Lum v Return to Work Corporation of South Australia & Anor [2026] SAET 3

1. Ms Lum's evidence in chief was provided chiefly by an evidence affidavit dated 13 August 2024.
2. Ms Lum recounted the circumstances of her injury in her affidavit. She hit her right arm against the rear window or window pillar of a car whilst trying to secure a child booster seat in her car. After delivering the children to their destination, Ms Lum drove herself to the Mount Gambier Hospital and attended the emergency department. X-rays were taken but did not reveal any fracture. The right arm was placed in a sling and Ms Lum drove from Mount Gambier to her home in Millicent, the journey taking much longer than normal.
3. Ms Lum saw Dr Ronan Mackle, a GP, on or about 1 December 2015 after having MRI of her right elbow. Dr Mackle referred Ms Lum to Dr Andrew Saies, an orthopaedic surgeon.
4. Ms Lum deposed that when she saw Dr Saies, her treating orthopaedic surgeon, on 23 December 2015, he told her that she may have a tear in her right elbow region and she was displaying some signs of CRPS. That contrasted with Dr Danh Tran, an occupational physician, to whom Ms Lum was also referred by Dr Mackle and who told Ms Lum that he did not consider she had CRPS at a consultation on 22 February 2016, but did consider other pathologies were present.
5. At the request of the Corporation, Ms Lum was seen by Dr James Economos on 8 March 2016. The diagnosis was acute lateral epicondylitis with a tear. Ms Lum saw Dr Economos again on 18 August 2016. The diagnosis of acute lateral epicondylitis was maintained.
6. At review by Dr Saies on 21 November 2016, Ms Lum was told that Dr Saies did not think there was a tear in her right elbow.
7. In describing her symptoms in 2017, Ms Lum stated that "the pain in my [r]ight [s]houlder region was worsening".[2] Dr Tran had diagnosed right shoulder subacromial bursitis in his report of 22 February 2016, but shoulder complaints did not feature strongly in Ms Lum's presentation prior to 2017. Ms Lum deposed the following:[3]

In addition to this, throughout this time, I can recall that the pain would occasionally travel from both of my arms, and sometimes down towards both of my legs. From what I can remember, this progressively worsened over time, to the point that I needed to go to the hospital in or around October 2019, because of my leg pain.

1. On 27 August 2018 Dr Mackle certified that Ms Lum had attained MMI. However, as described above, when Dr Jennings assessed Ms Lum for WPI purposes on 5 December 2018, he did not share that view and thought that she had CRPS type 1.
2. In a 23 April 2019 report, AP Cherry noted that Ms Lum sustained no injury to her right shoulder or right brachial plexus, but cortisone injections into those areas made her symptoms worse. He considered that the symptoms in her right upper limb were related to CRPS. He was satisfied that the IAG criteria for diagnosing CRPS were present on examination and that the incident of 13 November 2015 was responsible for the condition.
3. Ms Lum again attended upon Dr Jennings on 5 November 2019, this time for an indicative assessment of WPI. There was a discussion about sexual dysfunction, following which a claim for impaired sexual function was made on 4 March 2020 and rejected on 24 September 2020. Dr Jennings' view that the sexual dysfunction was related to medication Ms Lum was taking for her work injury was not shared by Dr Ashani Couchman, urologist, in her report of 22 July 2020. The rejection of the sexual dysfunction claim has been confirmed by consent orders.
4. Dr Jennings provided an indicative WPI assessment in November 2020. He assessed an 82% WPI with 60% WPI for the right upper limb CRPS and 26% WPI for urinary and reproductive system impairment.
5. In his 8 December 2023 PIA report, Dr Suyapto assessed Ms Lum as having 52% WPI. Only the CRPS was assessed. No separate assessment was made for Ms Lum's neck symptoms, right epicondylitis and right shoulder bursitis.

