Gandhi v Coles Supermarkets Pty Ltd
[2024] NSWPICMP 236
•19 April 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Gandhi v Coles Supermarkets Pty Ltd [2024] NSWPICMP 236 |
| APPELLANT: | Rahulkumar Gandhi |
| RESPONDENT: | Coles Supermarkets Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Siddarth Sethi |
| MEDICAL ASSESSOR: | Brian J Stephenson |
| DATE OF DECISION: | 19 April 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal from assessment of section 323 deduction and digestive system; whether deduction of asymptomatic pre-existing spondylolisthesis of one third appropriate; whether finding of nil impairment for the digestive system made without adequate reasons and in contravention of Chapter 16.9 of the Guides; Held – section 323 deduction not sustainable; Medical Assessor (MA) did not consider all the evidence, particularly that applicant, aged 46, had been asymptomatic until injury; error to increase deduction because surgical treatment increased entitlement; treatment concerned with workplace injury, not pre-existing asymptomatic condition; Cole v Wenaline Pty Ltd and Elcheikh v Diamond Formwork (NSW) Pty Ltd considered and applied; Ryder v Sundance Bakehouse considered and explained; section 323 deduction revoked and statutory 10% substituted; as to digestive system, MA expressed himself loosely and used unhappy phrasing but consideration of evidence found to justify his nil impairment finding; Bojko v ICM Property Services Pty Ltd considered and applied. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 9 December 2022 Rahulkumar Gandhi, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 11 November 2022.
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.This matter was the subject of judicial review proceedings in the Supreme Court of New South Wales. Judgment was handed down in the matter of Coles Supermarkets Australia Pty Ltd v Gandhi [2023] NSWSC 1251 on 17 November 2023.
The Court ordered:
(a) The whole of the decision made by the Medical Appeal Panel dated 5 April 2023 and the Medical Assessment Certificate dated 4 April 2023 be quashed.
(b) The matter be remitted to the President, Personal Injury Commission for referral to a differently constituted Appeal Panel under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) for redetermination according to law.
RELEVANT FACTUAL BACKGROUND
On 20 September 2022 this matter was referred to the Medical Assessor for a WPI assessment caused to the lumbar spine, scarring (TEMSKI) and digestive system by injury on a deemed date of 22 August 2018.
Mr Gandhi was employed by Coles Supermarkets Pty Ltd (Coles/the respondent) as a night filler in supermarkets in Melbourne from 2016. In March 2018 he began working in the dairy department of a supermarket in Sydney. His duties were more strenuous than those he was previously required to perform and he had to bend, twist and lift and to use a manual pallet jack. Soon after starting that work, he developed pain in his lower back.
Investigations showed that he had a pars interarticularis defect at L5/S1 which resulted in spondylolisthesis. Mr Gandhi underwent an L5/S1 two stage fusion in September 2020 then extensive rehabilitation. He used anti-inflammatory medication and opiates which resulted in him suffering gastro-oesophageal reflux and constipation.
The Medical Assessor was asked to assess Mr Gandhi’s WPI in respect of his lumbar spine, scarring and digestive system.
The Medical Assessor assessed 18% WPI. He assessed 26% in respect of the lumbar spine and allowed a one-third deduction under s 323 of the 1998 Act. He assessed 1% for scarring and 0% in respect of the digestive system.
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.
The appellant sought to be re-examined by a Medical Assessor who was a member of the Appeal Panel, however, although we found error in the MAC, no re-examination was necessary. The first issue concerned the application of s 323 of the 1998 Act, and was therefore concerned with the evidence already before the Medical Assessor, and the second issue concerned a failure to give adequate reasons, which again was able to be determined on the evidence before the Medical Assessor.
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[1]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.
[1] [2006] NSWCA 284.
The appeal challenged the Medical Assessor’s determination pursuant to s 323 of the 1998 Act, and his finding of nil percent impairment for the claim regarding the digestive system.
THE MAC
The Medical Assessor took a consistent history. He noted that Mr Gandhi was born in 1976, that he is university qualified, and that he worked for many years in textile production before moving to the UK for eight years, where he worked as store manager for Tesco Supermarkets. The Medical Assessor noted further that Mr Gandhi arrived in Australia in 2016, and started working for the respondent shortly thereafter.
