Chowdhury v Ali - [2022] NSWPICMP 420

DETERMINATION OF APPEAL PANEL
CITATION:	Chowdhury v Ali [2022] NSWPICMP 420
APPELLANT:	Alanur Chowdhury
RESPONDENT:	Jomshed Ali
Appeal Panel
MEMBER:	William Dalley
MEDICAL ASSESSOR:	Dr Robin Fitzsimons
MEDICAL ASSESSOR:	Dr John Ashwell
DATE OF DECISION:	25 October 2022
CATCHWORDS:	wORKERS cOMPENSATION - Dispute referred respect of injury to the lumbar spine (including corticospinal tract impairment), the cervical spine and the digestive system (fatty liver, upper digestive tract, colon, rectum and anus); lead Medical Assessor (MA) declined to assess the lumbar spine and cervical spine noting “there is a question of myelomalacia” which required assessment by a neurologist or neurosurgeon; further referral to a neurologist MA limited to “myelomalacia of the spinal cord”; neurologist MA assessed 0% whole person impairment (WPI) in respect of the cervical spine and the lumbar spine on the basis that subject injury was confined to musculoligamentous strain and impairment did not result from the subject injury; appellant worker appealed submitting that the MA should not have assessed the lumbar spine or cervical spine but should have confined himself to the terms of the referral; Held – the Panel noted that the lead MA had not assessed the cervical spine or lumbar spine and the neurologist MA had correctly assessed the appellant worker in accordance with the original referral; Skates v Hills Industries Ltd and Yates v Flavorjen Pty Ltd applied; appellant worker further submitted that the neurologist MA had fallen into error in finding that the original injury was confined to musculoligamentous strain when the parties had agreed that there was corticospinal impairment to be assessed; that ground was established; the appellant worker was reassessed following examination by a Panel member; the Medical Assessment Certificate (MAC) issued by the neurologist MA was revoked and a fresh MAC issued which incorporated the impairments assessed in the MAC which the lead MA had issued in respect of the digestive system and sexual organs.

BACKGROUND TO THE APPLICATION TO APPEAL

On 3 May 2021 the appellant, Alanur Chowdhury, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Ross Mellick, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 15 April 2021.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (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 grounds of appeal on which the appeal is made.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWPICMP 420
Decision Date: 25 October 2022

CaseChat Overview and Summary

In Chowdhury v Ali, the appellant, Chowdhury, sought to challenge a decision made by a Medical Assessor (MA) regarding his workers' compensation claim. Chowdhury claimed injuries to his lumbar spine, cervical spine, and digestive system, among other areas, following an incident at work. The lead MA declined to assess the lumbar and cervical spine injuries, noting that there was a question of myelomalacia, a condition that would require a neurologist or neurosurgeon. A subsequent referral to a neurologist MA was limited to assessing myelomalacia of the spinal cord. The neurologist MA assessed Chowdhury at 0% whole person impairment (WPI) for the cervical and lumbar spine, determining that the injuries were confined to musculoligamentous strain and did not result from the subject injury.

The primary legal issues before the court were whether the neurologist MA correctly limited his assessment to the terms of the referral and whether there was an error in concluding that the original injury was confined to musculoligamentous strain. Chowdhury argued that the MA should have assessed the lumbar and cervical spine injuries, as the lead MA had not done so. He further contended that the neurologist MA erred by not recognising the corticospinal impairment as agreed upon by the parties. The court examined the appropriateness of the assessment parameters set by the referrals and the accuracy of the findings in light of the original agreement on the nature of the injuries.

The court found that the lead MA had not assessed the cervical spine or lumbar spine, and the neurologist MA had correctly adhered to the referral terms by limiting the assessment to myelomalacia of the spinal cord. The court cited Skates v Hills Industries Ltd and Yates v Flavorjen Pty Ltd to support its view that the MA's assessment was within the scope of the referral. However, the court did establish that the neurologist MA had erred in concluding that the original injury was limited to musculoligamentous strain, as there was an agreement regarding corticospinal impairment. Consequently, Chowdhury was reassessed by a Panel member, and the original Medical Assessment Certificate (MAC) was revoked. A new MAC was issued, incorporating the impairments previously assessed by the lead MA for the digestive system and sexual organs.

The court's decision resulted in a revised MAC for Chowdhury, recognising the impairments that had been overlooked in the original assessment. The final order was for a reassessment of Chowdhury's injuries, incorporating the impairments initially assessed by the lead MA, and the issuance of a new MAC reflecting these findings.

Orders