By an application for directions dated 28 November 2024, the applicant sought an order that:
[2]
The respondent discover and produce to the applicant's solicitors within seven days a copy of the USB containing video footage which was provided to Dr Tomich in preparation for his report dated 17 June 2024.
[3]
A similar application had been made while the matter was at conciliation and refused by the Commissioner, while preserving the rights to the applicant to make a fresh application when the matter reached judicial determination level.
The proceedings between these parties have a protracted history. The applicant was employed by the respondent on a full-time basis as a preschool teacher. In June 2021 she claimed to have suffered a chronic laryngeal hypersensitivity (CLH) injury after being regularly exposed to sanitisers due to Covid 19 procedures at work.
Subsequent to the claim being accepted, the respondent sought to redetermine the claim on the basis of anonymous "tipoffs" it received regarding activities in which it was alleged the applicant had been engaged. In an application for review against that redetermination, summary judgment was entered in favour of the applicant on the basis that the material upon which the respondent sought to rely did not bring the matter within the circumstances empowering a redetermination.[1]
The present proceedings involve a rejection of a claim for injuries to the cervical spine and left shoulder said to arise as a consequence of the CLH (ET-24-03363) (the consequential claim) and a rejection of a claim for medical expenses said to be associated with the CLH (ET-24-02880) (the medical expenses claim).
It is the determination to reject the medical expenses claim upon which the applicant founds her application for discovery and production.
In May 2024 Dr Tomich, an ENT surgeon, undertook an independent medical examination of the applicant at the request of the respondent. Dr Tomich provided a report dated 20 May 2024 which generally was supportive of the applicant's claim for CLH.
The respondent then sent Dr Tomich a USB drive containing video surveillance it had obtained of the applicant. On 17 June 2024 Dr Tomich provided a further report in which he stated:
[4]
I wish to confirm that I have viewed the USB video footage as described in your referring correspondence, the viewing of which has been taken into consideration when formulating the following opinion.[2]
[5]
That opinion included that "I would recommend that the worker's presenting symptomatology and diagnoses be re-evaluated in the light of the accompanying footage."
The medical expenses claim was rejected by the respondent by determination dated 27 June 2024. Because that determination is the cornerstone of the present discovery application, it is necessary to set out the terms of determination in some detail.
In making the claim which was to be determined, the applicant had relied heavily upon the decision of DP Eaton previously referred to. In its determination, the respondent stated:
[6]
Firstly, we confirm that a redetermination made by us and published in April 2023 was the subject of a summary judgment application with judgment delivered by Eaton DP on 1 March 2024. All backpay of income support has been made, with such payments ceasing effective 104 weeks from the onset of your client's claimed incapacity. Summary judgment was made on the basis of technical deficiencies with the redetermination only.
[7]
We do not believe it correct to assert that the judgment delivered by Eaton DP meant that your "client's entitlements (were) restored", nor do we accept that any decision to not fund ongoing expenses is in contravention of the Return to Work Act 2014 in the absence of any application pursuant to s 33(17) of the Return to Work Act 2014.
[8]
In early 2023, we received, via Return to Work SA, three anonymous reports relating to the validity of the claim for compensation that was lodged by you and accepted by us. We understand your response to be that that was "an unfounded tip off made by a disgruntled ex-partner." Nonetheless, these reports were made and we are entitled to put you to proof.
Secondly, in certain circumstances, we are entitled to reevaluate the claim for compensation made by you and are entitled to resolve to reject your client's claim for payment of incurred medical expenses, as well as future treatment expenses by putting you to proof where we have a legitimate reason to reevaluate our position and are entitled to do so.
Thirdly, we have received from your representatives copies of medical records provided by Ms Andrea Sparrow (exercise physiologist and dietician) indicating that in late 2022 you were subject to a series of blood and other tests and studies recording a likelihood of past infection from Epstein-Barr Virus, usually characterised by fatigue, fever and inflamed throat, swollen lymph nodes and sores/rash, as well as a general chemistry report suggesting that you may have suffered a bacterial rather than a viral infection. We are not satisfied that the medical expenses incurred by you relate to a work injury and are reasonable and necessary.
In any event, expenses relating to your subsequent claim for injury to the neck and shoulders are not compensable until and unless we determine that claim.
[9]
In the circumstances, and notwithstanding our previous determinations or the judgment of Eaton DP, we are not satisfied that the past medical expenses incurred by you relate to a work injury or were reasonable or necessary and we are not obliged to make any determination in a vacuum in relation to any ongoing treatment expenses or treatment regime, particularly in the absence of a s 33(17) application for pre-approval. In the circumstances, we determine to reject your claim for incurred medical and like expenses.
