Alrbieadi v Tucorp Formwork Pty Limited
[2023] NSWPICMP 107
•27 March 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Alrbieadi v Tucorp Formwork Pty Limited [2023] NSWPICMP 107 |
| APPELLANT: | Zaid Yahia Zakaria Alrbieadi |
| RESPONDENT: | Tucorp Formwork Pty Limited |
| Appeal Panel | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Mark Burns |
| MEDICAL ASSESSOR: | Michael Steiner |
| DATE OF DECISION: | 27 March 2023 |
CATCHWORDS: | wORKERS cOMPENSATION - Injury to eye; meaning of maximum medical improvement (MMI); SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 paragraphs 1.6, 1.15, 1.16, 1.34 and 1.35; possibility of future deterioration does not preclude finding of MMI; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 18 November 2022 Zaid Yahia Zakaria Alrbieadi lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Ian Wechsler, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
24 October 2022.Mr Alrbieadi relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate was satisfied that, on the face of the application, at least one ground of appeal has been made out. We conducted a review of the original medical assessment, limited to the grounds of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 4th ed (AMA 4).
RELEVANT FACTUAL BACKGROUND
Mr Alrbieadi was employed by Tucorp Formwork Pty Ltd (Tucorp) as a formwork carpenter. On 20 April 2018 he suffered an injury to his right eye when he was struck by a fragment of nail from a colleague’s nail gun. Mr Alrbieadi was treated at Prince of Wales Hospital where an examination under anaesthetic was carried out.
Mr Alrbieadi came under the care of Dr Downie who treated retinal tears on 15 June and 5 July 2018. Mr Alrbieadi has remained under Dr Downie’s care. In 2020 Dr Downie noted that Mr Alrbieadi had developed a traumatic cataract in his right eye. He recommended a right cataract extraction, insertion of an intraocular lens and repair of the damaged right anterior chamber. The surgery has not been undertaken.
The Medical Assessor was satisfied that Mr Alrbieadi’s condition had reached maximum medical improvement and assessed 14% whole person impairment (WPI).
PRELIMINARY REVIEW
We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, we determined that it was not necessary for the worker to undergo a further medical examination because the assessment made by the Medical Assessor does not disclose an error.
EVIDENCE
We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
The parts of the MAC given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary, and in submissions prepared by his solicitor, Mr Di Re, Mr Alrbieadi submitted that the Medical Assessor should not have determined that his condition had reached maximum medical improvement because the definition in the Guidelines provides:
“This is considered to occur when the worker’s condition is well stabilised and is unlikely to change substantially in the next year, with or without medical treatment.”
Mr Di Re noted that the Medical Assessor said that the Medical Assessor noted that there is a risk that Mr Alrbieadi may develop post-traumatic glaucoma which can develop months or years later. The Medical Assessor also noted that there is a chance that Mr Alrbieadi’s vision in his right eye may deteriorate further as the cataract progresses. Because the Medical Assessor said that glaucoma can develop months later, Mr Di Re submitted that it could not be said that Mr Alrbieadi’s condition had stablised and maximum medical improvement had not been reached.
In reply, Mr Michael prepared submissions on behalf of Tucorp. He quoted paragraphs 1.15 and 1.16 of the Guidelines and said that the task of the Medical Assessor was to determine if Mr Alrbieadi’s condition was well stabilised and if it was likely to change substantially in the next year. Mr Michael said that the proper construction of the Medical Assessor’s comments was that glaucoma is not present but that it can develop at any time after a traumatic event and that a chance of a deterioration at an unspecified time in the future does not lead to the conclusion that Mr Alrbieadi’s condition is likely to change substantially in the next year.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan[1] the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
[1] [2006] NSWCA 284.
The Medical Assessor said:
“Mr Alrbieadi has had no further surgery and has been under long term care of Dr John Downie.
Since 2020, Mr Alrbieadi’s right vision deteriorated further because of the development of a traumatic right cataract. Dr Downie has recommended a right cataract extraction and insertion of intraocular lens and repair of the damaged right anterior chamber but at this stage surgery has not been performed because of concern about the possible risk.”
The Medical Assessor set out his examination findings in detail. Because of the limited scope of the appeal, it is unnecessary to set out all of those findings, other than to note that he found:
“The anterior chamber ocular coherent tomography showed open angles at 3 o’clock and 9 o’clock.
The corneal topography was essentially normal.”
The Medical Assessor noted an early right posterior subcapsular cataract.
In summarising the injuries and his diagnoses, the Medical Assessor said:
“Mr Alrbieadi had a severe high speed projectile concussive injury to the right eye when he was hit by a nail fragment coming at high speed from a nail gun held by a worker one metre away. Mr Alrbieadi had a conjunctival laceration but no penetration of the sclera. He had a macroscopic hyphaema which settled within days. He was left with a large infero temporal iridodialysis which is a disinsertion of the iris root. The injury also caused a distorted right pupil as well as minor ruptures of the iris sphincter.
The injury also caused traumatic retinal holes which required laser or cryotherapy.
The injury also caused a significant right posterior subcapsular cataract.
The iridodialysis is causing right monocular diplopic symptoms as well as severe glare intolerance. The irregularly dilated right pupil is also contributing to severe symptoms of glare intolerance.
The extensive damage to the iris and anterior segment has resulted in Mr Alrbieadi having a significant risk of developing post traumatic glaucoma as a direct result of the injury. This glaucoma although is not present can develop months or years later.”
