Al-Kanani v Gms Spares Pty Ltd
[2023] NSWPIC 638
•29 November 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Al-Kanani v GMS Spares Pty Ltd [2023] NSWPIC 638 |
| APPLICANT: | Najah Al-Kanani |
| RESPONDENT: | GMS Spares Pty Ltd |
| MEMBER: | Diana Benk |
| DATE OF DECISION: | 29 November 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Application pursuant to section 57(1) of the Personal Injury Commission Act 2020; to reconsider and rescind Certificate of Determination (COD) dated 21 July 2020 claim for lump sum for orthopaedic injury; Held – COD rescinded; referred to Medical Assessor for further assessment as an alternative to appeal pursuant to section 329(1)(a) of the Workplace Injury Management and Workers Compensation Act 1998. |
| DETERMINATIONS MADE: | The Commission determines: 1. The Certificate of Determination in matter number 578/20 dated 21 July 2020 is rescinded. 2. The matter is remitted to the President for further referral to Medical Assessor (Dr Beer) for assessment of the degree of permanent impairment arising from injuries sustained on 30 March 2017. The documents to be forwarded to Dr Beer are to include: a. a copy of this decision and statement of reasons, and b. documents attached to the Application for Reconsideration |
STATEMENT OF REASONS
BACKGROUND
Via an application for reconsideration, Najah Al-Kanani (the applicant) seeks the Certificate of Determination (COD) dated 21 July 2020 reflecting the findings of Approved Medical Assessor (AMS), Dr John Beer of 13% whole person impairment (WPI) be rescinded. The applicant further seeks WPI be reassessed due to a deterioration in his medical condition (primarily the left upper limb) resulting from subsequent surgery now supported by fresh medical evidence.
GMS Spares Pty Ltd (the respondent) opposes the application.
The matter was listed for a preliminary conference where timetabled submissions were directed and the parties understood assessment would then proceed on the papers. The primary issue for determination is whether the COD ought to be rescinded.
LEGISLATIVE PROVISIONS
The discretionary power to rescind a COD is found in s 57(1) of the Personal Injury Commission Act 2020 (PIC Act). Further, the Workplace Injury Management Act 1998 (the 1998 Act) and specifically s 329(1A) allows for reconsideration of a medical assessment as an alternative to an appeal.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) application to reconsider and rescind the COD dated 21 July 2020 and attached documents (the application), and
(b) submissions by both the applicant and respondent.
SUBMISSIONS
Applicant’s submissions
In summary, the applicant submits that the COD ought to be rescinded because;
(a) It is in the interests of justice. The applicant had further surgery to the left wrist (funded by the insurer) post the Medical Assessment Certificate (MAC) of Dr John Beer which has resulted in deterioration. Dr Beer had on 20 March 2020 certified a 7% WPI for the left upper limb whereas the current medical evidence of Dr Habib dated 6 December 2022 assesses a 20% WPI of the upper limb.
(b) The further medical reports pertaining to the surgical procedure undertaken by Dr Sungaran on 27 May 2021 and Dr Habib were not available at the time of the MAC assessment and this of itself is sufficient to enable further assessment.
Respondent’s submissions
The respondent submitted:
(a) public interest dictates that the litigation should not proceed indefinitely;
(b) that the interests of procedural fairness and natural justice require for the MAC and COD not to be disturbed;
(c) the findings of Dr Beer are presumed to be correct and binding on the parties in relation to the degree of permanent impairment;
(d) that I must make a procedural ruling on the admissibility of Dr Habib’s report dated 6 December 2022 as the report offends the provisions of Regulation 44 of the Workers Compensation Regulation 2016 as the applicant had previously relied on the report of Dr Dias dated 20 September 2018. Further the report of Dr Habib is suboptimal in many respects as it fails to address the previous assessment of Dr Beer and justify any increase in impairment;
(e) the report of Dr Habib has no probative value. Dr Habib’s assessment of 26% WPI (incorporating WPI for cervical, left upper extremity and scarring) is similar to Dr Dias assessment of 22% WPI for the same injuries). It was submitted that the fresh evidence will unlikely change the assessment of impairment, and
(f) that the dispute and referral to Dr Beer did not include a medical dispute in relation to the left wrist and that at the time of the original claim the left wrist was not pleaded, claimed or referred to as part of the medical dispute in respect of impairment.
