Coles Supermarkets Australia Pty Ltd v Mukareva
[2024] NSWPICMP 275
•6 May 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Coles Supermarkets Australia Pty Ltd v Mukareva [2024] NSWPICMP 275 |
| APPELLANT: | Coles Supermarkets Australia Pty Ltd |
| RESPONDENT: | Dimitrina Mukareva |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Robin Fitzsimons |
| MEDICAL ASSESSOR: | Roger Pillemer |
| DATE OF DECISION: | 6 May 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; employer appeal against DRE II cervical finding; whether surveillance report and footage should be admitted as fresh evidence; Held – surveillance fresh evidence application rejected as infringing Rule 109 of the Personal Injury Commission Rules 2021; surveillance fresh evidence rejected as infringing section 328(3); surveillance fresh evidence rejected as hypothesis unsupportable that video operative’s observations more reliable than Medical Assessor (MA) professional examination; surveillance fresh evidence rejected as MA already aware of “obvious embellishment;” surveillance fresh evidence rejected as footage unremarkable in any event; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
This matter was originally referred to Medical Assessor Berry who assessed the cervical spine, left upper extremity and right upper extremity arising from an injury on 2 July 2018.
Medical Assessor Berry issued his first Medical Assessment Certificate (MAC) on
11 April 2023.On 5 May 2023 Ms Mukareva lodged an Application to Appeal against Medical Assessor Berry’s MAC. This was determined by way of referral on 9 June 2023 by the President’s delegate back to Medical Assessor Berry for reconsideration. Medical Assessor Berry issued his “Further Assessment or Reconsideration” MAC on 27 July 2023.
In the meantime, Ms Mukareva requested an additional assessment to be made by a neurologist. On 11 July 2023 Member Gaius Whiffen issued Consent Orders, and a referral was made to Medical Assessor John O’Neill, neurologist on 2 August 2023:
“Date of Injury: 2 July 2018
Body part/s referred: Cervical Spine
(with reference to the opinions and conclusions of Drs Teychenne and Mellick)
Method of assessment: Whole Person Impairment
2. BRIEF
The brief provided to the Medical Assessor includes:
a. application to resolve a dispute and attached documents;
b. respondent’s reply and attached documents;
c. applicant’s application to admit late documents dated 29 June 2023 and attached documents; and
d. respondent’s application to admit late documents dated 14 June 2023 and attached documents.
Certificate of determination issued by the Member.”
Member Whiffen ordered that when that MAC was issued and after the final MAC had been issued by Medical Assessor Berry following his reconsideration, a Lead Assessor was to issue a final certificate combining both certificates. The Lead Assessor was in fact Medical Assessor Berry.
Medical Assessor O’Neill’s MAC was dated 22 September 2023, and the Lead Assessor MAC was issued on 12 October 2023.
On 10 November 2023 the appellant employer lodged an appeal against the MACs of
22 September 2023 and 12 October 2023. The grounds of the appeal were the availability of additional information, the application of incorrect criteria and the making of a demonstrable error.The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
The referral to Medical Assessor Berry was for a WPI assessment of the cervical spine, left upper extremity and right upper extremity caused by injury on 2 July 2018.
Ms Mukareva was employed for seven years as a night filler at Coles in Chipping Norton.
On 2 July 2018 she tripped and fell landing on her left side. She sustained injury to her neck, left shoulder and elbow and also to her right middle finger. She was diagnosed as having a fractured radial head and referred for physiotherapy, however, Ms Mukareva was unable to continue work after December 2018.
She came to a left elbow arthroscopy with Dr Jeff Hughes in February 2019 and on
24 July 2019 Dr Hughes also performed a left radial head replacement. She continued to have left shoulder pain and underwent a left shoulder injection in July 2020 without any lasting benefit.She came under the care of hand surgeon, Dr David Stewart and came to surgery on the right little finger, again without benefit. She suffered neck pain and was referred to Dr Ian Farey who referred her for an MRI scan and recommended conservative treatment.
