rowles
Solicitor for the Applicant Mr Jeffrey Gabriel, Leitch Hasson Dent
Counsel for the Respondent Mr David Richards
Solicitor for the Respondent Ms Vivian Haddad, Dibbs Barker
0
0
0