Freedman Brothers Limited v Scovell - [2025] NSWPICPD 48

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Freedman Brothers Limited v Scovell [2025] NSWPICPD 48
APPELLANT:	Freedman Brothers Limited
RESPONDENT:	Andrew Scovell
INSURER:	Gallagher Bassett Services Pty Ltd
FILE NUMBER:	A1-W29186/24
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	18 June 2025
ORDERS MADE ON APPEAL:	1. Leave to appeal the Principal Member’s Certificate of Determination is granted. 2. The Principal Member’s Certificate of Determination dated 18 February 2025 is revoked. 3. The matter is remitted to a non-presidential Member for referral to a Medical Assessor no earlier than seven days after the publication of this decision for assessment in accordance with Order 1 of the referral dated 14 January 2025. 4. The documents to be included in the referral are: (a) the application and attached documents; (b) the reply and attached documents (including the surveillance report dated 6 December 2024); (c) the surveillance recording undertaken on 27, 28 and 29 November 2024, and (d) the supplementary report of Dr Stephen Rimmer dated 23 January 2025. 5. The respondent (the applicant below) may apply to the Commission within seven days after the publication of this decision in order to make any application in respect of further evidence.
CATCHWORDS:	WORKERS COMPENSATION – Rule 109 of the Personal Injury Commission Rules 2021– whether exceptional circumstances exist for the inclusion of surveillance recordings in the documents provided to the Medical Assessor – Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 applied – QBE Insurance (Australia) Ltd v BTR [2024] NSWPICMP 325; Gandhi v Coles Supermarkets Australia Pty Ltd [2022] NSWPIC 475 discussed – NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 1.43 and 1.44 – medical evidence and assessments to be provided to the Medical Assessor – requirement to include a supplementary report where the medical expert changes his or her opinion expressed in an earlier report – referral for a further assessment pursuant to s 329 of the Workplace Injury Management and Workers Compensation Act 1998 – Target Australia Pty Ltd v Mansour [2006] NSWWCCPD 286; Inner West Council v McQuade [2025] NSWPICPD 32 discussed
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr D Talintyre, counsel
HWL Ebsworth Lawyers
Respondent:
Mr A Davis, counsel
Chamberlains Law Firm Pty Ltd
DECISION UNDER APPEAL
PRINCIPAL MEMBER:	Mr J Harris
DATE OF MEMBER’S DECISION:	18 February 2025

INTRODUCTION AND BACKGROUND

Mr Andrew Scovell (the respondent) was employed as a stable hand by Freedman Brothers Limited (the appellant). On 19 October 2020 he was feeding one of the appellant’s horses when a horse nearby was startled by the noise of a tractor passing by and reared onto its back hooves. This caused the horse in the care of the respondent to react, and it kicked the respondent in the left knee. The respondent was taken to hospital by ambulance, an x-ray and a CT scan were performed, he was given painkillers and discharged. The respondent then came under the care of a physiotherapist and his general practitioner referred him to Associate Professor Simon Tan, orthopaedic surgeon. He underwent a left knee arthroscopy at the hands of A/Prof Tan on 16 November 2020. He was subsequently referred to Associate Professor Woodgate, orthopaedic surgeon, who performed three further surgeries on the left knee, but the respondent continued to complain of symptoms of pain and swelling and reduced range of movement. On 11 July 2023, the respondent underwent a left knee arthroplasty (knee replacement).
The appellant accepted liability for weekly payments and treatment expenses associated with the respondent’s injury. On 21 June 2024, the respondent made a lump sum claim pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) based on an assessment by Dr Charles New, orthopaedic surgeon, of 32% whole person impairment. The appellant declined the claim on the basis that it was not satisfied that the respondent had reached maximum medical improvement.
The appellant arranged for the respondent to be assessed by Dr Stephen Rimmer, orthopaedic surgeon, on 30 July 2024. Dr Rimmer reported on 1 August 2024. He assessed the respondent’s whole person impairment as 20%. He suggested that there were inconsistencies in the respondent’s presentation and recommended video surveillance of the respondent’s activities. The appellant arranged for the surveillance, which was conducted on 27, 28 and 29 November 2024 and a written report was forwarded to the appellant on 6 December 2024.
On 25 November 2024, the respondent commenced proceedings in the Personal Injury Commission (the Commission) seeking a referral to a Medical Assessor for the assessment of his whole person impairment.
On 16 December 2024, the appellant lodged its reply to the respondent’s application, annexing the report of Dr Rimmer and a copy of the written surveillance report. On 20 December 2024, the appellant lodged the video of the surveillance recording by way of an Application to Lodge Additional Documents (ALAD). Additionally, on 5 February 2025, the appellant sought to have admitted a supplementary report from Dr Rimmer, in which Dr Rimmer reduced his assessment of the respondent’s whole person impairment to 14% on the basis of his observations of the activities performed by the respondent in the surveillance recording provided to him. The respondent objected to the admission of the surveillance recording, as well as the supplementary report of Dr Rimmer. The dispute about the admission of the material was referred to Principal Member Harris, who conducted arbitration proceedings through Microsoft Teams on 14 February 2025 and 17 February 2025. The Principal Member issued a Certificate of Determination on 18 February 2025, in which he relevantly determined that he was not satisfied that there were the required “exceptional circumstances” within the meaning of r 109 of the Personal Injury Commission Rules 2021 (the 2021 rules) for the surveillance recording to be referred to the Medical Assessor. He further determined that the supplementary report of Dr Rimmer was not to be referred to the Medical Assessor.
In the meantime, on 14 January 2025, a delegate of the President referred the assessment of the respondent’s whole person impairment to a Medical Assessor, Dr Mark Burns, specialist in occupational medicine. Dr Burns assessed the respondent on 19 February 2025 (the day after the Principal Member issued his Certificate of Determination) and issued a Medical Assessment Certificate on 25 February 2025 certifying the respondent as having 24% whole person impairment pursuant to s 66 of the 1987 Act.
The appellant appeals the decision of the Principal Member in respect of his determinations that the surveillance recording and the supplementary report of Dr Rimmer were not to be included in the referral to the Medical Assessor.

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
The appellant sought an oral hearing of the appeal because “where the appeal raises a key point about the interpretation of [the 2021 rules] the Commission would be assisted by an oral hearing in which this point may be further ventilated” in circumstances where there is a degree of complexity to the matter because of the procedural history. The appellant referred to the Commission’s Procedural Direction PIC 2[8](g).[1]
[1] Appellant’s submissions, [82].
The respondent contended that an oral hearing was not necessary.
I gave regard to the parties’ submissions as to whether an oral hearing was required. I considered the substantive submissions already made, the evidence before me and the Principal Member’s reasons for his decision. I was not satisfied that I had sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing.
I attempted to arrange an oral hearing, however due to the unavailability of one or other of the parties, a suitable date that did not significantly delay the matter could not be found.
In order to provide the parties with procedural fairness and to ensure a timely resolution of the dispute, I therefore issued a Direction to the parties to provide written submissions addressing an issue concerning the application of the Commission’s power vested in s 329 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) to refer the matter for a further assessment, which had not been the subject of submissions. The appellant provided its submissions, and the respondent responded, however the respondent’s submissions were out of time.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to subss 352(3) and 352(4) of the 1998 Act have been met.
The Principal Member’s determination is an interlocutory decision. Section 352(3A) of the 1998 Act provides that:
“There is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.”
Thus, the appellant requires leave to proceed with this appeal.
The appellant cites Trustees of the Roman Catholic Church for the Diocese of Parramatta v Stewart,[2] in which Snell DP applied Collingridge v IAMA Agribusiness,[3] and observes that the exercise of discretion in s 352(3A) requires a consideration of the nature of the dispute and the orders sought in the appeal, and a consideration of whether the granting of leave is desirable for the proper and effective determination of the dispute. The appellant submits that although that case concerned a dispute about a referral to a Medical Assessor, the same principles apply to the present appeal, which involves a dispute about what material should have been provided to a Medical Assessor.
[2] [2021] NSWPICPD 5 (Stewart).
[3] [2011] NSWWCCPD 31, per Roche DP.
The appellant asserts that, had the matter taken the usual course, it would have appealed the Principal Member’s decision before the medical assessment took place, and in accordance with Stewart, leave would be granted because it was desirable for the proper and effective determination of the dispute. The appellant says that there was no opportunity to lodge the appeal before the medical assessment because the assessment was conducted on the day following the issue of the Certificate of Determination. The appellant contends that that approach should not change simply because the medical assessment has taken place.
The appellant submits that if leave was granted and the appeal is successful, it may result in avoiding an appeal from the Medical Assessment Certificate to a Medical Appeal Panel. The appellant says, however, that if leave was not granted, a Medical Appeal Panel appeal pursuant to s 327 of the 1998 Act may not be available solely on the basis that the Medical Assessor was not provided with the surveillance recording and Dr Rimmer’s supplementary report.
The appellant asserts that there has been a breach of procedural fairness by the Principal Member in excluding the evidence which, if found, would result in relief being granted at the appropriate time rather than after other alternatives had been exhausted. The appellant maintains that leave should be granted because it is necessary for the proper and effective determination of the dispute, and it is in the interests of both parties to do so.
In his written submissions annexed to his Notice of Opposition to the Appeal Against Decision of Member (opposition), the respondent did not respond to the appellant’s application for leave to appeal. The Delegate of the President therefore issued a Direction to the respondent providing him with the opportunity to respond to the appellant’s application for leave and for the appellant to reply.
The respondent submits that an order excluding evidence is an interlocutory order within the meaning of s 352(3A) of the 1998 Act and that the surveillance recording and the supplementary report of Dr Rimmer could be considered to constitute evidence that is relevant to the proper and effective determination of the dispute. The respondent does not dispute that it would be desirable to have the appeal determined at this point, but stresses that he does not concede that the material should carry any real weight or that the material has probative value.
Given the respondent’s response to the application for leave, and for the reasons provided by the appellant, I accept that determining the appeal is necessary and desirable for the proper and effective determination of the dispute. I therefore grant leave pursuant to s 352(3A) of the 1998 Act for the appellant to appeal the Principal Member’s determinations.

