Lucas v State of New South Wales (Fire & Rescue NSW)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Lucas v State of New South Wales (Fire & Rescue NSW) [2025] NSWPIC 130
APPLICANT:	Marion Lucas
RESPONDENT:	State of New South Wales (Fire & Rescue NSW)
MEMBER:	Michael Wright
DATE OF DECISION:	7 April 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; application by employer for reconsideration of Medical Assessment Certificate; consideration by Medical Assessor (MA) of further documents lodged shortly before examination by MA; consideration of Procedural Direction PIC7; Held – application declined; competing timeframes of the parties; longer timeframe for explanation preferred.
DETERMINATIONS MADE:	The Commission determines: 1. The application by the respondent employer for reconsideration by the Medical Assessor of the Medical Assessment Certificate dated 5 November 2024, pursuant to s 329(1A) of the Workplace Injury Management and Workers Compensation Act 1998, is declined. 2. Respondent employer is to pay the applicant worker’s costs of this application. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

In an Application to Resolve a Dispute (ARD), Ms Marion Lucas (the worker) claimed lump sum compensation in respect of primary psychological injury deemed to have happened on 15 November 2019 in the course of her employment with State of New South Wales (Fire & Rescue NSW), (the employer). The ARD identified the only matters in dispute as being lump sum compensation where the degree of permanent impairment is in dispute and compensation for pain and suffering. A lump sum compensation claim “where liability in dispute” was not identified.
A Reply was registered on 23 September 2024. The matter in dispute was identified as per an exchange of offers. A notified liability dispute was not identified in the Reply.
As there was no liability dispute, the Personal Injury Commission (Commission) referred the matter directly to a Medical Assessor in accordance with the Commission’s usual procedure.
A “Referral for Assessment of Permanent Impairment to Medical Assessor” (the referral) dated 24 September 2024 was issued. Dr Singh was nominated as the Medical Assessor, the referral specified the brief provided to the Medical Assessor to “include” the Application and Reply and attached documents. Among the documents attached to the ARD was a letter to the workers compensation insurer from the applicant’s solicitors dated 22 December 2022 making a lump sum compensation claim for the subject injury. Among the documents attached to the Reply was a report of Dr Nagesh dated 5 April 2023 and a “Desktop Investigation” report by Lee Kelly and Associates dated 21 January 2023 (the Lee Kelly report).
The employer lodged an Application to Admit Late Documents (AALD) dated 10 October 2024 with attached “Desktop Investigation Report” by Procare dated 4 October 2024 (the Procare report).
An email from the Commission dated 10 October 2024 to the worker’s solicitor, copied to the employer’s solicitor, referring to the AALD dated 10 October 2024 and requesting consent or objection and noting the medical assessment scheduled for 15 October 2024. The email stated that if an objection was received then the documents would be referred to a Member for consideration.
A Medical Assessment Certificate (MAC) of Medical Assessor Singh dated 5 November 2024 was issued following examination on 15 October 2024.
An appeal against the decision of Medical Assessor Singh was lodged by the employer on
3 December 2024. This appeal is being dealt with separately in the Commission’s appeal process.
On 4 December 2024 the employer lodged an application for reconsideration of the MAC, by way of letter dated 3 December 2024. Attached to that letter were written submissions by the employer’s solicitor, as well as documents relied upon in the application.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
At the conciliation/arbitration hearing of this matter on 12 March 2025, the applicant was represented by Mr Stockley of counsel, instructed by Ms Berzins, solicitor, and the respondent by Ms Goodman of counsel, instructed by Ms Mikaelian, solicitor.

EVIDENCE

Documentary evidence

The following documents were in evidence in this reconsideration application determination before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents,
(b)    Reply and attached documents;
(c)    AALDs dated 10 October 2024 and attached documents,
(d)    Applications to Lodge Additional Documents dated 18 December 2024 and 14 January 2025 and attached documents, and
(e)    Application for reconsideration by way of letter from the employer’s solicitors dated 4 December 2024, enclosing submissions and supporting documents.

13. It is noted that the worker did not object to the admission of these documents in these reconsideration proceedings, but reserved her position in respect of other proceedings.

Oral evidence

There was no oral evidence.

