Cayir v Woolworths Group Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Cayir v Woolworths Group Ltd [2024] NSWPICMP 871
APPELLANT:	Umit Cayir
RESPONDENT:	Woolworths Group Limited
APPEAL PANEL
MEMBER:	Deborah Moore
MEDICAL ASSESSOR:	Roger Pillemer
MEDICAL ASSESSOR:	Drew Dixon
DATE OF DECISION:	18 December 2024
CATCHWORDS:	WORKERS COMPENSATION - The appellant submits that the Medical Assessor erred in three respects; Medical Appeal Panel (Panel) found error in one only, namely erred in making a deduction for pre-existing pathology which was not legally open; Held – Panel bound by findings and referral from the Member.

BACKGROUND TO THE APPLICATION TO APPEAL

On 30 September 2024 Umit Cayir (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Todd Gothelf, a Medical Assessor, (MA) who issued a Medical Assessment Certificate (MAC) on 2 September 2024.
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, 4^th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

Relevant factual background

These proceedings were commenced by Application to Resolve a Dispute (ARD) dated 1 July 2022.
The nature of the injury suffered, and the subject of the ARD, was an injury to the left upper extremity, with a deemed date of injury being 12 June 2019.
The injures were due to the appellant’s work as a baker for Woolworths Group Limited (the respondent) and by previous employment in another supermarket bakery previously.
In Cayir v Woolworths Group Ltd [2024] NSWPIC 345, Member McDonald held that there was an injury to be assessed, namely “left upper extremity (wrist and elbow)”.
There had been previous proceedings against the previous employer which resulted in a finding that the present respondent was liable on a deemed date basis.
Member McDonald determined that any permanent impairment compensation was a matter for which this respondent would be liable.

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.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because although one was requested, we consider that we have sufficient evidence before us to enable us to determine this appeal, for reasons which will become apparent below.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the MA erred as follows:
(a)    he failed to correctly assess whole person impairment (WPI) by failing to assess loss of range of motion of the left wrist and left elbow, as well as the impairment due to the dysfunction of the median nerve;
(b)    failed to give adequate reasons regarding WPI, and
(c)    made a deduction for pre-existing pathology which was not legally open.
In reply, the respondent submits that no errors were made.

