Moyes v CASPA Services Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Moyes v CASPA Services Ltd [2024] NSWPIC 30
APPLICANT:	Joshua Moyes
RESPONDENT:	CASPA Services Limited
MEMBER:	Karen Garner
DATE OF DECISION:	25 January 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for permanent impairment benefits pursuant to section 66; respondent served a Notice for Production on applicant requiring production of applicant’s bank records and passport; applicant objected to the Notice for Production; whether applicant required to comply with a Notice for Production requiring production of applicant’s bank records and passport; whether Notice for Production should be set aside; Held – the Notice for Production is wholly set aside pursuant to rule 41(5)(a) of the Personal Injury Commission Rules 2021; matter is remitted to the President for referral to a Medical Assessor for assessment of whole person impairment.
DETERMINATIONS MADE:	The Commission determines: 1. The Notice for Production served by the respondent on the applicant on 14 December 2023 is wholly set aside, pursuant to rule 41(5)(a) of the Personal Injury Commission Rules 2021. The Commission orders: 2. The matter is remitted to the President for referral to a Medical Assessor for assessment as follows: Date of injury: 13 October 2023 (deemed) Body parts: psychological and psychiatric Method: whole person impairment. 3. The materials to be referred to the Medical Assessor are to include: (a) the Application to Resolve a Dispute and attachments, and (b) the Reply to the Application to Resolve a Dispute and attachments.

STATEMENT OF REASONS

BACKGROUND

Joshua Moyes (the applicant) was employed by CASPA Services Limited (the respondent) as a therapeutic care worker.
The applicant claims, pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act), permanent impairment compensation of $67,720 in respect of 22% whole person impairment (WPI) as a result of psychological and psychiatric disorders with a deemed date of injury of 13 October 2023.
The respondent issued the applicant with notices dated 6 July 2023 and 13 October 2023 respectively, pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998.
The respondent accepted that the applicant sustained a primary psychological injury but denied liability for permanent impairment compensation on the ground that the applicant’s accepted primary psychological injury has not resulted in at least 15% permanent impairment as required by s 65A(3) of the 1987 Act.
On 14 December 2023, the respondent served on the applicant a Notice for Production (the Notice for Production), requiring production of:
(a) all statements, records of deposits and records of withdrawal from all accounts (including credit card accounts) held with any bank or other financial institution in your name solely or jointly with another person or entity and/or on your behalf by another persons of [sic] entity over the period 15 November 2018 to the current date, and
(b) any passport belonging to you issued and/or valid from 2013 to current date.
The applicant objects to producing any of the documents sought in the Notice for Production.

ISSUES FOR DETERMINATION

The parties agree that the following issue is in dispute:
(a) whether the applicant is required to comply with the Notice for Production.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for preliminary conference on 23 January 2024. Mr Walker of Walker Law Group appeared for the applicant. Mr Galea of HWL Ebsworth appeared for the respondent.
The respondent confirmed that the applicant had sustained a psychological injury and that the degree of permanent impairment suffered by the applicant as a result of the psychological injury was a matter for a Medical Assessor.
The applicant confirmed that it objected to the Notice for Production and the parties requested that issue be determined by me prior to any referral to a Medical Assessor.
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.

EVIDENCE

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) Application to Resolve a Dispute (Application) and attached documents, and
(b) Reply to Application (Reply) and attached documents.
There was no oral evidence.
Given the limited issue that requires determination, it is unnecessary that I discuss the evidence in detail and I will refer only to some evidence which is particularly pertinent.
The evidence included reports of desktop investigations which were undertaken on behalf of the respondent.
In his statement, the applicant responded to matters set out in reports of the desktop investigations. The applicant denied various allegations contained in the reports of desktop investigations, including: the applicant denied that he had undertaken or been paid for any performing arts work since the injury; the applicant denied that he was overseas on a specific date.

SUBMISSIONS

Applicant’s submissions

In summary, the applicant submitted that:
(a)    the applicant’s bank records and passport are not relevant to assessment of permanent impairment by a Medical Assessor;
(b)    such documents may be relevant to a claim for weekly compensation;
(c)    however, the present proceedings involve a claim for permanent impairment compensation;
(d)    the applicant has been given notice that his weekly compensation may cease in the future pursuant to s 39 of the 1987 Act;
(e)    the respondent’s Notice for Production is a “fishing expedition”;
(f)    both the applicant’s independent medical expert and the respondent’s independent medical expert assessed the applicant’s degree of WPI and did not indicate any necessity to obtain any further information to assist in their assessment;
(g)    the applicant’s statement adequately deals with the relevant matters, and
(h)    the Notice for Production should be refused.