Medical Assessor O’Neill’s assessment was 5% based on a DRE category II rating for the cervical spine.
Medical Assessor Berry certified 7% WPI for impairment of the cervical spine, 12% WPI for impairment to the left shoulder and elbow and 2% impairment for the right middle finger giving a combined total of 20% WPI.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for Ms Mukareva to be re-examined, as no error was established in the Lead Assessor’s MAC.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions which have been considered by the Appeal Panel.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
Fresh evidence
An application was made for the admission of fresh evidence.
Section 328(3) of the 1998 Act provides:
“(3) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment.”
The application was to admit the following evidence:
(a) surveillance report of SureFact of 8 November 2023, and
(b) surveillance footage obtained on 20 September 2023 referred to in the surveillance report.
The appellant employer stated that it had commissioned the surveillance report on
16 March 2023 and surveillance had been undertaken on 11 occasions between
20 March 2023 and 15 October 2023.Ms Mukareva was only sighted on one occasion, which was when she attended on Medical Assessor O’Neill on 20 September 2023. This material was not made available to the appellant employer until 8 November 2023.
The outcome of this application was integral to the outcome of the appeal, and we shall accordingly consider it below.
The MACS
The reconsideration MAC
There were three MACs before us, the reconsideration MAC from Medical Assessor Berry dated 27 July 2023,[1] the MAC from Medical Assessor O’Neill,[2] and the Lead Assessor MAC from Medical Assessor Berry dated 12 October 2023.[3] The original MAC from Medical Assessor Berry of 11 April 2023 was not amongst the papers before us.
[1] Appeal papers page 45.
[2] Appeal papers page 50.
[3] Appeal papers page 59.
The reconsideration MAC of 27 July 2023 was issued as a result of a request to consider whether the assessment of the left upper extremity should include impairment for an arthroplasty. Medical Assessor Berry issued an assessment as described above, namely a total of 20% WPI which included 12% for the left upper extremity.
In relation to the cervical spine, Medical Assessor Berry noted in examination:[4]
“The claimant was diffusely tender. She had restricted movement in left rotation and extension. The other movements including lateral flexion to the left and right were within the normal range. There was no muscle spasm and no alteration of spinal contour.”
[4] Appeal papers page 46.
In his assessment of the applicable WPI, he said:[5]
“The cervical spine is assessed according the DRE methods and I refer you to the AMA 5th Edition of the Guides to the Evaluation of Permanent Impairment, Table 15-5 on page 392. The claimant has an asymmetrical range of movement and there is no evidence of upper limb radiculopathy and I would therefore place her in DRE Category II and assign a 5% Whole Person Impairment.”
[5] Appeal papers page 46.
A further 2% was added for the restrictions in Ms Mukareva’s activities of daily living.
At [10c] of the MAC, the Medical Assessor noted that he did not have the expertise to report on the findings of either Dr Teychenné or Dr Mellick.
As a result, we assume, the application was made to Member Whiffin to have an appropriate expert consider the reports of Drs Teychenné and Mellick.
Medical Assessor O’Neill
Medical Assessor O’Neill’s MAC was dated 22 September 2023. Medical Assessor O’Neill conducted a full assessment, during which he made some trenchant criticisms about the report of Dr Teychenné, which are not presently relevant. Medical Assessor O’Neill made the following observations regarding Ms Mukareva’s presentation:[6]
“All cervical spine movements were performed with apparent pain and with minimal movement in all directions although with better rotation to the right than to the left. This limitation of neck movement on formal examination was not evident during the remainder of the examination nor when her history was being taken. At those times there was no complaint of neck pain or any obvious restriction of movement.
…. The weakness of dorsiflexion of the ankles on bed testing was totally incompatible with her ability to dorsiflex both feet from the ground when standing by the side of bed and then asked to stand on her heels…
…. She had normal proprioception at the right index and middle fingers but was not sure of the left index finger and could not detect proprioception at the left little finger. This was totally incompatible with her ability to accurately place the index finger of the left hand to the tip of her nose with her eyes closed.”
