Evangelista v Coles Supermarkets Australia Pty Ltd
[2021] NSWPIC 87
•20 April 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Evangelista v Coles Supermarkets Australia Pty Ltd [2021] NSWPIC 87 |
| APPLICANT: | Marissa Evangelista |
| RESPONDENT: | Coles Supermarkets Australia Pty Ltd |
| MEMBER: | Mr Brett Batchelor |
| DATE OF DECISION: | 20 April 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Application for Admission of Late Documents by respondent employer, being video surveillance of the applicant worker and report thereon (the late documents), to be referred to the Approved Medical Specialist (now Medical Assessor) after his examination of the applicant worker had occurred but before issue of the medical assessment certificate (MAC); consideration of the time at which the late documents were served on the applicant (three days before the examination of the applicant by the AMS) and when they were lodged with the Commission; consideration if “exceptional circumstances” were made out by the respondent pursuant to [2.26] of the Workers Compensation Medical Dispute Guidelines and if it was in the interests of justice that the late documents be received into evidence for referral to the AMS; Held- that in the circumstances of the case and having regard to evidence in the proceedings, exceptional circumstances not made out and that it was not in the interests of justice that the late documents be admitted into evidence for referral to the AMS for his consideration prior to issue of the MAC; the AMS directed to issue the MAC. |
| DETERMINATIONS MADE: | 1. The application of the respondent for the admission into evidence the Application to Admit Late Documents dated 1 February 2021 attaching the 2nd Surveillance Report of Procare dated 12 November 2020 together with the surveillance video emailed to the Workers Compensation Commission (now Personal Injury Commission Registry) on 1 February 2021 is refused. 2. The Medical Assessor (formerly Approved Medical Specialist) is directed to proceed and issue the medical assessment certificate in respect his examination of the applicant on 8 February 2021. |
STATEMENT OF REASONS
BACKGROUND
Marissa Evangelista (Mrs Evangelista/the applicant) claims weekly benefits and compensation for permanent impairment as a result of psychological injury she suffered arising out of or in the course of her employment with Coles Supermarkets Australia Pty Ltd (the respondent) on 4 July 2017. On that day she was working as a supervisor at the front enquiry counter of the respondent’s Woodcroft store which was the subject of a hold up by two balaclava clad men. One was armed with a hammer and the other with a long knife. Mrs Evangelista was directly threatened by the men, one standing behind her with the knife and the other in front of her with the hammer.
Mrs Evangelista was not physically hurt in the robbery but was tearful and distraught. She has been diagnosed as suffering chronic post-traumatic stress disorder (PTSD) as a result of the psychological injury sustained on 4 July 2017. She has not returned to work with the respondent or any other employer since that time and has received lengthy psychiatric and psychological treatment.
The applicant commenced the current proceedings by way of an Application to Resolve a Dispute dated 25 September 2020 (the Application) in response to which the respondent lodged a Reply dated 16 October 2020.
The matter came before Arbitrator Deborah Moore on 23 October 2020 who made the following Consent Orders in a Certificate of Determination issued that day:
“1. The permanent impairment dispute in respect of a primary psychological injury occurring on 4 July 2017 is remitted to the Registrar for referral to an Approved Medical Specialist (AMS) for assessment of whole person impairment.
2. The documents to be sent to the AMS are the ARD and the Reply.
3. The matter is to be listed before me for a further teleconference, if necessary, once the MAC has issued to discuss any outstanding issues.”
On 1 December 2020 a “REFERRAL FOR ASSESSMENT OF PERMANENT IMPAIRMENT TO APPROVED MEDICAL SPECIASLIST” was issued by the former Workers Compensation Commission, containing a referral of the matter to Dr Douglas Andrews for video assessment via ZOOM. The brief provided to the Approved Medical Specialist (AMS), since the commencement of the Personal Injury Commission Act 2020 1 March 2021 known as a Medical Assessor but for convenience referred to herein as AMS, consisted of the Application and attached documents and the Reply and attached documents. Dr Andrews examined the applicant on 8 February 2021. For reasons outlined hereunder, his medical assessment certificate (MAC) has not yet been issued.