[10]
Although the respondent does not mention either report of Dr Tomich or his opinions, the applicant submits that the respondent must have relied upon his subsequent report in determining to reject the claim because of:
12.1 the conduct of the respondent in obtaining a second report on the material before making a determination;
12.2 the temporal connection between the report and rejection;
12.3 the wording of the decision and particularly the suggestion of a "legitimate reason" in paragraph numbered 2.
Accordingly, the applicant submits that the matter comes within the provisions of rule 56 (8)(c) of the SAET Rules 2024.
Alternatively, if I am not satisfied that the matter falls within subrule (c), then there is nevertheless sufficient a connection between the report of Dr Tomich and the determination that there are good reasons to require the production of the documents in the interests of justice within rule 56(8)(d).
Rule 56(8) provides:
[11]
Subject to sub-rule (9), in a proceeding under the Return to Work Act 2014 a party is not required to discover or produce evidence of still or moving images of a claimant taken without their knowledge or consent (the Evidence) after the proceeding is referred to hearing and determination unless:
[12]
(a) discovery and production of the Evidence is made by consent; or
[13]
(b) the Evidence has previously been produced to a medical expert who is treating the worker; or
[14]
(c) the decision in issue in the proceeding relies on a medical opinion that is wholly or predominantly based on the Evidence; or
[15]
(d) the claimant is aware of the Evidence and seeks that it be discovered and produced and the Tribunal is satisfied that, in the interests of justice, there are good reasons that require discovery and production of the Evidence.
[16]
The respondent contends that there is nothing in the rejection letter to indicate any reliance upon the further report of Dr Tomich.
Secondly, the legal privilege in the material has not been waived.
Thirdly, procedural fairness requires that the respondent should not be required to produce the surveillance material before cross-examination.
[17]
For the reasons set out by me in my decision in Heggblum v RTWCSA_[3]_ and notwithstanding comments to the contrary by Kelly DPJ in Borlace v Randstad Pty Ltd,[4] I do not consider legal privilege applies to this material.
While I am satisfied that the second report of Dr Tomich was predominantly based upon the relevant evidence, I am not satisfied that the decision to reject the medical expenses claim relied upon the opinion of Dr Tomich set out in that report.
Had the respondent relied upon that report, there is no reason why the decision would not have referred to that material. The report was provided to the applicant (apparently at the same time as the rejection decision). It seems far more likely that the decision was drafted and ready to serve at the same time as the report was received and therefore sent out together. In those circumstances, the report may, at its highest, reinforce a decision already made.
The alternate basis of the application brings into play the issue of the interests of justice, which in this context essentially means procedural fairness.
That is an issue which has repeatedly been addressed in decisions of this Tribunal, most recently by Kelly DPJ in Borlace and by me in Heggblum.
As Kelly DPJ with approval summarised my decision in Heggblum:
[18]
In Heggblum the Tribunal declined to make an order for production of the balance of surveillance material prior to the completion of cross-examination of the Applicant. In doing so the Tribunal based its decision on the procedural fairness to which the cross-examiner is entitled. The Court upheld the basis behind r 57(6). The principle behind the rule is to encourage full and frank disclosure of the Applicant's capacities. That is the interests of justice. Delay in production has the potential to add to his credibility.[5]
[19]
The applicant here is clearly put on notice of the subject matter of the surveillance material. In his report, Dr Tomich stated:
[20]
3. The worker claims that she is still experiencing persisting hypersensitivity to intrinsic chemicals such as cleaning fluids, alcohol, cold air, campfire and cigarette smoke.
[21]
This history is inconsistent with the USB video footage which demonstrates in particular her active involvement at the Adelaide International Track Raceway where it would appear she was exposed to irritant smoke arising from tyre "burn outs". It is noted that these "tyre burnouts" appear to be a prerequisite to facilitate rapid acceleration of the drag car, and which, based on the video evidence did not appear to induce any coughing, nor other suggestion of respiratory symptoms.
[22]
In addition, during that meeting it was noted that the worker was involved in the manoeuvring of cars to the starting grid which would have exposed her to such "extrinsic chemicals".
[23]
In particular, there was no bouts of paroxysmal coughing noted whatsoever during the video footage screening.
[24]
4. Video footage demonstrated the worker's movement in a shopping and outdoor environment which again showed no evidence of paroxysmal coughing, nor any pulmonary or lung deficiency.
[25]
Armed with that information and her own memory and experience of the events, she is well able to prepare her evidence, whilst preserving some capacity in the cross-examiner to test that evidence if it is inconsistent with the surveillance material.
In this case the interests of justice clearly favour the procedural fairness, to which the cross-examiner is entitled, being maintained.
I also note that applicant specifically stated she was not seeking to rely upon Rule 67, accepting that Rule 56 prevails, and accordingly I do not need to consider any application of that Rule.