1. Surveillance film taken on four dates in August and September 2020 (the 2020 film) was shown to Ms Lum in evidence. Ms Lum had seen the 2020 film prior to preparing her evidence affidavit and being cross-examined. There is a full version and an edited version of the surveillance film. The following description relates to the edited version.
2. Film taken on 4 August 2020 shows Ms Lum walking around Adelaide airport after disembarking her flight, pushing a suitcase on wheels with an extended handle in her left hand, and later using both hands on her mobile phone, her left hand to hold the phone and her right hand to input detail. She is also shown using her phone in a similar way in a bar. While in the bar, Ms Lum uses her right hand to wipe her forehead, reach out and collect and carry plastic cutlery or a napkin. When leaving, Ms Lum picks up a food container with her right hand and carries it with both hands.
3. On 5 August 2020 Ms Lum was filmed leaving a taxi and entering a property in suburban Adelaide. She reaches over a gate and unlatches it on the inside with her right hand. She lifts her right arm as she approaches the front door of the residence, then goes back to the taxi, reaches inside it, takes her handbag in her left hand and closes the rear door with her right hand. She swings her right arm as she walks back to the gate which she again opens by reaching over it to operate the latch with her right hand. She pushes the gate closed with her right hand. Some 20 minutes later, according to the time described on the film, Ms Lum is seen standing in front of a red Mustang car on the street with her phone in her hands. She takes photos of the car on her phone, and then enters the front passenger door, opening it with her right hand while holding her phone in her left hand. Twenty minutes later Ms Lum is filmed in what she agreed was an Ikea store. She touches the top of a box with her right hand, then touches a pillow with both hands, before lifting it with her left hand. She talks to a staff member and moves the pillow to her right hand, then back to her left. The pillow is next seen with other items in a shopping trolley while Ms Lum inspects items with a woman. Ms Lum raises her right hand to shoulder height and touches an object on a display shelf. She reaches higher and further away with her right arm and turns a price label on an item that looks like a lamp with her right hand. She keeps her right arm extended and uses her right hand to touch and feel items whilst her left arm is against her left side and next to her handbag. Ms Lum retracts and re-raises her right arm and hand twice, picks up an object with both hands and moves it to her left hand as she uses her right hand to continue to touch and manipulate objects on the shelf. She then bends down and uses her right hand and arm to pull a box out from the bottom of the shelf. She pushes it back in with her right hand and arm. In the carpark outside the store, Ms Lum passes items from the shopping trolley to her companion with her left hand until she picks up the pillow, puts it under her left arm and lifts a bottle with her right hand. She takes the receipt from the trolley with her right hand. She puts her right hand on the trolley handle and turns it around. She uses her right hand and arm, and presumably her left hand and arm though they cannot be seen, to manoeuvre a large picture frame into the boot of the car. Upon returning to the residence shown in the earlier film, Ms Lum takes some shopping items in her left hand and closes the car door with her right hand. She comes back and carries one item into the house with her right hand and some other items in her left hand.
4. On 7 August 2020 Ms Lum is filmed sitting in a row of seats at Adelaide airport. The pillow she purchased at Ikea is positioned under her right arm. She operates her phone by holding it in her left hand and inputting details with the fingers of her right hand.
5. On 25 September 2020, Ms Lum was filmed in Millicent. Ms Lum is shown at an ATM machine, and then at a supermarket checkout. She pulls a green plastic trolley with goods in it to the checkout with her left hand. She takes items out of the trolley with both hands, including a large bag of dry dog food which she uses both hands to lift and manoeuvre. She then uses a conventional metal shopping trolley to put the goods into once they are scanned at the checkout. Ms Lum loads the metal trolley mainly with her left arm but uses both arms to load the dog food bag. Ms Lum picks up the green plastic trolley and puts it on the checkout counter. She wheels the metal trolley out with both hands. Ms Lum loads items into a car using both hands. She closes the car door with her right hand.
6. After AP Cherry viewed the 2020 film, he changed the view expressed in his first two reports and stated that Ms Lum did not satisfy the criteria for diagnosing CRPS in a December 2020 report. There was disagreement between counsel about the nature and extent of the change of view of AP Cherry. Counsel for Ms Lum submitted that the August 2020 diagnosis was by reference to the Budapest criteria for diagnosing CRPS while the December 2020 revision had regard to the more strenuous criteria in AMA5 and the IAG. It is not necessary to resolve the disagreement. What is clear is that after viewing the 2020 film, AP Cherry did not support a diagnosis of CRPS:[4]

Given the video surveillance, I am prepared to state that she would not fulfil the criteria for a diagnosis of CRPS to be made at the times when the video was taken, of her right upper limb.

1. Much of the 2020 film was taken in August 2020, the month in which AP Cherry diagnosed Ms Lum as having CRPS type 1.
2. Further surveillance film was taken in 2024 (the 2024 film). Ms Lum did not see the 2024 film prior to giving oral evidence.
3. On 9 August 2024 Ms Lum was filmed driving a black Holden Commodore utility with a cage over the tray in which there were several dogs. Ms Lum parks the car at a service station at about 12:15pm, according to the clock on the film, and appears to refuel the car. She then drives to a street which has shops and goes into what may be the same supermarket shown in the 25 September 2020 film. A staff member loads her car with the purchases. She drives away and then seems to have a problem with the car. A man assists her to deal with what appears to be an overheated radiator.
4. In film taken on 18 October 2024 Ms Lum is seen to open the tailgate of her car and let her dogs out of the vehicle tray. A lead securing the dogs appears to be held in her left hand. At 11:51am, according to the clock on the film, the dogs are back in the vehicle and Ms Lum enters the driver side door. She pulls the seat belt down over her right shoulder with her left hand initially and then uses her right hand to pull it down further. She reverses the car using both hands on the steering wheel, alternating the grip from one hand to the other in quick succession several times as she turns the steering wheel, the right hand gripping the top of the steering wheel and the left hand gripping the underside. Ms Lum is then filmed attending a supermarket. She pushes a shopping trolley around inside the supermarket. A staff member wheels the shopping trolley out of the building and puts the contents into her vehicle other than one item which she loads at the end, more with her left hand than her right. She reverses out, again using each hand alternately to grip the steering wheel in quick succession. Each hand grips the upper side of the steering wheel on this occasion.