On 1 February 2021 the respondent lodged with the Workers Compensation Commission (now the Personal Injury Commission) (the Commission) a surveillance DVD (the surveillance video) depicting activities in which the applicant was engaged over the period from 23 October 2020 until 6 November 2020, and an Application to Admit Late Documents (AALD) dated 1 February 2021 to which was attached a “2nd Surveillance Report” of Procare, dated 12 November 2020. These documents were served on the applicant on 5 February 2021.
The matter was listed before me for a telephone conference on 23 February 2021. The applicant, the solicitor for the applicant and the solicitor for the respondent attended that conference.
The respondent sought a direction that the surveillance video and the AALD dated 1 February 2021 and attachments be referred to the AMS for his consideration before issue of the MAC. The applicant objected to this. In the absence of agreement between the parties the following directions were issued:
“1. The respondent is to lodge and serve by 9 March 2021 written submissions on why the video evidence attached the respondent’s Application to Admit Late Documents dated 1 February 2021 (the ‘2nd Surveillance Report’ of Procare dated 12 November 2020 and ‘Surveillance video’ of Procare emailed to WCC Registry on 1 February 2021) should be referred to the Approved Medical Specialist, Dr Douglas Andrews, before he issues a Medical Assessment Certificate following his examination of the applicant on 8 February 2021. .
2. The applicant is to lodge and serve by 23 March 2021 written submissions in reply.
3. The respondent is to lodge and serve by 30 March 2021 any further submissions in reply to the applicant’s submissions on which it wishes to rely
4. At the conclusion of the time allowed for submissions the dispute will be determined ‘on the papers’.”
Submissions have been received in accordance with the directions.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) Should the respondent’s AALD dated 1 February 2021 and attachments including the surveillance video be admitted into evidence for referral to the AMS before he issues a MAC?
(b) If the material referred to in (a) above is referred to the AMS, should the applicant lodge a statement responding to the material shown in the surveillance video and in the surveillance report of Procare dated 12 November 2021 and/or undergo a further examination by Dr Andrews?
PROECEDURE BEFORE THE COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties were informed of my intention to determine the dispute without holding a conciliation conference or arbitration hearing.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application and attached documents;
(b) Reply and attached documents;
(c) AALD dated 1 February 2021 and attached 2nd Surveillance Report of Procare dated 12 November 2020;
(d) the surveillance video emailed to the WCC Registry on 1 February 2021, which I have viewed;
(e) the respondent’s submissions dated 9 March 2021;
(f) the applicant’s submissions, undated, and
(g) the respondent’s further submissions dated 30 March 2021.
SUBMISSIONS
The submissions of the parties will not be repeated in full. In summary, they are as follows.
Respondent
The respondent notes that statements included in the Application contain allegations of a range of the applicant’s restrictions and disabilities arising from her psychological condition. The respondent does not accept the applicant suffers from such restrictions, in large part as a consequence of significant inconsistencies between the applicant’s level of function as shown on surveillance, as compared to her presentation and histories provided to treating and qualified doctors.
The respondent notes that the applicant’s objections appear to be based on:
(a) [2.26] of the Workers Compensation Medical Dispute Guidelines (the Guidelines), and
(b) that it is not in the interests of justice to admit the evidence.
The respondent submits that there has been no breach of [2.26] of the Guidelines, which it says is clearly limited to video surveillance; it does not apply to reports. Accordingly the respondent asserts that the applicant’s objection based on [2.26] of the Guidelines cannot apply to the 2nd Surveillance Report of Procare dated 12 November 2020 attached to the AALD dated 1 February 2021
The respondent refers to the case of Moston v Goldenfields Water County Council[1], and the comments of Arbitrator Burge in that case with reference to what Campbell JA stated in Yacoub v Pilkington (Australia) Ltd[2] on the meaning of the term “exceptional circumstances” in the context of the Uniform Civil Procedure Rules 2005.
[1] [2019] NSWWCC 282 (Moston).
[2] [2007] NSWCA 290 (Yacoub).