With respect to maximum medical improvement, the Medical Assessor said:
“Mr Alrbieadi has reached his maximal medical improvement and there will be no further improvement in his ophthalmic status. It is likely that the right posterior subcapsular cataract will progress and his vision in the right eye will decrease further. Because of the damage to the right anterior segment Mr Alrbieadi is at risk of developing post-traumatic glaucoma later on in life although there was no evidence of post-traumatic glaucoma currently.”
And:
“Mr Alrbieadi has reached maximal medical improvement but there is a chance his vision in the right eye may deteriorate further as the cataract progresses.”
And:
“Maximal medical improvement has occurred but as noted there is a chance of further deterioration of vision when the cataract progresses further. I cannot give a time frame for this.”
The Medical Assessor set out the calculations which led to his assessment of 14% WPI. He considered the other reports in the file. He noted that when Dr Stern assessed Mr Alrbieadi in November 2019 he did not have a significant cataract so that his vision was less impaired. The Medical Assessor explained why his assessment differed from that of Dr Bors in December 2021, noting that if Dr Bors had worked out binocular vision loss as AMA 4 requires, his assessment would be less than that made by the Medical Assessor. With respect to Dr Martin’s assessment, the Medical Assessor said:
“Where our results differ is that I found that Mr Alrbieadi’s right uncorrected vision to be significantly more impaired than when he saw Dr Martin in February of this year. This could well be due to progress of the right posterior subcapsular cataract in this period of eight months.
If Mr Alrbieadi does have cataract and implant surgery and he does have an improvement in vision he would still have a significant visual impairment because of the pseudophakia and almost certainly the persistent photophobia from the iridodialysis and the traumatic mydriasis which is very difficult to completely correct with surgery. This would mean that even after completely successful cataract and implant surgery with improvement in near and distance vision it is very likely that Mr Alrbieadi’s impairment would be of a similar value. Hence I would regard Mr Alrbieadi’s impairment as permanent and fully ascertainable.”
Mr Di Re quoted the definition of maximum medical improvement. The task of the Medical Assessor is set out in paragraph 1.6 of the Guidelines:
“a. Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking account the claimant’s relevant medical history and all available relevant medical information to determine:
· whether the condition has reached Maximum Medical Improvement (MMI)
· whether the claimant’s compensable injury/condition has resulted in an impairment
· whether the resultant impairment is permanent
· the degree of permanent impairment that results from the injury
· the proportion of permanent impairment due to any previous injury, pre-existing condition or abnormality,
· if any, in accordance with diagnostic and other objective criteria as outlined in these Guidelines.”
The Guidelines provide in paragraphs 1.15 and 1.16:
“1.15 Assessments are only to be conducted when the medical assessor considers that the degree of permanent impairment of the claimant is unlikely to improve further and has attained maximum medical improvement. This is considered to occur when the worker’s condition is well stabilised and is unlikely to change substantially in the next year with or without medical treatment.
1.16 If the medical assessor considers that the claimant’s treatment has been inadequate and maximum medical improvement has not been achieved, the assessment should be deferred and comment made on the value of additional or different treatment and/or rehabilitation – subject to paragraph 1.34 in the Guidelines.”
Paragraph 1.34 and 1.35 are relevant:
“1.34 If the claimant has been offered, but has refused, additional or alternative medical treatment that the assessor considers likely to improve the claimant’s condition, the medical assessor should evaluate the current condition without consideration of potential changes associated with the proposed treatment. The assessor may note the potential for improvement in the claimant’s condition in the evaluation report, and the reasons for refusal by the claimant, but should not adjust the level of impairment on the basis of the claimant’s decision.
1.35 Similarly, if a medical assessor forms the opinion that the claimant’s condition is stable for the next year, but that it may deteriorate in the long term, the assessor should make no allowance for this deterioration.”
Consideration
The question of maximum medical impairment focusses on whether a worker’s condition is likely to improve substantially within the next year. It is different to the questions of whether his condition has stabilised to permit an assessment of the level of WPI which is permanent or whether that impairment may, over time, deteriorate. The Guidelines deal with the latter possibility in paragraph 1.35.
It is not the Medical Assessor’s role to consider if this is the best time to make an assessment of permanent impairment, only if it can be done within the Guidelines.
The Medical Assessor was correct to determine that Mr Alrbieadi’s condition was unlikely to improve. We consider he was also correct to determine that Mr Alrbieadi’s condition had stabilised for the purpose of assessing WPI.
There are two ways in which Mr Alrbieadi’s condition may deteriorate in the future. The first is with respect to the developing cataract. The Medical Assessor considered the possibility of improvement if surgery was undertaken because Mr Alrbieadi has declined surgery. He determined that, even if surgery was undertaken, the level of impairment is likely to remain similar to what it is now. The level of impairment Mr Alrbieadi suffers now is permanent impairment. The Medical Assessor said that there was a chance of further deterioration in his vision but was unable to supply a time frame.
The Medical Assessor said that Mr Alrbieadi is at risk of developing glaucoma and that it was not present at the date of the examination. It is a possibility only. The Medical Assessor was being very cautious in suggesting that the risk of glaucoma may eventuate within months. He said that the risk is that Mr Alrbieadi may develop glaucoma later on in life.
The Medical Assessor found normal angles on anterior chamber ocular coherent tomography. That means that it is unlikely that the risk of glaucoma will eventuate in the short term, even if the pressure on the optic nerve increased in the short term. Based on the Medical Assessor’s examination it is likely that if Mr Alrbieadi does develop glaucoma, it will occur after an interval of years and later in life. It is possible that he will not develop glaucoma at all.
It was open to the Medical Assessor to determine that Mr Alrbieadi’s condition had reached maximum medical improvement.
For these reasons, we have determined that the MAC issued on 11 October 2022 should be confirmed.
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