Briel v Woolworths Group Limited
[2024] NSWPICMP 106
•28 February 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Briel v Woolworths Group Limited [2024] NSWPICMP 106 |
| APPELLANT: | Audrey Briel |
| RESPONDENT: | Woolworths Group Limited |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Neil Berry |
| MEDICAL ASSESSOR: | Mark Burns |
| DATE OF DECISION: | 28 February 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Appeal from nil whole person impairment (WPI) assessment; whether Medical Assessor (MA) contradicted the terms of the referral; whether MA received additional material forwarded by appellant after he had earlier found no MMI; whether adequate reasons given for assessment; Held – appellant submissions misconceived; MA complied with terms of referral; MA self-evidently received additional material in order for him to find that MMI had been reached: Appeal Panel reviewed evidence and confirmed that all additional material had been forwarded; however, adequate reasons not given for WPI assessment; evidence reviewed by Panel; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 1 September 2023 Audrey Briel, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Associate Professor Wong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 28 August 2023.
The appellant 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 is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) 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 Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 18 April 2023 this matter was referred to two Medical Assessors following the issue of an Amended Certificate of Determination on 31 March 2023 by Member Paul Sweeney.
Relevantly, the referral to the Medical Assessor sought a WPI assessment as a result of:
“Consequential medical condition namely an exacerbation of symptoms of an underlying constitutional inflammatory bowel syndrome.”
Whilst the date of injury was given as “9 July 2018”, the decision of Member Sweeney was reproduced on the face of the referral, which described the date of injury as a “deemed” date. It would seem nothing turns on this discrepancy.
The other referral related to a psychological injury, also deemed to have occurred on 9 July 2018.
Ms Briel originally developed diarrhoea in early 1990s whilst living in South Africa. She was given a provisional diagnosis of a low-grade inflammatory condition which resolved within three months. It did not cause any further problems for the next 20 years.
Ms Briel worked from March 2009 in Australia for Woolworths Group Limited (the respondent) as a project leader. She ceased work on 21 January 2019 following a mental breakdown from being bullied, which was the subject of the second referral in this matter. She was made redundant on 24 December 2019.
After she was bullied in 2018, she developed chronic diarrhoea. In November 2018, while leaving a restaurant, she had a panic attack and fainted in the street. She vomited and was incontinent of faecal material. She was transferred to Sydney Hospital.
She underwent a colonoscopy on 24 January 2019 with Dr Tisch, gastroenterologist.
The report advised that Ms Briel had a longstanding left sided ulcerative colitis.
Ms Briel continued to suffer from diarrhoea, passing 20-25 motions per day. She attended the Centre for Digestive Diseases at Five Dock with Dr Suhirdan Vivekanandarajah. She underwent both a gastroscopy and colonoscopy. The gastroscopy showed a small hiatus hernia with associated mild reflux oesophagitis and the colonoscopy showed minor ulcerations in the terminal ileum, and some mild non-specific inflammation noted in the right colon.
As indicated, this matter was referred for assessment on 31 March 2023.
The Medical Assessor first assessed Ms Briel in a MAC dated 25 May 2023, but found that maximum medical improvement had not then been achieved. The appellant had
undergone a further gastroscopy and colonoscopy with her treating gastroenterologist, Dr Vivekanandarajah on 28 April 2023, but the resultant histopathology report had not been available to the Medical Assessor.The Medical Assessor then issued the subject MAC on 28 August 2023.
The Medical Assessor found nil WPI.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
Ms Briel did not seek a re-examination as she indicated at page 4 of the Appeal pages. However she did seek an order that “the WPI flowing from the injury be assessed by the Medical Appeal Panel.” A re-examination was not necessary, as the determination as to impairment caused by an exacerbation of the appellant’s symptoms of an underlying constitutional inflammatory bowel condition was reliant on expert opinion regarding the various procedures and histopathological data.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate 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 which have been considered by the Appeal Panel.
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 [2006] NSWCA 284 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.