The respondent also refers to the decision of Senior Arbitrator Capel in Duran v RSL Lifecare Ltd[3], a case in which it was submitted there were exceptional circumstances for the inclusion of surveillance evidence. In that case, the Senior Arbitrator found that the activities depicted in the surveillance were, on face value, inconsistent and that the AMS should be allowed to review the surveillance report and the footage, referring in particular to the comments at [112] of that decision. The respondent submits that inherent in that decision is the notion that inconsistencies gave rise to ‘exceptional circumstances’ such that the video evidence ought to be disclosed to the AMS.
[3] [2019] NSWWCC 325 (Duran).
The respondent submits that in the current proceedings, inconsistencies between the surveillance evidence and the histories provided by treaters and qualified experts are referred to in the respondent’s liability notices and provides examples thereof with reference to the evidence of the applicant herself and the claims made to Dr Jeffrey Bertucen, the independent medical examiner retained by the applicant, whose reports are in evidence.
The respondent submits that the surveillance video lodged with the AALD dated 1 February 2021 is probative and satisfies the test of exceptional circumstances. The recent surveillance, taken together with the earlier surveillance material, shows ‘clear continuous inconsistency’ referred to by Senior Arbitrator Capel in Duran.
In respect of the applicant’s objection to the evidence based on it not being in the interests of justice to allow the AMS to see the surveillance evidence, the respondent refers to relevant parts of the Workers Compensation Rules 2011 (the WCC Rules) providing for introduction of evidence that would otherwise be excluded by the operation of rule 10.3(2) (see rule 10.3(4)). That subrule allows for the introduction of such evidence if the Commission is satisfied that it is necessary to do so if it is in the interests of justice.
The respondent submits that the disputed material will provide the AMS an opportunity to test or challenge the applicant’s self-reporting during formal examination. The respondent submits that whilst the examination of the applicant by the AMS has already concluded, the AALD documents can still be addressed via telephone consultation and/or further examination, if required.
The respondent submits that it is far more useful, and probative, for an AMS assessing medical history to see for himself the worker’s presentation outside the context of the examination room. The respondent submits that this is fairer to the worker than the admission of treating and qualified medical reports alone , as it permits the AMS to apply his expert medical judgement on the applicant’s physical presentation as demonstrated in the footage rather than relying on histories summarised by treaters and/or qualified experts.
The respondent submits that any prejudice that the applicant says she suffers from transmission of the disputed documents and surveillance evidence to the AMS can be rectified by the applicant providing a statement addressing the surveillance and/or undergoing further examination by the AMS. The respondent does not oppose that course.
Applicant
In her submissions the applicant sets out the relevant chronology referred to above at [4]-[7] and identifies the principles in respect of the admission of the late evidence, namely that the respondent must be able to establish exceptional circumstances in order to justify admission of he evidence and that it is in the interests of justice to do so.
The applicant submits that the alleged inconsistencies in the histories provided as compared to what is depicted in the surveillance evidence and the report thereon are minor. The applicant says that the respondent’s submissions on leave to have the evidence admitted are effectively submissions as to the merit of the applicant’s claim for (compensation for) whole person impairment (WPI). That is a job best left to Dr Andrews.
The applicant expresses concern at the level of surveillance conducted by the respondent, especially at the school of the applicant’s child. Reference is made to s 25.2 of the Standards of Practice issued by the State Insurance Regulatory Authority (SIRA).
The applicant asserts that the respondent’s reliance on the quote from Moston at [17] supports the applicant’s submission that in this case, there are no exceptional circumstances to justify referral of the disputed material to the AMS. All the respondent can point to is some level of activity a little outside the scope of what the applicant has reported to doctors she has consulted.
It is further submitted that the applicant has been “up front” about her level of activity to her doctors. This includes her telling Dr Bertucen about her trip to the Australian Open (Application p 35) and at [68] in her statement. The applicant submits that it is only natural and to be expected that there are inconsistencies, none of which are glaring or obvious. Minor inconsistencies are not exceptional.
The applicant submits that even if exceptional circumstances are found, the conduct of the respondent militates against the granting of the relief sought by the respondent. The applicant submits that it was extraordinary conduct on the part of the respondent to wait until a week before the AMS examination to serve the subject material when such material would need to be addressed by the applicant. That cannot be an approach that should be encouraged by the Personal Injury Commission.