Respondent’s submissions

In summary, the respondent submitted that:
(a)    the respondent does not dispute liability for the alleged injury;
(b)    the issue in dispute relates to the degree of the applicant’s permanent impairment as a result of the injury;
(c)    the applicant’s bank records and passport are relevant to assessment of psychiatric impairment by a Medical Assessor, in particular under the categories of social and recreational activities, travel and employability;
(d)    the respondent was prompted to issue the Notice for Production because the Application included a statement of the applicant which had not previously been served on the respondent, which responded to reports of desktop investigations and provided inconsistent information;
(e)    the respondent requires the Notice for Production to enable it to objectively verify the applicant’s statement and to enable the respondent’s independent medical expert to comment;
(f)    the respondent denies that the Notice for Production is a “fishing expedition”;
(g)    the respondent legitimately requires the documents, particularly the applicant’s bank records, to clarify an inconsistency between the applicant’s statement and the reports of desktop investigations;
(h)    the matter should not be referred to a Medical Assessor until the respondent has had an opportunity to consider the documents sought and to determine whether any further evidence should be put to a Medical Assessor, and
(i)    alternatively, the assessment by a Medical Assessor could proceed without delay and produced documents could be provided to the Medical Assessor at a later time but prior to completion of any Medical Assessment Certificate.

Applicant’s submissions in reply

In summary, the applicant submitted in reply that:
(a)    the appropriate order to be made is that the matter is referred to a Medical Assessor on the basis of the material presently before the Commission;
(b)    the respondent had the applicant’s statement in its possession since at least December 2023 and the respondent has not obtained any supplementary report of its independent medical expert in relation to any alleged inconsistency between the applicant’s statement and the report of the desktop investigation;
(c)    the respondent has had ample time to address any such alleged inconsistency;
(d)    the applicant’s statement simply responds to the reports of the desktop investigations;
(e)    a tentative date has been scheduled for assessment by a Medical Assessor and there is no basis to defer that;
(f)    production of the documents sought would result in delay of assessment by a Medical Assessor which would likely prejudice the applicant’s timely receipt of permanent impairment benefits in circumstances where liability for injury is not disputed;
(g)    production of the documents sought would result in delay of assessment by a Medical Assessor which would likely prejudice the applicant’s entitlement to ongoing weekly compensation pursuant to s 39 of the 1987 Act, particularly having regard to the notice that was issued to the applicant in relation to his weekly compensation entitlements, and
(h)    in relation to the respondent’s alternative proposal, it is never satisfactory for a Medical Assessor not to be in possession of all relevant evidence at the time of the assessment of the worker because the Medical Assessor loses the opportunity to question the applicant regarding any relevant matters.