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 appellant was referred to the MA for assessment of WPI in respect of left upper extremity (wrist and elbow) resulting from a deemed date of injury of 12 June 2019.
We should point out at this stage that the referral document did not specify a deemed date of injury but both parties in their submissions have proceeded on this basis.
The MA noted this in the body of the MAC but did not do so in the table accompanying it.
We are therefore proceeding on the basis that the date of injury is 12 June 2019 (deemed).
The MA obtained the following history:
“Mr Cayir stated that the injury was reported 12 June 2019. Mr Cayir stated that on 1 August 2009 he developed a large lump on the top of his left wrist. The lump was causing him severe pain when performing repetitive movements. He reported the pain to his employer at Coles and the injury was an accepted injury.
Mr Cayir consulted with Dr Gupta, GP 3 August 2009 and was referred for an ultrasound.
Surgery was performed 10 February 2010 for a large dorsal ganglion excision from the left wrist. Symptoms did not improve ‘in the slightest.’
Mr Cayir stated that he still continued to be affected by a reduction in range of movement but continued to perform his pre-injury duties at Coles Figtree.
An ultrasound 22 June 2010 revealed a recurrent ganglion.
Mr Cayir was seen by Dr Peter Scougall 10 May 2011. Further work up was performed, and a second surgery was performed 16 April 2012 for a removal of dorsal ganglion and release of DeQuervain’s tendon. Mr Cayir indicated that his wrist improved after the surgery, but pain and lack of mobility recurred.
In his statement 31 January 2019, he indicated that he suffered the same symptoms as prior to both surgeries.
In another statement, Mr Cayir indicated that he resigned from employment with Coles around September 2018 as he was unable to continue with the physical work due to ongoing left wrist problems.
Mr Cayir started working with Woolworths around September 2018 as a baker. He did not feel that the position at Woolworths had contributed to his injury as he had symptoms prior to taking up the new employment with Woolworths.”
Present symptoms were noted as follows:
“Mr Cayir rated the left wrist pain as a seven on a scale of zero (no pain) to ten (the worst pain imaginable) and constant. The pain is worse with any movements. The nature of the pain has not changed.”
The MA then set out details of Mr Cayir’s employment history and said:
“Mr Cayir commenced work at Coles in Figtree in Late August 2002. His duties included moving large bakery pans, kneading dough,stock replenishment, cleaning, working ovens, doughnuts, icing and tray cookies. Mr Cayir would make the doughs and then lift them out of the bowl. Work was very physical with constant use of his hands and wrist.
During employment with Coles Bakery, he experienced immense pain to his left wrist. He left Coles 16 September 2018 and begun to work at another bakery at Woolworths.
Mr Cayir stopped working Around 2021 for various reasons, due to the left wrist pain and anxiety. Mr Cayir has not pursued alternative work.”
As regards Mr Cayir’s activities of daily living, the MA said:
“Mr Cayir lives in a unit with his parents. His parents are ages 80 and 78 and they are independent. Mr Cayir is able to shower and dress himself. Mr Cayir explained that his mother has disability assistance, and the company does the home care cleaning. Mr Cayir drives an automatic and struggles with the use of his left wrist. Mr Cayir used to play tennis and rugby league and has not participated in these activities due to his left wrist. He used to go fishing and has not been able to fish due to his left wrist.”
Findings on examination (of both the elbow and the wrist) were reported as follows:
“Passive range of motion formed part of the clinical examination to ascertain clinical status of the joint. For the purposes of impairment calculation, only active movement (i.e. performed under the voluntary control of the examinee, without physical input by the examiner) was measured and recorded below. Determinations were made in accordance with the patient’s apparent full effort and cooperation.
He was observed to sit and stand and keep the left wrist relatively still and was in no apparent distress.
There were two scars on the wrist. There was a transverse dorsal scar 4cm and a radial scar 2cm. The scars were of good colour match, not raised, not widened, and not very noticeable. The scars were not visible with usual clothing due to their colour match and were not raised.
There was a full range of movement of shoulders of both the upper limbs in all dimensions without crepitus, muscular spasm or tenderness. Circulation, sweat cover, colour and temperature of both upper limbs were normal and equal.
There was no wasting or swelling of the upper limbs, and the circumferential measurements were equal.
Active range of motion was measured with a goniometer.