1. In cross-examination, Dr Suyapto agreed that the first of the Budapest criteria for diagnosing CRPS is the presence of continuing pain disproportionate to any inciting effect. He said that 'continuing pain' in that context means the pain is constant or always present. He agreed that the criteria for diagnosing CRPS described on page 495 of AMA5 include the presence of "a characteristic burning pain". Dr Suyapto said that even with the use of opioids, the pain of CRPS remains, a comment that AP Cherry also made. Dr Suyapto said that although the film showed that Ms Lum used her right hand and arm, she did not deny being able to do so.
2. Dr Suyapto's report of 14 February 2025 to Ms Lum's solicitors states that he was provided with a copy of the film and that he had reviewed it. The report has headings concerning the film taken on 4, 5 and 7 August 2020, but no description or analysis beneath the heading. When asked about that, Dr Suyapto said:[5]

WITNESS: I think - I think from my recollection it's that there was nothing that it was obvious that, you know, sort of drew my attention to those surveillances footage, and I've looked at it, but there was nothing that, you know, sort of - of - of - I feel that it was of relevance that would have concerned.

MR COLGRAVE: You didn't observe Ms Lum on 5 August 2020 going on a shopping trip with a friend of hers in a red Ford Mustang sedan.

WITNESS: I can't recall that, I'm sorry.

1. After that, Dr Suyapto was shown the 5 August 2020 film. He was asked what medication Ms Lum was taking at the time. He said that the list he made in his report did not include Targin. This exchange then occurred:[6]

MR COLGRAVE: I'd ask you to accept that this person who's about to emerge from that taxi in a red jumper is the applicant. She has closed the taxi door with her right arm. She reaches over this fence to grab the gate latch with her right hand and right arm, and goes to the house. Have you seen that footage before?

WITNESS: I don't believe I did, actually.

1. Dr Suyapto said five times that he did not believe he had seen the 5 August 2020 film that was shown to him in court. He agreed that when Ms Lum raised her right arm to shoulder height, to turn a tag or label around to see it, that the use of her right arm was not consistent with pain behaviour in relation to her right arm. Dr Suyapto had said previously that pain behaviour might manifest in not using an injured arm, or using an injured arm less than the other uninjured arm.[7] This exchange then occurred:[8]

MR COLGRAVE: Had you seen that surveillance footage at the time you saw the applicant and made your assessment, would it cause you to have doubted the range of motion displayed by her at your examination?

WITNESS: Yes, I think with the range of movement, yes, but having said that, I think the surveillance was in 2020 - - -

MR COLGRAVE: Yes.

WITNESS: - - - and my examination was in 2023.

MR COLGRAVE: That's right, but having said that also, you've relied on the diagnosis of Dr Cherry in 2020 and Dr D'Onise in 2021.

WITNESS: Yes, that's correct.

MR COLGRAVE: If their diagnoses were based around the time of this footage and can't be maintained based upon that type of range of motion, then those diagnoses were not reliable. Would you agree with that?

WITNESS: Look, I think that with the range of movement it's - it's definitely not reliable. I think with the diagnosis itself the difficulty is, obviously, the guidelines that I still had to fulfil the criteria on examination and finding the objective findings. So as I said in my supplementary report or in my other report, that I think that with the surveillance footage it's difficult to - apart from the range of movement and I suppose, you know, what you referred to as a pain behaviour earlier, what we discussed, things like the temperature, asymmetry or the oedema or the sweating asymmetry, it's - it's difficult to assess that on a surveillance footage.

1. Dr Suyapto was then asked whether he agreed with the view AP Cherry expressed after seeing the film, that Ms Lum did not satisfy the CRPS diagnosis criteria in AMA5,[9] and did not favour her left arm. He replied:[10]

WITNESS: So in terms of the pain, yes, I agree that she looks comfortable, and she did not appear to be using her left arm or favouring the left arm in comparison to the right. As I said earlier as well, pain is - is still subjective, so in terms of whether she'd still fulfil the definition of the continuing pain and the burning pain, it's difficult to say, but from the surveillance footage, yes, she does appear more comfortable and had better range of movement than my examination.

MR COLGRAVE: And the same comments can be made with respect to the requirement in the Budapest criteria of continuing pain which is disproportionate to any inciting event.

WITNESS: Yes, the same answer applies, yes.

MR COLGRAVE: Associate Professor Cherry also says that in the footage shown to him, including that footage you've just seen for the first time, "Ms Lum had a significantly larger range of motion in her right shoulder flexion and abduction." Do you agree with that?

WITNESS: Yes, I do.

MR COLGRAVE: By "significantly larger", he's referring to the range of motion he recorded in his examinations of Ms Lum in 2020.

WITNESS: Yes.

MR COLGRAVE: Would you agree she also had a significantly larger range of motion in her right shoulder flexion and abduction than those you recorded on page - - -

WITNESS: 126 of the trial book.

MR COLGRAVE: - - - 126 of the trial book.