The applicant submits that in order to do justice between the parties the fresh material would need to be the subject of fresh statement evidence and would require fresh medical evidence to be obtained from the applicant’s treating doctors, and potentially from her independent medico-legal expert. The AMS might require a further examination
The applicant submits that the respondent’s application for leave to have the additional material referred to the AMS has already caused considerable delay, and that allowing the respondent’s application would create further unnecessary and prejudicial delay as well as expense. The applicant submits that if the respondent intended to rely on the further material, it should have had the surveillance conducted well before the telephone conference in 2020 and/or served the material well before the AMS appointment. It did not do so.
The respondent also should have taken steps to have the proceedings listed for further telephone conference shortly after it obtained the surveillance report on 12 November 2020. Instead, the applicant submits that it elected not to do this, instead waiting to a point in time where it was impossible for the applicant to meet the fresh material prior to the AMS appointment. The applicant questions whether this was a tactical decision or not.
The applicant submits that the respondent’s reliance on the WCC Rules with respect to late documents in disingenuous and misconceived. The respondent should have had the matter listed for telephone conference as soon as the material was available and should have served it on the applicant at that time.
In conclusion, the applicant submits that the surveillance footage has the potential to mislead, and that the respondent’s submissions illustrate the significant prejudice that the footage has the potential to create. The probative value of the surveillance does not outweigh the significant prejudice which the applicant might experience should the footage be given to the AMS.
The surveillance footage does not satisfy the test for exceptional circumstances and it is not in the interests of justice to have it admitted into the proceedings.
Respondent in reply
The respondent, in answer to the applicant’s submissions that ‘minor inconsistencies are not exceptional’, relies on what Senior Arbitrator Capel stated in Duran that given the potential inconsistencies identified in the surveillance material in that case, he considered that in fairness to all parties that AMS should have access to the DVD so that he could draw his own conclusions. The respondent emphasises the clear inconsistencies in the presentation of the applicant compared to self-reported histories which suggests a high level of incapacity. The respondent submits that it is for the AMS, not the parties, to provide an opinion as to whether inconsistencies are minor or not.
The respondent refutes the applicant’s concern that the investigator has not complied with s 25.2 of the Standards of Practice issued by SIRA, asserting that the surveillance report does not identify nor capture any screenshots involving children, referring to p 8 of the surveillance report dated 12 November 2020. The respondent further asserts that in the footage, the back of three unidentified children are shown briefly at 55 minutes into the footage. The respondent submits that the surveillance was conducted with complete sensitivity to any children who may have been around the applicant at the time that the surveillance was undertaken. There was no breach of the standards.
In respect of the applicant’s dictates of justice submissions, the respondent submits that such submissions are without merit. The respondent submits that it has acted in accordance with the relevant rules. Further the respondent rejects criticism from the applicant for not listing the matter for a teleconference. That was a matter for the applicant to do, being the party disputing the admission of the video footage.
The respondent reiterates that it does not oppose the applicant being given the opportunity to respond to the footage by way of an updated statement and/or further assessment by the AMS.
FINDINGS AND REASONS
Case law
In Yacoub, Campbell JA said at [66] (authorities omitted) that:
“(a) Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered.
(b) Exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors.
(c) Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional.
(d) In deciding whether circumstances are exceptional within the meaning of a particular statutory provision, one must keep in mind the rationale of that particular statutory provision.
(e) Beyond these general guidelines, whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case.”
The Guidelines at [2.26] provide:
“2.26 The Commission file may contain video surveillance material obtained as part of investigators’ reports. Video surveillance shall not be disclosed to the AMS unless ordered by the Commission in exceptional circumstances.”
At [50] in Moston Arbitrator Burge held that the phrase “video surveillance material” did not extend to the reports arising from the surveillance, notwithstanding a concession by counsel for the respondent who sought admission of the material, that the phrase did extend to cover the reports arising from the surveillance.