The left hand had a reported loss of sensation to all fingers and thumb equally with a loss of two point discrimination greater than 11 mm. There was reported tenderness from the elbow down the radial side of the forearm non-focally with negative Tinel’s signs and negative Phalen’s tests.”
The MA then set out details of the radiological material he had.
The MA then summarised the injuries and diagnoses as follows:
“Left wrist recurrent ganglion and DeQuervain’s tenosynovitis. Surgery was performed 11 February 2010 for a surgical excision of left wrist ganglion. A second surgery was performed 16 April 2012 for left wrist excision recurrent ganglion and release de Quervain’s tenosynovitis. Mr Cayir reported persistent left wrist pain. The physical examination revealed a loss of active motion of the elbow and wrist.”
The MA added:
“The presentation of symptoms of the left wrist and elbow of generalised numbness was not consistent with the diagnoses. The presence of a generalised loss of sensation in the hand and wrist is not explainable by any pathology identified. There were no specific signs of carpal tunnel syndrome and no objective evidence to make this diagnosis.”
The MA assessed 13 % WPI from which he deducted 5/6ths pursuant to s 323 due to a pre-existing condition.
He explained his reasons for assessment as follows:
“The presence of symptoms at [sic] the condition was present while working at Coles which he finished in 2018. Mr Cayir reported that symptoms did not change after his surgeries and that symptoms persisted since his employment with Coles. Mr Cayir stated that the symptoms and condition did not significantly change when moving jobs to work with Woolworths. Mr Cayir worked with Coles from 2002 until 2018, or 16 years. Mr Cayir worked at Woolworths from 2018 until 2021, or three years. If one considers that the conditions was caused by the ‘nature and conditions’ of work, and that both positions were fairly similar in work, the injury may be attributable based upon years of work. I would therefore consider that 1/6 of the injury is due to the employment with Woolworths and 5/6 due to the employment with Coles. The deductible portion is 5/6 of 13% which is 10.8% which rounds to 11%. 13% - 11% = 2%. Therefore the remaining or resultant impairment due to his employment with Woolworths is 2% WPI.”
The MA then noted some of the medical reports he had and said:
“I have reviewed the reports of Dr James Bodel dated 29 April 2019, and 27 May 2022 and make the following comments:
• Dr Bodel has determined impairment due to a loss of range of motion of the left wrist and left elbow, as well as the impairment due to the dysfunction of the median nerve. I do not agree with the inclusion of the impairment due to median nerve dysfunction, as at the time of the assessment, there was no specific evidence of median nerve dysfunction. At this assessment, the subjective loss of sensation was generalised in the entire hand.
• In my opinion, the application of impairment for loss of function and for peripheral nerve disorders is not consistent with instructions from the Guides, as the loss of motion is contributed to by the peripheral nerve disorder. Section 2.0 p 11 the Guides indicates that if an upper extremity impairment results solely from a peripheral nerve injury, the assessor should not also evaluate impairment from AMA5 section 16.4 abnormal motion.
• The assessment of permanent impairment from 29 April 2019 was attributable, according to Dr Bodel’s report, to employment with Coles which did not apply to the impairment for the purposes of this assessment, which was calculated due to work at Woolworths.
I have reviewed the reports of Dr Home dated 12 August 2019, 11 June 2021, 8 July 2021, and make the following comments:
• Dr Home indicated the presence of carpal tunnel syndrome, which in my opinion was not supported by objective documentation and by the physical examination at the time of this assessment.
• Dr Home apportioned the impairment in his report 11 June 2021 between Coles and Woolworths by splitting the impairment due to carpal tunnel syndrome. I have taken the approach that if this condition has been determined to be the ‘nature and conditions’, I have apportioned the impairment according to years of employment.
I have reviewed the report of Dr Haig dated 28 October 2021 and make the following comments;
• Dr Haig determined an impairment due to loss of motion which was fairly similar to my determination.
• Dr Haig included an impairment of 30% UEI due to loss of grip strength. I consider that this is an incorrect application of the Guides. As per section 2.13 p 11 the Guides, strength evaluation should only be used in rare cases only when impairment is not characterised by more objective methods. Strength cannot be rated in the presence of decreased motion, or in painful conditions. Thus, having rated impairment due to a loss of motion contradicts the ability of using impairment due to strength.”