WITNESS: It's page - page 3 of my report, which is page 126.

MR COLGRAVE: Particularly where she's raising her arm above shoulder height to reach to items on shelves.

WITNESS: Yes.

MR COLGRAVE: She didn't indicate any type of range of motion near that, did she?

WITNESS: No.

1. After that, Dr Suyapto said that he would maintain the diagnosis of CRPS "in the sense that she still at the time of my examination fulfilled the criteria".[11] He said that ideally, given the film, to answer whether he maintained his diagnosis, he would like to re-examine Ms Lum and ask her about the discrepancy between his examination findings and the film.
2. In re-examination, Dr Suyapto agreed that some of the observations he made in the film were consistent with pain behaviour. He also agreed that it is not uncommon for patients with pain conditions to take more medication before undertaking events that they know may incite pain.
3. On the day after Dr Suyapto gave evidence, counsel for Ms Lum sought to adjourn the hearing to enable Dr Suyapto to re-examine Ms Lum and produce a further report. The application was opposed. I asked counsel for Ms Lum why Dr Suyapto had not been shown the film. He replied that the film had been provided to Dr Suyapto and he had been asked to view it. I deferred ruling on the application until Dr D'Onise had given evidence.

1. Dr D'Onise agreed that the first of the Budapest criteria and the AMA5 criteria for CRPS is the presence of continuing pain. He did not agree that there was an absence of any pain behaviour in the film of Ms Lum but agreed that she demonstrated a larger range of motion than was present when he examined her. He said that the difference in range of motion displayed on the film was "[b]y a fair margin".[12] Later he described the difference between what he saw on the film and Ms Lum's presentation to him as "a significant variation from the findings in her presentation when I saw her in 2021".[13] Dr D'Onise answered that he could not say that Ms Lum did not have CRPS based on the film, but seeing it caused him to question the diagnosis of CRPS that he made in June 2021.[14]
2. After Dr D'Onise concluded his oral evidence, I declined the application to adjourn the hearing to allow Dr Suyapto to re-examine Ms Lum and provide a further report. I accepted the explanation of counsel for Ms Lum that the film had been provided to Dr Suyapto. Indeed, Dr Suyapto's report of 14 February 2025 refers to the dates of the film, but records nothing under some of those dates. Either Dr Suyapto failed to view some or all of the film, contrary to what is stated in his report, or he did not recall the film three months after viewing it. Neither explanation was a good reason to adjourn the hearing and allow Ms Lum to be re-examined given that the reliability and quality of the PIA is a key issue in the proceeding.

1. In oral evidence, AP Cherry was taken to his reports in relation to Ms Lum. He said that the film he was shown of Ms Lum taken on 4, 5 and 7 August 2020 and 25 September 2020 showed that Ms Lum was not experiencing continuing pain, which he said meant unremitting pain. He then said that Ms Lum's description of the pain medication she was taking at the time the film was obtained did not cause him to alter his view because the pain was not continuing. When taken to certain parts of the film, AP Cherry admitted that some of the behaviours were consistent with pain behaviour, such as using a pillow under the right arm and holding the arm close to the body. When asked why he did not comment about that evidence, AP Cherry said that his comments were directed to the film obtained in Ikea. In re-examination AP Cherry said that despite those parts of the film where Ms Lum exhibited pain behaviour, he still questioned whether there was continuing pain as required under the IAG given the restricted range of motion Ms Lum exhibited when he examined her, compared to her range of motion in the film. He stated that Ms Lum did not satisfy the sensory input criterion in AMA5 the third time he examined her whereas she did on the first two occasions.

1. Dr Gary Champion was asked to review Ms Lum by the Corporation after an issue arose with AP Cherry being able to give evidence after retirement because his medical insurance had lapsed. That issue was resolved by AP Cherry providing a statement, rather than a medical report, prior to giving evidence. Dr Champion was allowed to give evidence because the issue with AP Cherry's lapsed insurance was not resolved until after AP Cherry and Dr Champion had given evidence. The Corporation was only permitted to elicit evidence from Dr Champion in relation to film obtained after 2020. However, counsel for Ms Lum sought to cross-examine Dr Champion in relation to the 2020 film. Counsel for the Corporation did not oppose the request and it was granted.
2. Dr Champion stated that burning pain was a hallmark of CRPS under both the AMA5 criteria and the Budapest criteria. In cross-examination Dr Champion admitted that the comment in his report that Ms Lum did not display any pain behaviour was inaccurate. He agreed there were times when Ms Lum displayed pain behaviour in the film. He did however continue to maintain that the way Ms Lum lifted items of shopping, including an 8 kg bag of dog food with both hands, did not evidence any pain behaviour.