CONSIDERATION

Rule 39 of the Personal Injury Commission Rules 2021 (the Rules) states:
“39 Notice for production
A requesting party may serve a notice for production on a producer at the producer’s address for service requiring the producer to produce for inspection a document that is—
(a) clearly identified in the notice, and
(b) relevant to a fact in issue in the proceedings.”
Rule 40 of the Rules states:
“40    Time for service and production
(1)     A notice for production must be served on the producer within 21 days of registration of the application that initiated the proceedings.
(2)     A producer must comply with a notice for production within 7 days of the date on which the notice was served on the producer.”
Rule 41 of the Rules states:
“41 Compliance with notice for production
(1)     A producer must comply with a notice for production by delivering to the requesting party, at the requesting party’s address for service and within the time required by rule 40(2), a clear copy of the document referred to in the notice that is—
(a) in the possession or control of the producer, and
(b) not the subject of a notice of objection referred to in subrule (2).
(2) A producer must also serve on the requesting party, at the requesting party’s address for service and within the time required by rule 40(2), a notice of objection concerning a document that has not been delivered, stating—
(a) the document is not suitable for copying but may be inspected at a specified place and time and on a date within 7 days of the date on which the notice of objection was served on the requested party, or another date agreed to by the parties, or
(b) the document is privileged and the reasons for the claim of privilege, or
(c) the document is not relevant to a fact in issue in the proceedings and the reasons why it is not relevant, or
(d) if the producer is a claimant—an amount sufficient to meet the reasonable expenses of complying with the notice for production has not been paid, and the reasons for making the assertion, or
(e) the document has already been produced to the requesting party, or
(f) the document is, to the best of the producer’s knowledge or belief, in the possession or control of another specified person, or
(g) the producer has no knowledge of the document’s existence or location, or
(h) another objection to production and the reasons for the objection.
(3)     A requesting party who wishes to oppose a notice of objection must, within 2 working days of the date on which the notice of objection was served on the requesting party, lodge, and serve on the other parties, a notice of opposition.
(4)     The notice of opposition must—
(a) set out the reasons for the opposition, and
(b) attach a copy of the notice for production and the notice of objection.
(5)     The Commission or the President may determine an objection to a notice for production by—
(a) setting aside the notice for production wholly or in part, or
(b) directing the documents be produced to the requesting party or the Commission, or
(c) making another order the Commission or the President thinks fit.
(6)     If a producer fails to comply with a notice for production in workers compensation proceedings—
(a) the requesting party may, by written notice to the principal registrar within 2 working days after the time for compliance has expired, request that the principal registrar refer the matter to the Authority for consideration of the prosecution of an offence under section 290(2) of the 1998 Act, and
(b) the Commission may, on the application of the requesting party or of its own motion, make a determination as to costs under Chapter 7, Part 8, Division 3 of the 1998 Act as it thinks fit, subject to the applicability of section 341 of the 1998 Act as in force before 1 October 2012.
(7)     To avoid doubt, the President may exercise a function of the Commission under subrule (6)(b) in addition to, or instead of, making an order under section 290(6)(c) of the 1998 Act.”
Rules 39 and 41 require that a document requested in a Notice for Production be relevant to a fact in issue in the proceedings.
The issue of whether a Notice for Production should be set aside has been recently considered by Member Homan in Kovacs v Strathfield Municipal Council[1] (Kovacs), which was cited by Senior Member Haddock in Nacol v Kmart Australia Limited.[2] In Kovacs, Member Homan referred to the decision of a Full Court of the Federal Court of Australia in Wong v Sklavos[3] in which it was stated:
“The party issuing a subpoena bears the onus of demonstrating that the subpoena has a legitimate forensic purpose in relation to the issues in the proceedings: Santos Ltd v Pipelines Authority of South Australia[1996] SASC 5578; (1996) 66 SASR 38 at 52.A subpoena may be set aside if it requires the production of documents which do not have apparent relevance to the issues arising on the pleadings: Trade Practice Commission v Arnotts Ltd (No 2)[1989] FCA 248; (1989) 88 ALR 90; Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 4) [2010] FCA 398; (2010) 269 ALR 76 at [39]- [40]; McHugh v Australian Jockey Club Limited[No 2][2011] FCA 724 at [13]; McIlwain v Ramsey Food Packaging Pty Ltd[2005] FCA 1233; (2005) 221 ALR 785 at [35]; Dorajay Pty Ltd v Aristocrat Leisure Ltd[2005] FCA 558 at [17]. Other cases have used different terminology, but with essentially the same effect, for example, by requiring that, viewed realistically, the documents sought have a bearing on an issue which is not unreal, fanciful or speculative (R v Barton (1981) 2 NSWLR 414 at 420), or that the material sought is reasonably likely to add in some way to the relevant evidence in the case (Spencer Motors Pty Ltd v LNC Industries Ltd (1982) 2 NSWLR 921 at 927), or that it be ‘on the cards’ that the documents sought will materially assist the party at whose request the subpoena has been issued: Allister v The Queen[1984] HCA 85; (1984) 154 CLR 404 at 414; Tamawood Ltd v Habitare Developments Pty Ltd[2009] FCA 364 at [13], [35]-[38].”
[1] [2023] NSWPIC 611.
[2] [2023] NSWPIC 668.
[3] [2014] FCAFC 120.
The party seeking the production of documents bears the onus of showing, expressly and precisely, the apparent relevance of the documents sought to the issues in dispute.
Although the rules of evidence do not apply in Commission proceedings,[4] the Commission may be guided by those principles in the conduct of the proceedings that come before it. Rule 73 of the Rules requires the Commission to bear in mind that evidence should be logical and probative, relevant to the facts in issue and issues in dispute, and that evidence based on speculation or unsubstantiated assumptions is unacceptable, and unqualified opinions are unacceptable.
[4] Section 43 of the Personal Injury Commission Act 2020.
The key issue in dispute in this matter is the degree of permanent impairment suffered by the applicant as a result of the psychological injury.
Principles of assessment are set out in Part 2 of Chapter 1 of the SIRA Guidelines for the Evaluation of Permanent Impairment (Guidelines), which states:
“1.6 The following is a basic summary of some key principles of permanent impairment assessments:
a.Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking account the claimant’s relevant medical history and all available relevant medical information to determine:
·whether the condition has reached Maximum Medical Improvement (MMI)
·whether the claimant’s compensable injury/condition has resulted in an impairment
·whether the resultant impairment is permanent
·the degree of permanent impairment that results from the injury
·the proportion of permanent impairment due to any previous injury, pre-existing condition or abnormality,
·if any, in accordance with diagnostic and other objective criteria as outlined in these Guidelines.
b.Assessors are required to exercise their clinical judgement in determining a diagnosis when assessing permanent impairment and making deductions for pre-existing injuries/conditions.
c.In calculating the final level of impairment, the assessor needs to clarify the degree of impairment that results from the compensable injury/condition. Any deductions for pre-existing injuries/conditions are to be clearly identified in the report and calculated. If, in an unusual situation, a related injury/condition has not previously been identified, an assessor should record the nature of any previously unidentified injury/condition in their report and specify the causal connection to the relevant compensable injury or medical condition.
...”
In relation to the assessment of permanent impairment of psychiatric and psychological disorders, paragraph 11.6 of Chapter 11 of the Guidelines states:
“11.6 It is expected that the psychiatrist will provide a rationale for the rating based on the injured worker’s psychiatric symptoms. The diagnosis is among the factors to be considered in assessing the severity and possible duration of the impairment, but is not the sole criterion to be used. Clinical assessment of the person may include information from the injured worker’s own description of his or her functioning and limitations, and from family members and others who may have knowledge of the person. Medical reports, feedback from treating professionals and the results of standardised tests – including appropriate psychometric testing performed by a qualified clinical psychologist and work evaluations – may provide useful information to assist with the assessment. Evaluation of impairment will need to take into account variations in the level of functioning over time. Percentage impairment refers to whole person impairment (WPI)."
Paragraph 11.11 of Chapter 11 of the Guidelines states:
“Psychiatric impairment rating scale (PIRS)
11.11 Behavioural consequences of psychiatric disorder are assessed on six scales, each of which evaluates an area of functional impairment:
Self care and personal hygiene (Table 11.1) - Activities of daily living
Social and recreational activities (Table 11.2) - Activities of daily living
Travel (Table 11.3) - Activities of daily living
Social functioning (relationships) (Table 11.4)
Concentration, persistence and pace (Table 11.5)
Employability (Table 11.6).
11.12 Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the person’s age, sex and cultural norms.”