The MAC
At [2] of his MAC the Medical Assessor noted that the documentary evidence supplied to him was “as listed in the referral.”
The history taken by the Medical Assessor is set out under “relevant factual background,” above. As to his decision on 25 May 2023, he said:[1]
“On 28 April 2023 Ms Briel had a gastroscopy and colonoscopy by Dr Vivekanandarajah. The doctor found mild gastritis and a submucosal nodule measuring about 1.5cm in diameter at the duodenum. Small bowel biopsies were obtained and gastric biopsies were also obtained. The doctor also performed a colonoscopy. He found terminal ileitis with ulceration. In his report the doctor diagnosed mild gastritis and terminal ileal inflammation and ulcer and also right sided colitis most likely related to mild Crohn's disease. The histopathology results were not available to me on 25 May 2023 when Iprovided my original MAC on this matter. I did not provide an assessment of whole person impairment at the time because MMI has not been reached.”
[1] Appeal papers page 59As.
In the subject MAC of 28 August 2023 the Medical Assessor said he had since received the required information, and that maximum medical improvement had been achieved. He said:[2]
“Since my last examination I have received the following information and I now consider MMI has been achieved.
On 02/05/2023 Dr Ranjalee Liyanasuriya provided histological reports on the biopsies obtained from the above endoscopic examinations. He reported no significant abnormality in the biopsies obtained from the stomach, small bowel, terminal ileum, right and left colon. He did however report non-specific and very mildly inflamed ileal mucosa. The provisional diagnosis of inflammatory disease of the intestine was not confirmed in the reports. On 04/05/2023 an MRI enterography reported mild chronic terminal ileitis with mild mural thickening and enhancement at the terminal ileum without evidence of focal stricture. No evidence of active disease.”
[2] Appeal papers page 59-60.
On considering the detail of investigations the Medical Assessor said at [6]:
“18 June 2020 upper gastrointestinal endoscopy confirmed a small hiatus hernia with associated mild reflux oesophagitis and mild gastritis and normal duodenum. Colonoscopy showed minor terminal ileal ulceration and inflammation, mild right-sided colitis and a transverse colon polyp measuring about 10 mm was noted and removed.
On 28 April 2023 Ms Briel had a gastroscopy and colonoscopy by Dr Vivekanandarajah. The diagnosis is now terminal ileitis from Crohn disease.
On 02/05/2023 Dr Ranjalee Liyanasuriya provided histological reports on the biopsies obtained from the above endoscopic examinations. He reported no significant abnormality in the biopsies obtained from the stomach, small bowel, terminal ileum, right and left colon. He did however report nonspecific and very mildly inflamed terminal ileal mucosa. The provisional diagnosis of Crohn disease of the intestine was not confirmed in the histology reports.
On 04/05/2023 an MRI enterography reported mild chronic terminal ileitis with mild mural thickening and enhancement at the terminal ileum without evidence of focal stricture. No evidence of active disease.”
In his summary at [7] of the MAC, the Medical Assessor said:[3]
“Audrey Briel is a 59-year-old woman who had a history of inflammatory disease of the bowel in the 1990s. The condition was in remission since then. The symptoms have since recurred around July 2018 and this recurrence was attributed by her to bullying at work. She recently had a gastroscopy and a colonoscopy. The diagnosis of Crohn disease at the terminal ileum was proposed. The histological report did not confirm inflammatory disease of the bowel.”
[3] Appeal papers page 61.
In giving his opinion at [10a] of the MAC, the Medical Assessor said:
“Audrey Briel had consequential medical condition namely an exacerbation of symptoms of an underlying constitutional inflammatory bowel syndrome and I have assessed the whole person impairment attributable to her work at 0% WPI.”
The templated question at [10c] sought the Medical Assessor’s “brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why [his] opinion differs.” The Medical Assessor responded as follows:
“16 December 2020 Dr Anthony Greenberg rated the upper digestive system at 0% WPI. He rated the lower digestive system at 10% WPI based on analogy to Class 2 AMA5 Table 6.3.
