Nacol v Kmart Australia Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Nacol v Kmart Australia Limited [2023] NSWPIC 668
APPLICANT:	Eelyana Nacol
RESPONDENT:	Kmart Australia Limited
SENIOR MEMBER:	Kerry Haddock
DATE OF DECISION:	12 December 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for permanent impairment compensation as result of accepted injury to right elbow, claimed to have resulted in complex regional pain syndrome, and injury to cervical spine, which is in dispute; applicant placed under surveillance; independent medical examiners qualified by respondent altered their opinion that applicant suffered from complex regional pain syndrome after being provided with the surveillance evidence; respondent served on applicant Notice for Production seeking production of bank records; applicant objected to producing records and sought to have the Notice for Production set aside; consideration of Millgate v Nationwide News Pty Ltd, R v Saleam, and Spencer Motors Pty Ltd v LNC Industries Ltd; Held – Notice for Production set aside wholly, pursuant to Personal Injury Commission Rules 2021, rule 41(5)(a).
DETERMINATIONS MADE:	The Commission determines: 1. The Notice for Production served by the respondent on the applicant on 25 October 2023 is set aside wholly, pursuant to Personal Injury Commission Rules 2021, rule 41(5)(a). 2. The conciliation/arbitration hearing date of 9 January 2024 is confirmed.

STATEMENT OF REASONS

BACKGROUND

The applicant, Eelyana Nacol (Ms Nacol) was employed by Kmart Australia Limited (the respondent) as a retail assistant. She has lodged an Application to Resolve a Dispute (the Application) in the Personal Injury Commission (Commission).
The applicant claims, pursuant to s 66 of the Workers Compensation Act 1987, permanent impairment compensation of $112,010 in respect of 35% whole person impairment (WPI), as a result of injury on 8 December 2020 to her cervical spine and right upper extremity; and chronic pain.
The respondent issued the applicant with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 on 1 November 2022.
The respondent disputed that the applicant had sustained injury to her cervical spine. It asserted that, in relation to the accepted injury to her right elbow, she was not eligible for lump sum compensation because the injury had not resulted in more than 10% permanent impairment.
The respondent referred to the opinion of Dr Loretta Reiter, whom it had qualified, and who had originally opined that Ms Nacol had developed complex regional pain syndrome (CRPS) but had withdrawn that diagnosis on re-examination.
On 25 October 2023, the respondent served on the applicant a Notice for Production, requiring production of her bank records from 9 December 2020 to date.
The applicant objects to producing any of the documents sought in the Notice for Production.

ISSUES FOR DETERMINATION

The following issue is in dispute:
(a) whether the applicant is required to comply with the Notice for Production served by the respondent.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for preliminary conference on 26 October 2023. Ms Azer appeared for the applicant, who was present. Mr Krieg appeared for the respondent, instructed by Mr Fraser of the self-insurer.
The respondent confirmed that it disputed that the applicant had sustained injury to her cervical spine. It accepted that she had sustained injury to her right elbow, and that whether she had CRPS was a matter for a Medical Assessor.
I was informed that the respondent had served a Notice for Production on the applicant on 25 October 2023.
The applicant objected to complying with the Notice for Production.
I offered to determine the objection at the preliminary conference. Ms Azer advised that she preferred to rely on written submissions.
The parties were directed to lodge and serve written submissions on this discrete issue and advised that at the conclusion of the time allowed for submissions, I would determine it “on the papers” before the conciliation/arbitration hearing, which is listed on 9 January 2024.
The parties have lodged submissions in accordance with the direction.
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

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) Application and attached documents, and
(b) Application to Admit Late Documents dated 24 October 2023, lodged by the respondent, and attachments (Reply).

FINDINGS AND REASONS

It is unnecessary that I discuss the evidence in detail, given that I am in this determination concerned only with the applicant’s objection to the Notice for Production. However, it is appropriate to refer to some of the evidence.

