El-Dehaibi v Rocket Construction Pty Ltd

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 5 July 2016, working as a labourer. On 13 September 2016 a concrete piece fell onto his right foot, crushing his right greater toe and causing him to fall backwards. He was driven to Bankstown Hospital where X-rays were done that revealed a comminuted fracture of the distal condyles of the proximal phalanx of his right great toe. Orthopaedic surgeon Dr Konidaris reduced the fracture in surgery and inserted percutaneous K-wires. The appellant developed an infection in his toe when the wire was removed and continued to experience pain in his right foot without the fracture healing. On 28 March 2017 Dr Konidaris fused the interphalangeal (IP) joint of the big toe.
The appellant continued to experience pain in his foot and was referred to a pain specialist, Dr Yu who diagnosed complex regional pain syndrome (CRPS). The appellant developed low back pain due to the injury he suffered to his right foot.
The appellant’s solicitors referred the appellant to the orthopaedic surgeon Dr Gehr, who examined the appellant on 6 October 2022 and produced a report on that day. In that Dr Gehr advised he assessed the appellant had 22% whole person impairment (WPI) resulting from CRPS that Dr Gehr said had developed from the appellant’s injury on 13 September 2016. Dr Gehr also provided alternate assessments of 4% WPI relating to the appellant’s IP joint of his right greater toe, 2% WPI relating to the appellant’s right metaphalangeal (MTP) joint of his right greater big toe, 5% WPI relating to his right ankle and hind foot and 13% WPI relating to his lumbar spine.
On 17 October 2022 the appellant’s solicitor wrote to Rocket Construction Pty Ltd’s (the respondent) insurer advising it that the appellant claimed compensation from it under s 66 of the Workers Compensation Act 1987 (the 1987 Act). It provided a copy of Dr Gehr’s report of 6 October 2022.
The respondent’s solicitors then organised for the appellant to be examined by orthopaedic surgeon Dr Robert Breit. In a report of 30 November 2022 Dr Breit advised the respondent’s solicitors that the appellant did not qualify for a diagnosis of CRPS based on the criteria of AMA 5. Dr Breit also advised he assessed the appellant had 0% WPI relating to his lumbar spine and 4% WPI relating to his right lower extremity.
On 18 January 2023 the respondent’s solicitors forwarded to the appellant’s solicitors a notice the respondent’s insurer provided under s 78 of the 1998 Act in which the insurer, in substance, denied liability for appellant’s claim for compensation.
The appellant then commenced proceedings in the Personal Injury Commission (Commission) seeking determination of his claim for compensation for permanent impairment. A delegate of the President of the Commission issued a referral to the Medical Assessor in the following terms:
“MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s319 WIM Act)
 the degree of permanent impairment of the worker as a result of an injury
(s319(c))
 whether any proportion of permanent impairment is due to any previous injury
or pre-existing condition or abnormality, and the extent of that proportion
(s319(d))
 whether impairment is permanent (s319(f))
 whether the degree of permanent impairment of the injured worker is fully
ascertainable (s319(g))
Date of Injury: 13 September 2016
Body part/s referred: Right lower extremity
Complex regional pain syndrome (CRPS)
Lumbar spine
Method of assessment: Whole person impairment”
The Medical Assessor examined the appellant on 23 August 2023 to conduct the assessment and, as noted the outset, issued a MAC on 30 August 2023 in response to the referral. The Medical Assessor summarised the appellant’s injury in the following terms:
“The claimant sustained a crush injury to the right foot and fractured the big toe. He had closed reduction and internal fixation of the fracture followed by fusion of the IP joint of the big toe. He developed CRPS in the leg and was treated with a trial of a spinal cord stimulator, nerve blocks, spinal injections, ketamine infusions and medication.
He developed back pain after the injury and my clinical diagnosis is mechanical back problem as sequelae of posture, abnormal gait and probable strain sustained at the time of the injury.”
The Medical Assessor explained that notwithstanding the appellant described past symptoms of CRPS and current symptoms of CRPS the appellant did not meet the criteria contained in Table 17-11 of the Guidelines for a diagnosis of CRPS and this was because there was no evidence of oedema or sweating asymmetry and no evidence of motor or trophic changes. The Medical Assessor consequently assessed the appellant had 0% WPI for CRPS. No challenge is made regarding the Medical Assessor’s finding on this.
The Medical Assessor explained that he assessed the appellant has 7% WPI relating to his lumbar spine. No challenge is made regarding that.
The Medical Assessor explained that, based on his findings from his examination of the appellant’s right ankle and hind foot, the appellant had 11% lower extremity impairment. No challenge is made to his assessment with respect to that.
The Medical Assessor recorded that the appellant had no movement in his IP joint of his right great toe where it had been fused. The Medical Assessor said that this equated to 2% lower extremity impairment. The Medical Assessor also recorded that he found that the appellant achieved extension of his MTP joint of his great right toe to 40° which equated to 0% WPI. The Medical Assessor also recorded he found the appellant’s had normal movement in his other toes.
The Medical Assessor indicated in Part 10a and 10b of the MAC that his ratings with respect to the appellant’s impairment due to the fusion of his IP joint of his right great toe was made by reference to the criteria of Table 17-11 of AMA 5, but that is an obvious typographical error and the correct reference should have been Table 17-14. The Medical Assessor noted that the 11% right lower extremity impairment he assessed the appellant has relating to the right ankle and hind foot when combined with the 2% right lower extremity impairment he assessed the appellant has due to the fusion of his IP joint of his right great toe results in the appellant having 13% right lower extremity impairment, which converts to 5% WPI.
The Medical Assessor in Table 2 within the MAC recorded that the 5% WPI he assessed the appellant has with respect to his right lower extremity when combined with the 7% WPI he assessed the appellant has with respect to the lumbar spine results in 12% WPI. The Medical Assessor certified that was the degree of the appellant’s permanent impairment from his injury on 13 September 2016.
The appellant’s appeal relates to the Medical Assessor’s assessment of the impairment of his right lower extremity, and specifically his right great toe.

