Gandhi v Coles Supermarkets Australia Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Gandhi v Coles Supermarkets Australia Pty Ltd [2022] NSWPIC 475
APPLICANT:	Rahulkumar Gandhi
RESPONDENT:	Coles Supermarkets Australia Pty Ltd
PRINCIPAL Member:	Glenn Capel
DATE OF DECISION:	29 August 2022
CATCHWORDS:	WORKERS COMPENSATION - Application for leave to rely on un-notified matters pursuant to section 289A(4) of the Workplace Injury Management and Workers Compensation Act 1998; respondent never issued dispute notice with respect to consequential condition in the applicant’s upper digestive tract; leave sought by the respondent to raise a dispute and allow surveillance footage to be provided to Medical Assessor; opposed by the applicant; no explanation for delay, lack of merit and substance in the proposed dispute; respondent’s medical evidence lacking in probative value; prejudice to the applicant outweighed that of the respondent; Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services and Yacoub v Pilkington (Australia) Ltd discussed and applied; Held — leave to rely on unnotified matter refused; surveillance footage of little probative value but admitted into evidence; to be provided to the Medical Assessor in the interests of justice.
determinations made:	The Commission determines: 1. The respondent’s application pursuant to section 289A (4) of the Workplace Injury Management and Workers Compensation Act1998 for leave to rely on un-notified matters is denied. 2. I remit the matter to the President for referral to a Medical Assessor(s) pursuant to section 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment of whole person impairment as follows: (a) Date of injury: 22 August 2018 (deemed) – Disease. (b) Body system / part: i. lumbar spine; ii. scarring (TEMSKI), and iii. digestive system. 3. The documents to be reviewed by the Medical Assessor(s) are: a. Application to Resolve a Dispute and attached documents; b. Reply and attached documents; c. Application to Admit Late Documents filed by the applicant on 2 August 2022; d. Application to Admit Late Documents filed by the respondent on 8 August 2022; e. surveillance footage taken on 21 May 2022 and 24 May 2022, and f. a copy of this Certificate of Determination. 4. Liberty to the respondent to apply if it seeks to rely upon a further report from Dr Truskett.

STATEMENT OF REASONS

BACKGROUND

Rahulkumar Gandhi (the applicant) is 45-years-old and commenced employment with Coles Supermarkets Pty Ltd (the respondent) as a night filler on 20 October 2016. He has not worked since he had two stage lumbar surgery on 8 and 10 September 2020. His current employment status is unknown.
There is no dispute that the applicant injured his back arising out of or in the course of his employment on 22 August 2018 (deemed). Liability was accepted by the respondent as a self-insurer (the insurer), and I understand that weekly compensation and medical expenses have been paid to date.
On 10 December 2021, the applicant’s solicitor served a notice of claim on the respondent for lump sum compensation in respect of 29% whole person impairment. The claim was based on reports of Dr Dias dated 22 November 2021 and Dr Berry dated 29 November 2021.
The respondent qualified Dr Truskett and Dr Powell to address the applicant’s claim. Dr Truskett reported on 21 February 2022 and Dr Powell on 26 April 2022.
In a letter dated 2 May 2022, the respondent’s solicitor submitted an offer to the applicant as follows:
“I am instructed to propose a counter-offer of $30,010 in respect of 13% WPI based on the reports of Dr Phill Truskett dated 21 February 2022 and Dr Richard Powell dated 26 April 2022.
Copies of these reports are enclosed.
I note that the offer is based on a deemed date of injury being 7 August 2018.”
It would seem that there was no response to this offer.
By an Application to Resolve a Dispute (the Application) registered in the Personal Injury Commission) (the Commission) on 20 May 2022, the applicant claims lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of his lumbar spine and a consequential condition in his digestive system due to injury sustained on 22 August 2018 (deemed).
The respondent’s solicitor filed a late Reply in the Commission on 21 June 2022 together with surveillance footage. On page 2 of the Reply, the respondent’s solicitor conceded that the insurer had failed to determine the claim and that leave would be sought to dispute liability for the alleged injury to the upper digestive tract. Submissions were attached at Annexure A, which I will discuss later.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for a preliminary conference before Member Perrignon on
28 June 2022. Ms Azer, solicitor, appeared on behalf of the applicant and Mr Krieg, solicitor, appeared for the respondent.
According to Member Perrignon’s outcome summary, the only matter in dispute related to whether the applicant had developed a consequential condition in his upper digestive tract. The respondent consented to the referral to a Medical Assessor in respect of the applicant’s lumbar spine, scarring (TEMSKI) and lower digestive tract.
Member Perrignon noted that Ms Azer submitted that the respondent would require leave to dispute liability for the upper digestive tract. The Member did not determine any leave application or determine whether the surveillance footage should be referred to the Medical Assessor for review. The Member indicated that this would be determined at a conciliation conference and arbitration hearing to be held via the Teams format on 15 August 2022.
Member Perrignon suggested that the applicant obtain a further report from Dr Berry with respect to the applicant’s upper digestive tract.
Unfortunately Member Perrignon was unavailable to conduct the conciliation conference and arbitration hearing on 15 August 2022, and there were no other available Members to hear the matter.
Given the discrete nature of the dispute, I arranged for a further preliminary conference to be listed before me at 10.30 am on 15 August 2022. Mr Malouf of counsel, instructed by Ms Azer, appeared with and on behalf of the applicant, and Mr McMahon of counsel, instructed by Mr Krieg, appeared on behalf of the respondent. Ms Guirguis, a litigation specialist of the insurer, was also in attendance.
The matters in dispute were discussed in some detail but unfortunately despite my best efforts to bring the parties to a resolution of the dispute, the matter could not progress to a referral to a Medical Assessor.
Given that the insurer had failed to dispute liability and issue a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), as it is obliged to do, and because the respondent’s application for leave to raise an un-notified matter had not been addressed or determined as should have been the case at the first preliminary conference, I issued a Direction as follows:
“The Commission orders and directs:
1. The following documents are admitted into evidence:
a. Application to Resolve a Dispute and attached documents.
b. Reply and attached documents.
c. Application to Admit Late Documents filed by the applicant on 2 August 2022, and
d. Application to Admit Late Documents filed by the respondent on 8 August 2022.
2.     Note:
a. The respondent does not dispute that the applicant developed a consequential condition in his lower digestive system due to the injury sustained to his lumbar spine on 22 August 2018 (deemed).
b. The respondent seeks leave pursuant to s 289A(4) of the Workplace Injury Management and Workers Compensation Act 1998 to dispute that the applicant developed a consequential condition in his upper digestive system due to the injury sustained to his lumbar spine on 22 August 2018 (deemed).
c. The applicant opposes this application.
3.      The respondent is to file and serve written submissions regarding the following issues by close of business on 17 August 2022:
a. Whether leave should be granted to raise an unnotified matter, namely, to dispute that the applicant developed a consequential condition in his upper digestive system due to the injury sustained to his lumbar spine on 22 August 2018 (deemed).
b. Whether the surveillance footage should be referred to the Medical Assessor.
4.      The applicant is to file and serve written submissions by 24 August 2022.
5.     Any submissions in reply are to be filed and served by 26 August 2022.
6.      At the conclusion of the time allowed for submissions the dispute will be determined “on the papers”.
7.     If leave is granted, the matter will be listed for a conciliation conference and arbitration hearing on a date to be fixed.
8. If leave is not granted, the applicant’s claim will be remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment of whole person impairment as follows:
a. Date of injury: 22 August 2018 (deemed) – Disease.
b. Body system / part:
i.Lumbar spine.
ii.Scarring (TEMSKI).
iii.Digestive System.
9.      The documents to be reviewed by the Medical Assessor will be those identified in paragraph 1 above and may include the surveillance footage.
10.    Liberty to the respondent to apply if it seeks to rely upon a further report from Dr Truskett.”
Written submissions were attached to the Reply and further written submissions were filed by the respondent on 17 August 2022.
Written submissions were filed by the applicant on 24 August 2022. There were no submissions in reply.

