Moston v Goldenfields Water County Council [2019] NSWWCC 282 (27 August 2019)

Summary

This decision provides a timely reminder of the restrictions that apply when seeking to provide video surveillance film to an Approved Medical Specialist (AMS). The Guidelines specify that video surveillance can only be sent to an AMS in exceptional circumstances.

Background

The worker suffered psychological injury and claimed lump sum compensation under section 66 of the Workers Compensation Act 1987. Liability was disputed by the insurer and the worker commenced proceedings in the Workers Compensation Commission.

The dispute on permanent impairment was to be referred to an AMS and the insurer sought to put surveillance reports, video surveillance film and a medical report by Dr Ingram with his comments on the surveillance to the AMS.

The worker objected to this relying on the Workers Compensation Medical Dispute Assessment Guidelines, particularly Part 2.26.

Relevant parts of the Guidelines state as follows:

“The Registrar arranges the assessment

2.23 The Registrar advises the parties of the date, time and location of the assessment.

2.24 If an interpreter is required, the Registrar is to organise for a National Accreditation Authority for Translators and Interpreters (NAATI) certified interpreter to attend the examination. In circumstances where a NAATI certified interpreter is unavailable the Registrar may approve an interpreter.

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.

2.27 Parties to a medical dispute are not to attach legal submissions in the documents lodged in connection with the dispute. Any legal submissions will be removed from the documents lodged prior to referral to the AMS.

2.28 If it is necessary for a worker to bring x-rays or similar documents to the assessment, the worker will be advised of this in the letter from the Registrar.

2.29 The parties are not to communicate directly with the AMS at any time with the exception of the worker during the examination.

2.30 The parties are not to provide additional information directly to the AMS at any time.

2.31 An AMS may call for the production of medical records necessary or desirable for the purposes of assessing a medical dispute. This request should be made through the Registrar.”

Decision

The Arbitrator was required to decide whether there were ‘exceptional circumstances’ that would allow the video surveillance to be disclosed to the AMS and expressed the view that exceptional circumstances would include scenarios such as:

• the worker fails to disclose a “significant recreational or vocational activity” which the worker undertakes as shown by the footage; or
• where the footage shows the worker “in paid employment when he says he cannot work”.

In this case, the worker was shown in the surveillance footage to be part of a local cycling group. The Arbitrator noted that this information had been disclosed to Dr Ingram by the worker and so he found there were no exceptional circumstances and ordered that the footage should not be sent to the AMS.

The Arbitrator then considered the surveillance reports and Dr Ingram’s report interpreting surveillance finding that the exclusion in the Guidelines only applied to the video footage and not to the reports. The reports that had been served with the Reply were therefore allowed to be sent to the AMS.

Implications 

This decision provides examples of when video surveillance can be sent to an AMS and should be borne in mind when an insurer believes that the surveillance footage is relevant to a medical dispute. Clearly, if the worker has already admitted to behaviour or conduct that is the subject of the video surveillance, then it is highly unlikely that the surveillance footage will be allowed to be disclosed to the AMS.