Evidence of the applicant, Eelyana Nacol

The applicant’s statement is dated 20 September 2023.
On 8 December 2020, she was stepping down from a stool when she banged her right elbow into a protruding metal shelving arm. As a result of the sudden impact, she jarred her neck. She felt immense pain in her right elbow, with pins and needles, and numbness radiating down her forearm to her hand. She had mild pain over the right side of her neck, but it was minor compared to the pain in her right elbow.
She continued to suffer debilitating sensory symptoms, affecting her entire right upper limb, and ongoing right-sided neck pain, stiffness, and discomfort.
She was eventually diagnosed by Dr Anil Nair in May 2021 with CRPS affecting her right upper limb.
She attempted to return to work in February 2021 on restricted hours and duties but struggled to cope. She ceased working on about 20 May 2021, due to symptoms of pain, stiffness, and discomfort.
She returned to restricted hours and duties in about late December 2021, primarily working from home.
She returned to in store duties in April 2022, for 15 hours per week. She struggled to cope and ceased employment in mid-2022. She had not returned to any gainful employment.
Because of her injuries, she was forced to delay her university studies in law, criminology, and criminal justice. She commenced studying part time in early 2022, studying one subject per semester and being given special consideration.
She struggled to cope and had to defer her studies in the second half of 2022 and the first half of 2023. She returned to part-time studies, online, in May 2023. She struggled to concentrate for more than 10 to 15 minutes at a time.
She “would like to address” the investigation reports and surveillance footage obtained by the insurer. She was “demoralised” by how it had been entirely taken out of context. It did not portray her chronic pain, disabilities, and suffering over approximately three years.
The footage represented “snippets” of approximately eight days, compared to almost three years of continuous symptoms and disabilities, which had had a devastating impact on her occupational, domestic, and social functioning, and had required heavy opiate-based analgesia on a daily basis.
Between June 2022 and early 2023, she managed her symptoms by taking Endone three times daily, and Panadeine Forte two to three times daily (two tablets each time), to the point where she could function. She could go out of the house, socialise with friends, get her nails done, and perform self-care independently.
Her pain was not completely gone while she was taking the medication. However, it was “nowhere near” what it normally was without them. She was just numb. She did not feel the exhausting shooting and throbbing pain. She was able to move her arm to a certain extent. Since coming off regular Endone, due to side-effects in early 2023, her right upper limb condition had deteriorated.
During the period of the surveillance, between July 2022 and October 2022, she was also in the early stages of her relationship with her boyfriend. She wanted to mask her symptoms and disabilities. She was scared of losing the person who made her happy. He had become aware of her condition since the surveillance period. He had witnessed a lot of her struggles, flareups, or episodes. He normally carried her around the house or up to her room, if her father was not at home. He took care of her when they went out, as she was in pain every minute, regardless of what she was doing.
When Dr El Azzi refused to prescribe Panadeine Forte and Endone, she used her friends’ prescriptions. She was also receiving medications from her uncle, a doctor, overseas. She gave Dr El Azzi and her case managers the impression she would stop taking them, but she did not. She started taking Endone in mid-June.
Since her injury, she “lived under a rock” until she met her boyfriend, who made her feel she deserved to be happy and normal, even just for a moment. She hardly left the house. She never dressed up or did anything she should have been doing.
She took high doses of the medications and 240mg of Duloxetine Sandoz when she had to leave the house, for instance getting her nails done, so she could handle the pain, drive, or sit in bright and light environments.
Sometimes she just wanted some normality in her life, without having to wear a neck brace or move like a robot to protect her arm. She was told by everyone involved in her case to go out and do something that would make her feel a bit happy. She did her nails and got lash extensions to get somewhat of a normal look on her face, as every time she left the house, people would ask if she was OK.
Lots of people were concerned about her. The hairdresser got in touch with her family to ask what was happening and if she needed help. She felt depressed and devastated by the course her life had taken.
If it was not for her boyfriend, she would not leave her room. She did not have the energy to speak or listen. She did not have the motivation to study or socialise unless she had to. It felt as though her life had fallen apart and she was never going to have it back.