PRELIMINARY ISSUES FOR DETERMINATION

The parties agree that the following issues are in dispute:
i) whether leave should be granted to the respondent to raise an un-notified matter, namely, to dispute that the applicant developed a consequential condition in his upper digestive tract due to the injury sustained to his lumbar spine on 22 August 2018 (deemed) – s 289A(4) of the 1998 Act, and
ii) whether the surveillance footage should be referred to the Medical Assessor – rule 109 of the Personal Injury Commission Rules (the Rules).

Documentary evidence

The following documents were in evidence before the Commission and taken into account in making this determination:
(a)    The Application with attached documents;
(b)    Reply with attached documents;
(c)    Application to Admit Late Documents filed by the applicant on 2 August 2022, and
(d)    Application to Admit Late Documents filed by the respondent on 8 August 2022.
The surveillance footage has also been reviewed for the purpose of this dispute.

Applicant’s statements

Given the discreet nature of the preliminary issue for determination, I propose to focus on the evidence that concerns the applicant’s treatment and the issues with his digestive system, and his physical restrictions that will be of relevance to the surveillance footage.
In his statement dated 19 May 2022, the applicant described his physical limitations. He stated that he was able to walk for up to 25 minutes at a time and stand for up to 25 minutes at a time before having to sit down due to worsening lower back pain. He could only tolerate sitting for 20 minutes and driving for 20 minutes at a time due to worsening low back pain. He avoided bending and twisting and had difficulty ascending and descending stairs. He had not attempted to run or jog, and he struggled with self-care. He had not been able to contribute to household tasks such as cooking and shopping for over three years.
The applicant indicated that since he sustained his back injury, he had relied on anti-inflammatory tablets and opiate based analgesia to manage his pain. He had developed reflux, persistent bloating and constipation. He was referred to Dr Chen and had an endoscopy on 30 August 2021. He was treated for a Helicobacter infection and was taking Somac, Movicol, Coloxyl and Maxolon to manage his reflux and constipation.
In a statement dated 21 July 2022, the applicant commented on the activities disclosed in the surveillance footage and explained how he managed to undertake the various tasks. He advised that the driving and walking that was undertaken ion 26 May 2022 was the first time that he had done these activities for long period. He stated that at the end of the day, he was in great discomfort, and he laid down for the rest of the evening after he arrived home.

Applicant’s medical evidence

The applicant relies on the clinical notes and reports of a number of treating doctors including Drs Abraszko, Rao, Deshpande, and the Blacktown Medical Centre. The focus of their treatment was centred on the applicant’s back injury, treatment and surgery.
The clinical notes of the Blacktown Medical Centre disclose that the applicant was first prescribed Pantoprazole EC (Somac) on 23 April 2020, when he complained of indigestion and reflux. Prior to that date, he had been prescribed Targin and Celebrex. Since April 2022, he has been prescribed Coloxyl, Lactulose, Movicol, and Maxolon to treatment his digestive symptoms. He has also been prescribed MS Contin, Endep, Gabapentin and Endone.
A search of the internet discloses that common side effects of Celebrex, Amitriptyline, Targin, MS Contin, Endep, Gabapentin and Endone include nausea, reflux and constipation.
According to the discharge summary from The Hills Private Hospital dated 13 October 2020, the applicant had presented with a history of chronic low back pain and reflux. Surgery was undertaken on 8 and 10 September 2020.
In a report dated 12 July 2021, Dr Chen diagnosed reflux and constipation which were likely multifactorial, including the side effects of taking medication.
On 30 August 2021, Dr Chen reported his colonoscopy and endoscopy findings as a hiatus hernia with mild reflux, haemorrhoids and colonic polyps. The biopsy results dated
30 August 2021 revealed a Helicobacter infection associated with mild chronic gastritis.
In a report dated 22 November 2021, Dr Dias recorded that the applicant had developed significant gastro-oesophageal reflux and chronic constipation as a result of prolonged use of anti-inflammatory and opiate based medication over a three year period. He had been prescribed Somac and Lactulose 20mg three to four times daily, and Dr Chen had performed a gastroscopy and colonoscopy.
Dr Dias diagnosed a persistent aggravation of pre-existing L5/S1 spondylolisthesis with an associated disc protrusion at L5/S1 with persisting left S1 radiculopathy, secondary to heavy manual and repetitive duties at the respondent. He assessed 24% whole person impairment of the lumbar spine and 1% whole person impairment for scarring (TEMSKI), for a combined total of 25% whole person impairment.
Dr Dias provided a further report on 22 July 2022 in which he addressed Dr Powell’s deduction under s 323 of the 1998 Act. He also viewed the surveillance footage and advised that this did not cause him to alter his opinion.
Dr Berry reported on 29 November 2021. He reported the applicant began to experience reflux and constipation about two months after he was prescribed analgesics by his general practitioner. He commented that the applicant had suffered a low back injury with bilateral leg pain caused by repetitive heavy lifting, bending and twisting at work.
Dr Berry stated that the applicant had undergone a two stage L5/S1 fusion, and he had developed a consequential gastrointestinal injury as a result of the ingestion of medication. He assessed 3% whole person impairment for the effects of medication on the applicant’s upper gastrointestinal tract and 2% whole person impairment in respect of anal disease, for a combined total of 5% whole person impairment of the digestive system.
Dr Berry provided a supplementary report on 27 July 2022. He summarised the history of the onset of the applicant’s digestive issues and noted that the biopsy from the applicant’s stomach showed moderate active chronic gastritis and a Helicobacter infection. There had been some improvement following treatment of his Helicobacter infection, but not a complete resolution of his symptoms.
Dr Berry noted that the applicant had a small hiatus hernia, however, he was not grossly overweight, which tended to make hiatus hernias symptomatic and cause reflux. The doctor confirmed that he had considered the effects of the Helicobacter infection and he had reduced the assessment of whole person impairment by two-fifths.
Dr Berry note that his history differed to that of Dr Truskett regarding the onset of the applicant’s digestive symptoms and he observed that Dr Truskett found evidence of tenderness in the epigastric region. The doctor discounted Dr Truskett’s opinion that the applicant’s haemorrhoids were unrelated to his injury and its treatment, but he agreed that mild gastritis could be secondary to the Helicobacter infection.
Dr Berry commented that the applicant’s constipation developed in response to his medications, and he felt that the haemorrhoids were caused or aggravated by his constipation. He was mindful that the applicant had not required any treatment for reflux or constipation until after he injured his back.