1. Ms Lum commented about the 2020 surveillance film in detail in her evidence affidavit. She deposed that her right arm is against her body for much of the 4 August 2020 footage. In relation to the 5 August 2020 footage, Ms Lum deposed that she "made sure to take a larger quantity of pain relief medication on this date"[15] because she was catching up with a friend in Adelaide. She stated that she took two Meloxicam and Panadol Osteo tablets at the start of the day. She stated that during the day she recalled the pain starting to come back to her right arm region and that she took additional medication, which she "believe[s] was both Pregabalin and Meloxicam, or Targin 10mg".[16] She deposed she was bedridden in her motel room "for most of, if not, the entirety of Thursday 6 August 2020".[17]
2. Given the very specific detail in Ms Lum's affidavit about the type and volume of medication she took on 5 August 2020, and given the affidavit was prepared years after 5 August 2020, I had doubts about whether Ms Lum had an actual recollection of that day. The doubts became a concern after Ms Lum gave oral evidence about the 25 September 2020 film. Ms Lum deposed that she was in pain after the shopping seen on the 25 September 2020 film. She was asked about that:[18]

MR COLGRAVE: Page 93. In paragraph 132 there, you talk about by that stage you believe you have commenced taking Endep. And in paragraph 132.3 you say that:

After leaving the store I can recall feeling as though I was hurting quite immensely in my right arm and as though I was drained of all my energy. In addition to this, I recall being quite debilitated for the next few days to the extent that I do not recall leaving my house much, if at all. Rather, I believe I was still confined to my bed for the most part as I was in too much pain and needed to rely on the pain relief medication to help me get through this.

Can I ask how you were able to say that this particular trip to Woolworths that's on the film on 25 September 2020 caused that response that you had to be in bed for the next few days or quite debilitated for the next few days?

WITNESS: I cannot remember if I did that particular day, but it is very normal for me to be laid up every fortnight when I do my shopping.

1. The answer shows that Ms Lum did not have a specific recollection of an event that she claimed to recall in detail in her affidavit. The purported recollection was a reconstruction based on surmise which assisted her account. Ms Lum said that she still shops at Woolworths in Millicent every fortnight. She was asked how being able to do that and lift items of shopping compares with her answer to AP Cherry that she could not lift a paper cup filled with water with her right hand. She then said that she would not be able to lift a cup of water now with her right hand unless she had taken extra medication. Based on the film, I do not accept that evidence. Ms Lum was filmed undertaking more vigorous activities with her right hand and arm in Millicent and did not explain them by saying that she had taken extra medication.

1. Section 97(d) of the RTW Act provides that decisions about permanent impairment matters are reviewable. The definition of "permanent impairment matter" in s 4 of the RTW Act includes "the degree of whole person impairment suffered by a worker".
2. In Abraham v Return to Work SA,[19] Gilchrist DPJ held that workers and employers can seek review of an award of lump sum compensation where the personal impairment assessment is deficient or tainted by error.
3. Clarke v Department for Health and Ageing[20] concerned whether the criteria for CRPS were present. One issue was whether there was radiological support for a diagnosis of CRPS. I found that a whole body scan which provided that support, but which the impairment assessor did not have access to when conducting the PIA, could be taken into account by the Tribunal. In attempting to differentiate between the role of the Tribunal and the role of the assessor I said:[21]

The Tribunal must be mindful of maintaining the integrity of the PIA system, but it also must make sensible, evidence based decisions about assessment issues in order to resolve disputes.

1. In the very recent decision of Kellow v Return to Work Corporation of South Australia,[22] Rossi DPJ said this about a challenge to a PIA:[23]

Some observations may be made generally where there is a challenge to the correctness of an assessment of permanent impairment by an accredited assessor. Firstly, it is for the Tribunal to determine the appropriate WPI.[24] Secondly, absent material errors of fact or law, the assessment by the accredited assessor is determinative. The Tribunal may consider other expert views in determining whether error is established but it cannot disregard the assessment made by the approved assessor unless error is shown.[25] Thirdly, in determining whether there is error in the assessment, the Tribunal may obtain further evidence by a referral to an IMA. It may do so where potential error has been demonstrated and with a view to either establishing or allaying concerns about that perceived error.[26] Fourthly, the duty required of the assessor is to assess the permanent impairment arising from the work injury. Where either s 22(8)(b) or s 22(8)(g) of the RTW Act apply, the assessor is to ensure that any impairment assessed which is attributable to a cause other than the work injury, is either "disregarded" or "deducted". Both subsections have a purpose that only an impairment to the extent that it is attributable to a work injury, is to be assessed and compensated.[27] Fifthly, assessors are required to note that there may be occasions where it is difficult to quantify the degree of permanent impairment attributable to an unrelated injury or cause, in accordance with the IAG. That, in itself, does not relieve the assessor from undertaking the task of limiting the assessment of the degree of permanent impairment arising from the work injury to the work injury.[28]

