| 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 5th 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…
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- Case
- [2024] NSWPICMP 612
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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