Respondent’s medical evidence

In a report dated 21 February 2022, Dr Truskett recorded that the applicant began to experience reflux and issues with his bowels around the time of his back surgery. He was referred to Dr Chen, who performed a gastroscopy and colonoscopy on 6 September 2021. He was prescribed treatment following this procedure.
Dr Truskett noted the views of Dr Berry and commented that:
“Dr Berry assessed Mr Gandhi’s upper digestive tract as showing 5% whole person impairment with a two-fifth deduction due to Helicobacter infection. I do not support this assessment because the symptoms Mr Gandhi describes are reflux and not gastritis. His gastritis may entirely be due to Helicobacter.”[1]
[1] Reply, p 12.
Dr Truskett stated that the applicant had gastroesophageal reflux that was caused by a constitutional hernia, and mild gastritis that was secondary to a Helicobacter infection which was not work related. He agreed that the applicant had constipation secondary to the ingestion of narcotic analgesics, but his haemorrhoids were incidental and unrelated to his injury. He concluded that the was no injury to the applicant’s upper and lower digestive tracts and that there was 0% whole person impairment.
Dr Powell reported on 26 April 2022. He stated that the applicant’s back symptoms developed in an insidious fashion over a period of several months and these were attributed to the nature and conditions of employment. The diagnostic tests showed evidence of an L5 pars defect and spondylolisthesis, which had been asymptomatic.
Dr Powell diagnosed a musculoligamentous injury of the lumbar spine and aggravation of underlying grade I spondylolisthesis at L5/S1. He assessed 25% whole person impairment of the lumbar spine and 0% whole person impairment for scarring (TEMSKI). He applied a 50% deduction under s 323 of the 1998 Act, resulting in a 13% whole person impairment of the lumbar spine.
In a supplementary report dated 14 July 2022, Dr Powell indicated that he had viewed the surveillance footage. He felt that the applicant was genuine in his presentation and there were no specific inconsistencies with the activities depicted in the surveillance.
However, Dr Powell observed that in his further statement, the applicant indicated that he had difficulty sitting or driving for more than 20 minutes and walking or standing for more than 25 minutes. The doctor commented that his clinical presentation and the activities demonstrated on the surveillance footage suggested that the applicant had a physical capacity and tolerances in excess of those described in his statement. The doctor maintained his assessment of impairment.

Surveillance evidence

Procare Investigations provided a report on 14 June 2022. The investigators conducted surveillance of the applicant’s activities on three occasions in late May 2022.
The investigators reported that on 21 May 2022, the applicant was observed and filmed as he left his residence, smoked a cigarette, used a mobile phone, drove his car, attended a convenience store, drank coffee and attended a shopping centre.
On 24 May 2022, the applicant was observed and filmed as he drove a van with multiple passengers from his residence to Katoomba, where he remained for approximately two hours. He went to the Wentworth Falls Scenic Track until 3.17pm and then drove home. The applicant was not observed on 31 May 2022. The surveillance footage is consistent with the investigator’s report.