[6] Appeal papers page 54.
In his summary at [7], the Medical Assessor said:
“As far as I can tell from the reports of treating doctors, neck pain was a late complaint but I cannot exclude the possibility that there had been some neck pain from early after the injury but with the pain from the left elbow fracture being the main concern.
Today Mrs Mukareva only visibly expressed pain and limitation of movement under formal examination of neck movements. It must be said, however, that there was an asymmetry of movement so that she could turn her head more fully to the right than to the left….
……..
I have given Mrs Mukareva the benefit of the doubt that there may have been some genuine mechanical neck pain arising from the accident in a patient with pre-existing but asymptomatic cervical spondylotic disease. Notwithstanding the obvious embellishment seen when she was formally asked to demonstrate cervical neck movements today, I have accepted that she does have an asymmetry of neck movement and I have agreed with Dr Harrington (orthopaedic surgeon) in his report of 9 December 2022 that current neck symptoms and signs have best fit with DRE Cervical Category 2 (AMA 5, table 15.5, page 392) with a 5% WPI.
There has not been any restriction of activities of daily living as a consequence of neck pain. Any restriction of activities of daily living was certainly all accountable as a consequence of the left elbow fracture and its subsequent treatment.”
As to the Medical Assessor’s view of Ms Mukareva’s presentation, he said:
“As indicated above, there were marked inconsistencies on physical examination.
Moreover, from the viewpoint of symptoms over time, there is a marked discrepancy between Mrs Mukareva’s current description of symptoms and those recorded by doctors who were involved in her treatment over the first one to two years of management.
Her statement to me today that in the fall “my neck flexed forward and rebounded back in hyperextension” clearly came from what she had been told by treating doctors, quite possibly Dr Teychenne? These are not words used by a patient.”
The Lead Assessor MAC of Medical Assessor Berry
Medical Assessor Berry’s MAC as Lead Assessor was dated 12 October 2023. His assessment remained the same as his earlier MAC on reconsideration, namely, that
Ms Mukareva was entitled to a Combined Table value of 20% WPI. It does not appear that he re-examined Ms Mukareva after his initial examination on 4 April 2023.In the course of his reasons, the Medical Assessor noted that on examination:[7]
“The claimant was diffusely tender. She had restricted movement in the left rotation and extension….”
[7] Appeal papers page 61.
He noted that:
“Ms Mukareva was entirely consistent in her presentation with no evidence of exaggeration or illness behaviour.”
SUBMISSIONS
Appellant employer
The appellant employer set out six grounds of appeal.
Ground 1
The first ground considered the additional relevant information as it pertained to Medical Assessor O’Neill, the second Medical Assessor appointed in this case.
The appellant employer submitted that it followed from the above factual background that the surveillance evidence complied with the two requirements of s 328(3). The appellant employer submitted that it could not reasonably have obtained the surveillance evidence before the medical assessment with Medical Assessor O’Neill on 20 September 2023. We were referred to Ross V Zürich Workers Compensation Insurance,[8] (but we note that Ross was in respect of a different section of the 1998 Act which pertained to appeals from arbitrators to the Presidential Unit).
[8] [2002] NSW WCC PD 7.
The appellant employer stated that the surveillance could not reasonably have been obtained before the assessment on 20 September 2023.
We were referred to Petrovic v BC Serv No 14 Pty Limited and Ors[9] and the dicta of Hoeben J regarding the provisions of s 327(3)(b). (We would note that the matter has now been referred to us and a different section applies to the admission of fresh evidence, namely
s 328(3) as indicated above). There is no restriction on the fresh evidence being of a medical kind, as was held by Hoeben J and relied on by the appellant employer - presumably to persuade the delegate of the President that the matter should be referred to the Panel.[9] [2007] NSWSC 1156.