29 March 2021 Dr Phil Truskett considered Ms Briel’s diarrhoeal condition was an organic pathology and unrelated to her psychiatric condition. Dr Phil Truskett stated and I quote ‘It is my view that Ms Briel’s bowel condition is independent of her working environment and conditions and is not work-related. It is an organic pathology’.
After reviewing of the recent radiological evidence and histology report provided to me, I agreed completely with Dr Phil Truskett’s opinion in that Ms Briel’s bowel condition is independent of her working environment and conditions and is not work-related. It is an organic pathology.”
Appellant’s submissions
Ground 1
The Medical Assessor had erred, it was argued, because he had made a finding which was beyond the terms of the referral. Whilst he took an accurate history, the comments he made in [10c] referred only to the opinions of Dr Antony Greenberg and Dr Phil Truskett.
Dr Truskett confirmed that there had been “no injury as such,” it was submitted. Dr Truskett advised that at the time of his examination Ms Briel’s condition related to a pre-existing condition which was not related to a psychiatric condition. Moreover, Ms Briel noted, the Medical Assessor agreed with that proposition.
We were referred to the comments by the Medical Assessor at [10c] and Ms Briel submitted that his adoption Dr Truskett’s opinion was at odds with the finding of Member Sweeney. Ms Briel submitted that the Medical Assessor “does not make any attempt to assess the WPI flowing from the injury” as a result of his finding.
Ground 2
It was further submitted that in his initial MAC of 25 May 2023 the Medical Assessor had found that maximum medical improvement had not been reached. He said that when a definite diagnosis and treatment outcomes were made by the gastroenterologist, maximum medical improvement would be achieved.
In that earlier MAC, the Medical Assessor referred to the gastroscopy and colonoscopy by Dr Vivekanandarajah and said that he needed reports of tests, a report from a gastroenterologist and MRI report. He also referred to a histology report that was pending.
Ms Briel filed “submissions” with the Personal Injury Commission on 5 June 2023 and 8 August 2023 which contained various additional medical reports, which are listed below.
Following this, the subject MAC of 28 August 2023 was issued.
Ms Briel submitted that the Medical Assessor made “no reference to any of the [abovementioned] reports” but found that her “history and recent objective findings” suggested Crohn’s disease with severe symptoms that seemed disproportionate, and that there were likely other contributing factors, including functional ones.
Ms Briel relied on a report of Dr Andrew Kim, which stated that her severe symptoms appeared disproportionate to the endoscopic severity and that there were likely contributing factors to the functional causes to those symptoms. Ms Briel submitted that “IBS” was a functional gastrointestinal disorder and that Dr Kim’s findings were consistent with the terms of the referral.
The Medical Assessor had accordingly failed to consider all the relevant medical information and thus applied incorrect criteria, or made a demonstrable error.
Respondent’s submissions
The respondent referred to the procedural steps in the case. It noted that on 25 May 2023 the Medical Assessor stated he was unable to assess the condition until a definite diagnosis and treatment had been made by the gastroenterologist. When those documents were supplied to the Medical Assessor on 8 August 2023 a further MAC issued on 28 August 2023.
The respondent repeated the facts on which the Medical Assessor based his assessment and the medical evidence that he considered.
We were referred to the Medical Assessor’s assessment of a nil impairment.
The respondent noted that, after reviewing the recent radiological evidence and histology report, the Medical Assessor agreed with the opinion of Dr Truskett that Ms Briel’s bowel condition was independent of the working environment and was accordingly not work-related.
The respondent denied that thereby the Medical Assessor had made a finding on liability as was alleged by the appellant.
The respondent referred to the clinical judgement of the Medical Assessor and submitted that the conclusion was open to him. We were referred to Marina Pitsonis v Registrar of the Workers Compensation Commission[4] in that regard. It was further submitted, as we understood the submission, that the reasons given by the Medical Assessor were adequate within the terms of Vegan, which we referred to above.