RESPONDENT’S SUBMISSIONS IN RESPECT OF THE LEAVE APPLICATION

In the submissions attached to the Reply, Mr Krieg submits that it would be in the interests of justice to grant the respondent leave to dispute that the applicant developed a consequential condition in his upper digestive system, consistent with the principles discussed in Mateus v Zodune Pty Limitedtlas Tempo Cleaning Services[2]. He submits that the issue is not a complex one. The report of Dr Truskett was served on the applicant's solicitor on
[2] [2007] NSWWCCPD 227, (Mateus).
2 May 2022, so the applicant was well aware of the doctor's opinion.
Mr Krieg submits that there is no prejudice to the applicant given that the respondent's position was well known to him [sic], and the respondent's position regarding the upper digestive tract would have been known before proceedings were commenced. He submits that the applicant does not require further evidence to address the dispute, given the claim was made based on the report of Dr Berry, and there is adequate treating evidence available to determine the issue.
Mr Krieg submits that there is strong merit to the respondent's dispute. The applicant suffers from a pre-existing Helicobacter infection, confirmed in the gastric biopsy taken on
30 August 2021, and Dr Truskett considered that this was the entire cause of the applicant's gastritis in the upper digestive tract.
Mr Krieg submits that Dr Berry also considered that the applicant's non-work related Helicobacter infection was causative of gastritis, and he did not adequately explain how any pain medication contributed to the gastritis. The issue needed to be determined because it could have significant impact as to whether or not the applicant achieves the relevant 15% and 21% whole person impairment thresholds. He also requests that the surveillance footage be made available to the Member at the preliminary conference.
In his written submissions, Mr McMahon refers to the principles discussed in Mateus and discusses each in detail. He submits that both the factual and legal issues have been properly considered in pursuing the application for leave and the decision by the insurer to dispute liability was not made lightly. Dr Truskett supports the dispute concerning the upper gastrointestinal tract.
Mr McMahon submits that the question of causation of the consequential condition is neither difficult nor complex, and concerns a determination made by the Commission on a regular basis.
Mr McMahon submits that in determining liability for the applicant’s lump sum compensation claim dated 9 December 2021, the insurer made an offer to resolve the claim on 2 May 2022 based on the reports of Drs Powell’s and Truskett, which it was required to do by law. The respondent's position regarding the upper digestive tract would have been known at the time of service of Dr Truskett’s report and before proceedings were commenced. The nature of the dispute was formally notified in the Reply filed on 20 June 2022, and the insurer has otherwise fulfilled its statutory obligation to notify the worker of its decision to dispute liability and submit an offer.
Mr McMahon submits that whilst there was a delay, this was on the background of the service of a report supporting the respondent’s position and an offer being made. This supports the position that the delay is neither unexplained nor unreasonable.
Mr McMahon submits that the issue sought to be put in dispute has merit and is of substance. The applicant suffers from a pre-existing Helicobacter infection, and Dr Truskett considered that was the entire cause of the applicant’s gastritis in the upper digestive tract. This opinion is consistent with the gastric biopsy. Dr Berry also considered that the applicant’s non-work related Helicobacter infection was causative of gastritis, although, he did not adequately explain how any pain medication related to the applicant’s accepted spinal injury contributed to the gastritis.
Mr McMahon submits that in his second report, Dr Berry agreed that gastritis can be secondary to Helicobacter infection and that even when the infection is eradicated, the patient remains symptomatic. He submits that in the circumstances, the doctor has not explained why he maintains that the applicant’s pain medication caused his gastritis symptoms rather than the Helicobacter infection, raising a question as to causation. When considered in light of Dr Truskett’s opinion, the issue sought to be put in dispute has merit and is of substance.
Mr McMahon submits that there is no prejudice to the applicant if leave is granted, given that the respondent's position was well known to him since its solicitor served Dr Truskett’s report. The applicant had the opportunity and in fact obtained a further opinion from Dr Berry addressing the issue. Further, the applicant is not prejudiced by the fact that he is not in receipt of compensation, and this will alleviate the financial burden that the applicant might suffer as a result of the delay should leave be granted to raise the dispute.
Mr McMahon submits that although it will be relevant to the exercise of the discretion to keep in mind that the Commission must act according to equity, good conscience and the substantial merits of the case, those matters will not be determinative. He submits that there is no conduct that warrants criticism so as to disentitle the respondent in this application.
Mr McMahon submits that whilst the respondent did not serve a dispute notice pursuant to
s 78 of the 1998 Act, it is implicit in the respondent’s offer and the reliance on the opinion of Dr Truskett that the respondent did not accept that the applicant had developed a consequential condition in his upper gastrointestinal tract. In the circumstances, it is appropriate for the respondent to be granted leave to put the issue of causation in relation to the alleged consequential condition of the upper gastrointestinal tract in dispute.
Mr McMahon submits that the surveillance footage should be provided to the Medical Assessor for review in conjunction with the surveillance report. He submits that rule 109(1)(a) of the Rules requires that there be “exceptional circumstances”, but this term is not defined in the Rules or other legislative provisions. In support of his submission, he cites the Presidential decision of Erskine v Cowzine Pty Limited[3] in which Deputy President Snell considered the term “exceptional circumstances” with reference to the decision of Campbell JA in Yacoub v Pilkington (Australia) Ltd[4]. I will discuss this decision later.
[3] [2018] NSWWCCPD 9.
[4] [2007] NSWCA 290 (Yacoub).
Mr McMahon submits that the surveillance footage shows activities that directly contradicts the applicant’s evidence in respect of his disabilities, impairments and restrictions described in his statement dated 19 May 2022, which was contemporaneous to the footage, and is in itself an exceptional circumstance.
Mr McMahon submits that the surveillance footage shows the applicant walking freely, driving for much longer than 20 minutes, bending and reaching down to tie a shoe lace with no apparent discomfort, leaning in a leisurely manner (and not as suggested by the applicant to somehow stretch his back) and various other activities.
Mr McMahon submits that this is not a matter where there are slight variations in a history provided to doctors and activities shown in footage. The Commission now has before it probative evidence concerning the applicant’s presentation when he was not the subject of an assessment and thereby, even subconsciously, modifying his presentation.
Mr McMahon submits that the surveillance footage has been provided to the specialists who have been qualified the parties, and the applicant has provided a statement seeking to traverse some of the inconsistencies in his earlier statement and the footage. This of itself creates an exceptional circumstance as the applicant has had the chance to meet the material and has in part done so. A review of the footage of the activities described in the investigator’s report also supports a conclusion there are exceptional circumstances. Accordingly, the Commission should allow the surveillance footage to accompany the referral to the Medical Assessor in accordance with rule 109 of the Rules.

APPLICANT’S SUBMISSIONS

Mr Malouf submits that the applicant opposes the respondent’s application to raise a dispute in respect of the applicant’s upper digestive system and opposes the surveillance footage being referred to the Medical Assessor.
Mr Malouf submits that the insurer never disputed the upper gastrointestinal condition [sic] in a dispute notice and has not provided any explanation for the delay in notifying the applicant of the dispute. He submits that according to the authorities[5], the insurer must precisely identify, in plain language, in the body of the document, the issue(s) in dispute and, in respect of each issue, the insurer’s reasons for disputing liability.
[5] Woolworths Ltd v Meake [2011] NSWWCCPD 13, [55].
Mr Malouf submits that the insurer must identify the sections and, if necessary, the sub-sections of the legislation on which the insurer relies that are relevant to the issues in dispute. Finally, the insurer must attach to the notice any documents, medical reports, investigators’ reports and other documents relevant to the claim. The insurer failed to comply with the first two of these requirements.
Mr Malouf submits that the insurer has failed to identify why it delayed raising a dispute for almost seven months after the applicant made his claim. A dispute notice has still not been issued despite the matter being listed for twice for teleconferences. This omission was fatal to the application for leave in St Andrews Village Ballina Ltd v Mazzer[6].
[6] [2010] NSWWCCPD 99.
Mr Malouf submits that there is always inherent prejudice caused to a party where permitting leave results in delays. There has been a very considerable delay which has denied the applicant access to a quick and speedy resolution of his matter. Moreover, any further delay will unreasonably allow the respondent to obtain and serve more evidence which the applicant will have to meet. It would not be in the interests of justice for leave to be granted. and it should be refused.
Mr Malouf submits that there are no exceptional circumstances to justify the referral of the surveillance footage to the Medical Assessor. It does not inform the terms of the dispute which is limited to the assessment of whole person impairment and could only be potentially relevant with respect to the applicant’s orthopaedic injuries.
Mr Malouf submits that the respondent’s qualified specialist, Dr Powell, was unequivocal that the footage did not cause him to alter his assessment of impairment, noting that as the applicant had undergone surgery, there was no provision for adjustment based on inconsistencies. Therefore, even on the respondent’s own evidence, the footage is immaterial to the current dispute. For that reason alone, it is impossible to find exceptional circumstances to justify its referral to the Medical Assessor, and the respondent’s application should be rejected.

REASONS

Should leave be granted to the respondent to rely on an un-notified matter? – s 289A (4) of the 1998 Act