Applicant’s submissions in reply
In reply it was submitted;
(a) that Regulation 44 has not been breached for the purposes of these proceedings before the Commission. The present proceedings are in relation to a reconsideration and are different proceedings to those that were finalised in the Workers Compensation Commission on 21 July 2020; and so, it follows that the earlier report of Dr Dias was the forensic report for the earlier proceedings and that the report of Dr Habib cannot offend the Regulation for the purposes of these proceedings;
(b) that in the event that argument is not accepted, the admission of two forensic reports is permissible as ‘witness statements but not in respect of opinions and conclusions;[1] (McCarthy)
(c) further to exclude Dr Dias as a ‘witness statement’ would result in an incomplete history, especially given the respondent’s stance that the left wrist was not pleaded, claimed or referred to as part of the original medical dispute in respect of impairment, clearly incorrect when reconciled with Dr Dias original history and assessment;
(d) the original referral to the AMS was for an assessment of the cervical spine, left upper extremity and scarring, and did not confine assessment of the upper limb to any specific joint. The respondent agreed to the referral at the time and did not attempt to limit the assessment of the left upper extremity to any specific joint. Dr Beer examined the wrist at the time (and so it can be inferred that it was part of the referral) but found it to have a normal range of movement at that time. There has since been a medically supported deterioration, and
(e) that it is disingenuous for the respondent to argue that the left wrist was not part of the original assessment. The original s 78 notice dated 5 June 2019 did not raise a dispute in relation to the wrist and nominates the injuries as “cervical spine, left upper extremity and scarring”.
[1] McCarthy v Patrick Stevedores No.1 Pty Limited (2011) NSWCA 311.
Applicant’s statement dated 26 February 2023
The applicant reports that his left arm remained an ongoing problem resulting in further consultation with Dr Sungaran who suggested surgery. The applicant states that his left arm is now worse than what it was before surgery specifically:
“I get more pain and numbness at my left forearm, and I get more pain around my left elbow and the ability to move my left arm around is lesser than when I was assessed by Dr Beer”.[2]
Medical evidence
[2] Paragraph 20 – folio12 Application for reconsideration.
Dr John Beer (AMS) dated 20 March 2020
Following an examination in his capacity as AMS, Dr Beer assessed the applicant as having a 13% WPI, which consisted of a 5% WPI for the cervical spine, 7% WPI for the left upper extremity and 1% WPI for scarring.[3] Specifically, the assessment provided in relation to the left upper extremity was not limited to the any particular joint, but rather was a complete assessment of the upper extremity.
[3] Folio 32 of the reconsideration Application.
I find the assessment of Dr Beer was undertaken prior to the applicant’s surgery on 27 May 2021, namely excision of a neuroma and secondary nerve repair to the left forearm.
Dr Sungaran dated 27 May 2021
Dr Sungaran, confirmed ongoing complaints of pain and the need for further surgery and reported (unedited):[4]
“…he had a large neuroma with disorder nerve architecture overlying the first extensor compartment tendons. It was evident at the bifurcation of the superficial radial nerve. The neuroma was excised, and a secondary nerve repair was performed using a microneural conduit.”
[4] Folio 59 of the reconsideration Application.
Dr Habib dated 6 December 2022
The report refers to the injury on 30 March 2017 where the applicant sustained a significant laceration to the distal forearm following an electric power saw kicking back and striking him. The laceration underwent micro repair of the completely severed (full division) superficial branch of the radial nerve. Post surgery there was recorded sensory alteration in the distribution of the superficial radial branch over the dorsum of the right and advanced positive Tinel’s sign just distal to the scar. Pain and restrictions reportedly continued and on further review, Dr Sungaran opined the applicant had developed a neuroma at the injury site of the superficial radial nerve which required excision after release of the first extensor compartment and tenosynovectomy. Post surgery there was little improvement recorded and a complaint of ongoing significant numbness.
Dr Habib concluded the left shoulder and left elbow were largely normal but that there was significant restriction in left wrist movement on account of pain with impairment of the sensory distribution of the superficial radial cutaneous nerve and it is for this reason that he assessed a 20% WPI of the left upper extremity (which significantly differs from the earlier assessment of Dr Beer of 7% WPI, undertaken prior to surgical intervention).
Dr Habib assessed a 5% WPI of the cervical spine, entirely consistent with the findings of Dr Beer but rated WPI for scarring at 2% whereas Dr Beer assessed a 1% WPI.
FINDINGS AND CONCLUSION
The discretionary powers pertaining to reconsideration were discussed exhaustively by Roche ADP (as he then was) in Samuel v Sebel Furniture Limited [2006] NSWWCCPD 141 (Samuel). Having reviewed the authorities, the Acting Deputy President concluded there was no requirement for exceptional circumstances to exist before a decision could be reconsidered. The Acting Deputy President said that it was relevant to bear in mind the flexible nature of proceedings before the Commission and the Commission should exercise its discretion in a beneficial manner.
Factors relevant to the exercise of discretion were said to include but were not limited to:
• the statutory object of the Commission to provide a fair system of dispute resolution (s 3 of the PIC Act);
• the reasons for, and extent of any, delay in bringing the request to the Commission;[5]
• the public interest in finality of litigation;[6]
• new evidence which could not reasonably be obtained prior to the decision the subject of the request for reconsideration;[7]
• whether a claim or defence could have been pursued in the original proceedings, and
• the substantial merits of the case and the requirement of the Commission to do justice between the parties.