In this case, having viewed the surveillance video of over an hour in length and read the Procare report dated 12 November 2020 attached to the AALD dated 1 February 2021, I think that “video surveillance material” would extend to that report. Included in the report are a significant number of photographs which are quite obviously extracted from the video film. Indeed, I could not discern a photograph in the report that was not taken from the video film. The typewritten portion of the report provides a running commentary on the applicant’s movements as depicted in the photographs, which coincides with my observation of the video.
I therefore do not accept the respondent’s submission, or presumption in its submissions in reply, that the dispute is limited to the surveillance footage/video and not the report. Having regard to the content of the report I have outlined, it clearly falls within the description of “video surveillance material.”
I note that Arbitrator Burge held on the facts of Moston that the video surveillance material did not disclose exceptional circumstances.
Each case “depends upon a careful consideration of the facts” as Campbell JA stated in Yacoub. The respondent relies on what Senior Arbitrator Capel said at [112] in Duran with reference to the facts of that case. To put that paragraph of the decision in context, both [111] and [112] should be referred to, namely:
“111. The respondent submits that the DVD should also be admitted into evidence and referred to the AMS because there is a clear continuous inconsistency in the applicant’s presentation in unguarded moments when compared to her presentation and the history given to the AMS.
112. Whilst I do not necessarily agree with this submission, given the potential inconsistencies identified in the surveillance report, I consider that, in fairness to all parties, the AMS should have access to the DVD, so he can draw his own conclusions rather than rely on an investigator’s perception and description of what the applicant was doing.”
I therefore do not accept the respondent’s submission, based on the partial quotation from [112] of Duran, that it is inherent in that finding that inconsistencies gave rise to ‘exceptional circumstances’ such that the video surveillance ought to be disclosed to the AMS in accordance with the Guidelines.
The circumstances of Duran are also quite different to the circumstances of the current matter in so far as the way in which it was sought in that case to have the video evidence reviewed by the AMS. It involved an application by the respondent employer for referral of the matter back to the AMS, who had previously examined the applicant worker, for reconsideration pursuant to s 329(1) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). After the initial examination of the applicant by the AMS, the solicitor for the respondent wrote to the Registrar of the Commission requesting that the matter be referred back to the AMS pursuant to s 329 because surveillance evidence had been obtained of the applicant before and after the medical examination carried out by the AMS which was allegedly inconsistent with the applicant’s clinical presentation to the AMS. At issue before the Senior Arbitrator was whether the dispute in respect of the applicant’s claim should be referred back to the AMS pursuant to s 329. As part of that referral, the respondent sought a direction that the surveillance reports and DVD obtained by the respondent be referred to the AMS. The applicant opposed the respondent’s application for referral of the matter back to the AMS and the admission of this fresh evidence.
After a comprehensive review of the facts of the case, the Senior Arbitrator granted the respondent employer’s application pursuant to s 329(1) of the 1998 Act for the referral of the matter to the AMS for reconsideration of the MAC previously issued. The AMS was ordered to conduct a further examination of the applicant, who was granted leave to file and serve a further statement and medical evidence. The surveillance reports and DVD evidence which the respondent sought to have considered by the AMS were included in the material to be reviewed by him.
At [107] of Duran, Senior Arbitrator Capel noted:
“There has been minimal delay in bringing the application and the surveillance evidence was provided to the applicant and the Commission within one week or so of the MAC. Any referral back to the AMS will not be against the public interest as the litigation will not conclude with a fresh MAC, given that there is a claim for weekly compensation and medical expenses still to be dealt with by me.”
In this case the surveillance video and report thereon was available to the respondent by or shortly after 12 November 2020 but, according to the applicant, not served on her until 5 February 2021. The surveillance video was lodged with the Commission on 1 February 2021. The examination of the applicant by Dr Andrews took place, as scheduled, on 8 February 2021. As in Duran, the litigation in this matter will not conclude with the issue of the MAC, given that there is a claim for weekly benefits still to be dealt with by Arbitrator (now Member) Moore if necessary (see [4] above). Finalisation of the proceedings will however be delayed if, in accordance with the respondent’s concession that if the surveillance video and report thereon are to be referred to Dr Andrews, the applicant should have the opportunity of providing a further statement and undergo a further examination by Dr Andrews if required. This delay is prejudicial to the applicant and must be considered along with the dictates of justice in allowing the AMS to see the surveillance video and report thereon. That involves a consideration of the evidence itself which will be addressed hereunder. However it is of concern that the respondent apparently had the evidence on or shortly after 12 November 2020 and chose not to serve it on the applicant until three days before the scheduled AMS examination.
