Defence medical history errors aid “unconvincing” worker’s win
A Cooktown horticulturalist who took up a casual job while receiving workers compensation and who exaggerated the extent of a limp has been awarded $413,000 injury compensation.
Darryl Hosmer – aged 41 at the date of last week’s judgment – was repeatedly swinging a sledgehammer in confined conditions when he felt something “let go” in his back.
Having maintained its denial of liability until the trial, the Cook Shire Council finally conceded fault for the April 2008 incident and at contest in the three day trial was the significance of a pre-existing back condition and the true extent of the sledgehammer injury.
Medical opinion concurred that the injury was caused by the incident but there was no evidence to establish what the future effects of the pre-existing condition might have been.
Thus it was impossible for the court to fix the proportion that the sledgehammer symptoms represented to the plaintiff’s overall pathology.
Rather, the court ruled that the whole of the current injury and symptoms were caused by the swinging sledgehammer but reserved its view as to the percentage possibility “that at some future time the pre-existing condition would have resulted in Hosmer becoming as disabled as he was following the injury, even if the injury had not occurred”.
To reach a conclusion on this latter point, consideration of the council’s adverse credibility allegations – that Hosmer was a malingerer - was required.
Despite being off work on weekly benefits, Hosmer “could not resist the temptation to secretly do some paid but physically undemanding, work on the side”.
His prolific nondisclosure also extended to applying for a total and permanent disablement insurance payout under superannuation which yielded him nearly $180,000.
The court found that he had concealed the casual work so as not to put at risk his weekly compensation but despite his “deliberate lack of candour”, it was – fortunately for Hosmer – “not destructive of his credibility generally”.
Neither should the frequency of his annual employment changes be held against him as there was “no logical basis to suggest it is unusual for unskilled manual workers to change employers as often as he did”.
The court also rejected the council’s contention that a 2.5 year period of unemployment demonstrated he was “not by disposition determined to secure employment and was content to lead a lifestyle that did not require much money to support it”.
To the contrary, it was found that this occurred following a marital breakdown when Mr Hosmer had assumed the custody of his two young children. His several job applications to the council due to the suitability of its attendance demands was consistent with “his circumstances as a single parent”.
It was further contended by the council that Hosmer had fraudulently represented his living arrangements to maximise Centrelink benefits in asserting that his girlfriend – with whom he had had a child last year – lived with her mother.
This allegation was thought to be supported as an entry in the records of the defendant’s orthopaedic specialist Dr Kingsley Foote specified his relationship status as “de facto”.
However because it was “tolerably clear” Dr Foote had misunderstood the plaintiff’s history on three other counts, the relationship status record was accepted as having only arose “because of limitations in what pro forma entries could be ticked during the consultation”.
The court decided that the domestic arrangement claimed not to be “so extraordinary as to render his evidence about it implausible or detract from his credibility” and ruled that Hosmer’s evidence on the subject should be regarded as final.
Having perhaps generously granted some latitude to the plaintiff on credibility findings, the court wielded a sizable axe to its assessment of lost earning capacity.
Past loss of wages were reduced by a “modest” 10% to allow for the possibility of Hosmer having secured “some employment in a less physically demanding job in the meantime”. This was further discounted by 35% – being the best estimate the court was able to make – for the contingency that the plaintiff “might have become disabled to the current extent, even if the injury had not occurred”.
For future loss of earning capacity the assumed retirement age was conservatively set at age 62 and the overall contingency discount applied was escalated to 55%.
Total assessment, $453,000, well down on the formulation postulated.