Desktop Investigation and Surveillance Reports – SureFact Australia

SureFact Australia (SureFact) reported on 5 July 2022.
The applicant was reported to have profiles on Facebook, Instagram, LinkedIn, and Twitter.
The applicant’s security settings on Facebook were set very strictly. She had posted videos 13 weeks ago.
One video showed the applicant walking outdoors, wearing makeup and with her hair looking neatly groomed. She had the strap of her handbag over her right shoulder.
The second video showed a beach setting; and the third was the profile picture, with the applicant holding her phone taking a “selfie” in the mirror.
The applicant’s Instagram account was set to Private, and there were no posts.
There was no activity on the applicant’s LinkedIn profile.
The applicant had not posted any posts on Twitter.
SureFact concluded that, as a result of extensive investigation, through examination of social media profiles, it was evident that the applicant used social media rarely, with security settings set tightly, revealing a limited personal cyber footprint.
SureFact reported on 5 January 2021, having undertaken surveillance of the applicant. It had conducted 18.5 hours of surveillance, over a three day period in November-December 2021. On two of those days, the applicant was not sighted.
On 29 November 2021, the applicant and a woman believed to be her mother attended the Inner West Pain Centre and then returned home. The applicant picked up a white box from the front veranda and carried it to the rear of the house.
SureFact next reported on 19 August 2022, having undertaken a further period of 32 hours surveillance over four days in July-August 2022. The applicant was sighted on two of those days.
On 16 July 2022, the applicant drove the woman believed to be her mother to Bankstown and then returned home.
The applicant later drove to the Punchbowl Shopping Centre. She went to GA Ambiance Salon, where “she appeared to be known.”
The applicant had her hair washed. The operative noted that “the salon lights were quite bright, being large fluorescent type down lights”.
After having her hair washed, the applicant had it blow dried, brushed, and cut. She then moved to another chair, where she remained for a further 45 minutes and continued to have her hair cut and dressed.
The applicant and another woman were overheard to talk about “tonight”, but no other details were heard.
The applicant drove back to her home after leaving the salon. Surveillance continued until 7.30pm, but there was no further sighting of her.
On 6 August 2022, the applicant drove from her home to Idol Nail and Beauty. She had a manicure and a pedicure. There were approximately 50 bright fluorescent style downlights in the ceiling of the salon.
The applicant had both hands treated, “without any obvious restrictions”. She was observed to type with her right hand on the phone whilst having the manicure.
The applicant drove to her address after leaving the salon, using her right hand to vape or smoke an e-cigarette.
SureFact’s final report is dated 21 October 2022. It had undertaken a further period of 17.5 hours surveillance over four days in October 2022.
The applicant was sighted on only one of the four days, 8 October 2022.
The applicant drove to a cigarette and vape store, where she purchased a vape. She was seen to open the car door and throw an empty bottle and a tissue onto the road, before closing the door and resuming her journey.
The applicant was followed to an address in Bass Hill, where she collected a young man. He and the applicant were observed kissing whilst waiting at lights and intersections. He ran his hand through her hair.
The couple was followed to the Vibe Hotel in North Sydney. The man took some bags into the hotel, and the applicant remained in the car vaping, using her right hand. The man returned to the car with a white shopping bag.
The applicant used the light in her phone, held in her left hand, to apply makeup with her right. She picked up her handbag with her right hand, moving it and the white bag to her left hand. She then went into the hotel.
The applicant remained in the well-lit reception area for about 15 minutes. She then received a call and went to the lifts, where she was met by the man. She was not observed again, and surveillance ceased at 5.30pm.

SUBMISSIONS

The parties have provided written submissions, which I will summarise briefly.

Applicant

The applicant submitted that the only issues in dispute are whether she has sustained an injury to the cervical spine; and the resulting WPI. She submitted that the respondent accepted there had been an injury to the right upper extremity and there was a diagnosis of CRPS.
Whether the applicant has sustained an injury to the cervical spine is a matter for the Commission to determine. Her resulting WPI is a matter for a Medical Assessor.
The applicant had been served with a Notice for Production requiring the production of “All bank statements relating to all bank accounts held by you from 9 December 2020 to date.”
Pursuant to rule 41.2 of the Personal Injury Commission Rules 2020 (the Rules), the applicant objected to the Notice for Production.
The applicant submitted that rules 39 and 41 require that a document requested in a Notice for Production be relevant to a fact in issue. 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.[1]
[1] Millgate v Nationwide News Pty Ltd [2021] NSWPIC 170 (Millgate).
The applicant referred to the test for determining whether a party is required to produce documents, as stated in R v Saleam.[2]
[2] [1999] NSWCCA 86 (Saleam).
The applicant submitted that her bank statements could have no bearing on either a finding of injury to the cervical spine, or her WPI. To suggest they were relevant to her credibility “missed the essential point of relevance”.
The applicant submitted she had been the subject of surveillance on three separate occasions; and there was ample expert medical evidence that dealt with her injuries, including the surveillance footage.
The applicant submitted her statement addressing the footage is also before the Commission and the Commission and the Medical Assessor will have the opportunity to obtain a history from her directly and conduct a physical examination.
The applicant submitted the Commission would also have the opportunity to consider the reports of Drs Reiter and (Glen) Sheh, to whom the respondent has provided the surveillance footage.
The applicant submitted the Commission had ample evidence to determine the issue of injury and WPI, and her bank statements can and will have no impact on any finding relevant to these proceedings and will not assist it. The Notice for Production therefore failed the fundamental test of being relevant to a fact in issue.
The applicant finally submitted that the Notice for Production must be set aside.