As an explanation for this course of conduct the respondent relies upon rule 10.3 of the WCC Rules replaced as from 1 March 2021 by the Personal Injury Commission Rules 2021. Rule 10.3 of the WCC Rules is as follows:
“10.3 Material to be lodged in proceedings
(1) For the purposes of section 290 of the 1998 Act, a party to proceedings must lodge and serve, with the dispute application or reply, all information and documents on which the party proposes to rely and that are in the possession or control of the party, and that have not been lodged by a party in the current proceedings and—
(a)where the proceedings are commenced by a worker, a written statement of the evidence to be given by the worker, signed by the worker; and
(b)where a party proposes to rely on the oral evidence of a witness, the party must lodge and serve a document containing—
(i)the name of the witness, and
(ii)a written statement of the evidence to be given by the witness and signed by the witness; and
(c)where the proceedings include a claim for weekly payments of compensation, the employer must provide a schedule of all weekly payments of compensation paid including the amounts and periods.
(2) Subject to subrules (3)–(4), a party may not introduce evidence that has not been lodged and served as required by subrule (1) or has not been provided to any other party as required by the 1998 Act or any Regulation or Workers Compensation Guideline made under that Act.
(3) Where a party wishes to rely on a document not lodged and served in compliance with section 290 of the 1998 Act and subrule (1), the party must—
(a)as soon as practicable after becoming aware of the document or obtaining possession of the document, serve a copy on all other parties; and
(b)not later than 3 working days prior to a medical assessment or telephone conference, on one occasion only and by the approved form, lodge all documents not previously lodged; and
(c) not later than 3 working days prior to an arbitration hearing, on one occasion only and by the approved form, lodge all documents not previously lodged.
(4) The Commission may, if it is satisfied that it is necessary to do so in the interests of justice, allow a party to introduce evidence that the party would otherwise be prevented from introducing because of the operation of subrule (2) provided the party complies with subrule (3) or the Commission gives the party leave to lodge additional documents.”
The respondent complied with rule 10.3(b) when it lodged with the Commission on 5 February 2021 the AALD dated 5 February 2021 and the attached 2nd Surveillance Report of Procare dated 12 November 2020. It appears from the Commission records that the surveillance video referred to in the AALD was sent to the Commission on 1 February 2021. That lodgement of the AALD was three days before the scheduled AMS examination of the applicant on 8 February 2021. The AALD was served on the applicant on 5 February 2021.
It appears that the respondent has not complied with rule 10.3(a). There is no explanation as to why the 2nd Surveillance Report of Procare dated 12 November 2020 and the surveillance video were not served on the applicant “as soon as practicable after becoming aware of the document or obtaining possession of the document.” Had the respondent done this, there would have been ample time for the applicant to raise objection to the additional evidence sought to be relied upon by the respondent at the examination of the applicant by the AMS on 8 February 2021. Whether any further telephone conference at that point in time was to be requested by the applicant or respondent is not to the point. It is open to either party to Commission proceedings to request a further telephone conference if circumstances so dictate. If the applicant had indicated opposition to the further evidence put forward by the respondent in November or even December 2020, it was open to the respondent to request a telephone conference to ventilate the issue.
Consideration will now be given to the surveillance video and report.
Surveillance video/report thereon
The contents of the surveillance video, which runs for just over 66 minutes, are summarised in the 2nd Surveillance Report of Procare dated 12 November 2020. As I noted above, the photographs in the report are taken directly from the video. I will not repeat the contents of the video in full apart from noting relevantly that on 23 November 2020 the applicant is shown exiting her residence to check her mail. On Saturday 24 October 2020 the video shows the applicant attending a dental surgery with a male person, who from the interaction between her and the male person is quite obviously her husband, travelling by car to a large Bunnings Warehouse at Smithfield with her husband, spending time on her own in the store inspecting plants and eventually purchasing one small plant. The applicant and her husband then travel by car to another large retail nursery, Flower Power in Blacktown, where the applicant again enters with her husband, spends time on her own inspecting the merchandise, makes a purchase and departs the store with her husband, the in the vehicle in which they arrived. The vehicle and occupants return to the applicant’s address.