THE EVIDENCE

As the appellant accepted liability for the respondent’s injury and this appeal concerns only matters that arise from the assessment of the respondent’s whole person impairment, it is not necessary to summarise all of the evidence lodged in the matter.

The respondent’s statement

The respondent provided a statement dated 22 November 2024.[4] He described his employment duties with the appellant and the circumstances in which he was injured. He provided a summary of the treatment he received leading up to and including the total knee replacement performed by A/Prof Woodgate on 11 July 2023.
[4] Application to Resolve a Dispute (ARD), pp 3–7.
The respondent described his ongoing symptoms following the knee replacement surgery, which included pain in the lumbosacral junction, left knee and left tibia, referred to by him as “an aching and stabbing sensation … exacerbated by walking, changing positions, lifting and bending” with associated pins and needles.[5] He stated that his left leg was now 1.5 cm shorter than his right, which caused pressure on his hips and lower back, limited his ability to walk and prevented long periods of sitting.
[5] Respondent’s statement, ARD, p 6, [29].
The respondent indicated that A/Prof Woodgate advised that no further surgery would be of benefit. The respondent said that he was recommended treatment in the form of pain medication and medication for depression, psychological counselling, review by a psychiatrist and by A/Prof Woodgate annually, continuing physiotherapy, occasional compression of the knee and monitoring by his general practitioner.

Associate Professor Woodgate

A/Prof Woodgate provided a number of reports directed to A/Prof Tan between 10 December 2021 and 19 June 2024.[6] In the most recent report dated 19 June 2024, A/Prof Woodgate observed that the respondent remained significantly deconditioned following the surgical interventions. He said that the respondent described intermittent flaring of pain associated with some tibial ache, intermittent swelling of the left knee when undertaking excessive walking and some stiffness after prolonged sitting. He noted some wasting of the thigh, and patellar ligament tenderness, but observed that the respondent had excellent range of flexion “with optimal tracking and stability.”[7] He recommended the respondent continue with a conditioning program.
[6] ARD, pp 27–37.
[7] ARD, p 36.

Dr Charles New

Dr New examined the respondent and provided a report dated 6 March 2024 at the request of the respondent’s legal representatives.[8] He recorded a history of the injury and reviewed the treatment provided to the respondent, including the specialist treatment and surgery performed by A/Prof Tan and A/Prof Woodgate and pain management offered by Dr Chow Chow, pain management specialist.
[8] ARD, pp 21–26.
Dr New took the history that the respondent considered that there was a poor outcome from the total knee replacement performed by A/Prof Woodgate in July 2023, with limitations of range of movement and ongoing pain. He noted that the respondent had not worked as a result of the injury for three years.
Dr New recorded that the respondent no longer pursued his hobbies of horse riding, running, playing tennis and golf, all of which he enjoyed prior to the injury. He noted that the respondent drove an automatic vehicle. He assessed the respondent’s pain and disability as follows:
“He has debilitating pain over the lumbosacral junction as well as bilateral gluteal pain, and pain in his left knee and proximal tibia. He describes the pain as an aching stabbing sensation with pins and needles exacerbated by walking, changing positions, sitting, lifting and bending.”[9]
[9] Report, p 4, ARD, p 24.
Dr New said that the respondent considered that the pain in his left knee and lumbar spine was very severe. He took the history that the respondent was unable to lift greater than 2 to 3 kilograms when in an appropriate position, could walk 100 to 500 metres and could only sit or stand for approximately half an hour. He noted that the respondent had marked restrictions with regard to his social life and in travelling by motor vehicle or using both public and private transport.
Dr New observed that the respondent displayed an antalgic gait, favouring his left side, and was quite unsteady. He said the respondent was unable to stand on a single leg, had significant external rotation when he attempted to walk and had difficulty getting on and off the examination couch. Dr New recorded that the respondent had fixed flexion and valgus deformity of the left knee of 15 degrees.
Dr New considered that the respondent presented without any suggestion of over-reaction or exaggeration. He said that his long-term prognosis was poor, given the poor outcome from the knee replacement, the limitations on pain management and ambulation, and the presence of fixed flexion deformity. He assessed the respondent’s whole person impairment as 32%, which included 30% in respect of a poor outcome from surgery and 3% in respect of scarring from surgeries, with no deductions for any pre-existing injury or condition.

Dr Stephen Rimmer

The respondent was assessed by Dr Rimmer on 30 July 2024 at the request of the appellant. Dr Rimmer reported to the appellant on 1 August 2024.[10] He recorded a consistent history of the injury, and the treatment provided by A/Prof Tan, Dr Chow and A/Prof Woodgate. He noted that the respondent had undergone a total knee replacement and said that when the respondent was asked about the outcome of the surgery, he complained that the knee would constantly grind, and he was in constant pain.
[10] Reply to Application to Resolve a Dispute (reply), pp 1–10.
Dr Rimmer reported that the respondent continued to drive a motor vehicle, performed housework and went shopping, but had ceased all sporting activities. On examination, Dr Rimmer noted a valgus alignment of the left knee, the respondent walked with a slight limp, the quadriceps muscle was mildly diminished, and he had a range of motion between 0 and 130 degrees. Dr Rimmer considered that the left knee replacement showed “a good range of motion, albeit with some minor discomfort.”[11]
[11] Reply, p 6, [2].
Dr Rimmer considered that the respondent’s prognosis was guarded.
Dr Rimmer turned to the assessment of the respondent’s whole person impairment. He assessed the respondent’s:
(a)    pain level, which he considered was classed as moderate (20 points);
(b)    range of motion, which was 130 degrees (25 points);
(c)    maximum stability anteroposteriorly was less than 5mm (10 points), and
(d)    medial and lateral maximum stability (15 points).

Dr Rimmer noted no deductions for flexion contracture, extension lag or valgus alignment and arrived at a total of 70 points, constituting a fair result, which resulted in an assessment of 20% whole person impairment. He allowed no percentage for scarring because the respondent was not conscious of the scar. He considered that, unlike Dr New’s assessment, the respondent displayed good to excellent range of motion. However, he commented that:
“There were gross inconsistencies today, i.e. when viewed informally in the waiting area, his gait was normal. I recommend a period of surveillance.”[12]
[12] Reply, p 9.
Dr Rimmer provided a supplementary report dated 23 January 2025 after reviewing the surveillance recording taken in relation to the respondent’s activities.[13] He advised that, having viewed the recording, the earlier assessment of the respondent’s whole person impairment “without question” should be changed in the respect of the respondent’s pain, which he rated as mild or occasional and thus it would attract 44 points, with the total points equalling 95. Dr Rimmer said that 95 points constituted a good result and that indicated that the respondent’s whole person impairment was 14%. He reiterated that there was to be no percentage impairment associated with the scarring from the surgeries.
[13] Application to Lodge Additional Documents (ALAD) 5 February 2025.

The Medical Assessment Certificate of Dr Mark Burns

Medical Assessor Burns examined the respondent on 19 February 2025 and issued a Medical Assessment Certificate on 25 February 2025. He recorded the history of injury and the respondent’ s subsequent treatment. He noted that the respondent complained of the following symptoms:
“He reports a grinding and clicking in the left knee mostly behind the patella. He has pain over the anteromedial aspect of the left knee just below the knee itself. He reports that this is a sharp pain. The pain is not constant but occurs with activity. This can include walking. He can currently walk between 500 – 600 metres before having to take a rest break. With respect to stairs, he reported that he needs to hold a rail when going down and always leads with his good leg. When going up, he states that he tries to hop up steps rather than walk on the left knee. With respect to a normal day his visual analogue scale is 7-8/10 when the knee is aggravated. When the knee is not aggravated it is between 1-2/10. He reported no pain at all at rest.”[14]
[14] Medical Assessment Certificate, p 3.
Medical Assessor Burns noted that since October 2024 the respondent was able to drive his sister’s children to school and pick them up and that the respondent could walk for 500 to 600 metres before requiring a rest. He confirmed that the respondent was no longer involved in any sports or hobbies.
On examination, he noted that the respondent’s left leg was 4cm (1.5 inches) shorter than the right and the left side flexion was 120 degrees, compared to 130 degrees in the right. He described the respondent’s presentation as consistent with the history provided and the available documentation. He said that the respondent reported moderate occasional pain in the left knee but had a reasonable range of movement. He assessed the respondent’s whole person impairment as 24% and provided an explanation of his calculations. He noted that Dr New’s findings of a poor outcome from the total knee replacement were significantly different to his and explained why he could not agree with Dr New’s assessment of 32%. He considered that, on his own assessment, the outcome was “fair,” and the leg length inequality, which could only have resulted from the surgery, should be combined with the total knee replacement assessment.
Dr Burns considered that Dr Rimmer’s assessment of a fair outcome from surgery was similar to his own assessment, except that Dr Rimmer, like Dr New, did not include the leg length discrepancy. He further noted that Dr Rimmer did not include scarring.

