Hassan v Solutions Personnel Pty Ltd

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 376 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
[5] Clause 1.1 of the fourth edition guidelines.

MEDICAL ASSESSMENT

The grounds of appeal were limited to the assessment of the effects on the activities of daily living (ADLs) made by the Medical Assessor. To understand the grounds of appeal it is necessary to refer to portions of the MAC.
The right upper extremity (shoulder and elbow) and lumbar spine were referred and assessed by the Medical Assessor.
The present symptoms in the lumbar spine recorded by the Medical Assessor were constant low back pain, radiating pain down the left leg into the left heel and numbness involving the entire leg. Constant pain was also noted in the right shoulder and right elbow. The findings on examination of the lumbar spine were described by the Medical Assessor as follows:[6]
“Examination of the lumbar spine revealed global tenderness in the low back. He also reported tenderness in the mid thoracic spine and the base of the cervical spine. Almost anywhere that his spine was touched he reported severe pain. There was no evidence though of muscle spasm or muscle guarding in the lumbar spine. Flexion was 50% of predicted with fingertips just below knee level. Extension was 25% of predicted with reports of severe pain. Lateral tilt to the left and right was 50% of predicted, again with reports of severe pain. Straight leg raising was 40° on the right and 30° on the left. At end of range on both sides he reported pain and discomfort in his low back. He did not report pain down into either leg. This is a negative sciatic stretch test.
Neurological examination of both lower limbs revealed normal power on both sides. He was able to stand on his heels and toes at the end of the examination. There was no evidence of muscle weakness in the extensor hallucis longus to the great toe on either side.
Tone was present and normal on both sides. Reflexes were noted to be present and symmetrical in both the knees and ankles. They were quite brisk. Medial hamstring reflexes were slightly decreased but were symmetrical on both sides. Sensation was reported as being decreased in the entire left leg. This did not follow a dermatomal pattern.”
[6] MAC, p 4.
The Medical Assessor set out the following history for social activities and the effects on ADLs. The Medical Assessor stated:[7]
“He is currently living in a share house with 2 other people. He reported that after the initial injury the insurance company arranged for grass cutting to be done for the share house for a short period. This has now been ceased. With respect to domestic activities in the house they are mostly done by the other 2 individuals. He does have his own bedroom and reports that he tries to look after himself but sometimes needs assistance from the other people.
When questioned about self-care he reported that he can feed, toilet, shower and dress himself. He reported that this is done with pain as there is no one else to help him.”
[7] MAC, p 4.
The Medical Assessor found evidence of dysmetria in flexion and extension and assessed the lumbar spine as DRE Category II. There were no neurological signs found on examination. In respect of the assessment of the ADLs, the Medical Assessor stated:[8]
“I note that he reported being able to do all his own self-care activities so a further 2% only would be added to give 7% whole person impairment. With no history of previous back pain or back injury no deduction would be made.”
[8] MAC, p 7.
Later in the MAC when discussing other medical opinions, the Medical Assessor stated:[9]
“Whilst I believe that there was a marked exaggeration of his pain symptoms, I do note that his various examination findings have shown pathology. I therefore cannot totally agree that all of his current symptomatology would give zero impairment and not be related to his work injuries.”
[9] MAC, p 8.
The degree of WPI was assessed at 14% comprising 8% for the right upper extremity and 7% for the lumbar spine.

APPLICATION TO APPEAL MEDICAL ASSESSMENT

On 24 June 2024 Mr Hassan lodged an Application to Appeal Against the Decision of a Medical Assessor.
The appellant relied on the grounds of appeal under s 327(3) of the 1998 Act that the assessment was made on the basis of incorrect criteria, and the MAC contained a demonstrable error.
On 17 July 2024 the respondent filed a Notice of Opposition to Appeal Against a Decision of the Medical Assessor.
The delegate of the President was satisfied that a ground of appeal has been made out and the appeal was referred to the Appeal Panel.
We are required to only address the subject matter of the ground of appeal. In Queanbeyan Racing Club Ltd v Burton[10] Basten JA stated:[11]
“The Appeal Panel was correct in the present case to address the subject matter of the ground of appeal, set aside the medical assessment certificate and issue another certificate including the amended assessments and the original unchallenged assessment. In doing so it neither purported to reassess the unchallenged finding nor to adopt the medical assessors’ reasoning with respect to that finding; neither course was part of its statutory function.”
[10] [2021] NSWCA 304 (Burton).
[11] At [35], Leeming and McCallum JJA agreeing.

EVIDENCE

The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment.