On Friday 6 November 2020 at 8.30 am the applicant is observed driving her children to school in the same vehicle in which she and her husband were previously observed, then attending Quakers Hill Plaza on her own, withdrawing money from an ATM and purchasing groceries in Woolworths. After departing Woolworths the applicant is observed driving to a private residence in Seven Hills, carrying an item from the vehicle to the residence and entering the residence, departing therefrom about an hour and a half later, and then returning to her residence.
The respondent submits that this video evidence is inconsistent with the applicant’s presentation to her treating practitioners and qualified experts. It gives as an example the findings of Dr Jeffrey Bertucen, the psychiatrist qualified on behalf of Mrs Evangelista, in his report dated 29 June 2020[4]. In that report the applicant claimed to Dr Bertucen “…persisting symptoms of depressed mood, high levels of social/interpersonal anxiety and panic features, uncontrollable tearfulness, a sense of feeling ‘floating and lost’”. The respondent submits that this description, at least insofar as it relates to uncontrollable tearfulness, was also heard over the phone during the telephone conferences on 23 October 2020 and 23 February 2021. However, the respondent submits that surveillance evidence captured the afternoon of 23 October 2020 showed the applicant exiting her premises to check the mail, and on the following day, accompanying her husband to a dental surgery and subsequently to Bunnings. The respondent submits that there are clear inconsistencies in this regard. The respondent also refers to the comment of Dr Bertucen where he refers to an unusual episode of crying and shaking observed by him during the interview, which he says lends some credence to Professor’s Mattick’s assessment and his views regarding exaggeration of symptoms, and a possible histrionic overlay. The respondent also refers to other specific instances of the applicant’s statement evidence which it submits are inconsistent with the video surveillance evidence.
[4] ARD p 34.
No inference in respect of the applicant’s presentation can be drawn from the telephone conferences of 23 October 2020 and 23 February 2021 in which she participated. These were unrecorded and took place for the purpose of conciliation of the applicant’s claim in attempts to settle matters in issue between the parties. The first of these telephone conferences was conducted by a different Arbitrator. The respondent’s reference to what occurred in the telephone conferences does not assist its case.
Dr Bertucen in his report dated 29 June 2020 refers to having had the opportunity of reading the surveillance reports but says that “…the activities observed (shopping on her own, driving etc.) is not inconsistent with her own self-reporting of her daily functioning. Therefore, the surveillance reports in my view are not suggestive of any discrepancy between Ms Evangelista’s history and observed functioning.”[5] In making this comment, Dr Bertucen may have been to be referring either to the first surveillance report in evidence of Procare dated 16 March 2020[6] reporting on surveillance of the applicant over the period 6-9 March 2020, or more likely earlier reports prepared by Brosnans Corporate Services dated 21 February 2018[7], 1 March 2018[8] and 5 September 2018[9] covering surveillance over the periods from 15 to 18 February 2018, 22-25 February 2018 and 22 to 28 August 2018 respectively. All of those earlier reports depict the applicant engaged in activities similar to those shown on the surveillance video and the 2nd Surveillance Report of Procare dated 12 November 2020. Although the first surveillance report of Procare dated 16 March 2020 is not as extensive as the second such report, it does cover four days of observation in March 2020, during which the applicant was sighted and followed on three of those days.
[5] ARD p 38.
[6] Reply p 147.
[7] Reply p 72.
[8] Reply p 94
[9] Reply p 124.