The surveillance report and recording

The surveillance recording was not included in the referral to the Medical Assessor. It appears also that the surveillance report, which was annexed to the appellant’s reply lodged on the portal on 16 December 2024, may not have been included. Although the index to the reply lodged on 16 December 2024 lists both Dr Rimmer’s original report and the surveillance report as annexed and both documents were in fact annexed, a later document appears on the Commission’s portal dated 18 February 2025 titled “Reply excluding surveillance report” and had only the first report of Dr Rimmer annexed.

LEGISLATION

Rule 109 of the 2021 rules relevantly provides:
“109 Surveillance recordings
(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.
….”
Clause 44 of the Workers Compensation Regulation 2016 (the 2016 Regulation) relevantly provides:
“44    Restrictions on number of medical reports that can be admitted
(1)     In any proceedings on a claim or a work injury damages threshold dispute in relation to an injured worker, only one forensic medical report may be admitted on behalf of a party to proceedings.
(2)     …
(3)     …
(4)     In this clause—
forensic medical report, in relation to a claim or dispute—
(a) means a report from a specialist medical practitioner who has not treated the worker and that has been obtained for the purpose of proving or disproving an entitlement, or the extent of an entitlement, in respect of the claim or dispute, and
(b) includes a medical report provided by a specialist medical practitioner in respect of an examination of the injured worker pursuant to section 119 of the 1998 Act, and
(c) does not include a report from a specialist medical practitioner who has not treated the worker and that has been obtained for the purpose of proving or disproving an entitlement, or the extent of an entitlement, in respect of another claim or dispute.”
Clause 45 of the 2016 Regulation provides:
“45    Supplementary reports admissible
(1)     Despite clauses 44 and 46, a medical report other than the original report (a supplementary report) may be admitted if—
(a) it has the purpose of clarifying the original report, for example, where it can be shown that there has been some omission in relation to the material originally provided that could lead to an opinion in the original report being expressed on the basis of inaccurate or incomplete information and it does not go outside the parameters of the original report, but merely confirms, modifies or retracts an opinion expressed in the original report, or
(b) it has the purpose of updating the original report by confirming, modifying or retracting an opinion expressed in the original report, or
(c) it has the purpose of addressing issues omitted from the original report, or
(d) it has the purpose of addressing an opinion in the other party’s medical report.
(2)     A supplementary report can be provided as an addendum to the original report and in any such case the original report together with that addendum constitute the report referred to in clauses 44 and 46.
(3)     A supplementary report must have been provided by the medical practitioner who provided the original report except when the medical practitioner has ceased (permanently or temporarily) to practise in the specialty concerned, in which case the supplementary report must be provided by another medical practitioner of the same specialty.”
The NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (the Guidelines) relevantly state:
“1.36 … Consistency tests are designed to ensure reproducibility and greater accuracy. These measurements, such as one that checks the individual’s range of motion are good but imperfect indicators of people’s efforts. The assessor must use their entire range of clinical skill and judgment when assessing whether or not the measurements or test results are plausible and consistent with the impairment being evaluated. If, in spite of an observation or test result, the medical evidence appears insufficient to verify that an impairment of a certain magnitude exists, the assessor may modify the impairment rating accordingly and then describe and explain the reason for the modification in writing. This paragraph applies to inconsistent presentation only.
…
1.43 On referral, the medical assessor should be provided with all relevant medical and allied health information, including results of all clinical investigations related to the injury/condition in question.
1.44 Most importantly, assessors must have available to them all information about the onset, subsequent treatment, relevant diagnostic tests, and functional assessments of the person claiming a permanent impairment. The absence of required information could result in an assessment being discontinued or deferred. AMA5 Chapter 1, Section 1.5 (p 10) applies to the conduct of assessments and expands on this concept.”
The power to order a further assessment or reconsideration of a medical assessment lies in accordance with s 329 of the 1998 Act, which provides as follows:
“329 Referral of matter for further medical assessment or reconsideration
(1) A matter referred for assessment under this Part may be referred again on one or more further occasions for assessment in accordance with this Part, but only by—
(a)the President as an alternative to an appeal against the assessment as provided by section 327, or
(b)a court of the Commission.
(1A) A matter referred for assessment under this Part may be referred again on one or more further occasions by the President to the medical assessor for reconsideration.
(2) A certificate as to a matter referred again for further assessment or reconsideration prevails over any previous certificate as to the matter to the extent of any inconsistency.”

THE PRINCIPAL MEMBER’S REASONS

The dispute about the admission of the surveillance recording was listed for an urgent arbitration hearing before the Principal Member on 14 February 2025, given that the appointment for the respondent to attend the Medical Assessor was listed for 18 February 2025. The arbitration was adjourned and listed for further hearing on 17 February 2025.
The first issue to be determined was whether the surveillance recording had been illegally obtained. The Principal Member determined that the surveillance recording was not obtained illegally.
The second issue was whether the surveillance recording should be forwarded to the Medical Assessor to be considered as evidence relevant to the assessment of the respondent’s whole person impairment, or whether it should be excluded, in accordance with r 109 of the 2021 rules. The Principal Member discussed and heard submissions in relation to whether the surveillance recording should be referred to the Medical Assessor, recorded in the transcript of proceedings dated 17 February 2025 (T) from T4.29 to T7.21 and then again from T13.13 to T30.28.
The Principal Member then proceeded to deliver ex tempore reasons for his determination that the surveillance recording should not be referred to the Medical Assessor.[15] He observed that Dr Rimmer suggested to the appellant that surveillance of the respondent should be undertaken because he was of the view that the respondent was exaggerating his condition. He noted that the respondent was to be assessed in respect of his whole person impairment of the left leg following the total left knee replacement. He referred to the points system used to assess the loss and said that one of the main components of the assessment was the degree of pain.
[15] T32.8–T43.20.
The Principal Member noted that Dr New had assessed the respondent as having a permanent impairment of 30% based upon a poor outcome from the surgery, and that Dr Rimmer had originally assessed the result as a fair outcome with an impairment of 20%, but then changed his opinion to a good result, which attracted 15% (sic, 14%) whole person impairment.
The Principal Member referred to Dr New having included scarring in his assessment, but the Principal Member did not consider that relevant to the surveillance recording because that component would be self-evident to the Medical Assessor. He also did not consider that any deduction for previous impairment was relevant to the surveillance recording. He considered that the surveillance recording may otherwise have an impact on how the impairment was to be rated.
The Principal Member observed that the appellant submitted that an inconsistency between the respondent’s complaints to doctors and his activities appearing in the surveillance recording would amount to exceptional circumstances within the meaning of r 109. He considered that it was necessary to review the complaints the respondent made to the relevant doctors. The Principal Member turned to the opinion of Dr New, who recorded on 6 March 2024 that the respondent had a poor outcome from the surgery in respect of the respondent’s range of movement and pain level and that the respondent described the pain in his left knee and lumbar spine as, at the time of assessment, very severe. The Principal Member noted that the respondent had a valgus deformity of 15 degrees. He summarised the respondent’s complaints and limitations caused by pain as follows:
(a)    sleeping disruption;
(b)    absence of sexual relations;
(c)    restrictions in social activities;
(d)    difficulties with travel in motor vehicles and public and private transport;
(e)    unsteady and antalgic gait favouring the left side, and
(f)    inability to perform a single leg stance.
The Principal Member turned to the opinion of Dr Rimmer who assessed the respondent on 30 July 2024. He referred to the history recorded by Dr Rimmer that the respondent complained of constant pain in the left knee associated with a sensation of grinding, with no locking and no instability. The Principal Member noted the history recorded by Dr Rimmer that the respondent continued to drive a motor vehicle, performed housework and went shopping, but had ceased all sporting activities.
The Principal Member remarked that Dr Rimmer’s assessment was made “months after”[16] the assessment by Dr New and that Dr Rimmer found that on examination of the left knee there was a good range of movement with some minor discomfort, Dr Rimmer rated the pain as moderate and afforded 25 points in respect of the range of motion. The Principal Member observed that Dr Rimmer, after viewing the surveillance recording, had provided a supplementary report dated 23 January 2025 in which Dr Rimmer formed the view that the recording caused him without question to change his assessment, mainly on the basis of the pain, which he reclassified as mild or occasional pain. The Principal Member accepted that Dr Rimmer had explained why he changed his opinion but said that Dr Rimmer did not point to any aspect of the recording that caused that change of opinion.
[16] T35.31.
The Principal Member summarised the submissions made by the appellant in respect of the surveillance recording as follows:
“… the film shows the [respondent] driving, walking, standing, sitting and either running or to use my term on Friday, jogging, whilst watching his son play basketball. It was initially submitted that the film doesn’t show the [respondent] with an antalgic gait or with a limp. In response to these submissions [the respondent] submitted that there was an explanation for the driving and that the surveillance did show a limp.”[17]
[17] T36.19–27.
The Principal Member reasoned that it was not relevant that the respondent was driving a motor vehicle because he had reported to Dr Rimmer that he was able to perform that function. He concluded that the reference to standing and sitting was not inconsistent with the histories recorded. The Principal Member referred to the question of whether the respondent walked with a limp and observed that Dr Rimmer recorded in his first report that the respondent walked with a slight limp. The Principal Member indicated that he agreed with the respondent that the surveillance recording disclosed that the respondent walked with a slight limp, including while in the supermarket.
The Principal Member further reasoned that, while the surveillance recording did not show the respondent walking with an antalgic gait, it was clear that the respondent had enjoyed some improvement between the time Dr New examined the respondent and when Dr Rimmer performed his assessment. The Principal Member observed that the total knee replacement took place in July 2023 and Dr New’s assessment was in February or March 2024, which he thought may have been a little premature. The Principal Member pointed out that the appellant accepted that Dr Rimmer’s findings that the total knee replacement was well aligned and that the respondent had a good range of movement. The Principal Member commented that those findings could well be explained by the respondent experiencing further improvement following the surgery.
The Principal Member referred to the appellant’s submission that exceptional circumstances would exist if there were inconsistencies between the respondent’s complaints to the medical experts and the respondent’s activities captured on the surveillance recording. The Principal Member conceded that there were inconsistencies between what was recorded by Dr New and what was shown in the surveillance recording some 12 months later. He concluded that those inconsistencies did not amount to a false account but were more relevant to the findings on examination at the particular time. He considered that the difference in the findings on examination recorded by Dr New and Dr Rimmer could readily be explained by the respondent’s condition improving over the time between the examinations. He remarked that, in fact, the respondent had disclosed to Dr Rimmer that he continued to drive a vehicle and did housework and shopping. He said that when the respondent reported that he was no longer participating in sporting activities, that obviously meant activities performed by him and not those performed by his son [sic, nephew].
The Principal Member turned to Dr Rimmer’s change in assessment on the basis of the respondent’s pain and the appellant’s submission that pain is a subjective concept. The Principal Member reasoned that he did not view the recording as being inconsistent with the respondent reporting that he suffered pain, particularly when the respondent displayed a slight limp when walking. He said that that evidence contrasted with the complaints described by the respondent in July or August 2023 of constant pain. The Principal Member considered that the respondent had “correctly portrayed himself”[18] to Dr Rimmer because Dr Rimmer did not alter his other assessments, such as the respondent’s range of motion of the knee.
[18] T38.33–34.

