Exaggeration or Injury? A Case of Credibility and Medical Gaps
Date: April 10, 2025
Quirk and Comcare (Compensation) [2024] AATA 3621.
Key Points:
- The applicant filed multiple claims for injuries related to her right arm, with Comcare denying present liability for the first injury, and liability for the second and third injuries as well as a permanent impairment claim.
- The Tribunal found that the second and third injuries were more likely due to pre-existing conditions, not work-related incidents, citing earlier symptoms and lack of immediate medical evidence linking the injuries to her employment.
- The Tribunal rejected the applicant’s permanent impairment claim, as the second injury was dormant, and ruled against the claim of a compensable injury from a cortisone injection, emphasising the lack of objective evidence and contradictions in her account.
Background:
On 9 May 2020 the applicant submitted a claim for compensation for “De Quervain’s tenosynovitis of the right thumb” and “Thoracic Outlet Syndrome (right arm)”. Liability was accepted for an “aggravation of De Quervain’s tenosynovitis of the right thumb” (the first injury) deemed to have been sustained on 31 March 2020 pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). On 17 January 2022, Comcare denied present liability to pay compensation for medical treatment and incapacity for work under sections 16 and 19 of the SRC Act in respect of the first injury, and the applicant lodged an Application to the Tribunal seeking a review of this decision.
On 20 July 2021, the applicant submitted a further claim in respect of “Carpal Tunnel Syndrome (right arm)” (the second injury) with a date of injury of 30 March 2020. On 13 May 2022, the applicant submitted a further claim in respect of “right elbow epicondylitis (tennis elbow)” (the third injury) with a date of injury on 31 March 2020. On 7 July 2022, the applicant’ solicitors submitted a claim for permanent impairment and non-economic loss, in relation to the second injury. Liability was denied for the second injury, the permanent impairment claim in relation to the second injury, and the third injury. The applicant lodged Applications to the Tribunal concerning Comcare’s denial of liability to pay compensation in respect of the second injury and the third injury.
The Law:
Section 14(1) of the SRC Act provides:
subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
A disease is defined under section 5B of the SRC Act as an ailment, or an aggravation of an ailment, which has been contributed to, to a significant degree, by the employee’s employment.
An ailment is defined under section 4 of the SRC Act as any physical or mental ailment, disorder, defect or morbid condition.
The issues:
In determining the Applications, the Tribunal was required to consider:
- Whether the applicant’s second injury and third injury coud be properly categorised as an injury or aggravation of an injury, in which case the Tribunal would need to consider whether the injury or aggravation arose out of, or in the course of, the applicant’s employment; or a disease or aggravation of a disease, in which case the Tribunal would need to consider whether the disease or aggravation was contributed to, to a significant degree, by the applicant’s employment.
- Whether the applicant continued to suffer from the first injury, and if so, whether the applicant’s first injury continued to result in a requirement for medical treatment and/or some incapacity for work pursuant to sections 16 and 19 of the SRC Act.
- Whether the applicant’s second injury had resulted in an impairment which was “permanent” as defined in section 24(2) of the SRC Act.
- And if so, whether the degree of any impairment was at least 10%, assessed in accordance with the Comcare Guide to the Assessment of the Degree of Permanent Impairment (Edition 2.1) (the Guide).
- If the condition resulted in a permanent impairment of at least 10% assessed in accordance with the Guide, the assessment of the applicant’s non-economic loss pursuant to section 27 of the SRC Act.
The evidence and the findings.
The Tribunal commented on the applicant’s credibility. It considered the applicant exhibited a tendency towards some level of embellishment or exaggeration, and on other occasions reconstruction. A considerable amount of her evidence differed from the medical evidence, the business records from her employer, other witnesses, and her own presentation with an apparent focus on her self-interest and the ability to adjust her workload if needed. The Tribunal also noted the applicant failed to mention a prior similar injury to her examiners.