The Medical Assessor took a consistent history of the back injury. He noted that conservative attempts to manage Mr Ghandi’s condition proved unsuccessful, and that investigations demonstrated a spondylolisthesis at L5 forward on S1. The Medical Assessor noted that Mr Ghandi underwent surgery in a two stage operation, the first stage on 8 September 2020 and the second on 10 September 2020.
The Medical Assessor noted the use of anti-inflammatories and opiates which resulted in gastric reflux and constipation. He noted that in August 2021 Mr Ghandi’s specialist gastroenterologist, Dr Guang Chen, discovered on endoscopy a small hiatus hernia, chronic inflammation and evidence of reflux and gastritis. Helicobacter pylori was also identified.
The latter condition was treated and by November 2021 Helicobacter pylori breath test was negative.
In the templated part of the history, in answer to a heading “Details of any previous or subsequent accidents, injuries or conditions”, the Medical Assessor said:[2]
“Attention is drawn to the radiological investigations of his lumbar spine which demonstrate a pars inter-articularis defect at the L5/S1 articulation. This has resulted in a spondylolisthesis with L5 slightly forward on S1.”
[2] Appeal papers page 35.
At [6] of the MAC, the Medical Assessor set out the investigations – all of which have been carried out since the subject injury. They were as follows:[3]
[3] Appeal papers page 37.
DATE
INVESTIGATION
RESULTS
06/10/18
Plain x-ray lumbo-sacral spine
Pars inter-articularis defect at L5/S1 with an associated spondylolisthesis Grade I with LS forward on s1.
07/10/18
MRI scan lumbo-sacral spine
The same features are identified, together with degenerative changes at the L5/S1 articulation.
14/09/20
Plain x-ray lumbo-sacral
spine
There has been a posterior and anterior
instrumented fusion at L5/S1. The positioning appears satisfactory.
07/05/21
CT scan lumbo-sacral spine
24/11/21
MRI scan lumbo-sacral spine
There has been a posterior and anterior instrumented fusion at L5/S1. The positioning appears satisfactory. (The previous spondylolisthesis appears to have been slightly reduced.)
11/11/21
Helicobacter pylori breath test
Negative.
In his summary of injuries and diagnosis the Medical Assessor said, amongst other things:[4]
“Mr Gandhi has a constitutional condition of his lower lumbar spine at the L5/S1 articulation with a pars inter-articularis defect. While working as a night filler in Coles for a period of nearly two years, he experienced further lower back dysfunction. This included further aggravation of this condition. ….”
[4] Appeal papers page 37.
In summarising the injuries to the digestive system the Medical Assessor noted that clinical management had included analgesics and anti-inflammatories and that the analgesics were “opiate based and one of the side effects is constipation”. The Medical Assessor said:[5]
“It has also been identified that he has a small hiatus hernia. Helicobacter pylori was also identified. These features would have contributed to his upper gastro-intestinal reflux and continuing chronic inflammatory condition. The helicobacter pylori was satisfactorily manage[d] with antibiotics with a proven negative helicobacter pylori breath test in November 2021.”
[5] Appeal papers page 38.
In answer to the templated question at 8f of the MAC, the Medical Assessor said.[6]
“Attention is drawn to the pars interarticularis defect at the L5/S1 articulation. Other features with the gastrointestinal system include the helicobacter pylori condition and the hiatus hernia. Relatively minor haemorrhoids were identified by colonoscopy which are considered to be constitutional.”
[6] Appeal papers page 38.
At [10b] of the MAC the Medical Assessor explained his calculations for assessing a 26% WPI in relation to the lumbar spine. This part of the assessment is not challenged.
In relation to the digestive system, the Medical Assessor referred to Chapter 16.9 of the Guides, which he noted required symptoms and signs of digestive tract disease. He said:
“With these fairly strict criteria, and the absence of clinical signs, there is 0% WPI for the upper digestive system.”
The Medical Assessor noted that with regard to the lower digestive tract, constipation was not a symptom nor a sign of digestive tract disease and that it was generally reversable. A 0% assessment was also made for the lower digestive tract.