1. There are sound reasons to not accept the PIA in this matter both in relation to the presentation of Ms Lum and the reliability of the assessment. I do not accept Ms Lum's explanation that she presented in the way she did in the film taken on 5 August 2020 because she had taken extra medication that day. The film was taken four years before she completed her affidavit. I find her account is based upon reconstruction rather than recollection. That view is supported by her evidence in relation to the 25 September 2020 film. While Ms Lum's affidavit stated that she recalled the medication she took on that day, in cross-examination she said she could not recall the day and was speaking generally.
2. I also do not accept Ms Lum's affidavit evidence about the medication she took before and after the events depicted in the 2020 film or her evidence that she was bedridden and drained in the days following 5 August 2020 and 25 September 2020. The time that passed between when the film was taken and her responses, the difference in her presentation to doctors and on the film and the overstatement of the extent of her recollection in relation to the 25 September 2020 film gives me serious doubt about her account in relation to her explanations for what is seen on the film.
3. The extent to which Ms Lum used her right arm and hand in the film exceeds the movements that she produced when examined by Dr Suyapto, Dr D'Onise and AP Cherry. Those doctors all said that Ms Lum's range of motion was materially greater in the film than displayed to them.
4. The 2024 film shows Ms Lum undertaking ordinary daily activities in Millicent. I find that Ms Lum's ability to grip, turn and manoeuvre the steering wheel of her car is inconsistent with her presentation to Dr Suyapto, Dr D'Onise and AP Cherry. It is also inconsistent with her claim that she cannot hold a paper cup filled with water with her right hand. The inconsistent presentation is not limited to her hand movements. The extent to which Ms Lum lifted her right arm to and above her shoulder when in Ikea surprised the three doctors. The inconsistency between clinical and non-clinical presentation is not confined to more recent medical attendances. Ms Lum told Dr Economos on 8 March 2016 that she had only driven for 10 minutes once by that date and had been provided with taxis since.[29] On 5 December 2018, Dr Jennings could not measure right wrist and hand muscle strength because of severe pain.[30] He described Ms Lum's neuropathic pain as "throbbing and continuous".[31] Dr Jennings noted that Ms Lum could only walk one block and her dog was said to be "most unhappy with her reduced interaction".[32] If those presentations were genuine, Ms Lum's condition has improved markedly.
5. In relation to the film taken on 18 October 2024, Ms Lum said that she was resting her hand on the steering wheel whilst reversing her car. She then agreed that she was using part of her right hand on the steering wheel but did not agree that she was gripping and regripping the steering wheel.[33] After viewing the film again, I am satisfied that Ms Lum gripped and regripped the steering wheel with each hand, one soon after the other, whilst turning the steering wheel to reverse the car out of its parking space.
6. I accept the submission of Ms Lum's counsel that Ms Lum may have displayed some restrictions in using her right arm at times when filmed. AP Cherry and Dr Champion at first denied that Ms Lum exhibited any signs of illness behaviour but later agreed that was an overstatement. However, while there may be some ongoing limitations, there is a real issue as to whether Ms Lum qualifies to be assessed for CRPS. In the film, Ms Lum displayed a range of right arm and hand movements and a facility to use her right arm and hand that she did not manifest to the doctors who had seen her and who gave evidence. Those doctors, who all supported a diagnosis of CRPS, qualified that support after seeing the film. The issue is not whether AP Cherry and Dr Champion are correct to say there was no pain behaviour, but whether Ms Lum's presentation to Dr Suyapto, and his assessment of her degree of WPI, can be relied upon.
7. I find the marked difference between Ms Lum's presentation on the film and her presentation to doctors to be concerning. I do not accept her explanation that she took extra medication before and/or after certain activities because it is based on reconstruction, not recollection.
8. There is another reason to be cautious about Ms Lum's comment that she was able to undertake some of the activities shown in the 2020 film because she had taken extra pain relief medication on the days in question. One of the features of CRPS described in AMA5 is a continuous burning sensation which is not controlled by pain relief. The first paragraph of chapter 16.5e of AMA5 provides:[34]

16.5e Complex Regional Pain Syndromes (CRPS), Reflex Sympathetic Dystrophy (CRPS I), and Causalgia (CRPS II)

The hallmark of these syndromes is a characteristic burning pain that is present without stimulation or movement, that occurs beyond the territory of a single peripheral nerve, and that is disproportionate to the inciting event. The pain is associated with specific clinical findings, including signs of vasomotor and sudomotor dysfunction, and, later, trophic changes of all tissues from skin to bone.

1. The passage goes on to state that since a subjective complaint of pain is the hallmark of CRPS, care is needed in reaching the diagnosis:[35]

Consequently, the approach to the diagnosis of these syndromes should be conservative and based on objective findings. The criteria listed in Table 16-16 predicate a diagnosis of CRPS upon a preponderance of objective findings that can be identified during a standard physical examination and demonstrated by radiologic techniques. At least eight of these findings must be present concurrently for a diagnosis of CRPS. Signs are objective evidence of disease perceptible to the examiner, as opposed to symptoms, which are subjective sensations of the individual.