The respondent’s submissions did not detail or explain with specificity the particular inconsistencies which it alleges between the reports of the desktop investigations and the applicant’s statement which it requires the Notice for Production to address and nor did he detail how the documents sought would add to the relevant evidence. However, the respondent did submit that it relates to assessment of the applicant’s functional impairment on the scales of social and recreational activities, travel and employability.
The Medical Assessor will have available the applicant’s statement, the various medical evidence and desktop investigation reports by Procare Investigations dated 22 June 2020 and by AB Investigations dated 28 March 2023.
The applicant’s statement responds to information set out in the investigation reports.
In accordance with the Guidelines, the Medical Assessor will have the opportunity to clinically assess the applicant and to have regard to information from the applicant’s own description of his functioning and limitations, and from others who may have knowledge of the applicant, medical reports of the independent medical experts, information provided by treating professionals and the tests of relevant standardised tests. Evaluation of impairment will need to take into account variations in the level of functioning over time. The Medical Assessor will have the opportunity to question the applicant regarding any apparent inconsistencies in the evidence.
Considering the evidence as a whole that is presently before the Commission, I consider that the Medical Assessor will have adequate information to make an assessment in accordance with the Guidelines.
I note that the independent medical experts each provided assessments of WPI and did not indicate any inadequacy in the evidence in that regard. Further, the respondent has not provided any supplementary independent medical opinion which deals which addresses the further evidence of the applicant and any apparent inconsistency in the evidence.
Having regard to the evidence as a whole, I am not satisfied that the applicant’s bank records and passport are of apparent relevance to the issues in dispute and is likely to materially assist or add to the relevant evidence that is presently before the Commission in the case.
Pursuant to the s 42 of the Personal Injury Commission Act 2020, I am required to give effect to the guiding principle to facilitate the just, quick and cost effective resolution of the real issues in the proceedings. Having regard to the nature of the claim and the evidence as a whole that is before the Commission, I am satisfied that it would be contrary to the guiding principle to allow the Notice for Production that is sought by the respondent.
On that basis, I determine that the Notice for Production should be wholly set aside, pursuant to rule 41(5)(a) of the Rules.
Further, as the parties have agreed, it is appropriate that I remit the matter to the President to be referred to a Medical Assessor for assessment of permanent impairment on the basis of evidence that is presently before the Commission.

SUMMARY

Accordingly, I determine that:
(a) the Notice for Production served by the respondent on the applicant on 14 December 2023 is wholly set aside, pursuant to rule 41(5)(a) of the Rules.
Further, I order that:
(a)    The matter is remitted to the President for referral to a Medical Assessor for assessment as follows:
Date of injury:           13 October 2023 (deemed)
Body parts:               Psychological and psychiatric
Method:  Whole Person Impairment
(b)    The materials to be referred to the Medical Assessor are to include:
(i)the Application and attachments, and
(ii)the Reply and attachments.

[2024] NSWPIC 30

25 January 2024