SUBMISSIONS

Appellant’s submissions

The appellant submitted that the Medical Assessor erred in failing to assess 3% impairment for the effects on the activities of daily living. Reference was made to the history recorded by the Medial Assessor and noted paragraphs 4.34 and 4.35 of the fourth edition guidelines which provided that the critical criteria was whether the “the worker’s capacity to undertaken personal care activities …has been affected”.
The appellant submitted that the conclusion reached by the Medical Assessor at page 7.4 for his reasons for allocating a percentage for ADLs differed from the history recorded earlier. The appellant submitted:
“The omission of reference in the assessment calculations explanation (page 7.4) to the earlier expressed history (page 4.3) constitutes demonstrable error contained in the certificate as stipulated in s 327(3((d)”.
The appellant also submitted that the medical assessment “has not heeded the criterion expressed in paragraph 4.35 of the Guidelines which constituted an application of incorrect criteria”.
The appellant submitted that the ADLs should be assessed at 3% and the total impairment is therefore 15%.[12]
[12] See the combination table, AMA 5, p 604.

Respondent’s submissions

The respondent referred to the passages relied upon by the appellant and submitted:[13]
“The Respondent submits that when one reads the MAC as a whole it is clear that this is not the MA’s intention. The MA indicated that he required assistance with respect to domestic activities but tries to look after himself. In relation to self-care, he completed a separate paragraph and reported that he could feed, toilet, shower and dress himself. The worker clearly continues to undertake his own self care and the Respondent submits that the Appellant has identified no error as the MA has clearly distinguished between the two.”
[13] MAP brief, p 16.
The respondent referred to paragraph 1.25 of the fourth edition guidelines which provided that an assessment of the effects on ADLS should, where possible, be by reference to objective assessments such as a functional assessment.
The respondent referred to the opinion of Dr Bodel who assessed 2% for the effects on ADLs. It otherwise submitted that the Medical Assessor is entitled to form his own independent assessment and was entitled to reach the conclusion based on his clinical skill and judgement.

