El-Dehaibi v Rocket Construction Pty Ltd - [2024] NSWPICMP 3

DETERMINATION OF APPEAL PANEL
CITATION:	El-Dehaibi v Rocket Construction Pty Ltd [2024] NSWPICMP 3
APPELLANT:	Abdul Fatah El-Dehaibi
RESPONDENT:	Rocket Construction Pty Ltd
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	James Bodel
MEDICAL ASSESSOR:	Neil Berry
DATE OF DECISION:	8 January 2024
CATCHWORDS:	WORKERS COMPENSATION - Appellant had the interphalangeal (IP) joint of his right greater toe fused as part of the treatment of his injury; Medical Assessor (MA) found from his examination of the appellant that the appellant had extension of his metaphalangeal (MTP) joint of his right greater toe to 40 degrees; MA assessed the appellant’s impairment relating to his right greater toe by reference to criteria of Table 17-14; appellant contended that because of the fusion to his right greater toe the MA’s finding that he had extension of the MTP joint to 40 degrees was wrong; appellant contended that MA erred by not assessing his impairment relating to his right greater toe by reference to Table 17-30; Appeal Panel found MA made no error with respect to his finding relating to the movement of the appellant’s MTP joint of his right greater toe given because that joint had not been fused, but rather the IP joint had been fused; Appeal Panel found that given the appellant had movement of his right greater toe that the MA was correct to assess the appellant’s impairment by reference to Table 17-14; Held – Medical Assessment Certificate upheld.

BACKGROUND TO THE APPLICATION TO APPEAL

On 14 September 2023 Abdul Fatah El-Dehaibi, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tommasino Mastroianni, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 30 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 (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 (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

The appellant commenced employment with Rocket Construction Pty Ltd on…

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.

Continue reading El-Dehaibi v Rocket Construction Pty Ltd

Details

AGLC: El-Dehaibi v Rocket Construction Pty Ltd [2024] NSWPICMP 3
Case: [2024] NSWPICMP 3
Decision Date: 8 January 2024

CaseChat Overview and Summary

In the case of El-Dehaibi v Rocket Construction Pty Ltd, the appellant, Mr El-Dehaibi, challenged the decision of a Medical Assessor (MA) regarding his workers compensation claim. The appellant had undergone surgery that resulted in the fusion of the interphalangeal joint of his right greater toe. He sought a reassessment of his impairment rating by the Medical Assessor, arguing that the assessment was incorrect because it failed to account for the fusion of the interphalangeal joint. The dispute was heard by an Appeal Panel, which upheld the original assessment of the Medical Assessor.

The primary legal issue before the Appeal Panel was whether the Medical Assessor correctly assessed the appellant's impairment in relation to his right greater toe. Specifically, the appellant argued that because his interphalangeal joint had been fused, the MA should have assessed his impairment by reference to Table 17-30 rather than Table 17-14. The appellant contended that the MA's finding that his metatarsophalangeal joint had 40 degrees of extension was incorrect given the surgical changes to his toe.

The Appeal Panel found that the MA's assessment was not erroneous. The Panel determined that the fusion had been of the interphalangeal joint, not the metatarsophalangeal joint, and therefore the MA's finding regarding the movement of the metatarsophalangeal joint was valid. Given that the appellant had movement in his metatarsophalangeal joint, the Panel concluded that the MA was correct in assessing the appellant's impairment by reference to Table 17-14. Consequently, the Appeal Panel upheld the original Medical Assessment Certificate issued by the MA.

The Appeal Panel's decision resulted in the affirmation of the Medical Assessment Certificate, dismissing the appellant's contentions. The Panel found no basis to alter the original assessment, thereby maintaining the impairment rating as determined by the MA.

Orders