Respondent

The respondent submitted that, contrary to the applicant’s submission, it did not concede that she suffered from CRPS, which was evident from the s 78 notice.
The respondent also relied on the decision in Millgate.
The respondent agreed that whether the applicant sustained injury to the cervical spine was in issue. The extent of her WPI in respect of her right elbow and cervical spine was also in issue. That would include a determination on the day of the assessment as to whether she warranted a diagnosis of CRPS for the right upper extremity.
The respondent submitted that the applicant’s bank statements were highly relevant to the determination of whether she sustained injury to the cervical spine and whether she warranted a diagnosis of CRPS, as there were significant credibility concerns in relation to her reporting of symptoms, functional incapacity, and mechanism of injury to the cervical spine. Her submission that the documents relevant to her credibility “misses the essential point of relevance” was misconceived.
The respondent referred to the applicant’s assertions in relation to the impact of her injury on her activities of daily living (ADLs). It then referred to the surveillance reports. It submitted that copies of the footage could not be filed with its Reply due to formatting issues but would be filed with an Application to Admit Late Documents.
The respondent submitted that the applicant had attempted to address the footage by suggesting she was taking significant opioid medication from June 2022 to early 2023, so there were days when she was able to take part in social and recreational activities. She had offered no explanation as to how she managed to lift a white box and her handbag with her left and right hands in November 2021.
The respondent referred to a report of Mr Nur Azam dated 10 August 2022, in which he recorded that the applicant’s right arm and hand were not functional, and she was completely reliant on her left arm and family members to perform her ADLs, including personal care. It submitted her reporting to Mr Azam was inconsistent with her suggestion that she was at times able to participate in recreational activities due to her opioid use.
The respondent submitted that the surveillance footage demonstrated the applicant performing activities she said she could not do.
The respondent submitted that Chapter 17 of the SIRA Guidelines for the evaluation of permanent impairment (Guidelines) provide that a diagnosis of CRPS by a Medical Assessor is based equally on a worker’s self-reporting of symptoms and objective clinical examination. It followed that caution must be taken when coming to that diagnosis, especially where there are credibility issues. Both Drs Reiter and Sheh withdrew their diagnosis of CRPS following review of the surveillance footage.

The respondent submitted that the applicant’s bank statements were relevant to her credibility, and therefore to the diagnosis of CRPS. It could be inferred from her statement that, outside the period from June 2022 to early 2023, she was unable to undertake any recreational activities, such as attending a hair salon and nail salon.
The respondent submitted that the bank statements would provide insight as to whether the applicant did attend recreational activities, despite her assertion that her injuries prevented her from doing so. They would provide objective insight as to whether she should be accepted as a witness of truth. This was highly relevant in circumstances where a diagnosis of CRPS relied on a subjective reporting of symptoms.
The respondent submitted that the applicant’s bank statements “demonstrating her credibility” were also relevant to the issue of injury to the cervical spine, noting her failure to report any mechanism of injury to the cervical spine at the time of the injury.
The respondent submitted that the applicant’s credibility was central to whether her asserted mechanism of injury to the cervical spine, and by association Dr (Uthum) Dias’ opinion, were accepted. Her bank statements would provide an objective basis as to whether she should be accepted as a witness of truth.
The respondent submitted that it had demonstrated a “legitimate forensic purposes [sic] for which access is sought” and it was “on the cards” that the documents would materially assist.
The respondent therefore submitted that the applicant should be requested to produce the documents sought in the Notice for Production served on 25 October 2023.