Sections 78 and 79 of the 1998 Act deal with an insurer’s obligations in respect of giving notice of a dispute. It provides:
“78 Insurer to give notice of decisions
(1)     An insurer must give notice in accordance with this Division of any decision of the insurer—
(a) to dispute liability in respect of a claim or any aspect of a claim, or
(b) to discontinue payment to a worker of weekly payments of compensation or reduce the amount of the compensation…
79 How notice of decision is given
(1)     A notice required by this Division must be given—
(a) to the claimant or worker concerned, and
(b) in the case of a notice of a decision to dispute liability—to the worker’s employer, if required by the regulations.
(2)     The notice must contain a concise and readily understandable statement of the reason for the insurer’s decision and of the issues relevant to the decision.
(3)     In addition, notice of a decision to dispute liability for a claim for compensation must identify any provision of the workers compensation legislation on which the insurer relies to dispute liability.
(4)     The regulations may make provision for—
(a) the manner in which a notice under this Division is to be given, and
(b) the form of and other information to be included in or to accompany the notice.”
Clause 38 of the Workers Compensation Regulation 2016 (the 2016 Regulation) also contains provisions regarding an insurer’s obligations. It provides:
“38 Notice of insurer decisions
(1) A notice under section 78 of the 1998 Act of an insurer’s decision to dispute liability in respect of a claim or any aspect of a claim (except in connection with a work injury damages matter), or to discontinue or reduce the amount of weekly payments of compensation, is to contain the following information—
(a) a statement identifying all the reports and documents submitted by the worker in making the claim for compensation, and by the employer in connection with the claim,
(b) a statement identifying all the reports of the type to which clause 41 applies that are relevant to the decision, whether or not the reports support the reasons for the decision,
(c) a statement advising that a copy of a report required to be provided by the insurer under clause 41(3) (except as provided by clause 41(5) or (6)) accompanies the notice,
(d) details of the procedure for requesting a review of the decision,
(e) a statement to the effect that the worker can seek advice or assistance from the worker’s trade union organisation, from an Australian legal practitioner, from the Independent Review Officer or from any other relevant service established by the Authority,
(f) the contact details for the Independent Review Officer,
(g) the street address and the email address of the President,
(h) a summary, in the approved form, of the effect of the decision, the worker’s rights of review, the procedure for requesting a review and the legal and other services that may be available to the worker to provide advice or assistance in relation to the dispute….”
Section 289A of the 1998 Act details restrictions as to when a dispute can be referred to the Commission. It provides:
“289A Further restrictions as to when a dispute can be referred to Commission
(1)     A dispute cannot be referred for determination by the Commission unless it concerns only matters previously notified as disputed.
(2)     A matter is taken to have been previously notified as disputed if—
(a) it was notified in a notice of dispute under this Act or the 1987 Act after a claim was made or a claim was reviewed, or
(b) it concerns matters, raised in writing between the parties before the dispute is referred to the President for determination by the Commission, concerning an offer of settlement of a claim for lump sum compensation.
(3)     The Commission may not hear or otherwise deal with any dispute if this section provides that the dispute cannot be referred for determination by the Commission. However, the Commission may hear or otherwise deal with a matter subsequently arising out of such a dispute.
(4)     Despite subsection (3), a dispute relating to previously unnotified matters may be heard or otherwise dealt with by the Commission if the Commission is of the opinion that it is in the interests of justice to do so.”
In Mateus, Deputy President Roche discussed the relevant principles governing leave applications pursuant to s 289A (4) of the 1998 Act. He stated:
“In exercising her discretion under section 289A (4) the Arbitrator considered the following factors at paragraph 18 of her Reasons:
(a) the degree of difficulty or complexity to which the un-notified issues give rise;
(b) when the insurer notified that it wished to contest any un-notified issue/s;
(c) the degree to which the insurer has otherwise fulfilled its statutory obligation to notify the worker of its decision disputing liability;
(d)any prejudice that may be occasioned to the worker, and
(e) any other relevant matters arising from the particular circumstances of the case.”[7]
[7] Mateus, [38].
The Deputy President continued:
“In determining whether it was ‘in the interests of justice’ to allow the Respondent Employer to dispute injury, the Arbitrator correctly identified at paragraph 18 of her Reasons the matters relevant to the exercise of the discretion (see [38] above). To those matters I would add the following observations:
(a) a decision by an insurer to dispute a claim for compensation should not be made lightly or without proper and careful consideration of the factual and legal issues involved;
(b) any insurer seeking to dispute an un-notified matter is seeking to have a discretion exercised in its favour and, accordingly, must act promptly to bring the matter to the attention of the Commission and all other parties;
(c) any unreasonable or unexplained delay in giving notice of an un-notified matter will be relevant to the exercise of the discretion;
(d) in exercising its discretion the Commission may have regard to the merit and substance of the issue that is sought to be raised;
(e) in assessing prejudice to the worker it will be significant to consider when and in what circumstances the worker was first made aware of the un-notified issue that is sought to be raised;
(f) though it will be relevant to the exercise of the discretion to keep in mind that the Commission must act according to equity, good conscience and the substantial merits of the case, those matters will not be determinative, and
(g) the general conduct of the parties in the proceedings will also be relevant to the exercise of the discretion.”[8]
[8] Mateus, [48].
The insurer failed to issue a dispute notice in accordance with its statutory obligations in
ss 78 and 79 of the 1998 Act and cl 38 of the 2016 Regulation, either when the claim was made in December 2021, when it received Dr Truskett’s report shortly after 22 February 2022, before the preliminary conference on 28 June 2022 or at any time before the aborted conciliation conference and arbitration hearing on 15 August 2022.
It could not be said that the insurer was ignorant of its statutory obligations, because in the Certificate of Determination dated 10 August 2020 in the prior proceedings that dealt with the lumber surgery dispute, Member Wynyard noted that the insurer had issued dispute notices on 4 September 2019 and 3 March 2020.
Therefore, the respondent is not entitled to raise a dispute in respect of the issue regarding the consequential upper digestive condition unless it is in the interests of justice to do so in accordance with s 289A (4) of the 1998 Act. This requires a consideration of the principles discussed in Mateus.
According to Mateus, one needs to consider the degree of difficulty or complexity that the un-notified issues will cause.