REASONS

The employer sought reconsideration by the Medical Assessor of the MAC pursuant to
s 329(1A) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), in order to consider the Desktop Investigation report dated by Procare dated
4 October 2024, and the report of Dr Nagesh dated 17 December 2024,
Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes, (PD PIC7), applies in this matter. In particular clauses 62 and following apply. Those clauses provide as follows:
“62. Section 329(1A) external site of the 1998 external site Act provides that the President may refer a medical assessment under Pt 7 of Ch 7 external site to a medical assessor for reconsideration.
…
64. The reconsideration application must identify the grounds for reconsideration, and the decision or assessment sought on reconsideration. Submissions must be attached, divided into numbered paragraphs with appropriate subheadings, addressing:
(a) each ground for reconsideration;
(b) where relevant, the circumstances that justify any delay in the making of the reconsideration application, and
(c) where relevant, why the decision should be reconsidered, rather than appealed.
…
66. If a party seeks to rely on fresh evidence, additional evidence or substituted evidence in relation to a ground for reconsideration, they must provide:
(a) a schedule of the evidence, including the author and date of the evidence;
(b) a clear copy of the evidence;
(c) submissions as to why the evidence is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision made, and
(d) submissions as to why the evidence was not available to, and could not reasonably have been obtained by, the party before the decision was made.”
I will refer to relevant aspects of the material before me in these reasons, rather than providing a summary.
The employer in its submissions paid close attention to the chronology of events after the lodgement of the ARD. It submitted that upon receiving instructions the employer’s solicitor commissioned the Procare report on 3 October 2024, and that report was issued the next day, received by the employer’s solicitor on 8 October 2024, and was promptly served and thereafter lodged with the Commission. This was not in dispute.
The employer submitted that the worker’s solicitor did not respond to the Commission’s email of 10 October 2024, and it was said, that failure was compounded by the Commission’s failure to postpone the examination by the Medical Assessor or at least to refer the matter to a member for consideration. It was submitted that the employer has been prejudiced because the Procare report, together with the report of Dr Nagesh dated 17 December 2024 with opinion and commentary on the Procare report, were relevant to the consideration of the PIRS categories. It was submitted that the Procare report revealed relevant matters such as cycling and hiking, and that Dr Nagesh accepted that the contents of the report were the basis for a reduced assessment of PIRS categories, and hence a reduced degree of permanent impairment.
I do not accept these submissions. The Commission’s email of 10 October 2024 reminded the parties of the approaching examination appointment with the Medical Assessor on
15 October 2024. That email did not go further than saying that a referral to a Member would take place if an objection was received. An objection was not received.
There was no statement in that email that the documents would be referred to the Medical Assessor if no objection was received. Although this was an ambiguity, it was an ambiguity that was present and discernible. It was not a complex or lengthy communication. Given the potential prejudice to which the employer now points, it was a matter that the employer could and should have clarified and acted upon.
The employer was not a passive actor in these proceedings. It is not uncommon for a party in proceedings in the Commission to seek clarification and to request a conference. The employer could have kept the matter under review and sought clarification and a conference at the expiry of the specified three days. It appears that it did not.
There was no evidence or explanation before me as to the reason for the employer not taking or not continuing an active approach and seeking clarification and such a conference at the expiry of three days. This in my view was a delay by not acting when the employer could have acted. While it might appear that this delay by the employer was only small in time, it was in any event significant, in my view. In this sense, the employer now seeks a remedy for an outcome which could have been avoided.
On this basis alone, the application by the employer fails on account of its own actions or inactions, and the failure to provide an explanation in this regard. While PDPIC7
cls 3 and 4 provide for the discretionary application of that Procedural Direction, in my view the above circumstances do not support such discretionary relief.
However, there were other matters raised by the employer and also by the worker which I will deal with, if I am wrong above.
The employer pointed to prejudice in being prevented from providing to the Medical Assessor the Procare report, and the supplementary report of Dr Nagesh commenting on the Procare report. This requires consideration of the substance of those documents, as well as the substantive report of Dr Nagesh and the Lee Kelly report.
The Lee Kelly report was given with a number of caveats. It was relevantly stated that:
“A range of factors limited our activities and the value of our findings including:
4.1. Nature of information collected. Information collected from online sources is   circumstantial. Key questions will always exist regarding the true authors of online activities. Notwithstanding that, a long-term view of online behaviour, focusing on consistency, patterns and style typically eliminates many doubts as to the author of online content.
… 4.3. Technical issues. Periodically our technology is disrupted by the way that the social   sites publish their data. Notwithstanding that, we have collected a significant volume of   material.