In dealing with the request to comment contained at [10c], the Medical Assessor noted that the expert qualified by the respondent, Dr Phil Truskett had found 0% WPI for the digestive tract disease whereas Dr Neil Berry for the worker had assessed 5% but deducted 2/5th because of the presence of helicobacter pylori. The Medical Assessor said:[7]
“With great respect, I am not persuaded that there are sufficient indications or of signs of upper gastro-intestinal features to justify anything other than 0% WPI.”
[7] Appeal papers page 40.
The Medical Assessor referred to the report of Dr Utham Dias with regard to the assessment for the lumbar spine. He noted there was a 1% difference in the estimate of the impairment being caused by the subject injury. He also noted that Dr Dias deducted 1/10th for the pre-existing condition of the pars inter-articularis defect. The Medical Assessor said:[8]
“With great respect, I believe this is at odds with the available clinical information and this should be considerably greater.”
[8] Appeal papers page 41.
The Medical Assessor also referred to the report of the respondent’s qualified expert, Dr Powell. He had some problems with a part of Dr Powell’s report regarding the assessment of impairment arising from the subject injury, which is not relevant to our enquiry. He also noted:[9]
“Dr Powell deducts half of the impairment for the pars inter-articularis defect, ultimately having a whole person impairment of 13%. Whilst I would agree that there is a need for a substantial deduction, I am persuaded that a deduction of half is excessive.”
[9] Appeal papers page 40.
With regard to the actual deduction made, the Medical Assessor said at [11]:[10]
“There has been a pars inter-articularis defect at the L5/S1 articulation. This would increase the susceptibility to further work-related pathology, particularly with a physically arduous occupation which Mr Gandhi was pursuing. If Mr Gandhi’s condition had been managed conservatively, I would suggest that a deduction of one-tenth to address this issue would have been appropriate. In this particular case, however his condition was managed with a two stage surgical procedure with an anterior and then a posterior approach two days later. The fact that the surgery was carried out places Mr Gandhi into a much higher bracket for impairment assessment. The major issue necessitating the extensive surgical procedure has been the existence of the pars inter-articularis defect. Therefore, it is considered very appropriate that there should be a greater deduction than one-tenth but as already mentioned, a deduction of half is considered excessive. A deduction of one-third is therefore assessed as fair, reasonable and very appropriate for Mr Gandhi’s circumstances. This therefore reduces the whole person impairment of the lumbar spine from 26% down to 17%.”
Appellant’s submissions filed with the original application
[10] Appeal papers page 40.
The appellant submitted that there had been two errors made by the Medical Assessor, firstly as to the deduction pursuant to s 323 of the 1998 and secondly in finding a 0% impairment in relation to the referral for an assessment of the digestive system.
We were given a considered and detailed overview of the authorities governing the concepts of demonstrable error and incorrect criteria, for which we express our gratitude. We do not propose to comment on them other than to say that the authorities contained well accepted principles pertaining to this jurisdiction and do not directly impact on the issues for determination.
We were also referred to the WorkCover Guides and the 1998 Act.
Lumbar spine
The appellant noted the accurate history taken by the Medical Assessor as to Mr Ghandi’s surgical treatment following the occurrence of the subject injury. The appellant noted that whilst the Medical Assessor categorised the pathology seen on the investigations as a pre-existing condition, he said nothing about any pre-existing symptomatology and/or requirement for treatment.
We were referred to the Medical Assessor’s description in his summary of Mr Ghandi experiencing “a further lower back dysfunction” and “incurring further aggravation of that condition.”
It was submitted that there was no evidence before the Medical Assessor that would support that finding. There was no history of any prior symptomatic back condition.
The appellant referred to the finding of a 1/3rd deduction made by the Medical Assessor and reproduced the Medical Assessor’s reasons at [11] for making the 1/3rd deduction.
The appellant submitted that the Medical Assessor “appears to have confused the legal issue of causation when approaching the deduction issue…” The Medical Assessor, it was argued, fell into error in finding that the surgical treatment was caused by the pre-existing condition, and that accordingly that condition justified a greater s 323 deduction.
That approach, it was submitted, ignored the fact that it was the subject injury that gave rise to the necessity for the surgery and that an employer was required to take its employee as it found him. We were referred to well accepted authority in that regard.[11]
[11] Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249 at [40]; Attorney General's Department v K [2010] NSWWCCPD 76.
