Hassan v Solutions Personnel Pty Ltd - [2024] NSWPICMP 612

DETERMINATION OF APPEAL PANEL
CITATION:	Hassan v Solutions Personnel Pty Ltd [2024] NSWPICMP 612
APPELLANT:	Shahid Hassan
RESPONDENT:	Solutions Personnel Pty Ltd
APPEAL PANEL
PRINCIPAL MEMBER:	John Harris
MEDICAL ASSESSOR:	Drew Dixon
MEDICAL ASSESSOR:	David Crocker
DATE OF DECISION:	29 August 2024
CATCHWORDS:	WORKERS COMPENSATION - Appellant worker suffered injuries to the right shoulder, elbow and lumbar spine; Medical Assessor (MA) assessed the impairment at 14% and allowed 2% for the effects on the activities of daily living (ADL); whether MA erred by failing to assess 3% for ADL asserting capacity to undertake personal care activities has been affected; assessment of ADLs not solely dependent on self-reporting but based on clinical findings and other reports; clinical findings of lumbar spine impairment were modest based solely on dysmetria; MA found appellant had marked exaggeration of pain symptoms based on non-dermatomal complaints of numbness and severe pain in response to touching; Bojko v ICM Property Service Pty Ltd and Vitaz v Westform (NSW) Pty Ltd applied; no medical opinion supporting appellant’s claim for 3% for ADL; Held – no failure to give adequate reasons; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

Mr Shahid Hassan (the appellant) sustained injury on 9 February 2021 in the course of his employment with Solutions Personnel Pty Ltd (the respondent).
On 29 March 2023 the appellant served a claim based on a report from Dr Bodel dated 1 February 2023 seeking permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act).[1]
[1] MAP brief, p 76.
The respondent initially admitted that the appellant suffered injury to the lumbar spine and right elbow and declined liability for the cervical spine and right shoulder.[2]
[2] MAP brief, p 48.
Mr Hassan then commenced proceedings in the Personal Injury Commission (the Commission) as a medical and liability dispute had arisen following the exchange of relevant correspondence.
The liability dispute was listed before a Member of the Commission. On 27 March 2024 the Commission entered into consent orders which provided that the lumbar spine and right upper extremity (shoulder and elbow) were to be referred to a Medical Assessor. There was an award in favour of the respondent for the allegation on injury/consequential condition to the cervical spine.[3]
[3] MAP brief, p 30.
Following the determination of the liability issues, the assessment of whole person impairment (WPI) was referred by the President to a Medical Assessor. The medical dispute was assessed by Medical Assessor Burns who issued a Medical Assessment Certificate dated 28 May 2024 (MAC).
The assessment of WPI is undertaken in accordance with the fourthedition of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (fourth edition guidelines).[4] The fourth edition guidelines adopt the 5^th edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 5). Where there is any difference between AMA 5 and the fourth edition guidelines, the fourth guidelines prevail.[5]
[4] The fourth edition guidelines are issued pursuant to s…

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: [2024] NSWPICMP 612
Decision Date: 29 August 2024

CaseChat Overview and Summary

In the matter of Hassan v Solutions Personnel Pty Ltd, the appellant, Hassan, sought to challenge a decision made by a Medical Assessor regarding his workers compensation claim. Hassan had sustained injuries to his right shoulder, elbow, and lumbar spine. The dispute centred on the assessment of the impairment rating and the allowance for effects on activities of daily living (ADL). The Medical Assessor (MA) had assessed the impairment at 14% and allowed an additional 2% for the effects on ADL. Hassan argued that the MA erred by not awarding an additional 3% for the effects on ADL, asserting that his capacity to undertake personal care activities had been affected.

The legal issues before the court were whether the MA failed to give adequate reasons for not assessing 3% for ADL and whether there was any error in the MA's assessment. The court examined whether the MA's decision was supported by the evidence and if there was any basis to conclude that the appellant's claim for 3% for ADL was justified. The court considered the MA's reliance on clinical findings and other reports in assessing the impairment and the effects on ADL, as well as the appellant's self-reporting of symptoms. The court applied the principles from previous cases, Bojko v ICM Property Service Pty Ltd and Vitaz v Westform (NSW) Pty Ltd, which established that the assessment of ADLs is not solely dependent on self-reporting but is based on clinical findings and other reports.

The court found that the MA's assessment was based on a comprehensive review of the evidence, including the clinical findings which showed modest impairment of the lumbar spine based on dysmetria. The MA also found that Hassan exhibited marked exaggeration of pain symptoms, as evidenced by his non-dermatomal complaints of numbness and severe pain in response to touching. The court held that there was no failure to give adequate reasons for the MA's decision. The Medical Assessment Certificate was confirmed, and the appeal was dismissed.

Orders