…
6.2. Material collected in online research or investigations is circumstantial and needs to be   corroborated by other forms of evidence.”
These caveats were properly made. They are in my view telling. As was implicitly acknowledged in these limitations, the “Desktop Investigation” reports in this matter may form the basis of further investigation and evidence, but in my view standing alone they are of little weight without more.
As was submitted by the worker, the Lee Kelly report was commissioned by, and provided to the employer, that is its insurer, prior to the report of Dr Nagesh. Dr Nagesh did not list the Lee Kelly report in his extensive list of documentation reviewed. I infer that he was not provided with that report and therefore did not consider it.
The Lee Kelly report was before Medical Assessor Singh.
Curiously, the Procare report stated no such caveats. In my view the caveats expressed in the Lee Kelly report also apply to the Procare report. In any event the Procare report relevantly stated that “we believe a period of surveillance would be beneficial to observe and identify an activity pattern for the Claimant.” The meaning of “activity pattern” was not defined or identified. However, this in my view was an indication that evidence in support was suggested.
As to the matters canvassed in the Lee Kelly and Procare reports, both noted various activities including cycling and hiking with reference to a “Strava Profile”, and “Zwift”, among other matters. There was no discussion in the reports of the nature and limitations of information extracted from these applications or services, which were in any event not explained at all.
There was some consideration in submissions of attendances at rides in Scotland, London and New York. There was no evidence that the worker attended these events in person, and indeed the reproduced entries strongly suggest to me that they were virtual attendances, that is an online attendance from another site, such as an exercise bike at home.
In my view, the entries noted in the “Desktop Investigation” reports illustrate the very issues that were referred to in the caveats discussed above. These entries in my view had a high potential to mislead without further evidence. They were accordingly of low probative value, and as a result, the Procare report was of low probative value.
It follows that the matters noted in the Procare report were not inconsistent with, or contrary to, the matters that were already before Medical Assessor Singh. The history recorded by Medical Assessor Singh was not inconsistent with matters in the Procare report, and I accept the worker’s submissions in this regard. The matters considered in the PIRS assessment were not contradicted by matters of any weight from the Procare report.
The report of Dr Nagesh dated 17 December 2024 relied upon the Procare report in considering the PIRS assessment with respect to the findings in the MAC. I accept the worker’s criticism that this involved an unquestioning acceptance by Dr Nagesh of the Procare report, such as the worker being “able to travel independently to faraway and unfamiliar places”. I have found the Procare report to be of low probative value. Accordingly, the report of Dr Nagesh is to be given little weight in these circumstances.
In my view, the substance of the Procare report and the report of Dr Nagesh do not support the prejudice argument submitted by the employer. They do not provide the basis for an acceptance of the application for reconsideration.
To some extent, the arguments put by the parties involve a tale of two competing chronologies. For the employer, the chronology is narrow, that is from the lodgement and service of the ARD. For the worker, the chronology is broader, from the making of the lump sum compensation claim.
The Lee Kelly report was commissioned on 11 January 2023, and then provided on
21 January 2023, following the making of the lump sum claim on 22 December 2022. In my view the broader chronology should be considered against that background. In my view, it is not a matter of explaining what the employer’s solicitor did following receipt of instructions in Commission proceedings. It is a matter for the employer, that is its workers compensation insurer, to explain what it did or did not do from the receipt of the lump sum compensation claim. It is the employer who argues procedural unfairness and prejudice in not being permitted to agitate matters said to be revealed in the Procare report, when the Lee Kelly report was already in its possession and had been provided to the Commission. The Lee Kelly report dealt with matters similar to the Procare report.
I accept the worker’s submission that when regard is to be had to cl 66 of PDPIC7, then it is necessary to consider submissions as to why the evidence is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision made, and submissions as to why the evidence was not available to, and could not reasonably have been obtained by, the party before the decision was made. This in my view necessitates a consideration of matters commencing with the lodgement of the lump sum compensation claim, for the reasons identified above.
There was no explanation as to why the Lee Kelly report was not provided to Dr Nagesh. The opinion of Dr Nagesh could have had regard to the Lee Kelly report initially, or by way of update at some later time, but no explanation was provided of this. There was no explanation as to why a further report was not requested from Procare until about 3 October 2024.
I accept the worker’s submission that at the time of the referral on 24 September 2024, no issue had been raised as to the meaning of the matters identified in the Lee Kelly report. An explanation of why this was the case was not provided.
In my view, the employer has not satisfied the requirements of cl 66, particularly
cl 66(d).
I decline the application for reconsideration.

[2025] NSWPIC 130

7 April 2025