REASONS

The relevant passage relied upon by the appellant does not establish its submission that the Medical Assessor made a finding that the appellant does not have capacity to “undertake personal care activities”. What the Medical Assessor stated was that the appellant reported that:
“[H]e tries to look after himself but needs assistance from the other people”.
When specifically questioned about self-care, the Medical Assessor recorded the following:
“When questioned about self-care he reported that he can feed, toilet, shower and dress himself. He reported that this is done with pain as there is no one else to help him.”
Clause 4.35 of the fourth edition guidelines provides that an allowance of 3% is made, in addition to that provided for loss of sporting activities and personal care if:
“[T]he worker’s capacity to undertake personal care activities such as dressing, washing, toileting and shaving has been affected.”
The assessment of ADLs is not satisfied simply by self-reporting by the worker and involves clinical judgement by the Medical Assessor. Paragraph 4.33 of the fourth edition guidelines provides:
“Impact of ADL. Tables 15-3, 15-4 and 15-5 of AMA5 give an impairment range for DREs II to V. Within the range, 0%, 1% 2% or 3% WPI may be assessed using paragraph 4.34 and 4.35 below. An assessment of the effect of the injury on ADL is not solely dependent on self-reporting but is an assessment based on all clinical findings and other reports.”
The context of the Medical Assessor’s clinical findings noted “severe pain” whenever there was touching in the spine and sensation was decreased in the entire left leg which did not follow a dermatomal pattern. Understandably the Medical Assessor concluded that there was “marked exaggeration of his pain symptoms.”
The reasons must not be read “with an eye keenly attuned to the perception of error” and ignoring the balance of the reasons provided by the Medical Assessor.
In Bojko v ICM Property Service Pty Ltd[14] Handley JA noted that the correct approach was mandated by the joint judgment in Minister for Immigration and Ethnic Affairs v Wu Shan Liang[15] that
"... 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."
[14] [2009] NSWCA 175 at [36] (Allsop P and Giles HJA agreeing).
[15] [1996] HCA 6, 185 CLR 259,
The reasons of the Medical Assessor when read as a whole, do not support the appellant’s contention that there was an acceptance that the capacity to undertake personal care activities has been affected.
The clinical findings of the Medical Assessor show that the assessment of the lumbar spine was solely based on the relatively modest findings of dysmetria and there were no relevant clinical signs of radiculopathy, spasm or guarding. The findings of non-dermatomal numbness in the entire leg were clearly relevant to the ultimate finding of “marked exaggeration of pain symptoms”. In these circumstances the clinical findings of the Medical Assessor did not support an acceptance of the full extent of the appellant’s pain condition.
The appellant’s claim that he is entitled to 3% for the effects of ADLs is based on his self-reporting that he can undertake self-care with pain. Firstly, the Medical Assessor found that the appellant markedly exaggerated his pain, secondly, found modest impairment of the lumbar spine with dysmetria with no other clinical findings and, thirdly, did not make a positive finding that the appellant lacked capacity to undertake personal care activities.
Other material relied upon by the appellant did not support his claim that an allowance of 3% for ADLs was warranted.
The appellant provided a statement dated 11 October 2023.[16] The statement set out the appellant’s ongoing restrictions including that he struggled with household maintenance and cleaning activities and could not drive longer than 20 minutes. The appellant did not assert in that statement that he could not undertake personal care activities.
[16] MAP brief, p 45.
Dr Bodel was qualified by the appellant and assessed 2% for ADLs. Dr Bodel diagnosed soft tissue injury to the neck, rotator cuff injury to the right shoulder, lateral epicondylitis to the right elbow and a discal injury at L4/5. Dr Bodel stated:[17]
“This gentleman has widespread complaints. His clinical presentation is somewhat difficult to interpret but I am satisfied that there is genuine evidence of rotator cuff pathology in the region of the right shoulder, lateral epicondylitis in the right elbow and L5/S1 nerve root entrapment in the lower part of the back and left leg.”
[17] MAP brief, p 97.
Dr Powell opined that there was a resolution of injury to the lumbar spine and right elbow and that the appellant had developed a pain disorder.[18] The doctor assessed no rateable permanent impairment.
[18] MAP brief, p 62.
There was no finding by the Medical Assessor that the appellant lacked the capacity to undertake personal care activities. As we noted, the appellant’s claim is based on a partial self-reported history which was not fully accepted by the Medical Assessor and a clinical examination of the lumbar spine which showed modest objective signs.
There is no application of incorrect criteria in accordance with the discussion by the Court of Appeal in Campbelltown City Council v Vegan[19] described as “such matters as the tests set out in the fourth edition guidelines, where they are applicable”. That submission is rejected.
[19] [2006] NSWCA 284 at [95], McColl JA agreeing. These comments were approved in Marina Pitsonis v Registrar of the Workers Compensation Commission of New South Wales [2008] NSWCA 88 at [41].
The Medical Assessor has a statutory obligation to provide reasons (s 325 of the 1998 Act). Those reasons must be adequate and disclose the reasons sufficient to show the “actual path of reasoning”[20] by which the opinion was formed and in sufficient detail such that an Appeal Panel could determine whether, in the context of the medical appeal provisions under the 1998 Act, either the MAC contained a demonstrable error, or the assessment was made based on incorrect criteria.
[20] Wingfoot at [48].
The appellant’s submission was that the ultimate finding did not accord with the appellant’s history. For the reasons discussed, we have explained that the Medical Assessor explained why he did not, in part, accept the appellant’s “marked exaggeration of his pain symptoms”.
The Appeal Panel can analyse the evidence when determining whether the certificate contains a demonstrable error: Vannini v Worldwide Demolitions Pty Ltd.[21] In Vannini Gleeson JA observed that, consistent with the observations of Basten JA in Mahenthirarasa v State Rail Authority of New South Wales, a “demonstrable error must be apparent in findings of fact or reasoning contained in the medical assessment certificate, although the error may be established in part by reference to materials that were before the approved medical specialist”.[22]
[21] [2018] NSWCA 324 (Vannini) at [90].
[22] Vannini at [86].
We do not accept that the reasons provided by the Medical Assessor constitutes a demonstrable error.
In Vitaz v Westform (NSW) Pty Ltd[23] the Court of Appeal otherwise held that reasons were not required where there was “an absence of medical evidence establishing a contest”. Basten JA stated:[24]
“In the absence of any medical evidence establishing a contest as to whether the pre-existing condition did contribute to the level of impairment, the complaint about a failure to give reasons must fail. An approved medical specialist is entitled to reach conclusions, no doubt partly on an intuitive basis, and no reasons are required in circumstances where the alternative conclusion is not presented by the evidence and is not shown to be necessarily available.”
[23] [2011] NSWCA 254 (Vitaz).
[24] Vitaz at [43], McColl JA (as her Honour then was) and Handley AJA agreeing.
The medical evidence provided by the appellant did not support a finding of an allowance of 3% for the effects on ADLs. Whilst the Medical Assessor is obliged to reach his or her own view,[25] the present assertion is solely based on a self-reported history that the appellant has pain when undertaking self-care tasks and is not supported by medical evidence filed in support of his claim. In these circumstances, the observation in Vitaz suggest no reasons were required.
[25] See Wingfoot Australia Partners Pty Lt v Kocak [2013] HCA 43 at [47]; State of New South Wales v Kaur [2016] NSWSC 346 at [25]-[26].
We otherwise note that an allowance for the impact on ADLs relates to the effects from the spine.[26] The effect of the right shoulder and elbow injuries is irrelevant to the assessment of the effect on ADLs.
[26] See paragraphs 4.33 – 4.35 of the Guidelines.

CONCLUSION

For these reasons, we have determined that the MAC is confirmed.

[2024] NSWPICMP 612

29 August 2024