Professor RP Mattick, consulting clinical psychologist, assessed psychological functioning of the applicant on 9 October 2019 at the request of the respondent and prepared a report of that date[10]. Included in the documents referred to him were the earlier surveillance reports prepared by Brosnans Corporate Services dated 21 February 2018,16 March 2018 and 5 September 2018 referred to above. Those reports are in evidence in the proceedings. Professor Mattick recorded a comprehensive history of the incident of 4 July 2017, the applicant’s treatment since then and her current condition. He reviewed the medical evidence and had the applicant complete the “Beck Depression Inventory–Second Edition (BDI-II) [10,11]”. He also administered the “Minnesota Multiphasic Personality Inventory–Second Edition–Restructured Form (MMPI-II-RF) [12, 13]”, which he said is used to assess for exaggeration or overstatement, or over reporting of symptoms, or the reverse. Professor Mattick did not trust the applicant’s self-report that she had not improved over the two years since the incident of 4 July 2017. Nevertheless he believed that Mrs Evangelista was diagnosable with a PTSD although that may have been partly an exacerbation of pre-existing anxiety and depression. He said that the evidence showed that she is likely exaggerating her symptoms, but that was not to suggest that she may have some symptoms.
[10] Reply p 14.
The applicant was assessed by Dr John Albert Roberts, consultant forensic psychiatrist, on 14 June 2019 and 4 February 2020 at the request of the respondent[11]. Dr Roberts was of the view that the applicant was exaggerating her symptoms and for this reason he was not able to undertake with any accuracy an assessment of percentage impairment. He did not consider that Mrs Evangelista’s presentation correlated with her assertions of disability and demonstrated capacity to function. He said that while she may have developed PTSD, her account of symptomatology on reasonable psychiatric grounds, having regard to surveillance, was inconsistent.
[11] Reply pp 14 and 30.
In my view, having regard to the evidence that I have summarised there are no exceptional circumstances that would justify the admission of the surveillance video and 2nd Surveillance Report of Procare dated 12 November 2020 into evidence to enable their referral to the AMS, Dr Andrews, before he issues the MAC in respect of his examination of the applicant on 8 February 2021. The applicant has been the subject of surveillance on four occasions previously, in February, March and September 2018 and in March 2020. Reports on the surveillance of the applicant in February, March and September 2018 and March 2020 are in evidence. The activities shown in those earlier reports of the surveillance in February, March and September 2018 and March 2020 are similar to those depicted in the video surveillance of October and November 2020 which the respondent now seeks to have placed before the AMS, together with the 2nd Surveillance Report of Procare dated 12 November 2020. The three expert witnesses who have examined the applicant, in particular Professor Mattick and Dr Roberts, are of the view that the applicant is exaggerating her symptoms and presenting inconsistently. Dr Bertucen acknowledges Professor’s Mattick’s assessment, his views regarding exaggeration of the applicant’s symptoms and possible histrionic overlay. The AMS will have before him all of these reports and the earlier surveillance reports attached to the Reply referred to above.
It is a matter for the AMS to make his own assessment of the applicant having regard to his examination of her, the history of the incident on 4 July 2017, the history of treatment past and present, her current condition and the documentation he has before him.
I am also of the view that it is not in the interests of justice to allow the respondent to introduce into evidence the surveillance video and the 2nd Surveillance Report of Procare dated 12 November 2020. The respondent has breached rule 10.3(a) of the WCC Rules in failing to serve a copy of the material on the applicant as soon as practicable after becoming aware of it, but rather left it until three days before the scheduled AMS examination on 8 February 2021 to do so. The applicant will suffer prejudice through further delay in having her case finalised and having to put on further evidence, and possibly be examined again by the AMS, if the disputed material is allowed into evidence. This prejudice outweighs any prejudice that the respondent will suffer in not having the disputed material placed before the AMS. As noted above, the AMS has already before him significant evidence that may cause him to find exaggeration on the part of the applicant or inconsistency in her presentation.
SUMMARY
The application of the respondent for the admission into evidence of the AALD dated 1 February 2021 attaching the 2nd Surveillance Report of Procare dated 12 November 2020 together with the surveillance video emailed to the WCC Registry on 1 February 2021 is refused.
The Medical Assessor (formerly AMS) is directed to proceed and issue the MAC in respect his examination of the applicant on 8 February 2021.
Brett Batchelor
MEMBER
20 April 2021
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