[4] [2008] NSW CA 88 at [59].
The respondent submitted:
“2.24 …. The MA determined that although the appellant satisfy the legal test for an exacerbation of those symptoms, she did not satisfy the medical test for an assessment of WPI for this condition, as he determined that it was completely constitutional in origin.”
The respondent then referred to the disposition of the psychological case, which we found to be irrelevant.
DISCUSSION
The appellant’s first ground of appeal is misconceived, with respect. A perusal of the MAC demonstrates that the Medical Assessor did indeed assess Ms Briel’s WPI flowing from the injury. He said as much at [10a], which we reproduced above.
The appellant’s submission that the Medical Assessor had made findings of “no injury” in contravention of the referral when considering Dr Truskett’s report at [10c] is also rejected. The Medical Assessor expressly agreed that the bowel condition suffered by Ms Briel was not work-related, as it was “independent of her working environment and conditions and is not work-related.” However, the referral did not seek an assessment regarding the underlying constitutional inflammatory bowel syndrome; it sought an assessment of WPI, if any, regarding the exacerbation of symptoms of the underlying constitutional inflammatory bowel syndrome which had been caused by Ms Briel’s psychological injury. The terms of Member Sweeney’s Orders were on the face of the referral. They were:
“1. The applicant suffered psychological injury arising out of and in the course of employment which is deemed to have occurred on 9 July 2018.
2. As a result of that injury the applicant suffered a consequential medical condition namely an exacerbation of symptoms of an underlying constitutional inflammatory bowel syndrome.
3. Remit the matter to the President for referral to a Medical Assessor to certify the degree of whole person impairment, if any, resulting from the psychological injury and the consequential medical condition.”
That is what the Medical Assessor considered, as he was required to do by the terms of the referral. He specifically stated that Ms Briel had suffered a consequential medical condition, which he described in terms of the referral itself, that is to say, an exacerbation of symptoms of an underlying constitutional inflammatory bowel syndrome.
Accordingly the first ground is dismissed.
The appellant’s second ground was that incorrect criteria had been applied.
It is clear that the Medical Assessor had indeed read the impugned material (or at least some of it) as it enabled him to find that maximum medical improvement had occurred. The error identified by Ms Briel was the apparent failure by the Medical Assessor to identify and comment on the material which formed the basis of his opinion. That error was said to constitute the application of incorrect criteria, which we doubt, but it has the potential to constitute a demonstrable error.
Whilst the Medical Assessor clearly did not mistake the function he was required to perform, he was however somewhat economical with his reasons for finding a nil impairment. It may be that he assessed a nil impairment on the basis that the exacerbation of symptoms of the underlying constitutional inflammatory bowel syndrome was not such as to warrant any more than a nil evaluation.
However, he failed to give adequate reasons, and such a theory is no more than speculation unless there is evidence to support it. The appellant erroneously alleged that the Medical Assessor did not make reference to any of the reports that she lodged, as we have reproduced that section of the MAC where he referred to some of them. There is no obligation on a Medical Assessor to refer to every opinion, as there is a presumption of regularity[5] by which it may be assumed that he had considered them but not found them useful.
[5] See Bojko v ICM Property Service Pty Ltd[2009] NSWCA 175 at [36]; Jones v Registrar Workers Compensation Commission [2010] NSWSC 481 at [50].
However, in view of the issue raised, the Appeal Panel caused enquiries to be made of all the evidence that was, or should have been, before the Medical Assessor. Our enquiries of the Registry established that the reports contained in the submissions of 5 June 2023 were forwarded to the Medical Assessor and confirmed by email on 8 June 2023. Indeed, the reference by the Medical Assessor to the documents identified at [6] of his MAC confirms that he had those documents.
Our enquiries also established that it is usual practice for the Registry to share additional documents with the parties concerned (in this case, the Medical Assessor), and that accordingly the documents contained in the submission of 8 August 2023 were also shared. An email was sent to the Medical Assessor on 16 August 2023.