It was submitted that the surveillance material showed inconsistencies in Ms Mukareva’s presentation to Medical Assessor O’Neill, as we understood the submission. It was submitted that the surveillance evidence has significant probative value because it depicted a “markedly different” level of function and impairment of the cervical spine to that recorded by both Medical Assessors.
Ground 2
The second ground for the admission of the fresh evidence was said to be relevant to Medical Assessor Berry’s assessment. The facts of the case were again set out, and the appellant employer again indicated that although it did not receive the surveillance material until
8 November 2023, it had commissioned the report on 16 March 2023.The appellant employer again submitted that the fresh evidence demonstrated inconsistencies in presentation with Medical Assessor Berry, as it depicted a markedly different level of functioning and impairment to the cervical spine. It submitted that the surveillance evidence was not available before the 4 April 2023 assessment with Medical Assessor Berry, as it was not obtained for another five or so months. The employer accordingly could not reasonably have obtained the surveillance material before 4 April 2023 as it was not obtained until
20 September 2023, when Ms Mukareva attended Medical Assessor O’Neill.There was significant probative value, the appellant employer submitted, referring to Lukacevic v Coates Hire Operation Pty Ltd.[10] The material, it was said, would “significantly change the outcome” of the MAC issued by Medical Assessor Berry on 12 October 2023.
Ground 3
[10] [2011] NSWCA 112.
The next ground raised by the appellant employer was that Medical Assessor O’Neill had applied incorrect criteria in that he had noted inconsistencies in the examination with his observations of Ms Mukareva when she was not being formally examined. It was said that the surveillance material underscored Medical Assessor O’Neill’s reservations about her presentation and his assessment of the cervical category 2 was not sustainable in the light of that evidence.
The appellant employer noted that Medical Assessor O’Neill had found a DRE category II impairment notwithstanding his reservations as to her “obvious embellishment”. The appellant employer referred to the detail of the surveillance and submitted that by finding an asymmetric range of movement in the cervical spine, Medical Assessor O’Neill had applied incorrect criteria, on the basis, as we understood it, that the surveillance material negated that proposition.
Ground 4
This ground alleged that Medical Assessor Berry had also applied incorrect criteria on the one occasion he had assessed Ms Mukareva, 4 April 2023. The appellant employer referred to the findings on examination detailed by Medical Assessor Berry and his finding that there was no evidence of exaggeration or illness behaviour.
It was submitted that the surveillance material demonstrated such a free movement of
Ms Mukareva’s neck that these findings were not sustainable. We were referred to the detail of the surveillance material which, the appellant employer alleged, depicted Ms Mukareva as having an unrestricted and symmetrical movement of the cervical spine. It also demonstrated that “the Applicant has misrepresented her disabilities” or that “her impairment has resolved” between 4 April 2023 and 12 October 2023.
Grounds 5 and 6
The appellant employer repeated its above submissions in alleging that both Medical Assessor O’Neill and Medical Assessor Berry had made demonstrable errors.
Respondent worker
Ms Mukareva submitted that the terms of s 328 (3) were conjunctive, and required an applicant to establish not only that it had not obtained the evidence prior to the medical assessment, but that it could not reasonably have obtained such evidence in time.
The thrust of the appellant employer’s argument, it was noted, appeared to be that
Ms Mukareva’s subjective complaints of restriction and pain could not be justified on an objective basis. The appellant employer, with respect to all the appeal grounds, based its argument on the proposition that its interpretation of what appeared on the surveillance footage was sufficient to demonstrate that both Medical Assessors had erred in their assessments.Ms Mukareva submitted that the appellant employer’s “bold assertion” that it could not reasonably have obtained the subject material before the medical assessment with Medical Assessor O’Neill on 20 September 2023, was baseless. Ms Mukareva noted that since the date of injury, 2 July 2018, weekly payments had continued and her medical expenses had been paid.