The appellant submitted that the Medical Assessor had not approached his task in accordance with authority, particularly Cole v Wenaline Pty Ltd.[12]
[12] [2010] NSWSC 78 at [28]-[30].
The appellant submitted that there was no evidentiary basis on which to make the deduction as the pre-existing condition was asymptomatic and was accordingly the Medical Assessor had calculated the deduction on the basis of an assumption.
It was also submitted that the Medical Assessor had not given adequate reasons for his decision.
Digestive tract
The appellant noted that the Medical Assessor confirmed that Mr Ghandi had used analgesics and anti-inflammatories following his surgery and that subsequent investigation by way of endoscopy demonstrated pathology which included Helicobacter pylori.
It was submitted that the Medical Assessor had found that the investigations had shown features of upper gastro-intestinal reflux and the continuing chronic inflammatory condition.
The reliance on the Guidelines that symptoms and signs had to be identified was at odds, it was submitted, with the Medical Assessor’s findings.
It was alleged that the Medical Assessor had failed to indicate his reasons why there were no objective signs or “other objective evidence” present. There was also a necessity, it was submitted, for the Medical Assessor to explain the inconsistency between his own finding of reflux and chronic inflammatory condition that was being contributed by the presence of a small hernia and Helicobacter pylori.
In conclusion the appellant submitted that the MAC should be revoked and a 1/10th deduction in the lumbar spine substituted. It was also submitted that the finding as to the digestive tracts should be revoked and the opinion of Dr Neil Berry substituted therefor.
Appellant’s further submissions on remittal from the Supreme Court
We acknowledge the additional submissions lodged by the appellant following the decision of Davies J. However, we are bound to consider the appeal de novo and accordingly put them to one side.
Respondent’s submissions
In the submissions filed with the original appeal, the respondent submitted that the grounds had not been made out and that the appeal should be dismissed.
It made submissions that the 1/3rd deduction could be justified. It was submitted that there was ample authority for the proposition that asymptomatic pre-existing conditions could nonetheless be susceptible to a deduction pursuant to s 323.
We were referred to another Medical Appeal Panel matter, Toll Transport Pty Ltd v Manson[13] and submissions were made that sought to distinguish the reasoning in that case, as the nature of the pre-existing condition concerned a different pathology. An application of the dicta in Ryder v Sundance Bakehouse,[14] which the respondent kindly cited, to the current facts would show that the one third deduction was open to the Medical Assessor.
DISCUSSION
[13] [2022] NSWPIC MP 413.
[14] [2015] NSWSC 526.
The s 323 issue
Section 323 of the 1998 Act provides relevantly:
“(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.”
It is well accepted that there are three steps to be considered in the application of this section. In Cole v Wenaline Pty Ltd[15] Schmidt J held that firstly the level of impairment caused by the subject injury should be assessed. In the present case it was 26% for the lumbar spine, and that assessment has not been challenged. Her Honour said:
“What s 323 required, however, was that the evidence be considered, so that it could be determined, firstly, what the level of impairment after the second injury was. Secondly, whether a proportion of that impairment was due to the first injury. Thirdly, what that proportion was. Undoubtedly in undertaking this exercise, the medical members of an Appeal Panel must utilise their medical judgement, knowledge and experience. Nevertheless, all stages of the statutory exercise must be undertaken in the light of the evidence and without the making of assumptions not provided for by the section.”
[15] [2010] NSWSC 78 at [38].
The second step is to enquire whether a proportion of that impairment was due to, in this case, Mr Gandhi’s pre-existing condition. In order to do so, it is necessary to identify the condition.
The third step identified by Schmidt J was to quantify the deduction to be made for the proportion of impairment that was due to the pre-existing condition.
The respondent submitted that it was significant that the spondylolisthesis was identified the following day after the injury, and it relied on dicta from Ryder, which we reproduce:[16]
“What s 323 requires is an inquiry into whether there are other causes, (previous injury, or pre-existing abnormality), of an impairment caused by a work injury. A proportion of the impairment would be due to the pre-existing abnormality (even if that proportion cannot be precisely identified without difficulty or expense) only if it can be said that the pre- existing abnormality made a difference to the outcome in terms of the degree of impairment resulting from the work injury. If there is no difference in outcome, that is to say, if the degree of impairment is not greater than it would otherwise have been as a result of the injury, it is impossible to say that a proportion of it is due to the pre-existing abnormality. To put it another way, the Panel must be satisfied that but for the pre-existing abnormality, the degree of impairment resulting from the work injury would not have been as great.”