Evidence filed for the appellant
The material forwarded was:
(a) with the submissions dated 5 June 2023:
·report from Dr Vivekanandarajah dated 28 April 2023;
·histopathology reports from Dr Ranjalee Liyanasuriya dated 2 May 2023;
·MR enterography report dated 4 May 2023;
·report Dr Vivekanandarajah dated 4 May 2023;
·endoscopy report dated 10 May 2023, and
·clinical notes Aus Clinical Labs.
(b) With the submissions dated 8 August 2023:
·report Dr Vivekanandarajah dated 16 May 2023;
·report Dr Vivekanandarajah dated 28 July 2023, and
·report Dr Andrew Kim, consultant gastroenterologist, dated 1 August 2023.
Consideration
The function of a Medical Panel is to resolve the dispute that it is called on to determine, if it can. Being now seized of the relevant material, a finding as to WPI can be made on the evidence.
The treating gastroenterologist, Dr Vivekanandarajah, reported on 28 April 2023 that the results of the gastroscopy and colonoscopy showed:
· gastritis;
· submucosal nodule in the 2nd part of the duodenum, and
· terminal ileal inflammation and ulcer and also right sided colitis most likely related to Crohn’s disease.
Dr Vivekanandarajah organised further tests, including an enterography which had already been booked. He said that if Crohn’s disease was confirmed he would have Ms Briel reviewed by Dr Andrew Kim who specialised in inflammatory bowel disease.
On 16 May 2023 Dr Vivekanandarajah advised a Dr Tim Schindler that possible Crohn’s disease had been detected by the colonoscopy and that Dr Vivekanandarajah was awaiting test results.
Dr Vivekanandarajah reported again on 28 July 2023. He advised that the MR enterography showed terminal ileal changes correlating with the colonoscopy findings. Ms Briel was to see Dr Kim to escalate treatment for her Crohn’s disease.
Dr Andrew Kim, consultant gastroenterologist, reported to Dr Vivekanandarajah on 1 August 2023. He said:
“Objective assessment of her Crohn's disease has demonstrated terminal ileal ulceration and very mild right-sided colitis, associated with elevated inflammatory markers (both CRP and fae al calprotectin) and mild mural thickening and enhancement on MRI. The findings were milder than expected for the degree of Audrey's symptoms.”
We note that “colitis” is the medical term for inflammation in the colon.
Thus, in keeping with the terms of the referral, there was found a non-specific and very mildly inflamed terminal ileal mucosa in the histological report by Dr Ranjalee Liyanasuriya of 2 May 2023. We note further that an MRI enterography of 4 May 2023 showed mild chronic terminal ileitis with mild mural thickening and enhancement at the terminal ileum without evidence of focal stricture. This diagnosis was confirmed by Dr Kim, who found a “very mild right-sided colitis.”
The referral was predicated on the assumption that Ms Briel’s psychological injury had caused an exacerbation of her symptoms of an underlying constitutional inflammatory bowel syndrome and that there may have been some assessable WPI as a result. The Medical Assessor found such an exacerbation, as he was bound to, but assessed a nil impairment.
The evidence that was before the Medical Assessor confirms that assessment. It is apparent that the degree of inflammation present in any event is minimal. The opinion of Dr Kim, that was not mentioned by the Medical Assessor simply confirmed his opinion.
It follows that the appellant’s second ground may be dismissed. Contrary to her assertion that the Medical Assessor made no reference to any of the reports lodged on 5 June 2023 and 1 August 2023, he referred specifically to Dr Vivekanandarajah’s report of 28 April 2023, the histopathological reports of Dr Ranjalee Liyanasuriya dated 2 May 2023, and the MR enterography of 4 May 2023. Although he did not refer to the report of Dr Andrew Kim, he did not need to, as it confirmed his own assessment.
For these reasons, the Appeal Panel has determined that the MAC issued on 28 August 2023 should be confirmed.
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