The appellant employer had not engaged with why surveillance of the type now relied on could not have been obtained at an earlier date, as we understood the submission. Such a course was more in keeping with the overriding philosophy and aims of the Personal Injury Commission (Commission) regarding the efficient disposition of its business, Ms Mukareva argued. We were referred to s 3(b)(c) of the Personal Injury Commission Act 2020 (the 2020 Act).
The argument to which the subject material was addressed had been central to the appellant employer’s defence since the outset, it was argued. Ms Mukareva referred to observations by the appellant employer’s medicolegal expert Dr Mellick on 19 August 2022 that, inter alia, there was no organic base for Ms Mukareva’s symptoms. There was evidence of “high anxiety” and that “the phenomenon of somatisation” was relevant to her clinical condition.
Dr Mellick’s opinion was the basis for the denial of liability, Ms Mukareva submitted. The onus of establishing that the subject material should be admitted under s 328(3) lay on the appellant employer, she said, and there was no evidence before the Panel as to whether the surveillance had been commissioned prior to the “Medical Assessment process” or whether the appellant employer had made any effort to obtain evidence of this type since it was advised of Dr Mellick’s misgivings in mid-2022.
The only evidence before the Panel was that the subject material was not commissioned until 16 March 2023, which was after the “Medical Assessment process” had been initiated. The indulgence sought by invoking the provisions of s 328 required that an applicant seeking to introduce fresh evidence does so with “clean hands”, Ms Mukareva submitted, which the appellant employer did not have.
Ms Mukareva conceded that her next submission was advanced “perhaps unfairly” but that nonetheless in its conduct before the Panel, the appellant employer was “seeking from the outset to subvert or undermine the validity of the medical assessment process and the objectives of the PIC”.
Alternatively, it was submitted that the appellant employer had been “hedging its bets” with regard to the outcome of the process and “explicitly took the opportunity of taking surveillance footage of the worker as she attended one of the PIC medical assessment in the event of an unfavourable outcome”.
Ms Mukareva further submitted that the appellant employer had not explained why it was not until the process had been commenced that it commissioned the subject surveillance, it being noted that Medical Assessor Berry’s first MAC was dated 11 April 2023.
Admission of the subject material, it was further submitted, would infringe the principles of natural justice as the worker was given no opportunity to respond to it. If such an opportunity had been given, it would have delayed the process which had been caused by “the appellant employer’s apparent afterthought” that surveillance material might be of assistance in the event of an assessment it was unhappy with.
Submissions were made about the effect of Petrovic, but the restriction on admission of fresh evidence pursuant to s 328 (3) is not as restrictive as that before the delegate pursuant to s 327(3)(b). In any event Ms Mukareva submitted that the appellant employer’s submissions assumed that there would be an acceptance at face value of the surveillance operative’s assessment of the significance of what he saw, from a surreptitious position some distance away from her.
We were referred to Chapter 1.6 of the Guides (erroneously referred to as Chapter “11.6”), and its requirement that claimants be assessed “as they present on the day of assessment”. We were also referred to a case often cited in cases of psychological injury, Ferguson v State of New South Wales[11] and Campbell J’s adoption of a Medical Appeal Panel’s observation that “the pre-eminence of the clinical observations cannot be underrated”.
[11] [2017] NSWSC 887 at [33] per Campbell J.
We were also referred to Jenkins v Ambulance Service of New South Wales[12] in which Garling J emphasised that the clinical assessment on the day of assessment was of “particular importance”.
[12] [2015] NSWSC 633.
As to Ground 2 of the appellant employer’s submissions, Ms Mukareva submitted that the assumption that the surveillance showed “markedly different level of function” to that recorded by Medical Assessor Berry was no more than an expression of opinion and constituted, in the context of the medical assessment process, an example of the danger of an application such as this.