The Principal Member referred to r 109 and said that he did not accept that a comparison of the surveillance recording with Dr Rimmer’s examination constituted “special” circumstances because the history disclosed to Dr Rimmer was not inconsistent with what was displayed in the surveillance recording. He said that he was not satisfied that the appellant had established the necessary onus of proving that “special” circumstances existed.

The Principal Member noted that the respondent objected to the supplementary report of Dr Rimmer being referred to the Medical Assessor because it was based upon the surveillance recording. He accepted that the report should not be included in the material referred to the Medical Assessor because it was based upon the surveillance recording. He observed that there was no objection to the written surveillance report being included, and that the written report did not fall within the meaning of r 109.
The Principal Member concluded that he was not satisfied that the appellant had shown that exceptional circumstances within the meaning of r 109 existed in order to have the surveillance recording and further report of Dr Rimmer admitted. He allowed the written surveillance report to be admitted, which was attached to the appellant’s reply.
The Principal Member’s Certificate of Determination issued on 18 February 2025 records:
“The Commission determines:
1.     I am not satisfied that the surveillance was obtained in breach of the Surveillance Devices Act, 2016 (SA).
2. I am not satisfied that there are exceptional circumstances within the meaning of Rule 109 of the Personal Injury Commission Rules, 2021 for the surveillance to be referred to the Medical Assessor.
3.     The further report of Dr Rimmer dated 23 January 20225 [sic, 2025] is not to be referred to the Medical Assessor.
4.     The documents to be forwarded to the Medical Assessor are the Application to Resolve a Dispute and the Reply.”

GROUNDS OF APPEAL

The appellant brings two grounds of appeal, asserting error of law on the part of the Principal Member as follows:
(a) Ground One: The Principal Member erred in law by failing to properly apply r 109 of the 2021 rules in deciding to exclude the surveillance recording in that he:
(i)failed to identify that there were special circumstances arising from the fact that what was depicted in the surveillance recording may be inconsistent with the respondent’s presentation to Dr New and Dr Rimmer, and instead reached a conclusion as to whether the recording was inconsistent with the respondent’s presentation; and
(ii)failed to consider, as a relevant consideration in making a decision about whether the surveillance recording should be provided to the Medical Assessor the fact that the surveillance report was to be provided to the Medical Assessor.
(b) Ground Two: The Principal Member erred in law by excluding, without a proper basis for doing so, the supplementary report of Dr Rimmer.

SUBMISSIONS

When the appeal was lodged, a delegate of the President set a timetable for the respondent to lodge his opposition with submissions and for the appellant to have the opportunity to reply to the respondent’s submissions. After the appellant’s submissions in reply were lodged, the respondent sought to lodge further submissions in reply to the submissions in reply to the opposition. The Delegate’s timetable did not allow for those further submissions and the respondent did not make an application for leave to lodge them.
As Kirby J observed in Re Application by the Chief Commissioner of Police (Vic):[19]
“Where leave has not been given publicly for supplementary submissions and evidence, the provision of such material … without permission of the court … is a derogation of the principle of the open administration of justice. It should not occur.”
[19] [2005] HCA 18, [54].
In Bale v Mills,[20] the Court of Appeal made the following additional observations in respect of submissions lodged without leave:
“Once the appeal is reserved, the parties’ rights to argument and to be heard have been exhausted.

The consequence of this is not only that sending submissions to the court is wrong, but also the court may (and generally will) ignore what has been sent.”[21]
[20] [2011] NSWCA 226 (Bale).
[21] Bale, [60]–[61].
As the respondent did not have leave to lodge those further submissions, I have not considered them. I did, however, issue a Direction on 8 May 2025 for further submissions from the parties in respect of the application of s 329 of the 1998 Act and those submissions (summarised below) have been considered by me.