[16] Per Campbell J at [45].
As we understood the respondent’s argument, the circumstances pertaining in the present case were that Mr Gandhi injured his back whilst working in the dairy department of Coles. The discovery of his asymptomatic pre-existing spondylolisthesis resulted in Mr Gandhi’s having to undergo spinal surgical treatment. The outcome of that treatment in turn qualified Mr Gandhi for 26% WPI in accordance with the relevant criteria, which in turn resulted in the higher WPI because Mr Gandhi had undergone the surgery. The Medical Assessor set those criteria out at [10b]:[17]
“b. An explanation of my calculations:
Lumbar Spine. This is addressed in AMA 5 Page 384, Table 15-03. There has been a fusion at the L5/S1 articulation which places Mr Gandhi into Lumbar Category IV. This provides a whole person impairment ranging from 20% to 23%, depending on the activities of daily living. For this he would attract a further 2%, giving 22%.
There are radiculopathy features and also the surgical procedure was conducted with two specific procedures over two separate days. These features are addressed in the SIRA Guidelines Page 29, Table 4.2. For the continuing radiculopathy there is a further 3% WPI and for the second surgical procedure, a further 2%. These figures combine to 5% WPI.
This is combined with the earlier 22%, giving 26% WPI.”
[17] Appeal papers page 39.
Thus it can be seen that the injury necessitated the lumbar spine surgery because the pars interarticularis defect had resulted in a spondylolisthesis that had been made symptomatic by the work Mr Gandhi had been doing. Applying the “but for” test enunciated by Campbell J, the respondent argued that, but for the pre-existing condition, the impairment would not have been as great. It was the pre-existing pathology that had caused the need for surgery. Otherwise, the degree of impairment might have been commensurate with a lumbar category DRE II or DRE III which would yield entitlements of between 5% and 13%, had the pathology been less dire.
This indeed was the justification by the Medical Assessor for a 1/3rd deduction at [11], where he said:[18]
“This would increase the susceptibility to further work-related pathology, particularly with a physically arduous occupation which Mr Gandhi was pursuing. If Mr Gandhi’s condition had been managed conservatively, I would suggest that a deduction of one-tenth to address this issue would have been appropriate. In this particular case, however his condition was managed with a two- stage surgical procedure with an anterior and then a posterior approach two days later. The fact that the surgery was carried out places Mr Gandhi into a much higher bracket for impairment assessment. The major issue necessitating the extensive surgical procedure has been the existence of the pars inter-articularis defect….”
[18] Appeal papers page 40.
The difficulty with the logic of this reasoning is that s 323(1) requires that there can only be a deduction where any proportion of the impairment is due to, relevantly, the pre-existing condition. The fact that the injury – in this case the aggravation of Mr Gandhi’s pre-existing degenerative condition – required treatment that of itself entitled Mr Gandhi to a higher impairment is not relevant, as that is not the test propounded by the section, or by authority. Campbell J’s above dicta, which the respondent relies on, needs to be seen in the light of his later finding at [54] of Ryder:
“Section 323 as I have already said, requires there to be a deduction for any proportion of the impairment that is due to any pre-existing condition. This is an essential element of the section; indeed it is the pith of it. It is not enough to simply identify that there is a pre-existing condition and that there has been a subsequent impairment and therefore make a deduction under this section because of the existence of the pre-existing condition. Such reasoning fails to consider a necessary condition of the operation of the section; that a proportion of the permanent impairment is due to the pre-existing condition.”
In Elcheikh v Diamond Formwork (NSW) Pty Ltd[19] a similar situation pertained. The applicant in that case had an asymptomatic pre-existing condition of Scheuermann’s disease, which was accepted to be a condition that arose in adolescence. The applicant came to surgery, and accordingly benefitted from the increased entitlements that treatment was accorded in the Guides. The Medical Assessor (then known as an Approved Medical Specialist (AMS)) deducted 50% pursuant to s 323.
[19] [2013] NSWSC 365.