The appellant’s submissions

These may be summarised as follows:
(a)    the MA’s references to the Guidelines and AMA 5 is confusing since it seems to be inaccurate.
(b)    The preliminary issue is whether the upper extremity impairment was “solely” caused by peripheral nerve injury. That is not the case. In section 2 of his reasons, the MA summarised the medical evidence which he regarded to be “of particular interest”. This included an opinion from Dr Home that the worker suffered from radio-dorsal ganglion which is a cyst (ie a soft tissue injury – not a nerve injury). He also noted Dr Scougall’s opinion which was that he suffered from both Quervain’s tenosynovitis and dorsal scapholunate ganglion. Quervain’s tenosynovitis is an injury involving swelling of the tendon (not a nerve injury). Dr Bodel had found numbness and tingling (which is probably consistent with nerve dysfunction) and also found dorsal wrist ganglion. Dr Home had noted a radiodorsal ganglion and also synovitis (joint inflammation). In other words, no medical practitioner’s opinion which was taken into account limited the diagnosis to nerve dysfunction.
(c)    The MA said there was no pathology which explained the generalised loss of sensation. If that is the case, it is not clear how he proceeded to assess WPI based on nerve dysfunction (or any other pathology).
(d)    The MA should have approached the matter on the basis of multifactorial pathology and assessed WPI based on range of motion.
(e)    The MA failed to give adequate reasons. The other medical experts expressed views on a range of pathological processes. Their views are not adequately engaged with, as is demonstrated by the fact that the MA proceeded to arbitrarily attribute the sole reason for the dysfunction to be nerve dysfunction, despite not only other medical opinion to the contrary, but, moreover, his own view that there was not pathological explanation. How the MA proceeded from reviewing the preponderance of the evidence, to being unclear on pathology, to limiting himself to nerve dysfunction is obscure.
(f)    The scope of the MA’s function was to determine the extent of WPI. It had already been determined by the Member that the respondent would be liable for that assessment.
(g)    In this case, the Member proceeded on the basis it was a s 15 injury, ie, a disease of gradual process.
(h)    The MA misunderstood the disease provisions of the Workers Compensation Act 1987 (1987 Act) which deem that pathology to have been caused with the respondent.
(i)    The deeming provisions require, as a matter of law and the Member’s determination, that the respondent is liable for all of the WPI caused in the course of being a baker.
(j)    The approach taken by the MA is directly opposed to what the Member found, namely that ss 15 and 16 of the 1987 Act operate to fix liability for a disease injury on the appropriate employer.
(k)    The Member said:
“On the basis of the medical evidence described above, there is no evidence that Mr Cayir suffered a disease before he commenced working at Coles and I am satisfied that it is only necessary to consider s 15. Even if s 16 was also relevant, the outcome is the same.
I am satisfied that Mr Cayir ’s employment at Woolworths was employment to the nature of which the diseases of recurrent ganglion and de Quervain’s tenosynovitis were due. Accordingly, Woolworths is liable to pay any permanent impairment compensation to which Mr Cayir is entitled.”

The respondent’s submissions

The respondent submits:
(a)    Dr Gothelf’s methodology was solely based on range of motion, as no nerve dysfunction was evident on examination.
(b)    Dr Gothelf’s physical examination demonstrated a loss of active motion in the left elbow and wrist, which was clearly recorded and applied.
(c)    Evidently, range of motion for the left elbow and wrist were assessed in lieu of peripheral nerve dysfunction. Furthermore, it is noted doctor has appropriately deducted impairment from the “uninvolved” corresponding extremity, in accordance with paragraph 2.20 of the Guides.
(d)    Consistent with section 1.6(a) of the Guides, the MA was tasked with making an impairment assessment based on clinical findings at the time of examination, and in this regard, Dr Gothelf noted the most appropriate method at the relevant time was in respect of range of movement. Whilst other doctors had assessed impairment for nerve dysfunction, there was no objective evidence at the time of examination, and no obligation to follow preceding assessments.
(e)    The MA accepts the diagnosis of recurrent ganglion and DeQuervain’s tenosynovitis. Neither of these conditions are, as the appellant points out, a nerve injury.
(f)    In the absence of verifiable nerve dysfunction, range of motion was the correct methodology to be applied in the circumstances of this case.
(g)    The reasons need not be lengthy and a single sentence may suffice: Zahed v IAG Limited t/as NRMA Insurance [2016] NSWCA 55 at [4] to [9] per Leeming JA.
(h)    Where the adequacy of reasons is in issue, the Court is concerned with the reasoning process to assess whether there has been any error in arriving at a conclusion. The relevant conclusion here is that there was no objective evidence of nerve dysfunction to qualify for permanent impairment.
(i)    The question of whether a pre-existing condition or abnormality existed prior to the appellant suffering the disease “injury”, is largely a matter of medical opinion.
(j)    It is submitted the deeming provisions of s.15/16 have no relevance other than for the purposes of providing a mechanism for fixing a deemed date of injury. The appellant offers no case law for the proposition that a disease injury cannot be subject to a s.323 deduction.
(k)    When there is a pre-existing “abnormality” evident prior to the deemed date of injury on 12 June 2019, or prior to when the appellant commenced employment with the Respondent, it is open for the Medical Assessor to find the condition/abnormality was pre-existing and make s 323 deductions supported by available medical evidence.
(l)    In the alternative, in the event s.15 precludes a s 323 deduction (which is denied), it was open to the MA to treat the appellant’s injury as an aggravation of a disease within s 4(b)(ii) of the Act to which s 16 applies. Such an approach is consistent with the medical evidence, particularly that of the appellant’s qualified expert, Dr Bodel:
“The pathology that has developed in the left arm principally and in particular the region of the left wrist and hand is a constitutional based abnormality, and it is a disease process of gradual onset. The nature and conditions of his work over many years has caused the aggravation, exacerbation and deterioration of that disease process as I have indicated”.
(m)     The deduction (rather than apportionment) to be applied for the pre-existing abnormality remains significant and certainly greater than the standard one-tenth provided for under s 323(2) of the 1998 Act. The MA’s deduction of 5/6th is appropriate.