As to Ground One

The appellant’s submissions

The appellant refers to r 109 and submits that in Gandhi v Coles Supermarkets Australia Pty Ltd,[22] Principal Member Capel considered the principles applicable to the requirement in r 109 to show that exceptional circumstances existed. The appellant cites those principles, which were drawn from the Court of Appeal’s decision in Yacoub v Pilkington (Australia) Ltd.[23] The appellant further refers to a decision of the Commission’s Medical Appeal Panel (the Appeal Panel), QBE Insurance (Australia) Ltd v BTR,[24] in which the Appeal Panel gave consideration to the admission of surveillance recording where it was alleged that there was an inconsistency between the claimant’s presentation in the recording and the histories provided to the medical examiners. The appellant points to the Appeal Panel’s conclusion that exceptional circumstances exist where there is evidence which may be [the appellant’s emphasis] inconsistent with the claimant’s presentation to medical practitioners. The appellant says that, in the present case, the Principal Member accepted that the Appeal Panel’s conclusion in QBE Insurance was correct.
[22] [2022] NSWPIC 475 (Gandhi).
[23] [2007] NSWCA 290 (Yacoub).
[24] [2024] NSWPICMP 325 (QBE Insurance), [14].
The appellant says that the Principal Member determined that the respondent did not display an antalgic gait in the surveillance recording and the respondent’s presentation to Dr New was therefore not inconsistent. The appellant asserts, however, that the Principal Member misapplied the Panel’s conclusion in that he replaced the words “may be” with the word “is”.
The appellant refers to the Principal Member’s statement that:
“In this matter there are inconsistencies between what is shown on the film and what is shown in Dr New’s report some 12 months later.”[25]
[25] T38.6–8.
The appellant asserts that, applying QBE Insurance, the statement in which the Principal Member agreed that there were inconsistencies, is sufficient to found “exceptional circumstances”. The appellant contends that an explanation as to why there may be inconsistencies was not a matter for determination by the Principal Member and he thus fell into error by doing so, both in this instance and elsewhere in his reasons.
The appellant refers to the transcript of proceedings recorded on 14 February 2025, in which the Principal Member observed that it was a matter for him to determine whether exceptional circumstances existed, but the question of how the Medical Assessor assesses the surveillance recording is a matter for the Medical Assessor.[26] The appellant says that the Principal Member’s reasoning is that, once it is shown that there may be an inconsistency, the question of weight to be afforded to the surveillance recording becomes a matter for the Medical Assessor. The appellant asserts that, had the Principal Member taken that approach, he would have been correct. The appellant contends that the Principal Member erred by placing himself in the shoes of the Medical Assessor, which was not permitted by r 109.
[26] Transcript of proceedings dated 14 February 2025 (T2), T2 12.16–24.
The appellant submits that, as the respondent was referred for an assessment by a Medical Assessor, it was properly a matter for the Medical Assessor to determine why there was an inconsistency and how that affected the assessment. The appellant says that that has to be done by reference to an examination of the respondent and a consideration of all of the evidence, including the surveillance recording and the supplementary report of Dr Rimmer.
The appellant reproduces cl 1.36 of the Guidelines and the requirement of a Medical Assessor to use his or her entire range of skill and clinical judgment in ascertaining whether the measurements or test results are plausible or consistent and, if the medical evidence appears insufficient, the Medical Assessor may modify the rating and explain the reason for doing so. The appellant asserts that the Principal Member’s explanation as to why the evidence on the surveillance recording was inconsistent with the report of Dr New did not involve the application of clinical skill or judgment and essentially “short-circuited” the required process.
The appellant asserts that the same error occurred in respect of the inconsistency between the surveillance recording and the assessment made by Dr Rimmer in his report dated 1 August 2024, in which Dr Rimmer took the history that the respondent complained of constant pain. The appellant points out that Dr Rimmer formed the view that the surveillance recording “without question” caused him to change his assessment. The appellant contends that Dr Rimmer’s supplementary report was, by itself, sufficient to show that the surveillance recording was evidence that “may be” inconsistent with the respondent’s presentation to Dr Rimmer and to Dr New. The appellant submits that it was not open to the Principal Member to criticise Dr Rimmer’s supplementary report when it was not illogical or produced in bad faith. The appellant maintains that it was a matter for the Medical Assessor to weigh the evidence on the surveillance recording against the other evidence and the examination of the respondent in order to ascertain whether there was an inconsistency in the respondent’s presentation.
The appellant points to the Principal Member’s conclusion that the written surveillance report was to be forwarded to the Medical Assessor, and submits that, consistent with Gandhi, the Principal Member ought to have taken that into account, so that it was in the interests of justice that the surveillance recording also be put before the Medical Assessor. The appellant refers to the additional evidence obtained by the worker in Gandhi, including an additional statement from the worker and evidence from two doctors who had viewed the surveillance recording, in which neither doctor changed their opinions. The appellant says that, nonetheless, Principal Member Capel determined that the surveillance recording should be referred to the Medical Assessor because in his view, there was no reason why the Medical Assessor should not view the recording in circumstances where the written investigation report was to be referred. The appellant submits that Principal Member Capel considered that it was in the interests of justice that the surveillance recording be referred because the written report was dependent upon hearsay statements and the surveillance recording was first-hand evidence and thus the best evidence. The appellant submits that the surveillance recording in this case should also be admitted, for the same reasons as those given by Principal Member Capel in Gandhi.

The respondent’s submissions

The respondent refers to r 109, which it says specifically prevents the referral of surveillance recordings to a Medical Assessor unless there are exceptional circumstances (determined by the Commission or the President). The respondent refers to the decision of Member Burge in Kumar v Electrical Home-Aids Pty Ltd,[27] in which the Member observed that circumstances in which the surveillance recording was obtained, and the activities displayed on the recording were matters that were of the kind that are seen regularly in the course of litigation and were not exceptional circumstances.
[27] [2023] NSWPIC 125, [68].
The respondent points to the Principal Member’s reliance on QBE Insurance and says that in that case, the claimant was seen to perform activities of a significant nature that showed a discrepancy between the claimant’s presentation and the history provided to the medical experts. The respondent says that the surveillance recording in that case was therefore considered relevant in respect of the claimant’s capacity and need for care. The respondent submits that QBEInsurance is very different to this case, which does not require an objective assessment of capacity and is limited to a subjective assessment of the pain experienced by the respondent.
The respondent further points out that he reported to Dr Rimmer that he could drive, so that the surveillance recording is not inconsistent with that history. The respondent submits that, in fact, the Principal Member found that there was no inconsistency between what Dr Rimmer was told and what could be subjectively assessed from the surveillance recording.
The respondent asserts that the question of whether exceptional circumstances exist is dependent upon the individual facts in each case, as observed by Principal Member Capel in Gandhi. The respondent adds that it is necessary to keep in mind the statutory requirement that unless there are exceptional circumstances, surveillance recording is not to be referred to the Medical Assessor. The respondent says it should not be referred if it is not out of the ordinary or it is merely desirable to do so, that the circumstances “need not be very rare but cannot be circumstances that are routinely or normally encountered.”[28] The respondent asserts that there is nothing in the surveillance recording that meets that criteria and nothing that is inconsistent with the history reported to Dr Rimmer or Dr Rimmer’s views. The respondent submits that the respondent’s ability to “jog” was not inconsistent with the history that he had given up his sporting activities and Dr Rimmer had noted that the respondent walked with a slight limp. The respondent queries what it was that was seen on the surveillance recording that was inconsistent with the observation made by Dr Rimmer, given that nothing was noted about an inability to jog, the respondent said that he was able to drive a motor vehicle and said that he performed housework and shopping, but was not able to pursue his former sporting activities.
[28] Respondent’s submissions, [19].
The respondent refers to the concession made by the appellant in submissions to the Principal Member that the only difference in the assessments made by Dr Rimmer was the number of points he attributed to the respondent’s pain, and to the Principal Member’s response that Dr Rimmer had not explained how the respondent’s pain had changed. The respondent further refers to the appellant’s submission that “pain is subjective”, to which the Principal Member agreed, followed by the appellant’s further submission that there was a difference in the manner the respondent walked.
The respondent reiterates that on a review of the surveillance recording and the appellant’s submissions to the Principal Member there is nothing that could be considered to constitute “exceptional circumstances”, as is required for the surveillance recording to be referred to the Medical Assessor. The respondent points out that the legislation required “exceptional circumstances” and not good circumstances or some similar requirement. The respondent submits that if this surveillance recording was admitted on the basis that there were “exceptional circumstances”, then all surveillance recording would be admissible, which defeats the purpose of r 109.

The appellant’s submissions in reply

The appellant lodged submissions in reply to those made by the respondent.
The appellant submits that the weight to be afforded to the surveillance recording is not a relevant matter in a determination of whether the recording should be referred to the Medical Assessor and maintains that the weight to be afforded to it, including the fact that the respondent was seen jogging, is a matter for the Medical Assessor. The appellant further maintains that it is sufficient if the recording discloses that it may be inconsistent with the respondent’s complaints. The appellant asserts that “jogging” is a “sporting activity”.
The appellant disputes that the approach taken by it would render the word “exceptional” in r 109 worthless, citing QBE Insurance, and submits that there is no requirement in r 109 that the degree of inconsistency be of any great magnitude in order to satisfy the requirement for exceptional circumstances to exist.
In respect of the respondent’s submission that there was no error of law in the Principal Member disagreeing with Dr Rimmer, the appellant submits that the respondent has missed the issue raised. The appellant says that the error of law is that it was not the task of the Principal Member to conclude that the respondent did not display a limp in the surveillance recording or why the respondent’s presentation in the recording was consistent with his complaints.
The appellant submits that once the Principal Member determined that there was an inconsistency, then that was sufficient to satisfy the requirement that there were exceptional circumstances.