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. This is because the Appeal Panel, for reasons explained below, found that none of the grounds for appeal on which the appellant relied was established. Consequently, the Appeal Panel would be confirming the MAC and did not need to re-assess any part of the medical dispute that had been referred for assessment. In other words it did not need any further clinical data to deal with the appeal. Further, absent the Appeal Panel finding error in the MAC, the Appeal Panel has no power to examine the appellant.[1]
[1] NSW Police Force v Registrar of the Workers Compensation Commission of NSW [2013] NSWSC 1792 at [33]; Ziraki v The Australian Islamic Liverpool Area [2019] NSWSC 1158 at [74]; Coenradi v the GEO Group Australia Pty Ltd [2002] NSWSC 864 at [134]; and Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38 at [125]-[130].

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.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the Medical Assessor should have assessed the impairment relating to his right great toe by reference to the criteria in Table 17-30 of AMA 5, which relates to the impairment of the foot due to ankylosis of toes. The appellant submitted that these were the most appropriate criteria to use where there has been ankylosis or fusion of the great toe. The appellant submitted that were his impairment to have been rated by reference to that criteria he would have been assessed with 9% lower extremity impairment relating to his right great toe. Had that been done then he would have been assessed with 8% WPI relating to his right lower extremity.
The appellant referred to Dr Gehr and Dr Breit finding from their respective examinations of him that he had extension of his great right toe to a maximum of 10°. The appellant submitted that the Medical Assessor’s finding that he could extend his great right toe to 40° was not possible given that he had a fusion of the great toe. The appellant submitted that extension of less than 15° should have been rated as 5% lower extremity impairment. The appellant referred to the criteria in Table 17-12 of AMA 5, but that also seem to be a typographical error and the correct reference is Table 17-14.
In reply, the respondent submitted that the Medical Assessor relied on his examination of the appellant which demonstrated normal movement of the MTP joint of the right great toe. The respondent noted that the examinations upon which Dr Gehr and Dr Breit relied to make their respective assessments of the appellant’s permanent impairment were done around 12 months previously. The respondent submitted that the Medical Assessor was entitled to rely upon his examination of the appellant to make his assessment of the appellant’s permanent impairment.

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.
The Appeal Panel does not agree with the appellant’s submission to the effect that his impairment relating to his right great toe ought to have been assessed by reference to the criteria of Table 17-30. This is because he did not have ankylosis of his great right toe, but rather ankylosis of a joint within his right great toe, specifically the IP joint between the distal and proximal phalanx. The Medical Assessor found the appellant had normal movement of the MTP of his right great toe, that is the joint between the proximal phalanx and the first metatarsal. Simply put the appellant had movement of his right toe. Indeed, the Medical Assessor found that he could extend his right great toes to 40°. The movement of his right great toe was not fixed, although within his toe he had no movement.
The Medical Assessor was consequently, in the Appeal Panel’s view, correct to assess the appellant’s permanent impairment relating to his right great toe by reference to the criteria of Table 17-14.
The Medical Assessor was also entitled, in accordance with paragraph 1.6a of the Guidelines, to assess the appellant’s impairment by reference to his clinical observations of the appellant from his examination of the appellant.[2] The Medical Assessor found from his examination of the appellant that the appellant could achieve extension of the MTP joint of his right great toe to 40°. That is not inconsistent with his having no moment in the IP joint of his right great toe, given that they are separate joints.
[2] Parker v Select Civil Pty Ltd [2018] NSWSC 140 at [65]; Ferguson v State of New South Wales [2017] NSWSC 887 at [23].
As the appellant has submitted, both Dr Breit and Dr Gehr found from their respective examinations of him that at the time of their examinations the appellant could achieve no more than 10° of extension of the MTP joint of his right great toe. As the respondent submitted however, those examinations were conducted some time ago and there could be many reasons as to why the appellant’s movement of the MTP joint of his right great toe then was far more limited than at the time of examination by the Medical Assessor, such as, for example, because of swelling of his toe. In any event, as the Appeal Panel has said, the Guidelines required the Medical Assessor to make his assessment of the appellant’s permanent impairment as the appellant presented at the time of examination, although having regard to the material before him including the reports of Dr Gehr and Dr Breit, but as the Appeal Panel also has said, the Medical Assessor was entitled to give pre-eminence to his clinical observation when assessing the appellant’s permanent impairment.
For these reasons, the Appeal Panel has determined that the MAC issued on 14 September 2023 should be confirmed.

[2024] NSWPICMP 3

8 January 2024