Discussion

The MA was quite clear that in his opinion there was no evidence of any median nerve involvement (carpal tunnel syndrome).
The appellant submitted that the MA has failed to assess impairment due to “dysfunction of the median nerve.”
This is obviously incorrect as the MA has very specifically ruled out any median nerve dysfunction.
The submission that the MA failed to give adequate reasons regarding the assessment of WPI once again is wrong, as he has quite clearly indicated how he assessed this according to the restricted range of movement.
The principal issue in this case then relates to the MA’s deduction pursuant to s 323 of the 1998 Act.
The MA has made his assessment of impairment as a result of Mr Cayir’s work, specifically for the time spent at the bakery at Woolworths, and his deduction is for the impairment that Mr Cayir suffered while working for Coles.
The fact that the date of injury was given as 12 June 2019 (deemed), suggests that the MA was correct in assessing the full impairment of 13% WPI while working for both Coles and Woolworths.
It is the 5/6ths deduction that remains the real issue in dispute.
In our view, the appellant’s submissions relating to the specific findings made by the Member are the crux of the matter.
The Member determined that this was a case to which s 15 of the 1987 Act applied, and said:
“Sections 15 and 16 of the 1987 Act operate to fix liability for a disease injury on the appropriate employer. On the basis of the medical evidence described above, there is no evidence that Mr Cayir suffered a disease before he commenced working at Coles and I am satisfied that it is only necessary to consider s 15. Even if s 16 was also relevant, the outcome is the same.
I am satisfied that Mr Cayir ’s employment at Woolworths was employment to the nature of which the diseases of recurrent ganglion and de Quervain’s tenosynovitis were due. Accordingly, Woolworths is liable to pay any permanent impairment compensation to which Mr Cayir is entitled.”
Having regard to those findings, we agree that the MA erred in making the deduction he did, irrespective of the amount of that deduction.
We should add that we accept the range of movement (ROM) as found in the original MAC without deduction, giving 13% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on 12 December 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W4121/22
Applicant:	Umit Cayir
Respondent:	Woolworths Group Limited

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Todd Gothelf and issues this new Medical Assessment Certificate as to the matters set out in the table below:

Table - whole person impairment (WPI)

Body Part or system	Date of Injury	Chapter, page and paragraph number in WorkCover Guides	Chapter, page, paragraph, figure and table numbers in AMA 5 Guides	% WPI	Proportion of permanent impairment due to pre-existing injury, abnormality or condition	Sub-total/s % WPI (after any deductions in column 6)
Left upper extremity (wrist and elbow)	12/6/19 (deemed)	Fig 16- 28, 31, 34, 37	13%	N/A	13%
Total % WPI (the Combined Table values of all sub-totals)					13%

[2024] NSWPICMP 871

18 December 2024