As to Ground Two

The appellant’s submissions

The appellant submits that the Principal Member’s sole reason for excluding the supplementary report of Dr Rimmer was that:
“[the respondent] objected to [the supplementary report] going in as it was based on the surveillance. I accept that that must follow.”[29]
[29] T39.16–18.
The appellant submits that the Principal Member was likely to be referring to agreement by the respondent with an observation made by the Principal Member on the first day of arbitration that, without the surveillance recording, Dr New’s supplementary report was of no value.
The appellant refers to cll 1.43 and 1.44 of the Guidelines, which provide that the Medical Assessor must be provided with all relevant medical information, and the Medical Assessor must have available all the functional assessments of a person claiming a permanent impairment. The appellant says that Dr Rimmer’s supplementary report was ‘relevant medical information’ because it addressed the respondent’s whole person impairment, which was a matter the Medical Assessor was required to determine. The appellant contends that even if the surveillance recording was correctly excluded, that did not render the supplementary report irrelevant as it was capable of having an effect on the assessment of the respondent’s degree of impairment. The appellant cites the High Court decision in IMM v The Queen[30] to say that where evidence is of only some, even slight, probative value, it will be prima facie admissible.
[30] [2016] HCA 14 per French CJ, Kiefel, Bell and Keane JJ, [40].
The appellant maintains that special circumstances exist to have the surveillance recording included where the surveillance recording was necessary in order to consider Dr Rimmer’s revised opinion as set out in the supplementary report. The appellant asserts that the Commission and the Medical Assessor ought to have been (or even were obliged to be) made aware that Dr Rimmer had changed his view and should have been provided with the supplementary report. The appellant points out that r 109 does not operate to exclude the supplementary report and there are no other rules that would apply to exclude it.
The appellant refers to cl 44(1) of the 2016 Regulation and submits that, in accordance with that clause, the supplementary report was clearly admissible and it was a matter of procedural fairness that the whole of the expert’s opinion was before the Medical Assessor.
In conclusion, the appellant submits that:
“Principal Member Harris’s decision to exclude evidence that was otherwise admissible and which the Guidelines indicated ought to have been provided to the [Medical Assessor], was a breach of procedural fairness and an error of law. Given that the [Medical Assessor] has assessed the Respondent as experiencing greater severity of pain than Dr Rimmer found in his Supplementary Report, it is clear that this error of law has had a serious adverse impact on the Appellant.”[31]
[31] Appellant’s submissions, [79].

The respondent’s submissions

The respondent asserts that the Principal Member was correct to refuse to refer the supplementary report of Dr Rimmer to the Medical Assessor because it was wholly and solely dependent upon the surveillance recording. The respondent asserts that it is a matter of logic that in circumstances where the “entire foundation of an opinion is prohibited from being put before a medical assessor”[32] then any report that has a basis in that evidence must be inadmissible.
[32] Respondent’s submissions, [27].
The respondent concedes that the rules of evidence do not apply in the Commission, and that while the principles enunciated in Makita (Australia) Pty Limited v Sprowles[33] should not be strictly applied, they are relevant considerations. The respondent asserts that the concept of procedural fairness must apply. The respondent submits that a report which identifies excluded evidence and is wholly based upon that excluded evidence cannot be included in the material to be considered by the Medical Assessor. The appellant asserts that doing so would contravene the intention of r 109.
[33] [2001] NSWCA 305.
The respondent accepts that there is no specific rule by which the supplementary report (as opposed to the surveillance recording) is excluded, and that the Medical Assessor can receive supplementary reports. The respondent submits, however, that while a medical expert may review an opinion previously expressed, such an action cannot be done to circumvent the Commission’s rules. The respondent says that permitting such action would create an “uneasy tension” that cannot be resolved. The appellant adds that, in the context of the intention of the legislation and a ruling from the Commission that surveillance recording is precluded, it would be impermissible and contrary to the Commission’s rules for a party to be able to rely on material that has been put before a Medical Assessor by an alternate path.
The respondent refers to the question of whether procedural fairness should be applied and submits that it must not apply in circumstances where it is inconsistent with the intention of the legislation, the specific provision in the legislation, and an order of a tribunal member.
The respondent says that the Principal Member determined that there were not exceptional circumstances that would enable the surveillance recording to be put before the Medical Assessor. The respondent points out that there was no real inconsistency between the history reported to Dr Rimmer by the respondent and the change in Dr Rimmer’s assessment was simply based upon his subjective observation of the respondent’s degree of pain. The respondent says that Dr Rimmer did not alter his view on the basis of significant factors such as the respondent’s range of movement. The respondent adds that there is no issue that the respondent was injured and there is no doubt that the respondent had undergone the surgeries described and that he walks with a limp. The respondent described Dr Rimmer’s observation as a “subjective analysis.”
The respondent contends that the mere fact that the Medical Assessor ascribed a greater degree of whole person impairment than Dr Rimmer’s assessment could not be considered an error of law.
The respondent refers to the decision by an Appeal Panel in Coles Supermarket Australia Pty Ltd v Mukareva[34] and submits that the observations made by a surveillance operative should be treated with extreme care. The respondent asserts that to suggest that those observations would be relevant to an assessment by a Medical Assessor or that they would outweigh other evidence would be highly unlikely to the point of impossibility. The respondent contends that such observations are of little weight and are of lower standing than the observations of a medical expert who has carried out a physical examination of the worker.
[34] [2024] NSWPICMP 275.

The appellant’s submissions in reply

The appellant contends that because there is no rule whereby the supplementary report should be excluded and because cll 1.43 and 1.44 of the Guidelines require all of the relevant medical information to be forwarded to the Medical Assessor, particularly in circumstances where Dr Rimmer changed his assessment, the report should clearly have been referred to the Medical Assessor.
In respect of the respondent’s submission that a party should not be allowed to avoid r 109 by having a medico-legal expert view surveillance and provide a supplementary report, the appellant submits that this would only be the case where there was no inconsistency.

FURTHER SUBMISSIONS

On 8 May 2025, I issued a Direction to the parties which was amended on 9 May 2025, relevantly noting that neither party had addressed the statutory mechanism applicable to the revocation of the Medical Assessment Certificate (as sought by the appellant) in the event that the requisite error on the part of the Principal Member was established. In order to provide the parties with procedural fairness, I directed that by 5.00 pm on 15 May 2025, the appellant was to provide further submissions in respect of whether, in the event that the requisite error on the part of the Principal Member was established, a reconsideration pursuant to s 329 of the 1998 Act was the most appropriate statutory remedy. I directed the respondent to lodge any submissions he chose to make in reply by 5 pm on 22 May 2025, and the appellant was given until 5 pm on 29 May 2025 to lodge any reply to the respondent’s submissions.

The appellant’ submissions dated 15 May 2025

The appellant submits that, in the event that the relevant error on the part of the Principal Member is established, then the appropriate statutory remedy is an order for reconsideration pursuant to s 329 of the 1998 Act.
The appellant points out that the appeal provision in s 352(5) of the 1998 Act requires a consideration of whether the decision was or was not affected by any error of fact, law or discretion and to the correction of any such error, so that, if the Commission finds error, then the error must be corrected. The appellant submits that, in accordance with s 352(6A) of the 1998 Act, the error can be corrected by the Presidential Member revoking the Principal Member’s decision and making a new decision in its place, or, consistent with s 352(7) of the 1998 Act, remitting the matter back to the same or another member for determination in accordance with a decision or direction of the Commission, including a direction to refer the matter for an assessment by a Medical Assessor.
The appellant submits that the dispute in this case is about the respondent’s degree of whole person impairment, so that, if error is established, s 352(7) of the 1998 Act allows for a direction to a member to refer the dispute to a Medical Assessor.
The appellant asserts that s 329(1)(b) of the 1998 Act gives the Commission jurisdiction to refer a matter for reconsideration, or alternatively the President could refer the matter in accordance with s 329(1)(b) because there is a medical assessment appeal under s 327 of the 1998 Act already on foot.
The appellant refers to s 326(1) of the 1998 Act which provides that a medical assessment certificate is conclusively presumed to be correct as to the degree of the impairment. The appellant says that s 329 provides an “elegant solution” to overcome the presumption that the medical assessment is correct. The appellant indicates that, had it had the opportunity to lodge an appeal from the Principal Member’s decision, s 352(5A) of the 1998 Act would operate to stay the medical assessment. It says however, that in this case, Principal Member Harris delivered his decision just two days prior to the medical assessment taking place, which left no opportunity for the appellant to appeal the Principal Member’s decision.
The appellant asserts that it is unlikely that an appeal lodged from a decision prior to the Medical Assessment Certificate being issued is a proceeding “with which the certificate is concerned” for the purpose of s 326(1). It would therefore not be likely that the Medical Assessment Certificate would be considered to be conclusively presumed as correct. The appellant submits that that would create a difficult issue requiring consideration, however s 329(2) provides that where a matter is referred again for assessment, the later certificate, if inconsistent with the earlier certificate prevails, notwithstanding s 326(1).
The appellant adds that, if a reconsideration of the Medical Assessment Certificate is directed and a different Medical Assessor determines the impairment on the basis of all of the material available, including the surveillance recording and the supplementary report provided by Dr Rimmer, the need for the appellant’s separate appeal under s 327 of the 1998 Act, which is currently on foot, would be obviated.