The AMS said, as reproduced by Schmidt J at [55]:
"As noted, in the body of my report, Mr Elcheikh has advanced degenerative changes due to the Scheuermann's disease of the lower thoracic spine as agreed by almost all of the specialists noted. His treating specialist felt that these were the most marked changes that he had seen in such a young patient. In fact the operation was carried out for the pain but was mainly on the basis of the degenerative changes and kyphosis that was present. If not for the underlying Scheuermann's disease, there is no way that surgery would have even been considered. Surgery therefore was directly related to his underlying condition.”
The Medical Appeal Panel confirmed the deduction, and the matter was appealed to the Supreme Court. At [91], Schmidt J said:
“[The Appeal Panel] noted, correctly, that the fact that the pre-existing condition had been asymptomatic did not preclude it from contributing to the impairment being assessed. Nor, however, could it be assumed that an asymptomatic condition did contribute to the impairment. Whether or not there had been any contribution had to be determined on the evidence, which included the competing specialist opinions on that matter, as well as various other evidence”.
At [94] Her Honour however noted that the AMS “plainly considered” that the Scheuermann’s disease, “completely asymptomatic and something of which Mr Elcheikh learnt only after treatment for his workplace injury” was “primarily responsible for his impairment.” Her Honour said that in reaching that conclusion the AMS:
“…had to consider not only the evidence of the conflicting expert opinions about whether this condition had contributed at all to the impairment, but also the other evidence which shed light on this question. …. He also did not refer to the evidence that the pre-existing condition had been asymptomatic, ….”
Mr Elcheikh had been born in 1970 and been working as a labourer (and subsequently, a leading hand) since 1990. His deemed date of injury was 1 January 2007, although he began experiencing symptoms in 2004, but worked on until 2008, when the employer went into liquidation.
Schmidt J said at [104]:
“The Appeal Panel approached what it had to determine by adopting what the medical specialist had asked himself as to whether the underlying condition was a necessary factor in the decision to carry out the surgery undertaken in 2010. He concluded that it was, observing that 'if not for the underlying Scheuermann's disease, there is no way that surgery would have even been considered'. If this was a relevant consideration in the factual circumstances, what clearly also required consideration, given that the condition had been asymptomatic, was whether, without the impact of his heavy work the pre-existing condition would have required such surgery.”
At [124] Her Honour said:
“…The legislative scheme required the medical specialist to determine Mr Elcheikh's deductible proportion, not by reference to his workplace injury, but rather by determining what contribution the pre-existing condition had made to the permanent impairment which had resulted from that injury.”
In the present case the Medical Assessor has similarly erred in his reasoning as to the application of s 323. A perusal of his reasons does not show any record that Mr Gandhi was asymptomatic. The Medical Assessor contented himself by simply referring to the results of the post-injury investigations when answering the templated question seeking “details of any previous…accidents, injuries or conditions.” However, he stated in his Summary at [7] that the subject injury was a “further aggravation,” after experiencing “further lower back dysfunction.” The Medical Assessor did not state the facts and circumstances on which he based this finding, and there is no support in the evidence for such a finding. A perusal of the medical evidence before him demonstrated that all medical practitioners found that Mr Gandhi had been asymptomatic when he suffered his injury. The Medical Assessor accordingly has made his assessment on an erroneous assumption of fact.
Be that as it may, the Medical Assessor has also erred by confusing the test he is required to apply as required by s 323. He has made the same error as the AMS in Elcheikh, as he has determined the contribution by reference to the workplace injury and not by determining what contribution the pre-existing condition had made to the impairment which had resulted from the workplace injury.
In adopting that approach, he has made a further error, as he did not consider whether, without the impact of Mr Gandhi’s arduous work, the pre-existing condition would have required such surgery. He did not refer to the fact that Mr Gandhi was asymptomatic until his workplace injury – no doubt because he erroneously assumed that Mr Gandhi had been symptomatic – and he did not consider the evidence that Mr Gandhi (who was born in 1976, and thus 42 years of age at the date of injury) had never suffered any back symptoms until this injury. It was the injury, and not the pre-existing condition, that has necessitated Mr Gandhi’s surgical treatment.
