How workers compensation surveillance & Facebook reduced a payout

Trying to catch a disabled youth from falling when startled by a police car siren

Her Honour Justice Atkinson handed down a decision in the Supreme Court at Brisbane in the matter of Melanie Digby v The Compass Institute Inc & State of Queensland [2015] QSC 308.  

In this case, the Court found for the Plaintiff, Ms Digby, a Disability Carer, who had sustained injuries to her right arm and shoulder whilst trying to catch a disabled youth from falling when startled by a police car siren and lights operated during a police presentation.

The Plaintiff’s claim

Ms Digby claimed significant damages for loss and damage sustained as a result of the work injury.

She claimed that she had developed an uncontrollable tremor in her right arm and hand since the event, and severe pain and restriction in her right arm, shoulder and generally in her right side.

Medical evidence presented at the trial also indicated that Ms Digby had sustained a significant psychiatric injury as a result of the physical injuries sustained, including a somatoform disorder, causing her to react with abnormal pain behaviours.

Ms Digby had not worked since the injury

The Plaintiff brought her claim against her employer, The Compass Institute Inc (Compass), in negligence and for breach of contract for failing to properly train the Plaintiff in how to safely respond when a disabled youth in her care was placed at risk.

Also for failing to adequately supervise the presentation and permit the siren and lights to be operated, or provide proper safeguards in such event.

The Plaintiff also brought her claim against the Queensland Police, for negligence in operating the siren and flashing lights at all in the circumstances, or without sufficient warning.

Only asked to provide a warning before operating the police car siren

During the trial, evidence was given that the First Defendant, Compass, which provided education and training to disabled youth, had been aware of the intention of the attending police officer providing the presentation to activate the police siren and lights.

It was alleged that the police officer had been told that warning would be needed before this occurred as many of the trainees suffered disabilities, such as epilepsy, or had adverse reactions to flashing lights or loud noise, and steps would need to be taken to remove them from the area before the siren and lights were activated.

The attending police officer gave evidence however that he was only asked to provide a warning before operating the police car siren and flashing lights, which he did.

Queensland Police found not liable for the Plaintiff’s work injuries

Her Honour Justice Atkinson found that the employer, Compass, knew of the propensity of the youth who the Plaintiff sustained injury saving, to become upset by loud noises and to fall over due to his disability.

Although she accepted Compass had spoken to the police officer about the need to provide a warning before operating his police car’s siren and flashing lights, she did not accept that he was told anything further was needed.

In particular, that he would need to wait for those at risk to be removed from the vicinity of the presentation, he considered therefore that the Queensland Police were not responsible for the Plaintiff’s work injuries occurring.

Employer liable for lack of adequate training of the Plaintiff, and inadequately supervising and planning the event

Her Honour determined that Compass had not provided the Plaintiff with proper training and instruction in how to safely deal with a disabled trainee in her care when they were falling.

Although it was accepted that a manual had been provided stating that a worker was not to risk themselves (unless there was a risk the person in their care was going to injure another person or they were at risk of causing major harm to themselves) but this alone was not sufficient by way of adequate training to the Plaintiff.

Further, her Honour found that Compass had failed to adequately plan or supervise the presentation.

Not provided proper warnings to the police officer

She found that they had not provided proper warnings to the police officer in respect to his operation of the siren and flashing lights, and their need to remove certain attendees from the area before these were operated or to take steps to implement this during the presentation.

In coming to her decision, accepting that the employer, Compass, was liable for the Plaintiff’s work injuries, Her Honour relied on the High Court decision of Czatyrko v Edith Cowan University [2005] HCA 14where the following was said about the principles applying to the duty of care owed by an employer to an employee:

“An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards.”

Compensation awarded in the claim, but workers compensation surveillance and Facebook entries reduce claim significantly

During the trial, evidence was given by the Plaintiff of an uncontrollable shaking of her right arm and hand since the event, she also gave evidence of significant restriction in the use of her right arm and shoulder.

However, the Defendants produced surveillance during the trial which showed the Plaintiff texting on her mobile phone, opening a car door, driving, rummaging through her bag, and smoking a cigarette – all using her right hand.

This evidence was inconsistent with the Plaintiff’s evidence of severe restricted use of her right arm and hand, further, there were no signs of involuntary shaking of the right hand or arm in the video surveillance.

Shaking seemed to cease on the plaintiff when asked to mark items on a map

Her Honour Justice Atkinson also noted during the trial that although the Plaintiff’s right arm and hand was seen to be shaking whilst she gave evidence.

The shaking seemed to cease when she was asked to mark items on maps of the incident scene during her evidence.

The workers compensation surveillance was shown to medical specialists giving evidence at the trial, the majority of whom concluded from the surveillance that there had been some exaggeration by the Plaintiff in her reporting of injury during medical reviews and assessments.

Facebook profiles under scrutiny

Similarly, Her Honour found that Facebook material that she ordered be disclosed during the trial, showed that the Plaintiff was not as socially isolated or restricted by her injury as she testified, with it indicating that she was involved in messaging her Facebook friends for many hours a day, and numerous social outings.

It also provided evidence of other psychological stressors that she had not disclosed to the psychiatrists when reviewed by them for her case, including the stress of an abusive child who she feared, a child attempting suicide and her fear of being found to be an unfit mother by Social Services.