I accept that disputes regarding consequential conditions resulting from accepted injuries are regularly litigated in the Commission. Some are complex, others not so. Given that this matter involves only one body part, it is arguable that the nature of this dispute is not complex. Of course, Dr Truskett challenged the consequential condition in the applicant’s lower digestive system, but the insurer does not seek to place this in dispute.
Whilst it is true that on 2 May 2022, in compliance with its obligations under s 281 of the 1998 Act, the insurer’s solicitor made an offer of settlement in response to the applicant’s notice of claim, the solicitor did not identify any dispute. He merely advised that he had been instructed to make an offer based on the reports of the insurer’s qualified specialists, which were attached. The meant that there would be no offer in respect of the digestive system. There was no mention of the fact that the insurer disputed the alleged conditions in the upper and lower digestive systems.
During the preliminary conference before me on 15 August 2022, no reasons were advanced as to why the insurer had not issued a dispute notice at any stage. Despite Mr McMahon’s submissions to the contrary, there is no evidence before the Commission that indicates if and how the insurer had properly and carefully considered the facts and the evidence.
The only evidence is the letter of offer that was based on Dr Truskett’s report. There was no mention of the views of Dr Berry and the insurer’s rejection of same. Whether the applicant was aware of the nature of the dispute upon receipt of Dr Truskett’s report, as submitted by Mr McMahon, is mere speculation in the absence of a dispute notice or evidence from the applicant as to his knowledge.
The applicant had been informed in 2019 and 2020 that the insurer disputed liability in respect of his proposed lumbar surgery, so he would have been familiar with the dispute process. One could assume that he would have expected to receive another dispute letter if the insurer disputed liability in respect of his digestive system. Of course, that never occurred.
The first time that the applicant became aware of the dispute regarding the upper digestive system condition was when the respondent’s solicitor referred to this in the Reply and in the annexed submissions. The Reply was filed late in the Commission on 21 June 2022 and would have been served on that date or shortly after. This was only four or five business days before the first preliminary conference on 28 June 2022. Therefore, it could not be said the insurer had acted promptly, because it should have raised a dispute as early as February 2022 when Dr Truskett’s report was received.
Mr McMahon concedes that there was a delay, but this was on the background of the service of the report and an offer. No explanation has been advanced by the insurer to explain why notice of the dispute was left to a matter of days before the first preliminary conference. One would have expected that the case manager of the insurer would have provided a statement explaining why this was left to the last moment. The insurer has a statutory obligation to give notice of a dispute as soon as it received Dr Truskett’s report, and the delay in doing so was clearly unreasonable.
The question of prejudice is an important factor to consider. There is some merit in Mr McMahon’s submission that the applicant would not be prejudiced if leave was granted, because he was aware of the respondent’s leave application when the Reply was served, he had obtained a further report to address Dr Truskett’s views after encouragement from Member Perrignon, and he is in receipt of weekly compensation, which would offset the impact of any delay caused by the leave application being granted. However, such a submission overlooks a number of matters.
The notice of claim was served on 10 December 2021 and the insurer only submitted an offer on 2 May 2022, almost five months later.
The insurer had not issued a dispute notice at the time that the applicant commenced proceedings, so based on his past experience, there would have been an expectation in the applicant’s mind that his claim would be sent directly to a Medical Assessor for assessment.
I was informed that the applicant is in receipt of weekly compensation and the insurer has been paying his medical expenses, which presumably includes his treatment expenses for his gastrointestinal issues. Of course, the payment of such medical expenses does not constitute an acceptance of liability, nor does it mean that the respondent is precluded from raising a dispute in relation to liability at a later stage[9].
[9]Department of Education & Training v Sinclair [2005] NSWCA 465.
At the insistence of the respondent’s solicitor, a preliminary conference was appointed on
28 June 2022, and a conciliation conference and arbitration hearing was scheduled on
15 August 2022. This hearing date was delayed in order to accommodate the issuing of Directions for the Production of Documents by the respondent. So, instead of being examined by a Medical Assessor later this year, the appointment will most likely be delayed until early next year.
Given that the applicant is claiming lump sum compensation of $83,070.82, there is little doubt that he will be prejudiced by any further delay occasioned by the granting of leave. He was not aware of the dispute until a few days before the preliminary conference. The claim in respect of the upper digestive system is only for 3% whole person impairment, which will not have a significant effect on the overall degree of whole person impairment. The major issue seems to concern the deduction, if any, that should be applied to the assessment of whole person impairment of the applicant’s lumbar spine.
Whether the applicant passes certain thresholds is a matter for a Medical Assessor, and it may well be that the deduction applied by Dr Powell will be disregarded by the Medical Assessor, meaning that the assessment might exceed 21% whole person impairment, regardless of the assessment of impairment of the upper digestive system. Therefore, it would seem that the applicant’s prejudice outweighs that of the respondent.
When exercising a discretion, the Commission needs to have regard to the merits and substance of the issue that is sought to be raised. This requires an assessment of the probative value of the evidence that forms the basis of the proposed dispute.
In his submissions, Mr McMahon submits that the issue regarding the alleged consequential condition in the applicant’s upper digestive tract has merit and is of substance, because the applicant had a pre-existing Helicobacter infection. According to Dr Truskett, this was the entire cause of the applicant’s gastritis in the upper digestive tract. Dr Berry also noted a contribution, but Mr McMahon submits that Dr Berry did not adequately explain how the applicant’s medication contributed to the gastritis. He submits that this raises an issue as to causation.
Dr Powell provides no assistance, and whilst Dr Dias recorded a history of significant reflux and chronic constipation due to the prolonged use of medication, he did not express an opinion on causation. In any event, both doctors are not gastrointestinal specialists.
It is true that the biopsy confirmed the presence of a Helicobacter infection associated with mild chronic gastritis in August 2021. According to Mr McMahon and Mr Krieg, this infection was pre-existing, but there is no evidence to confirm that the infection and gastritis was either pre-existing or was the reason why the applicant had reflux as early as April 2020. All that we know is that at the time of the tests and biopsy on 30 August 2021, the infection was present.
The basis of the applicant’s claim is that as a result of the ingestion of medication, he has developed upper gastrointestinal symptoms that include reflux. In other words, he developed a consequential condition as a result of his accepted back injury. In such circumstances, it is not necessary to prove that he has suffered an injury, only that he has symptoms as a consequence of an injury[10].
[10] Kumar v Royal Comfort Bedding Ltd [2012] NSWWCCPD 8 (Kumar).
According to Dr Berry, the applicant began to experience reflux and constipation about two months after he was prescribed analgesics by his general practitioner. The applicant was first prescribed Targin in August 2018, and Celebrex commenced in March 2020, so this history would seem to be consistent with the prescription of the latter medication.
Dr Berry was provided with a copy of the gastroscopy, endoscopy and pathology reports, so he was aware of the findings and the fact that the applicant’s Helicobacter infection had been the subject of treatment.
Dr Berry concluded that the significant medications taken for pain relief had resulted in gastrointestinal disturbance, affecting the stomach and the bowel. He took account of the non-work related gastritis when he made a two-fifths deduction, leaving 3% whole person impairment for the effects of medication on the applicant’s upper gastrointestinal tract.
Such a deduction suggests that he did not believe that the gastritis was caused or aggravated by the medication, and he accepted that the gastritis was not work related. So it seems that his opinion is consistent with the views of the treating gastroenterologist, Dr Chen, regarding the multifactorial nature of the upper gastrointestinal condition that caused symptoms that included reflux.
In his supplementary report, Dr Berry noted that the applicant had a small hiatus hernia, but he discounted its relevance to the applicant’s reflux symptoms because the applicant is not overweight. He confirmed that he had considered the effects of the Helicobacter infection and its ability to cause gastritis. His comment about the lack of pre-injury symptoms is also of relevance and is something that has not been addressed by Dr Truskett.
It is not surprising that the respondent chose to refrain from obtaining a further report from Dr Truskett. He had already commented on Dr Berry’s initial report, and Dr Berry’s second report adds little to the opinion that he had already expressed. Nevertheless, I indicated that I would grant the respondent leave to obtain a further report from Dr Truskett in the event that the leave application was unsuccessful, and the claim was remitted for assessment.
Mr Krieg submitted that Dr Berry did not adequately explain how the pain medication contributed to the gastritis. Mr McMahon also submitted that the doctor did not explain why he maintains that the applicant’s pain medication caused his gastritis symptoms rather than the Helicobacter infection.
However, Dr Berry did not suggest that the pain medication caused or even aggravated, his gastritis, because he accepted that this condition resulted from the infection. He made a deduction when he assessed the impairment to take account of this non-work related condition. So it is clear that he considered that the applicant’s other symptoms, that included reflux, were caused by the ingestion of medication.
The next question to consider is whether Dr Truskett’s views carry sufficient weight to warrant the granting of leave to raise the un-notified matter.
Dr Truskett was provided with copies of the report applicant’s qualified specialist, the report of Dr Chen dated 12 July 2021, the applicant’s statement dated 2 April 2020 and limited clinical notes from the Westgate and Blacktown Family Medical Centres, so his file was fairly comprehensive.
Dr Truskett recorded a history of the onset of reflux and constipation around the time of the back surgery, which occurred on 8 and 10 September 2020, but the applicant was first prescribed Pantoprazole EC (Somac) for indigestion/reflux on 23 April 2020, and the hospital clinical notes recorded a history of reflex at the time of the operation. This was on a background of taking Targin since June 2019 and Celebrex from March 2020. So, Dr Truskett’s history is inconsistent with the contemporaneous evidence, and he did not address these facts in his report.
Dr Truskett had access to the report of Dr Chen, but he made no comment about Dr Chen’s opinion. He dismissed Dr Berry’s assessment and indicated that the applicant’s symptoms were consistent with reflux, not gastritis. He also stated that the applicant’s gastritis “may” entirely be due to the Helicobacter infection. The use of the word “may” seems to suggest that there might be other factors, such as the effects of the ingestion of pain killing medication giving raise to symptoms such as reflux. That is the position that Dr Berry has adopted.
It is true that Dr Truskett stated that the applicant’s gastroesophageal reflux was caused by his hiatus hernia, and his mild gastritis was caused by the Helicobacter infection, but he did not explain his opinion in any detail. His opinion seems to be a mere “ipse dixit”, at least with respect to the reflux. Dr Berry explained that the small hiatus hernia was not the cause of the applicant’s reflux because he was not overweight. This was not the subject of any comment by Dr Truskett.
Dr Truskett failed to address the precise nature of the applicant’s claim, namely whether the ingestion of pain killing medication could, and in fact did, cause issues with his upper digestive system as suggested by Drs Chen and Berry.
It is well known that inflammatory medications such as Celebrex can cause side effects that include stomach pain, heartburn, gas, diarrhoea, constipation, nausea and vomiting. The applicant reportedly experienced some of these symptoms, and Dr Truskett failed to comment on the possibility that the applicant’s medication could have caused issues with his upper digestive system. At least he acknowledged that the applicant’s constipation was secondary to his medication intake.
Therefore, despite Mr McMahon’s submission that the issue that is sought to be raised has merit and is of substance, the evidence of Dr Truskett is lacking and raises issues about the weight that be given to his report.
It is true that the Commission has a statutory obligation to facilitate the just, quick and cost effective resolution of real issues and it is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.