Ground 3 advanced by the appellant employer in fact made serious allegations about
Ms Mukareva’s credit, an issue which had not hitherto been raised in the case, Ms Mukareva submitted. For the appellant employer to describe her as being “not forthcoming” or as having “misrepresented her disabilities” was to attack Ms Mukareva’s bona fides in circumstances where he had no chance to defend himself. Ms Mukareva again submitted that the conduct by the appellant employer illustrated the danger in an application such as this as it affected the medical assessment process.Ms Mukareva repeated her submissions as to the allegations of demonstrable error by the Medical Assessors in Grounds 4 and 5.
DISCUSSION
As we indicated above, the application to admit fresh evidence is integral to the appellant employer’s appeal and for that reason it is better dealt with as part of our substantive reasons.
In the final analysis, the issue before us is whether surveillance footage should be admitted. The hypothesis upon which this application is made is that the footage has such probative value that it will displace the considered opinions of the two Medical Assessors that
Ms Mukareva has an asymmetry of movement in her neck that qualifies her for an award of 5% WPI in accordance with the relevant Guideline. We note in passing that Medical Assessor Berry disagreed with Medical Assessor O’Neill as to whether any additional impairment should be allowed for Ms Mukareva’s restrictions in the activities of daily living. That disagreement has not been made the subject of the appeal.
Rule 109
Rule 109 of the Personal Injury Commission Rules 2021 provides:
“(1) A surveillance recording may not be referred to a medical assessor in medical assessment proceedings for the purposes of the enabling legislation unless-
(a) exceptional circumstances exist, as determined by the Commission or the President, and
(b) the Commission or the President orders that the surveillance recording may be referred.
(2) A party who wishes to lodge a surveillance recording for referral must—
(a)lodge the recording with the application or reply lodged by the party in accordance with subrule (2A), and
(b) serve the entire recording on the other parties, including material from the recording that is not lodged.
(2A) When lodging the surveillance recording, the party must—
(a) lodge only the material from the surveillance recording that is relevant to the issues in the proceedings, and
(b) accompany the material with—
(i) a description of other surveillance recording material in the party’s custody or control, and
(ii)the reason the other material is not relevant to the issues in the proceedings.
(3) The claimant may file a response addressing the surveillance recording within 7 days of the date on which the surveillance recording was served on the claimant.
(4) If a party wishes to submit a surveillance recording but has not complied with subrule (2)-
(a) rule 67(4) applies, and
(b) for the purpose of applying rule 67(4), the party’s failure to comply is taken to be a failure to comply with rule 67(1).”
The net result of this provision is that the application must be dismissed in any event. No permission was sought pursuant to subrule 109(1). There was no certificate from the Commission that exceptional circumstances existed, and no order that the surveillance material could be referred.
Section 328(3) of the 1998 Act
The fresh evidence is also inadmissible, as it contravenes the requirement in s 328(3) that the fresh evidence “could not reasonably have been obtained by the party” before the medical assessment. Whilst obviously the surveillance actually taken was not available prior to the assessment, there was no reason advanced as to why it had not been obtained at an earlier point in time. The appellant employer was alerted to the possibility that Ms Mukareva was considered unreliable by its own medical expert, Dr Mellick, who stated in his report of
19 August 2022 that:[13]“[Her] widespread symptoms cannot be explained as a result of an organically determined neurological disorder. The findings on physical examination confirmed the non-physiological explanation for the symptoms involving particularly the left upper extremity and the left side of her body, as well as the left side of her head and neck.”
[13] Appeal papers pages 448, 449.
Further, Dr Mellick stated:
“There is no organically based cause for the symptoms. There is evidence of high anxiety and perhaps the phenomenon of somatisation may be of relevance to the existing clinical condition.”
In view of Dr Teychenné’s opinion that Ms Mukareva was suffering from a spinal cord problem, and her presentation was consistent,[14] Dr Mellick’s view was the only evidence that alerted the appellant employer to the possibility that Ms Mukareva might be exaggerating. As noted above, Medical Assessor Berry found Ms Mukareva’s presentation to be entirely consistent, with no evidence of exaggeration or illness behaviour.
[14] Appeal papers page 483.