1. Ms Lum described a characteristic burning pain to the three doctors who examined her and gave evidence.[36] Even if Ms Lum's explanation that she used strong pain relief on some of the days she was filmed is correct, that does not account for how she did some of the things filmed without apparent restriction or a sign of pain behaviour.
2. I am also concerned about the reliability of Dr Suyapto's report given it is the foundation of the assessment of Ms Lum's WPI. Dr Suyapto was unable to answer questions about the film without seeing it and said he would like to review Ms Lum after seeing the film. That was despite being asked to report on the film and doing so. The earlier letter which asked Dr Suyapto to conduct a PIA advised him of the film and advised that AP Cherry had withdrawn his diagnosis of CRPS after seeing the film.
3. There is a heading in Dr Suyapto's 14 February 2025 report about the film taken on 4, 5 and 7 August 2020 but there is no content underneath it.
4. In light of Ms Lum's presentation on the film, and Dr Suyapto's failure to properly consider the film before giving evidence, I am satisfied that the PIA report in issue is not a proper or reliable basis for concluding that Ms Lum has a WPI of 52% as a result of CRPS.
5. This matter bears a strong resemblance to Meredith v Return to Work Corporation of South Australia.[37] The worker in Meredith was diagnosed as having CRPS and sought to be treated as a seriously injured worker on an interim basis based on an indicative PIA of WPI of 46%. As with this case, there was a good deal of film of the worker. When shown the film, the doctor who had made the indicative assessment of WPI expressed reservations about the assessment he had made.
6. Hannon DPJ found that the disparities between the worker's presentation to the doctors who had assessed her and the activities she was seen to perform on film undermined the integrity and validity of the indicative assessment of WPI.[38]
7. I have reached a similar view in this matter. The extent of the disparity between how Ms Lum presented at the PIA, and how she presents on film taken in 2020 and 2024, undermines the reliability of the PIA. Dr Suyapto asking to conduct a further PIA supports the view.
8. While the assessment of Ms Lum's permanent impairment has taken a long and protracted course, the requirements of the IAG and s 22 of the RTW Act must be observed.

1. The Corporation submitted that in addition to the difficulties with the PIA that are described above, the PIA does not satisfy the requirements for assessing CRPS in para 2.22 of the IAG. Paragraph 2.22 provides:[39]

2.22 For Complex Regional Pain Syndrome (CPRS) to be present for the purposes of assessment:

• the diagnosis is to be confirmed by criteria in Table 2.1 below - each of the four boxes must be addressed

• the diagnosis must have been present for at least one year (to ensure accuracy of the diagnosis and to permit adequate time to achieve MMI)

• the diagnosis must have been verified by more than one examining physician, and

• other possible diagnoses must have been excluded.

Note: The diagnosis of CRPS should be a clinical one, based on history and physical signs at the time of the evaluation. Although changes such as Sudek's atrophy may be detectable on x-ray, such changes are adjunctive evidence and not a necessary part of the diagnostic criteria for CRPS.

1. The Corporation submitted that Ms Lum was not diagnosed with CRPS in the 12 months prior to being assessed by Dr Suyapto, and para 2.22 of the IAG was not complied with as a result. Counsel for the Corporation submitted that I dealt with this issue in Clayton Church Homes Incorporated v Return to Work Corporation of South Australia and Orphanou,[40] and the conclusion supported the submission advanced:[41]

While I do not accept Mr Colgrave's submission that the criteria in paragraph 2.22 of the IAG must all be satisfied in the strict order in which they appear, I consider that dot-point 2 of paragraph 2.22 of the IAG requires the diagnosis of CRPS be present in the 12 months prior to when a PIA for CRPS is undertaken for the following reasons.

Dot-point 2 provides that the reason why a diagnosis must have been present for at least one year is "to ensure accuracy of the diagnosis and to permit adequate time to achieve maximal medical improvement" (MMI).

In my view, if CRPS is not present during the year prior to a PIA being undertaken, it is possible there may be another diagnosis which explains the symptoms and/or it is possible that MMI may not have been attained. Dr Kapur suggested that the former was the case with Ms Orphanou.

There is some textual support for the interpretation I have arrived at. All the requirements contained in paragraph 2.22 are "for the purposes of assessment". It may well be that a person continues to have quiescent or underlying CRPS when the diagnostic criteria of paragraph 2.22 are not made out. That is not relevant because paragraph 2.22 is concerned with establishing the presence of CRPS for the purposes of making a PIA. Given that purpose, it is reasonable to infer that the one year period mentioned in dot-point 2 of paragraph 2.22 is one year prior to the date on which the PIA is performed. On that reading, CRPS does not have to be present continuously from when it is first diagnosed until when a PIA is undertaken, but it does have to be present in the 12 months before a PIA.

For that reason, in my view a diagnosis of CRPS for a period of one year or more at a time other than the year before a PIA is undertaken does not satisfy dot-point 2 of paragraph 2.22.

Contrary to a submission made by Mr Hanus, the requirement that CRPS be present in the year prior to a PIA being made may be in recognition of the fact that it is a condition which waxes and wanes.