In order to fulfill these obligations, one has to weigh up the respective rights of the parties. The respondent had ample opportunity to dispute the applicant’s claim and failed to do so in accordance with its statutory obligations. If leave is granted, the finalisation of the claim will be further delayed, and this would be unfair and more prejudicial to the applicant.
Whilst this is only a preliminary issue to determine, both counsel have made submissions regarding the documentary and medical evidence that would most likely mirror those that would be made at an arbitration hearing if leave was granted.
I am not satisfied that the views of Dr Truskett warrant the granting of leave and even if leave was granted, the respondent’s prospects of a success would be highly unlikely, given the reservations that I have expressed about the deficiencies in the respondent’s evidence.
Accordingly, the respondent’s application for leave to dispute that the applicant developed a consequential condition in his upper digestive tract is declined.

Should the surveillance footage be referred to the Medical Assessor?

Section 321(1) of the 1998 Act gives the President the power to refer a medical dispute concerning the permanent impairment of an injured worker to a Medical Assessor.
Rule 33 of Div 5 of Pt 5 of the Rules deals with the production of recordings, film, and electronic documents. It provides:
“33 Production of recordings, films and electronic documents
(1)     This rule applies to each of the following documents if a party to applicable proceedings proposes to rely on the document—
(a) a video recording,
(b) an audio recording,
(c) a film or photograph,
(d) medical imaging, including an x-ray, CT scan, MRI scan or ultrasound,
(e) a document produced or received by electronic means.
(2)     If a document to which this rule applies consists of a surveillance recording or image, an investigator’s report concerning the material—
(a) must clearly and unambiguously identify the recording or image, and
(b) is, for the purposes of subrule (3), taken to be part of the document.
(3)     A document to which this rule applies is, subject to this rule, a document for the purposes of rule 67.
(4)     For a document referred to in subrule (1)(d)—
(a) the original film or scan is not to be lodged with the Commission,
and
(b) the lodging and service of a list describing and clearly identifying the film or scan satisfies the lodging and service requirements of rule 67, and
(c) the original film or scan may be taken or delivered to a medical assessor conducting a medical assessment.”
Clauses 2.25 and 2.26 of Part 2 of the SIRA NSW Workers Compensation Medical Dispute Assessment Guidelines are of relevance to the current dispute regarding the admission of surveillance evidence, although they still refer to the former rules of the Commission. They provide:
“2.25 When the Registrar refers the matter to the AMS, the Registrar is to provide the AMS with:
2.25.1 all documentation admitted on behalf of a party to proceedings relevant to the medical dispute referred in compliance with the 2016 Regulation
2.25.2 any applicable provisions of the Workers Compensation Commission Rules 2011, and
2.25.3 any orders of a Court or the Commission.
2.26 The Commission file may contain video surveillance material obtained as part of investigators’ reports. Video surveillance shall not be disclosed to the AMS unless ordered by the Commission in exceptional circumstances.”
So, according to these clauses, only “relevant” documentation regarding the medical dispute is to be provided to the Medical Assessor, and video surveillance shall only be disclosed to the Medical Assessor in “exceptional circumstances”.
Rule 67(1) of Pt 7 of the Rules contains a similar requirement and states that the documents must be “relevant” to the resolution of the real issues in the proceedings. It provides:
“67 Material to be lodged in applicable proceedings
(1) A party to applicable proceedings must lodge and serve on the other parties, with an application to commence proceedings or a reply to an application, the following—
(a) the information and documents relevant to the resolution of the real issues in the proceedings on which the party proposes to rely that—
(i) are in the possession or control of the party, and
(ii)that have not been lodged by a party in the current proceedings,
(b) the information or documents required to be provided with the application or reply by—
(i) the approved form for the application or reply, or
(ii) these Rules, or
(iii) the procedural directions.”
Rule 109 of Div 11.2 of Pt 11 of the Rules deals with surveillance recordings. It provides:
“109 Surveillance recordings
(1) A party to proceedings may not submit a surveillance recording to a medical assessor in medical assessment proceedings for the purposes of the workers compensation 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 submitted.
(2) A party who wishes to submit a surveillance recording must—
(a) lodge the recording with the application or reply lodged by the party,
and
(b) serve the recording on the other parties.
(3) The claimant may file a response addressing the surveillance recording within 7 days of the date on which the surveillance recording was served on the claimant.”