The onus is on the party seeking to admit the fresh evidence, and the evidence in this case required some explanation as to why the employer had not obtained surveillance of the applicant prior to the medical assessment. Ms Mukareva’s submission regarding this question has some force. She had been the recipient of compensation in some form or other since the date of injury, 2 July 2018. There was no evidence that surveillance had ever been obtained before the commission of the subject surveillance on 16 March 2023, and in all the above circumstances, an explanation was required as to the delay. The mere assertion that the surveillance “could not reasonably have been obtained by the respondent before the assessments on 20 September 2023” in the present circumstances do not satisfy the appellant employer’s onus to demonstrate why that was so.
We note Ms Mukareva’s submission that the conduct by the employer sought to subvert or undermine the validity of the medical assessment process and the objectives of the Commission. Ms Mukareva submitted that the surveillance was not organised until after the medical assessment process had commenced, which would appear to be correct, as the Application to Resolve a Dispute was lodged on 22 December 2022 and the reply on
13 February 2023. Ms Mukareva submitted that in the alternative it may be that the employer was seeking to take advantage of Ms Mukareva’s requirement to attend on Medical Assessor O’Neill on 20 September 2023, by ensuring that the insurance operative was available to take surveillance footage. Ms Mukareva further submitted that neither approach was consistent with the objectives of the Commission.[15][15] As to which, see Jeld-wen Australia Pty Ltd v Quilao [2019] NSWWCCPD 10 per DP Elizabeth Wod at [54].
These considerations demonstrate that without such an explanation, the Panel is unable to accept that s 328(3) has been complied with, and the fresh evidence is also rejected on this ground.
Unusual employer hypothesis
We also observe that in the final analysis we are asked to accept that the Medical Assessor erred because an insurance operative’s observations were said to be more reliable than those made during a professional physical examination.
This submission advanced a most unusual hypothesis about the powers of an insurance operative, but of course it was one that was completely lacking in evidentiary support. The proposition was highly unlikely, if not impossible.
Claimant already found to be unreliable
Further, although the appellant employer’s argument was that the surveillance footage would cause us to doubt Ms Mukareva’s integrity, it rather turned a blind eye to what the Medical Assessor actually said. Medical Assessor O’Neill accepted that there was an asymmetry of movement in the neck, notwithstanding that he found “marked inconsistencies” on physical examination, and between earlier described symptoms, and that Ms Mukareva presented with “obvious embellishment”.
Accordingly, the fresh evidence sought to establish what Medical Assessor O’Neill had already detected in his assessment. It is not unusual for claimants to exhibit some inconsistent behaviour whilst being assessed as part of this process. Medical Assessors are usually alive to this difficulty, as Medical Assessor O’Neill was.
The footage unremarkable
We note that the appellant employer in its submission was at pains to identify about 33 individual events on the video time recorder. In considering this application we have also had regard to the footage. We noted periodic full rotation of Ms Mukareva’s neck to the right, and (less prominently or frequently) an apparent rotation to the left, which could be largely accounted for by the positioning of her companion. We did not see any footage that was in any way remarkable, such that it contradicted the already cautionary approach that Medical Assessor O’Neill had adopted.
The particularisation of each individual movement recorded on film betrayed an eye too keenly attuned to the perception of error, with respect.[16] The description of each event as showing movement “in an unrestricted manner” was not objectively confirmed in our viewing of the footage.
[16] See Handley AJA in Bojko v ICM Property Service Pty Ltd [2009] NSWCA 175 at [36].
The submissions that the surveillance footage was also relevant regarding Medical Assessor Berry’s assessment accordingly must be dismissed. Whether Medical Assessor Berry was correct or not when he found Ms Mukareva’s presentation to be entirely consistent becomes irrelevant in the light of Medical Assessor O’Neill’s similar assessment and the reservations that he simultaneously expressed about Ms Mukareva’s reliability.
For these reasons, the Appeal Panel has determined that the fresh evidence application is rejected. It follows that the MAC issued on 12 October 2023 should be confirmed.
6
0