The respondent’s submissions dated 23 May 2025

The respondent’s submissions were not lodged within the timeframe set down in my Direction and were simply lodged without explanation as to why they were not lodged within that deadline and without any application for an extension of time, which is unacceptable. In usual circumstances, the submissions would be rejected, or the party would be directed to provide an explanation for the delay. However, this appeal has been allocated for early determination. I note that the submissions were lodged only one day late, and, in accordance with my Direction the appellant responded to those submissions within the time frame. If the submissions were excluded it may result in a denial of procedural fairness to the respondent, who was not likely to have been personally at fault in the delay. I further note that s 42 of the 2020 Act provides that the Commission has an obligation to “facilitate the just, quick and cost effective resolution of the real issues in the proceedings.” In the circumstances of this case, I therefore extend the time for the respondent to lodge his submissions to 2 pm on 23 May 2025 and the submissions are accepted.
The respondent repeats its submission already made that the Principal Member has not erred by excluding the surveillance recording and the supplementary report of Dr Rimmer and submits that if the submission is accepted, that would dispose of the appeal. The respondent indicates that, if the appeal is successful, then “the most appropriate, fair and consistent, and time efficient process”[35] is for the material that was not provided to Medical Assessor Burns to be put before him so that he can make an assessment and either confirm or alter his opinion. The respondent submits that there is nothing to prevent the matter being referred for further assessment by the same Medical Assessor, which the respondent says is exactly what the appellant did by re-referring the matter to Dr Rimmer, its own independent medical examiner.
[35] Respondent’s submissions dated 23 May 2025, [3].
The respondent asserts that the process of referring the re-assessment to a different Medical Assessor is essentially an attempt to “get a second bite of the cherry.”
The respondent submits that the appellant has not challenged the assessment by Medical Assessor Burns on that basis that it is erroneous but is challenging it because it was based on incorrect evidence because Medical Assessor Burns did not have the surveillance recording or the supplementary report of Dr Rimmer. The respondent refers to s 325(3) of the 1998 Act, which provides that the President may issue, or approve of the Medical Assessor issuing a replacement medical assessment certificate if the Medical Assessment Certificate contains an obvious error. The respondent asserts that a Presidential Member can therefore issue a Direction and provide the additional material to Medical Assessor Burns so that Medical Assessor Burns can correct any error and issue a replacement certificate.
The respondent adds that s 329 allows the additional material to be provided to Medical Assessor Burns in order for Medical Assessor Burns to reconsider his assessment. The respondent indicates that s 329 is the “precise provision” to apply if the error complained of the appellant is upheld.[36]
[36] Respondent’s submissions dated 23 May 2025, [4].

The appellant’s reply

The appellant repeats its submissions that if error on the part of the Principal Member is found then a referral pursuant to s 329 is the appropriate remedy, but maintains that the referral should be to a different Medical Assessor. The appellant refers to the grounds relied upon in its appeal against the Medical Assessment Certificate, which appeal has been temporarily stayed pending an outcome in this case. The appellant submits that those matters indicate that Medical Assessor Burns reached a concluded view as to the respondent’s whole person impairment without reference to the surveillance report and on the basis that the respondent’s presentation was consistent with the history recorded and the documents reviewed.
The appellant submits that Medical Assessor Burns would be unlikely to be dissuaded from his opinion if the dispute was re-referred to him and the appellant would therefore be denied procedural fairness.

THE RELIEF SOUGHT

The appellant seeks the following orders:
(a)    leave to appeal be granted pursuant to s 352(3A) of the 1998 Act;
(b)    the appeal be allowed;
(c)    the Medical Assessment Certificate of Dr Burns dated 25 February 2025 be revoked;
(d)    the decision of Principal Member Harris dated 18 February 2025 be set aside. In substitution, the Commission determine that the surveillance recording and the supplementary report are to be provided as part of the relevant material to the Medical Assessor, and
(e)    the matter be remitted to Principal Member Harris, who is to be directed to refer the matter to a Medical Assessor, other than Dr Mark Burns.
The appellant submits that, if the appeal succeeds, and as the Medical Assessor has reached a concluded view in respect of the respondent’s whole person impairment, it is not appropriate for the same Medical Assessor to reassess the respondent’s impairment. The appellant asserts that if the appeal succeeds and a different Medical Assessor is not appointed, then it will be denied procedural fairness because there is no assurance that Medical Assessor Burns, who has already expressed a view as to the respondent’s impairment, would approach the exercise with an open mind.
The respondent submits that the appeal should be dismissed, but in the event that the appeal succeeds, the dispute should be re-referred to Medical Assessor Burns to consider the surveillance recording, just as Dr Rimmer sought to do in his supplementary report. The respondent further asserts that it would be unnecessary and unfair if the respondent was required to undergo a further assessment by either Medical Assessor Burns or a different Medical Assessor.

CONSIDERATION

Ground One: The Principal Member erred in law in failing to properly apply r 109 of the 2021 rules by deciding to exclude the surveillance recording in that he:

(a) failed to identify that there were special circumstances arising from the fact that what was depicted in the surveillance recording may be inconsistent with the respondent’s presentation to Dr New and Dr Rimmer, and instead reached a conclusion as to whether the recording was inconsistent with the respondent’s presentation, and
(b) failed to consider, as a relevant consideration in making a decision about whether the surveillance recording should be provided to the Medical Assessor the fact that the surveillance report was to be provided to the Medical Assessor.

The first limb of this ground, in simple terms, asserts error on the basis that the Principal Member determined whether there was (or was not) in fact an inconsistency between the surveillance recording and the respondent’s presentation when he should have concluded that there may be an inconsistency between the surveillance recording and the respondent’s presentation.
Rule 109 of the 2021 rules precludes the surveillance recording from being included in the documents sent to a Medical Assessor unless “exceptional circumstances” exist.
The appellant relies upon QBE, in which the Medical Appeal Panel determined that:
“The Panel finds the surveillance footage relates to the question of the claimant’s capacity which is relevant to the question as to whether there is a need for care related to the injury caused by the accident and which is reasonable and necessary in the circumstances. The Panel considers evidence which may be inconsistent with the claimant’s presentation to medical practitioners constitutes ‘exceptional circumstances’ and proposes to admit the surveillance footage.”[37]
[37] QBE, [14].
The appellant asserts that the Principal Member misapplied the Panel’s conclusion in QBE, in that he replaced the words “may be” with the word “is”.
The phrase “exceptional circumstances” was considered by Campbell JA in Yacoub. His Honour said that (citations omitted):
“(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.”[38]
[38] Yacoub, [66].
The appellant contends that an explanation as to why there were inconsistencies was not a matter for determination by the Principal Member and he thus fell into error by doing so, both in this instance and elsewhere in his reasons.
The respondent relies upon the decision by Member Burge in Kumar, wherein Member Burge considered that surveillance recording, which showed the worker performing certain activities was evidence routinely seen in the course of litigation and thus did not constitute exceptional circumstances. As Campbell JA observed in Yacoub, whether exceptional circumstances exist is dependent upon a careful consideration of the facts in each case. The facts in Kumar were distinctly different to those in this case.
In the present case, the appellant arranged for the respondent to be assessed by Dr Rimmer, who made an assessment of the respondent’s whole person impairment but observed some inconsistency in the respondent’s presentation. He recommended a period of surveillance. The surveillance recording was obtained and forwarded to Dr Rimmer, who viewed the recording. Importantly, Dr Rimmer changed his assessment on the basis of what he observed of the respondent’s activities in the recording. The alteration was in respect of his classification of the respondent’s pain, which he changed from “mild” to “occasional” pain.
The appellant relies upon the decision of Principal Member Capel in Gandhi. The facts in that case were also different to the present dispute. In that case, Principal Member Capel took into account that the two qualified medical specialists had viewed the recording and had not changed their views. He determined that exceptional circumstances did not exist, partly on the basis of the surveillance recording which had not altered the views of the two experts, and the conclusion that there were “exceptional circumstances” was not justified. He considered however that it was in the interests of justice to both parties to have the surveillance recording admitted into evidence. He correctly observed that “ultimately it will be a question for the Medical Assessor as to whether this recording is relevant to the assessment of the whole person impairment.”[39]
[39] Gandhi, [143].

In this case, the Principal Member viewed the surveillance recording and made observations about whether the respondent appeared to be limping and whether he had an antalgic gait. He reasoned that he did not consider that the surveillance recording was inconsistent with the respondent reporting that he suffered pain, or the history disclosed to Dr Rimmer.
The assessment of the respondent’s degree of pain is a medical question. After viewing the surveillance recording, Dr Rimmer considered it appropriate to reconsider his assessment of the respondent’s pain. In those circumstances, it was not for the Principal Member to enter into the arena of determining whether there were in fact physical inconsistencies between the surveillance recording and the respondent’s presentation to Dr Rimmer.
As Tobias JA observed in Asim v Penrose[40] (Macfarlan and Young JJA agreeing):
“It is well accepted that a judge of fact should be extremely cautious in interpreting photographic evidence (which would include CCTV footage) particularly in the absence of expert evidence.”
[40] [2010] NSWCA 366, [57].
In this case, there was expert medical opinion based on a consideration of the surveillance recording that the respondent’s permanent impairment was not as great as previously assessed. It is important to take into account that Dr Rimmer changed his assessment because of what he, as a medical expert, observed in that recording. It was not a matter for the Principal Member to engage in his own assessment of the respondent’s presentation and to reach a conclusion contrary to the medical expert who conducted the assessment.
I accept that the Principal Member erred in reaching the conclusion that the recording was not inconsistent with the respondent’s presentation, which was the basis upon which he determined that exceptional circumstances did not exist and which resulted in the surveillance recording being excluded from the material provided to the Medical Assessor.
The second limb of Ground One asserts that the Principal Member failed to take into account that the surveillance report prepared by the investigator was in evidence. A surveillance report is not precluded by operation of r 109 and where there is such material, it will usually be adduced in evidence. Its probative weight will depend on various factors, and it will not necessarily facilitate the admission of the surveillance recording. I do not accept that it is relevant in the determination of whether there were exceptional circumstances such that the surveillance recording should be admitted.
Nonetheless, it remains that the first limb of Ground One succeeds and the Principal Member erred in his determination that exceptional circumstances did not exist.