I do not accept Mr Colgrave's submission that the requirement in dot-point 3 of paragraph 2.22 that a diagnosis of CRPS be verified by more than one examining physician has to be satisfied in the year prior to the PIA being undertaken. Unlike dot-point 2, no time period is mentioned in dot-point 3. In my view, a diagnosis of CRPS made more than one year prior to the PIA being undertaken, like the initial diagnosis made in this case, satisfies this requirement. Imposing a time limit on dot-point 3 confuses or conflates it with the separate and distinct requirement in dot-point 2.

1. No contrary authority on the issue was cited and I apply that reasoning.
2. The requirements that a diagnosis of CRPS must have been present for at least one year prior to a PIA being conducted, and verified by more than one examining physician, must be satisfied. Dr Jennings made and maintained a diagnosis of CRPS on and from November 2020. AP Cherry diagnosed CRPS in August 2020 but withdrew his diagnosis in December 2020. The requirement that another physician maintain the diagnosis for at least one year is not satisfied by AP Cherry given he withdrew his diagnosis. Because the requirements are, in part, designed to ensure that MMI has been achieved, they should not be read down and the withdrawal of one of the two diagnoses of CRPS required should not be disregarded. That leads to Dr D'Onise's view. He is the last doctor who may be capable of satisfying para 2.22.
3. Dr D'Onise was asked to conduct a PIA and made the necessary findings but did not proceed to publish an assessment because AP Cherry withdrew his diagnosis before the assessment took place. In light of that, Dr D'Onise considered that it was not clear that Ms Lum had satisfied the criteria of para 2.22 of the IAG.
4. Dr D'Onise's report of 11 June 2021 does not expressly state that he believes a diagnosis of CRPS applied when he assessed Ms Lum, but one can infer that he did hold that view given he proceeded to conduct a PIA. In oral evidence, Dr D'Onise said that when he examined Ms Lum on 11 June 2021, the signs and symptoms of CRPS were all present.[42] That conclusion was reached 7 months after Dr Jennings reached the same conclusion. Dr Suyapto assessed Ms Lum's WPI in the latter part of 2023, more than 12 months after Dr D'Onise's examination.
5. Dr D'Onise was asked whether seeing the film caused him to change his opinion as to whether CRPS was present. He said this in response:[43]

As I said in my report, I couldn't. The ranges of motion were different to what she presented to me with. Obviously, it was a different time frame to when I saw her. The features - some of the features couldn't be interpreted through footage, the swelling and temperature. I didn't - there were still protective behaviours. The extent of range of motion was greater in some of the footage, but still there was a pattern of similar restriction. But considering all of those factors, I didn't think there was enough footage - evidence - to suggest that when she presented to me at the time in 2021 that she didn't have CRPS.

1. In cross-examination Dr D'Onise stated there were times in the film when Ms Lum displayed no pain behaviour and that the limitations she had described to him were greater than what he observed in some of the film. Later Dr D'Onise agreed that the film made him question the diagnosis of CRPS he made in June 2021.[44] Despite that comment, Dr D'Onise did not ultimately resile from his view that CRPS was present in June 2021, or perhaps more accurately, he felt there was not enough evidence to form the view that Ms Lum did not have CRPS at the time he examined her.
2. I consider that two diagnoses of CRPS had been made and maintained for a period of not less than 12 months prior to the PIA being conducted. I do not interpret para 2.22 to require that one of the diagnoses of CRPS relied upon must be made within 12 months of the PIA being conducted and reiterate the view expressed on that issue in the final paragraph of the extract from Clayton Church Homes set out above.
3. For those reasons, I reject the Corporation's submission that the requirements of para 2.22 of the IAG were not satisfied.

1. While I am satisfied that the PIA made by Dr Suyapto is not a reliable basis for awarding lump sum compensation, it is not clear what course this matter should now take. The usual course would be to order that a fresh PIA be conducted by an IMA, but that assumes MMI is present and the requirements of para 2.22 of the IAG are satisfied. As the discussion of the latter issue shows, issues can arise in relation to para 2.22. Those issues have not been considered or addressed by the parties and it has been several years since they were last addressed. It is appropriate to allow the parties to consider what action should be taken and to make orders after hearing from them in that regard.

[1] Applicant's Amended Statement of Issues and Contentions, 3 December 2024; Respondent's Statement of Facts, Issues and Contentions, 4 September 2024.

[2] Affidavit of Nyree Lum dated 13 August 2024 [70] (Affidavit).

[4] Exhibit T2, Tender Book (TB) 125, Statement of AP Cherry dated 11 December 2020 [25].

[7] Tr 149, 39-42; Tr 150, 13-19.

[9] It is not clear whether the question was directed to the first criterion or all the criteria.

[19] [2016] SAET 76 [58]-[62].

[20] [2016] SAET 31.

[22] [2026] SAET 1.

[24] Paschalis v Return to Work Corporation of South Australia (Paschalis) [2021] SASCFC 44 [158] (Livesey & Bleby JJ).

[26] Sean Luke v Department for Primary Industries and Regions [2025] SAET 24.

[36] For example, Dr Suyapto, tr 157, 27-29.

[37] [2019] SAET 226.

[40] [2019] SAET 113.

[42] Tr 193, 16-20; Tr 194, 12-15.