Accordingly, the Medical Assessor fell into error when applying the provisions of s 323. Whilst we are satisfied that Mr Gandhi’s spondylolisthesis was a pre-existing condition, we do not accept that the evidence has shown that anything more than the statutory 10% has contributed to the impairment caused by the workplace injury. There was no medical evidence about Mr Gandhi’s spondylolisthesis that predated the injury and it is accordingly difficult to determine the extent of the deduction. We bear in mind the maxim that an employer takes its employee as it finds him/her, but we think that the pre-existing condition might have made some contribution to the impairment. A spondylolisthesis is a condition that may well have predisposed Mr Gandhi to suffer low back symptoms at some stage but it is too difficult in the circumstances to determine the degree of its contribution to the impairment caused by the workplace injury.
The digestive system
Chapter 16.9 of the Guides provides as follows:
“16.9 Effects of analgesics on the digestive tract:
•• AMA5 Table 6-3 (p 121) Class 1 is to be amended to read ‘there are symptoms and signs of digestive tract disease’.
•• Nonsteroidal anti-inflammatory agents, including Aspirin, taken for prolonged periods can cause symptoms in the upper digestive tract. In the absence of clinical signs or other objective evidence of upper digestive tract disease, anatomic loss or alteration a 0% WPI is to be assessed.
•• Effects of analgesics on the lower digestive tract:
Constipation is a symptom, not a sign and is generally reversible. A WPI assessment of 0% applies to constipation.
Irritable bowel syndrome without objective evidence of colon or rectal disease is to be assessed at 0% WPI.”
Mr Gandhi submitted that the Medical Assessor erred because, having identified the results of the endoscopy undertaken by Dr Chen, he fell into error because he confirmed that the presence of a small hernia and Helicobacter pylori found on endoscopy “would have contributed to [Mr Gandhi’s] upper gastrointestinal reflux and continuing chronic inflammatory condition.”
It was argued that this contribution “self-evidently confirmed the presence of those conditions by reference to the claimed injuries”. We agree that the gloss contended for on the Medical Assessor’s words is available, but misleading. A more careful consideration demonstrates that he had used unhappy phrasing in making that statement. In Bojko v ICM Property Services Pty Ltd[20] Handley AJA, Allsop P and Giles JA agreeing, said at [36]:
“The correct approach [to grounds of appeal] is that mandated by the joint judgment in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6, 185 CLR 259, 272 which approved the following statement of principle in a decision of the full Federal Court:
‘... a court should not be concerned with looseness in the language nor with unhappy phrasing of the reasons of an administrative decision-maker. ... the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error’."
[20] [2009] NSWCA 175.
Firstly, Dr Neil Berry, the specialist general surgeon qualified by the appellant, made a finding that Mr Gandhi was entitled to 5% WPI for the effects of medications on the upper gastrointestinal tract. He said in his report of 29 November 2021:[21]
“…In Mr Gandhi's case, he has a history of reflux and endoscopy shows the presence of chronic moderate gastrointestinal inflammation and the presence of Helicobacter infection. Helicobacter infection is not work related and I would place Mr Gandhi in Class I and I would allow a 5% Whole Person Impairment for his upper gastrointestinal tract. Given that there is mild Helicobacter infection, I would deduct two-fifths, giving Mr Gandhi a 3% Whole Person Impairment for the effects of medications on his upper gastrointestinal tract.”
[21] Appeal papers page 114.
Dr Berry said further in a report of 27 July 2022:[22]
“Mr Gandhi gives a history that about two months after the injury, he began to suffer gastrointestinal symptoms which were reflux in the upper abdomen and constipation with bright rectal bleeding. He was treated conservatively without benefit and eventually underwent gastroscopy and colonoscopy on 30 August 2021. At endoscopy, he was found to have a small hiatus hernia with Grade-A reflux oesophagitis and the colonoscopy showed polyps and haemorrhoids. The histology on biopsy from the stomach showed moderate active chronic gastritis in the presence of a Helicobacter infection. The patient was subsequently treated with multiple antibiotics for his Helicobacter infection and then placed on Somac.
….
….In Mr Gandhi's case, he has a history of reflux and endoscopy shows the presence of chronic moderate gastrointestinal inflammation and the presence of Helicobacter infection. Helicobacter infection is not work related and I would place Mr Gandhi in Class I and I would allow a 5% Whole Person Impairment for his upper gastrointestinal tract. Given that there is mild Helicobacter infection, I would deduct two-fifths, giving Mr Gandhi a 3% Whole Person Impairment for the effects of medications on his upper gastrointestinal tract.”