After examining the extensive medical evidence, the Tribunal rejected the applicant’s contention that she continued to suffer the effects of the first and second injury. Regarding the second injury, the Tribunal concluded the applicant had suffered an aggravation of pre-existing carpal tunnel syndrome, which had resolved by 2 September 2021.
The Tribunal rejected the applicant’s contention that her second and third injuries were caused by her employment. First, it found that the applicant had experienced similar symptoms to her second injury prior to the claimed date of injury and well before her transition from part-time to fulltime employment, which was consistent with a pre-existing constitutional condition. It also found no immediate medical evidence linking the third injury to the events of 30 March 2020. It followed that it would be inherently implausible that such constitutional conditions would occur simultaneously in her right arm. Second, the Tribunal raised concerns about the applicant’s delay in lodging her claims. It noted that the applicant did not mention the other conditions at the time of her first claim but instead submitted subsequent claims after considerable delays. The Tribunal reiterated that the applicant presented as someone very alive to protecting her interests, and so considered that if she had experienced the three conditions simultaneously, she would have said so at the time of her first claim or would have drawn this to the attention of the several medical professionals she consulted.
Regarding the permanent impairment claim, the Tribunal considered the applicant’s second injury was dormant and therefore could not be classified as permanent. It noted that the medical evidence presented by the applicant created several insurmountable issues that were not addressed by her expert witnesses. Furthermore, Dr Janakiramanan indicated that the applicant was likely to require carpal tunnel release surgery, suggesting the condition could improve. Consequently, the Tribunal concluded that the applicant did not meet the criteria under section 24(2) of the SRC Act to establish a permanent impairment, and therefore, could not demonstrate a compensable injury significantly contributed to by her employment.
Further, the Tribunal found it had jurisdiction to consider whether the second cortisone injection caused an additional compensable injury to her right median nerve. It noted that the respondent had been made aware of this aspect of the claim, citing a medical certificate from March 2021 and its acknowledgment in an Employer Statement. The Tribunal emphasised the broad, practical approach to claim notice under the SRC Act, and concluded that the respondent was not surprised by the issue, as several medical experts had provided evidence on this issue. However, the Tribunal ultimately rejected the claim, expressing concerns about contradictions in the applicant’s account of the injection experience and preferring Dr Poynter’s report that the procedure was uneventful. It also favoured Dr Khurana’s opinion that there was no objective injury from the injection and noted that the applicant’s failure to mention significant consequences of the injection in subsequent claims made the situation even more unlikely.
Conclusion:
The Tribunal affirmed the decision denying present liability in respect of the first injury, and the decision denying liability to pay compensation in respect of the permanent impairment claim.
The Tribunal set aside the decision denying liability in respect of the second injury and substituted a finding that the respondent was liable to pay compensation under section 14 of the SRC Act in for a closed period up to 2 September 2021.
The Tribunal set aside the decision denying liability in respect of the third injury and substituted with a finding that the respondent was liable to pay compensation under section 14 of the SRC Act for a closed period up to 2 September 2021.
Lessons Learnt:
- Delays in claims filing: Employers should pay close attention to any delays in an employee’s submission of claims. By carefully tracking the timing of claims and questioning any unexplained delays, employers can raise valid concerns about the veracity of the claims.
- Investigate medical evidence thoroughly: Employers should seek comprehensive evaluations of all medical evidence. This includes questioning inconsistencies or contradictions in the claimant’s medical history or symptoms. Having an experienced solicitor to review and challenge medical opinions is essential.
- Understand the broader implications of claims: Workers’ compensation claims can often involve multiple claims over an extended period. Employers must be proactive in considering the broader context of the claim, such as pre-existing conditions or historical claims, which could weaken the applicant’s case. A strategic approach to the overall claim’s history can help employers build a stronger defence.
Contact:
| Lauren Bishop Associate |
Download PDF here: Quirk and Comcare (Compensation) [2024] AATA 3621