Freedman Brothers Limited v Scovell [2025] NSWPICPD 48

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Key takeaways

This matter deals with the referral of surveillance recordings to a Medical Assessor (MA) and the application of Rule 109 of the Personal Injury Commission Rules 2021 (the PIC Rules) which prevents the admission of such evidence, unless ‘exceptional circumstances’ exist.

Brief facts

The worker made a claim for 32% Whole Person Impairment (WPI) for a left knee injury.

The insurer arranged for the worker to be examined by an Independent Medical Examiner (IME) who assessed 20% WPI. He suggested that there were inconsistencies in the worker’s presentation and recommended surveillance of his activities. Physical surveillance was arranged by the insurer in November 2024.

The worker then commenced proceedings in the Personal Injury Commission (PIC) seeking referral to a MA to assess his WPI. The insurer lodged a Reply, annexing their IME report and a copy of the written surveillance report. The insurer lodged the video of the surveillance recording by way of an Application to Lodge Additional Documents, and a supplementary report from their IME, which reduced his assessment to 14% WPI on the basis of the activities performed by the worker in the video footage.

The worker objected to the admission of the surveillance recording as well as the supplementary report. Specifically, the worker argued that the surveillance should not be referred to the MA pursuant to Rule 109, which prevents the admission of such evidence unless an ‘exceptional circumstance exists’. By extension, the worker argued, the supplementary report from the IME could also not be admitted as it was based on the inadmissible surveillance recording.

This issue was referred to Principal Member Harris, who determined he was not satisfied that there were ‘exceptional circumstances’ to allow the surveillance recording to be referred to the MA. The Principal Member also determined that the supplementary report from the insurer’s IME was not to be referred. The insurer appealed this decision.

Judgment

The appeal was heard by Deputy President Elizabeth Wood.

The insurer relied on the following grounds of appeal:

• The Principal Member erred in law in failing to properly apply Rule 109 of the PIC Rules. He excluded the surveillance without identifying whether ‘exceptional circumstances’ arose from the possible inconsistent presentation of the worker, and instead determined whether the recording was inconsistent with the worker’s presentation.
• The Principal Member erred in law by excluding, without a proper basis, the supplementary report of the insurer’s IME.

Rule 109 precludes surveillance recordings from being included in the documents sent to a MA unless ‘exceptional circumstances’ exist. The insurer relied upon QBE Insurance (Australia) Limited v BTR [2024] NSWPICMP, in which the Medical Appeal Panel determined that evidence which may be inconsistent with the worker’s presentation to medical practitioners constitutes ‘exceptional circumstances’, and submitted that the Principal Member erred by replacing the words ‘may be’ with the word ‘is’.

Deputy President Wood accepted that the Principal Member erred in reaching the conclusion that the recording was not inconsistent with the worker’s presentation, and therefore found that the Principal Member erred in his determination that ‘exceptional circumstances’ did not exist.

Deputy President Wood noted that the sole reason put forward by the Principal Member for excluding the insured’s IME report was because it was founded upon the surveillance recording. Deputy President Wood referred to NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, which provide that the MA should be given all relevant evidence ‘about the onset, subsequent treatment, relevant diagnostic tests, and functional assessments of the person claiming a permanent impairment’.

Deputy President Wood accepted that excluding the supplementary report from the insurer’s IME resulted in a ‘misleading representation’ of the doctor’s opinion given that the doctor changed his opinion after reviewing the surveillance report. She concluded:

If the weight of the report is dependent upon what could be observed by a medical expert in the surveillance recording, then that requires a consideration of whether exceptional circumstances exist for the surveillance recording to be admitted. It does not make the medical report inadmissible.

The matter was remitted to a non-presidential Member for referral to another MA. Deputy President Wood determined that the surveillance recording and the supplementary report of the qualified IME were to be included in the referral.

Implications

Exceptional circumstances exist where there is evidence which may be inconsistent with the worker’s presentation to medical practitioners; and that evidence is therefore admissible. The evidence does not need to establish that that the worker is presenting inconsistently.

If the weight of an independent medical report is dependent on the content of the evidence viewed by the examiner, the PIC will give consideration as to whether that evidence is admissible and will not immediately determine that the report itself is inadmissible.