In coming to her decision on damages to be awarded to the Plaintiff for her work injuries, Her Honour considered that although she accepted the Plaintiff did sustain injuries to her right arm and shoulder in the work event, the surveillance and Facebook evidence indicated that the Plaintiff had exaggerated her injuries for financial gain during her personal injury claim, and that her damages should be reduced accordingly:

Surveillance & Facebook evidence indicated the Plaintiff had exaggerated her injuries

“I have formed the view that Ms Digby deliberately exaggerated her somatic symptoms probably for the financial gain which she hoped to obtain from the litigation.

The contrast between her behaviour in the surveillance video and when asked by her Counsel to mark an exhibit, and her reported and observed symptoms when she saw medical practitioners and otherwise in court, is so stark that no other explanation appears reasonable.”

Compensation awarded for pain and suffering and loss of amenities of life

In assessing the award for pain and suffering, her Honour accepted the very moderate award submitted by the employer, the First Defendant, in the sum of $35,000 (the injuries occurred prior to introduction of Schedule 9 of the Workers’ Compensation & Rehabilitation Act and Regulations and calculation of general damages under an ISV).

Compensation awarded for past and future economic loss

In assessing past and future economic loss, Her Honour considered the surveillance and Facebook material disclosed at trial.

In regard to past economic loss, Her Honour allowed the workers’ compensation statutory refund for wages paid during the workers’ compensation claim, although this was argued against by the First Defendant, who considered it should be reduced in the circumstances of the Plaintiff’s exaggeration of her injuries.

For the loss of income sustained by the Plaintiff since ceasing her workers’ compensation claim, Her Honour accepted that the Plaintiff would not have been able to return to her work as a Disability Carer, but that she could have worked in an administrative type role during this period to trial.

Her Honour limited past economic loss

Her Honour therefore limited past economic loss to the difference between the wages the Plaintiff would have earned in her pre-injury role as a Disability Carer, and the wages she could have earned had she mitigated her loss and found work undertaking administrative duties over the period since the work accident.

This loss was calculated to be $120 per week. Justice Atkinson also allowed loss of past superannuation on this sum at 9%.

The Plaintiff’s Facebook activities

In her assessment of future economic loss, Her Honour considered that, given the surveillance evidence shown in Court, as well as the Plaintiff’s Facebook activities, the Plaintiff could work in an administrative type role, but accepted she had sustained some reduction in her income capacity.

She considered that this loss was not able to be accurately quantified and therefore, was best accommodated by the award of a global sum.

She allowed the Plaintiff a global figure for future economic loss in the amount of $40,000. Her Honour further awarded lost future superannuation on this loss at 11.33%.

Compensation awarded for past special damages and future medical expenses

The majority of past out of pocket expenses and medical treatment costs of the Plaintiff were in relation to the workers’ compensation refund for medical and rehabilitative treatment provided during the workers’ compensation claim.

The First Defendant argued that this should be reduced due to the Plaintiff’s exaggeration of her injuries, but Justice Atkinson allowed the full refund on the basis that disentangling what had been paid for the injuries sustained and any exaggerated injury was too difficult to accurately apply.

The major claim was for pain management and psychiatric treatment

However, Her Honour did reduce the Plaintiff’s claims for out of pocket expenses post the workers’ compensation claim on this basis, cutting it back by 50%.

In relation to future medical expenses, the major claim was for pain management and psychiatric treatment, which the Court reduced by 50% due to the exaggeration of the Plaintiff’s somatic symptoms, awarding around $20,000.

Compensation awarded for past and future gratuitous and paid care

Due to the Court finding the Plaintiff’s credibility questionable, meaning, the Court found that due to the surveillance and Facebook material submitted at trial which showed a number of inconsistencies with the Plaintiff’s reports of how much her injuries impacted upon her, the Court determined that it could not trust the Plaintiff’s evidence.

They could not trust to how extensively her injuries reduced her capacity to carry out her activities of daily living. As a consequence, the Court did not make any compensation award for past or future care and assistance.

Summary of damages awarded:

  • General damages: $35,000.00

  • Interest (50% past): $2,590.00

  • Past economic loss: $83,204.00

  • Interest: $8,393.00

  • Past superannuation: $7,488.00

  • Future economic loss: $40,000.00

  • Future superannuation: $4,532.00

  • Past special damages: $100,562.46

  • Interest on special damages: $936.00

  • Future special damages: $19,397.40

  • Fox v Wood: $3,876.00

  • Sub-total: $305,978.86

  • Less WorkCover refund: $147,933.71

TOTAL – $158,045.15

Social media and surveillance will be used as evidence in a personal injury claim

Surveillance and social media posts clearly had a huge impact on this case.

A licensed private investigator may video or photograph you while you’re going about your daily activities or monitor your social media accounts, like Facebook and Instagram, for evidence that contradicts your compensation claim.

Accuracy in reporting of injuries and how they affect you is therefore very important in workers compensation claims.

It is also very important for anyone claiming compensation for personal injury they have sustained, to be aware that surveillance will provide evidence of any inconsistency in reporting of problems they experience with the activities of daily living, employment, social and recreational interests etc.

Social media has become the new surveillance method for insurance companies

Also, in today’s world, where everyone publicises their life on social media, this has become the new surveillance method for insurance companies and defendants generally in personal injury claims, and it is a very cheap way to conduct surveillance.

Plaintiffs or their friends and family are essentially doing the surveillance for the insurers, so it is very important that any person who is bringing a personal injury claim keeps this in mind during their claim. It means the insurance company won’t always need a team of private investigators to ensure a factual investigation of your personal injury claim.

A good personal injury lawyer will advise you of this from the commencement of your case, and will continue to remind you throughout of the importance of being accurate in your reporting of injury and how it impacts upon your pre-injury lifestyle and employment, and of the risks associated with insurance surveillance and social media posting.

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