In this matter, the respondent complied with rules 33 and 67 of the Rules, in that it served a copy of the surveillance report and the surveillance footage when the Reply was filed in the Commission on 21 June 2022. This evidence might well be relevant to the issue in dispute, namely the degree of whole person impairment, although Drs Powell and Dias declined to alter their assessments of whole person impairment after they viewed the surveillance footage. Therefore, are there exceptional circumstances to justify its inclusion in the file to be reviewed by the Medical Assessor?
In Yacoub, Campbell JA discussed the term “exceptional circumstances” with reference to the Uniform Civil Procedure Rules 2005 (NSW). He stated:
“Another question of construction concerned ‘exceptional circumstances’ in rule 31.18(4).In San v Rumble (No 2)(2007) NSWCA 259 at [59]-[69], I gave consideration to the expression ‘exceptional circumstances’ in a different statutory context to the present. Without repeating that discussion in full, I shall state such of the conclusions as seem to me applicable in the construction of rule 31.18(4).
(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: R v Kelly (Edward) [1999] UKHL 4; [2000] 1 QB 198 (at 208).
(b) Exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors: R v Buckland [2000] EWCA Crim 1; [2000] 1 WLR 1262; [2000] 1 All ER 907 (at 1268; 912–913).
(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: Ho v Professional Services Review Committee No 295 [2007] FCA 388 (at [26]).
(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: R v Buckland (at 1268; 912–913).
(e) Beyond these general guidelines, whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case: Awa v Independent News Auckland [1996] 2 NZLR 184 (at 186).”[11]
[11] Yacoub, [66].
So, it seems that exceptional circumstances are unusual, special and/or uncommon. They can be a single instance or comprise multiple factors, and they depend on a consideration of the facts and the nature of the circumstances.
In this matter, the surveillance report already forms part of the evidence and will be available for review by the Medical Assessor. It has been drafted by an unnamed investigator who has reported on his or her interpretation of the applicant’s activities in late May 2022. The description of these activities might or might not be correct.
According to Dr Powell, the activities demonstrated on the surveillance footage suggested that the applicant had a greater physical capacity and tolerances than he described in his statement dated 19 May 2022.
Although Mr McMahon submits that the surveillance footage shows activities that directly contradict the evidence in his statement, I do not necessarily agree that this amounts to an exceptional circumstance, particularly as both doctors who viewed the footage maintained their previous assessments of impairment.
The significance of the footage also has to be weighed up with the contents of the applicant’s last statement where he explained the activities and how he felt afterwards. Of course, this later statement was not referred to Dr Powell for comment, so we do not know if the doctor’s views might have altered if he was provided with this additional evidence.
According to cl 1.6 of Pt 2 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (the Guidelines), the assessment of permanent impairment by a Medical Assessor involves clinical assessment of the injured person on the day of the assessment. The Medical Assessor is obliged to consider the relevant medical history and all available relevant medical information.
Clause 1.36 of the Guidelines provides guidance for the Medical Assessor where the injured person presentation is inconsistent. The Medical Assessor has to use “their entire range of clinical skill and judgment” to reach his or her own conclusion, irrespective of what another specialist might have found, and assess the worker as at the date of his or her examination. The doctors who have examined the applicant accept that he was genuine in his presentation during their examinations and there were no inconsistencies.
It is true that the parties might suffer prejudice by the admission or exclusion of the footage, but I consider that the prejudice is evenly matched. There is no compelling reason for the Medical Assessor not to view the footage because he or she will have access to the investigation report. The footage was taken three months ago, and it might not necessarily show the extent of the applicant’s injuries at the time of the examination later this year or early next year.
Rule 73 of Pt 8 of the Rules dictates that the evidence should be logical, probative, and relevant to the facts in issue and the issues in dispute. It is unlikely that this footage has any of these features, given the comments of Drs Dias and Powell, but ultimately that will be a question for the Medical Assessor. I have viewed the footage and from the perspective of a lay person, it seems unremarkable.
The applicant had a two stage spinal fusion, and in accordance with the Guidelines, he is to be assessed under DRE category IV (Table 15-3 in AMA5). That provides a range of 20% to 23% whole person impairment. Dr Powell assessed 23% whole person impairment and allowed a further 3% for persisting radiculopathy, giving a total of 25% whole person impairment before he applied a 50% deduction.
In Yacoub, Campbell JA said that in deciding whether exceptional circumstances were present, it was necessary to consider the objectives set out in ss 56 to 59 of the Civil Procedure Act 2005. In the Commission, the objectives are set out in ss 42 and 43 of the Personal Injury Commission Act 2020.
I am mindful of the fact that the surveillance footage was served on the applicant with the Reply, the qualified specialists have both had the opportunity to view and comment on the footage, and both had no reason to alter their opinions, suggesting perhaps that it is not relevant. Ultimately it will be a question for the Medical Assessor as to whether this footage is relevant to the assessment of the whole person impairment of the applicant’s lumbar spine and digestive system.
The applicant has provided a statement that addresses the activities depicted on the footage. The Medical Assessor will have access to this statement and to the report which may or may not accurately describe the applicant’s activities, and the Medical Assessor will undoubtedly ask the applicant about the activities.
Whilst I am not satisfied that the footage is unusual, special or uncommon to justify it being classified as an “exceptional circumstance”, and even though I doubt its probative value, in the interests of justice for both parties, I consider that the surveillance footage of the applicant’s activities in May 2022 should be admitted into evidence and be included in the file to be reviewed by the Medical Assessor.
I have only referred to a single Medical Assessor throughout this determination, but it is likely that the applicant will be examined by two Medical Assessors, given the nature of this claim.

FINDINGS

The respondent’s application pursuant to s 289A (4) of the 1998 Act for leave to rely on un-notified matters is denied.
I remit the matter to the President for referral to a Medical Assessor(s) pursuant to s 321 of the 1998 Act for assessment of whole person impairment as follows:
(a) Date of injury: 22 August 2018 (deemed) – Disease.
(b) Body system / part:
i.lumbar spine;
ii.scarring (TEMSKI), and
iii.digestive system.
The documents to be reviewed by the Medical Assessor(s) are:
a.     Application to Resolve a Dispute and attached documents;
b.     Reply and attached documents;
c.     Application to Admit Late Documents filed by the applicant on 2 August 2022;
d.     Application to Admit Late Documents filed by the respondent on 8 August 2022;
e.     surveillance footage taken on 21 May 2022 and 24 May 2022, and
f.     a copy of this Certificate of Determination.
Liberty to the respondent to apply within 21 days if it seeks to rely upon a further report from Dr Truskett.

[2022] NSWPIC 475

29 August 2022