[22] Appeal papers pages 447-448.
Secondly, Dr Phil Truskett, surgeon, qualified for the respondent, made the following comments regarding Dr Berry’s opinion:[23]
“When examined, Dr Berry found no significant abnormality. He did note that at endoscopy there was reflux oesophagitis and histology revealed Helicobacter infection of Mr Gandhi’s stomach. The colonoscopy reported haemorrhoids with some polyps.
Dr Berry assessed Mr Gandhi’s upper digestive tract as showing 5% whole person impairment with a two-fifth deduction due to Helicobacter infection. I do not support this assessment because the symptoms Mr Gandhi describes are reflux and not gastritis. His gastritis may entirely be due to Helicobacter.”
[23] Appeal papers page 397 at [402].
The respondent submitted that the appellant had demonstrated a misunderstanding of the full clinical picture, and the loose manner which the Medical Assessor expressed his conclusion can be seen to have contributed to that misunderstanding. It was unfortunate that the Medical Assessor did not reproduce the report of Dr Chen, who conducted the gastroscopy and endoscopy, nor the histology report of A/Prof Tao Yang. They were before the Medical Assessor in Dr Truskett’s report:[24]
“Gastroscopy & Colonoscopy Report, Dr Guang Chen, 30 August 2021 Gastroscopy showed small hiatus hernia with a grade A reflux. Normal stomach. Duodenum biopsies taken.
Colonoscopy showed small haemorrhoids. Good bowel preparation. Terminal ileum normal. There was a moderate sessile polyp in the transverse colon which was cold snared and a moderate pedunculated poly cold snared in the sigmoid colon.
The summary was as follows:
Hiatus hernia with mild reflux, haemorrhoids and colonic polyps.
Histology Report, A/Prof Tao Yang
Microscopic description: Gastric biopsies, antral type mucosa with moderate active chronic inflammation. Small Helicobacter pylori organisms can be seen. The biopsies from large intestine containing tubular adenoma dysplasia was low grade.”
[24] Appeal papers page 403.
Thus, when seen in the light of the above opinions the Medical Assessor’s meaning becomes clear.
He accepted Dr Truskett’s opinion of 0% WPI, and in discussing Dr Berry’s opinion said, as indicated above:[25]
“Specialist Surgeon, Dr Neil Berry in his reports of 30/11/21 combined with 27/07/22 assesses 0% for the lower gastro-intestinal tract, with which I would agree. He assesses the upper gastrointestinal tract with 5% yet deducts two-fifths of this because of the helicobacter pylori condition giving 3%. With great respect, I am not persuaded that there are sufficient indications of signs of upper gastro-intestinal features to justify anything other than 0% WPI.”
[25] Appeal papers page 39/40
There were no further investigations into Mr Gandhi’s digestive system, and the antral type mucosa with moderate active chronic inflammation shown on the tests undertaken by Dr Chen were shown on the histology to be in the presence of Helicobacter pylori, which the Panel accepts was most likely the cause of the mucosa and moderate inflammation.
Seen in the light of the evidence before the Medical Assessor, we find no error in his conclusion that the subject injury caused any WPI to Mr Gandhi’s digestive system. We agree with the appellant that the Medical Assessor’s path of reasoning was not clearly expressed, but having reviewed the evidence we find that the assessment was open to him.
For these reasons, the Appeal Panel has determined that the MAC issued on 11 November 2022 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: | W3124/22 |
Applicant: | Rahulkumar Gandhi |
Respondent: | Coles Supermarkets Pty Ltd |
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 Tim Anderson 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, | 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) |
| Lumbar spine | 22/08/18 deemed | Chapter 4 page 24 | Page 384 Table 15-03 | 26 | 1/10 | 23 |
| Scarring | 22/08/18 deemed | Page 74 | n/a | 1 | 0 | 1 |
| 3.digestive system | 22/08/18 deemed | Page 74 | Page 78 Table 16.9 | 0 | 0 | 0 |
| Total % WPI (the Combined Table values of all sub-totals) | 24% | |||||
0
8
4