Ground Two: The Principal Member erred in law by excluding, without a proper basis for doing so, the supplementary report of Dr Rimmer

The appellant submits that the supplementary report of Dr Rimmer was admissible and there was no proper basis for the Principal Member to exclude it.
The respondent submits that where “the entire foundation [that is, the surveillance recording] of an opinion is prohibited from being put before a medical assessor” the report must be inadmissible.
The surveillance recording is not “prohibited” evidence. It is evidence that is primarily not to be forwarded to the Medical Assessor but can be put before the Medical Assessor in exceptional circumstances.
The appellant points to cl 44(1) of the 2016 Regulation (reproduced above) which provides that only one forensic medical report obtained by a party may be admitted in the proceedings. A “forensic medical report” is relevantly defined in cl 44(4) as a “report from a specialist medical practitioner who has not treated the worker and that has been obtained for the purpose of proving or disproving an entitlement, or the extent of an entitlement, in respect of the claim or dispute”. Subclause 45(b) of the 2016 Regulation provides for the supplementary report to be admissible where it has the purpose of updating the original report by confirming, modifying or retracting an opinion expressed in the earlier report.
In this case, Dr Rimmer was provided with the surveillance recording (that is, further material obtained at his suggestion) that caused him to change his assessment of the respondent’s whole person impairment. The subsequent report clearly falls within the definition of a “supplementary report” and is therefore admissible, subject to any other preclusion (of which there is none).
The appellant further refers to cll 1.43 and 1.44 of the Guidelines, also reproduced above. The appellant submits that, consistent with those Guidelines, the Medical Assessor must be provided with all relevant medical information and must have available all of the functional assessments of a person claiming a permanent impairment. That requirement is a compelling reason supporting the appellant’s submission that the supplementary report of Dr Rimmer, which was admissible, ought to have been before the Medical Assessor.
Medical Assessor Burns summarised the opinion expressed by Dr Rimmer in his report dated 1 August 2024 as follows:
“I note the Independent Medical Examination report of Dr Rimmer, Orthopaedic Surgeon dated 1 August 2024. His examination findings were more like mine than those of Dr New. He found a Fair total knee replacement and gave 20% whole person impairment. He found no assessable impairment for scarring.
I note that neither Dr New nor Dr Rimmer has assessed Limb length Discrepancy between the legs”.[41]
[41] Medical Assessment Certificate, p 6, [10(c)].
The surveillance recording was excluded from the materials forwarded to Medical Assessor Burns and, because Dr Rimmer’s supplementary report was based upon the surveillance recording, it was also excluded. That report was admissible and constituted medical information including a functional assessment. It was thus required by cll 1.43 and 1.44 of the Guides to be before the Medical Assessor unless some other prevailing reason required its exclusion.
The sole reason put forward by the Principal Member for excluding the report was because it was founded upon the surveillance recording.
I agree that each party must be afforded procedural fairness in respect of an application to have surveillance recording, and/or, in this case, the supplementary report of Dr Rimmer to be included in the materials to be forwarded to the Medical Assessor. I am of the view that if the exclusion of that evidence would result in a denial of procedural fairness to a party, then that constitutes “exceptional circumstances”.
The exclusion resulted in a misleading representation of Dr Rimmer’s opinion. It is not appropriate to put forward part only of an expert’s evidence, particularly in circumstances where the other part of that expert’s evidence discloses that the expert changed his or her opinion. For those reasons, the supplementary report properly should have been included in the material forwarded to the Medical Assessor.
If the weight of the report is dependent upon what could be observed by a medical expert in the surveillance recording, then that requires a consideration of whether exceptional circumstances exist for the surveillance recording to be admitted. It does not make the medical report inadmissible.
I am satisfied that the Principal Member erred by excluding Dr Rimmer’s supplementary report. It follows that Ground Two of the appeal succeeds.

CONCLUSION

Both grounds of appeal brought by the appellant succeed. On appeal, in circumstances where the requisite error is found in a member’s decision, subs (6A) of s 352 of the 1998 Act provides that the decision may be revoked and a new decision made in its place, or in accordance with subs (7) of s 352, the matter can be remitted to a non-presidential Member for re-determination.
I consider that in order to facilitate a timely resolution of this dispute, it is appropriate for me to re-determine the matter.

RE-DETERMINATION

I have discussed above the issue of whether Dr Rimmer’s supplementary report should have been included in the documents forwarded to the Medical Assessor. For the reasons expressed in my consideration and conclusion reached in respect of Ground Two of the appeal, I am of the view that the report should have been included in the material to be referred.
The fact that Dr Rimmer’s revised assessment was founded upon the surveillance recording is, of itself, a persuasive reason for the surveillance recording also to be included in the material sent to the Medical Assessor.
The appellant submits that once the Principal Member determined that there was an inconsistency between the surveillance recording and the respondent’s presentation to the medical experts, then that was sufficient to satisfy the requirement that there were “exceptional circumstances”. In a dispute limited to the degree of whole person impairment, whether there is an inconsistency between surveillance recording and the worker’s complaints or physical presentation is a matter for the Medical Assessor to consider. Whether there “may be” an inconsistency, as expressed by the Appeal Panel in QBE, can be a relevant consideration, such as in this case where a medical expert changed his assessment on the basis of what he observed in the recording.
In circumstances where a medical expert has provided an opinion and subsequently alters that opinion after viewing surveillance recording, it is, in my view, desirable and appropriate for the Medical Assessor to have access to that surveillance recording in order to reach his or her own properly informed conclusion.
The incongruous result arising from the exclusion of the surveillance recording in this case and the notion that the Medical Assessor ought to be fully informed by the relevant evidence (as discussed above), leads me to the conclusion that for the purpose of r 109 of the 2021 rules, in this case, “exceptional circumstances” exist and the surveillance recording should have been included in the material provided to the Medical Assessor.
The parties are ad idem that, in the event error is established and the material to be sent to a Medical Assessor includes Dr Rimmer’s supplementary report and the surveillance recording, the appropriate course is to refer the matter for further medical assessment or reconsideration pursuant s 329 of the 1998 Act. However, the respondent submits that the assessment should be referred back to Medical Assessor Burns whereas the appellant seeks to have the further assessment conducted by a different Medical Assessor on the basis that it would otherwise be denied procedural fairness because there is no assurance that Medical Assessor Burns, who has already expressed a concluded view as to the respondent’s impairment, would approach the assessment with an open mind.
The power of the Commission to refer a matter for further medical assessment lies within s 329(1)(b) of the 1998 Act, which does not dictate that a referral by the Commission for further assessment be to the same Medical Assessor.[42] It is only when the President (or his delegate) refers the assessment for reconsideration (as opposed to a further assessment) in accordance with s 329(1A) that the referral is to be made to the same Medical Assessor. The referral in this matter is for a further assessment.
[42] Target Australia Pty Ltd v Mansour [2006] NSWWCCPD 286, [80]; Inner West Council v McQuade [2025] NSWPICPD 32, [105].
I am also of the view that, as Medical Assessor Burns formed a concluded view as to the respondent’s impairment on the basis of incomplete evidence, namely, the absence of the supplementary report of Dr Rimmer and the surveillance recording, it is appropriate for the referral to be to a different Medical Assessor.
I note that the respondent has not submitted any further evidence in response to Dr Rimmer’s supplementary report or the surveillance recording. It is appropriate therefore to firstly remit the matter to a different non-presidential Member for consideration of any application the respondent seeks to make in respect of any further evidence, prior to the Member referring the dispute for further assessment of the respondent’s whole person impairment.
The matter is therefore to be remitted to a non-presidential Member for referral no earlier than seven days after the publication of this decision to a Medical Assessor other than Medical Assessor Burns. Further, the respondent may apply to the Commission within seven days of the publication of this decision if he seeks to make any application in respect of further evidence.

DECISION

Leave to appeal the Principal Member’s interlocutory Certificate of Determination is granted.
The Principal Member’s Certificate of Determination dated 18 February 2025 is revoked.
The matter is remitted to a non-presidential Member for referral to a Medical Assessor no earlier than seven days after the publication of this decision for assessment in accordance with Order 1 of the referral dated 14 January 2025.
The documents to be included in the referral are:
(a)    the application and attached documents;
(b)    the reply and attached documents (including the surveillance report dated 6 December 2024);
(c)    the surveillance recording undertaken on 27, 28 and 29 November 2024, and
(d)    the supplementary report of Dr Stephen Rimmer dated 23 January 2025.
The respondent (the applicant below) may apply to the Commission within seven days after the publication of this decision in order to make any application in respect of further evidence.

Elizabeth Wood
DEPUTY PRESIDENT

18 June 2025