SUMMARY

Rule 39 of the Rules provides:

“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 provides:

“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 provides:

“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 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.
The key issues in dispute in this matter are:
(a) whether the applicant has sustained injury to her cervical spine, and
(b) whether the applicant has developed CRPS as a result of the accepted injury to her right elbow.
Both parties referred to Millgate. Member Homan also recently considered the issue of whether a Notice for Production should be set aside in Kovacs v Strathfield Municipal Council. [3]
[3] [2023] NSWPIC 611 (Kovacs).
In Kovacs, Member Homan referred to the decision of a Full Court of the Federal Court of Australia in Wong v Sklavos,[4] in which it was held:
“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[5]. 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)[6]; Campaign Master (UK) Ltd v Forty Two International Pty Ltd(No 4)[7]; McHugh v Australian Jockey Club Limited[No 2][8]; McIlwain v Ramsey Food Packaging Pty Ltd[9]; Dorajay Pty Ltd v Aristocrat Leisure Ltd[10]. 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)[11] 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)[12] 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[13] ;Tamawood Ltd v Habitare Developments Pty Ltd[14]”.
[4] [2014] FCAFC 120.
[5] [1996] SASC 5578; (1996) 66 SASR 38 at [52].
[6] (1989) FCA 248; (1989) 88 ALR 90.
[7] [2010] FCA 398; (2010) 269 ALR 76 at [39]-[40].
[8] [2011] FCA 724 at [13].
[9] [2005] FCA 1233; (2005) 221 ALR 785 at [35].
[10] [2005] FCA 558 at [17].
[11] (1981) 2 NSWLR 414 at [420].
[12] (1982) 2 NSWLR 921 at [927] (Spencer Motors).
[13] [1984] HCA 85: (1984) 154 CLR 404 at [414].
[14] [2009} FCA 364 at [13], [35]-[38].
The applicant relied on what was said in the Court of Criminal Appeal in Saleam:
“Before access is granted (or an order to produce made) the applicant must (i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is ‘on the cards’ that the documents will materially assist his case.”
The respondent submitted that, contrary to the applicant’s submission, it had not conceded that she suffered from CRPS. What the applicant submitted was that the respondent accepted there was a diagnosis of CRPS. That is clearly the case, on the applicant’s evidence. I accept that the respondent has not conceded that the applicant suffers from CRPS, and it relies on medical evidence that does not support that diagnosis.
As regards the issues in dispute, whether the applicant has sustained injury to her cervical spine is a matter I must determine. The respondent conceded at the preliminary conference that the issue of whether the applicant has CRPS is one for a Medical Assessor.
The applicant’s credibility is in issue. The respondent relies on surveillance evidence to which the applicant and Dr Dias, her independent medical examiner, have responded in their evidence.
Under the heading Principles of Assessment,[15] the Guidelines provide:
[15] Introduction, Part 2.
“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 on the day of assessment taking account [of] 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
…”
I do not accept that it is “on the cards” that the applicant’s bank records would materially assist the respondent’s case that Ms Nacol does not suffer from CRPS. The Medical Assessor will be required to exercise his or her clinical judgment at the time at which the applicant is assessed. All medical examiners will to some extent, be reliant on the history provided by a patient, but that is not the only matter to be taken into account.
The Guidelines provide that, for CRPS to be diagnosed, there must be a report of at least one symptom in each of four categories:
·        sensory;
·        vasomotor;
·        sudomotor/oedema, and
·        motor/trophic.
The Guidelines also provide, however, that the applicant must display at least one sign at the time of the evaluation, in all of the above categories. A “sign” is included only if it is observed and documented at the time of the evaluation.
The criteria for diagnosis of CRPS include that “there is no other diagnosis that better explains the signs and symptoms”.
The Medical Assessor will have available the applicant’s statement, the medical evidence, and the reports of SureFact, as well as the opportunity to obtain a history from the applicant and examine her. That will be sufficient to enable him or her to provide an assessment of WPI.
The respondent submitted that the production of the applicant’s bank records would also be relevant to a determination of whether she had sustained injury to her cervical spine, referring again to her credibility.
I also do not accept that it is “on the cards” that the applicant’s bank records would materially assist the respondent’s case that she has not sustained injury to her cervical spine. The only evidence they could provide would be of transactions on her accounts.
It is more likely that the respondent’s case would be assisted by contemporaneous lay and medical evidence, and by the evidence of the independent medical examiners, than by an examination of the applicant’s bank records. In my view, those records are not reasonably likely to add in some way to the relevant evidence in the case.[16]
[16] Spencer Motors.
The Notice for Production served by the respondent on the applicant is therefore set aside wholly, pursuant to rule 41 (5)(a) of the Rules.
The orders are as set out in the Certificate of Determination.

[2023] NSWPIC 668

12 December 2023