[5] Schipp v Herfords Pty Ltd [1975] 1 NSWLR 413.
[6] Hilliger v Hilliger (1952) 52 SR (NSW) 105.
[7] Maksoudian v J Robins & Sons Pty Ltd [1993] NSWCC 36; (1993) 9 NSWCCR 642.
Overall, I find that the applicant has sustained a serious injury and accept his statement that his symptoms in the left upper extremity have increased and not improved following surgery.
I also find that on the basis of the evidence before me, that there has been a deterioration in function, specifically in relation to the left wrist, as a result of the excision of the neuroma. This evidence was clearly unavailable to Dr Beer as that surgery took place after the MAC, but I further find had the surgery taken place prior to the assessment that the applicant would have, (according to his symptom profile) been assessed with a greater degree of whole person impairment, particularly with regards to the wrist as the evidence post-surgery was that the applicant had a positive Tinel’s sign and restriction in movement of the wrist, such findings being absent at Dr Beer’s review.
The respondent’s submissions are noteworthy, specifically with regard to Regulation 44. I agree with the submissions and find that the applicant cannot rely on both the medical opinion of Dr Dias and Dr Habib, an election has to be made. The applicant submits both reports are relevant to the issue in dispute and that the admission of Dr Dias should be allowed as a ‘witness statement’ and not in respect of opinions and conclusions citing the principles of McCarthy. I agree. To exclude the report would result in an incomplete clinical picture particularly as Dr Beer had referred to Dr Dias’ assessment in his medical assessment certificate and would deprive any reconsideration of the full history. So, I find in the interests of procedural fairness, the report of Dr Dias is to be admitted in terms of its history.
Again, I globally agree with the respondent, in that there must be a finality to proceedings and reconsiderations must not be entertained lightly. However, careful review of the 1998 Act and PIC Act reveals that there is no time limit imposed relating to reconsideration applications. The Act has many time restrictions for example the making of a claim and on various procedural issues etc, but no such time bars exist regarding reconsideration. If this was the intention of Government, time restrictions would have been inserted into the 1998 Act. It follows whilst globally a cogent argument, it does not apply in these circumstances. Regardless, I find that the significance of the injury and the deterioration mitigates against putting much weight on the need for finality.
At first blush, I was also persuaded by the respondent’s submission that the report of Dr Habib had no probative value and was unlikely to result in a finding of deterioration as the global assessment of WPI was similar to Dr Dias. However, a deep dive into the assessments reveals Dr Dias’ assessment differed substantially with regards to assessment of the cervical spine only, in that he assessed an 18% WPI for the cervical spine, whereas Drs Beer and Habib have assessed a 7% WPI. Dr Dias assessed a 3% WPI for the upper extremity whereas Dr Beer assessed a 7% WPI. Dr Habib now assesses a 20% WPI to take into account the effects of surgery and deterioration in the upper limb as a whole. I find that the assessment of Dr Habib does have probative value particularly with regards the findings relating to the left upper extremity and deterioration following surgical intervention.
I acknowledge the respondent’s contention that the new evidence is unlikely to alter the findings of the original assessment. However, taking into account the pathology, the subsequent surgery and the applicant’s statement of ongoing symptoms and restrictions, I find that there is an arguable case with regards to deterioration for these reasons.
I also acknowledge the respondent’s argument that there would be a denial of procedural fairness and natural justice to allow the COD to be rescinded however, such principles must be applied equally to both parties. The impact of a refusal to rescind the COD has significant consequences for the applicant, who in the presence of a legitimate and serious workplace injury and where liability for subsequent surgery has been met by the respondent, could, in the absence of any reassessment, be deprived of valuable rights including ongoing weekly payments, extended access to treatment and the possibility of a work injury damages claim.
For the reasons above, I find sufficient grounds exist to enliven the discretion available in s 57(1) of the PIC Act to reconsider and rescind the COD dated 21 July 2020.
I further find that this is an appropriate matter for an Order pursuant to s 329(1)(a) of the 1998 Act for the matter to again be referred to Dr Beer for medical assessment as an alternative to an appeal. The matter involves an assessment of the degree of permanent impairment in respect of any increase arguably resulting from deterioration of the applicant’s condition. This is best done by a Medical Assessor at first instance, rather than an Appeal Panel. The respondent submits that the applicant should be reassessed by Dr Beer and I agree this is a most sensible and practical case management approach to ensure consistency in assessment. The brief to the medical assessor is to include the documents listed in the determination above and a copy of these reasons.
SUMMARY
For the reasons stated above, the Commission will make the findings and orders as set out on page 1 of the Certificate of Determination.