Huang v GMP Pharmaceuticals Pty Ltd
[2024] NSWPICMP 724
•21 October 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Huang v GMP Pharmaceuticals Pty Ltd [2024] NSWPICMP 724 |
| APPELLANT: | Xiaowei Huang |
| RESPONDENT: | GMP Pharmaceuticals Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Michael Davies |
| MEDICAL ASSESSOR: | Drew Dixon |
| DATE OF DECISION: | 21 October 2024 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; narrow grounds of appeal; injury omitted from referral but appropriate assessment made by Medical Assessor; Member found that worker suffered traumatic brain injury but Medical Assessor determined there was not; Haroun v Rail Corporation New South Wales; Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 12 August 2024 Xiaowei Huang lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Ross Mellick, who issued a Medical Assessment Certificate (MAC) on 17 July 2024.
Ms Huang relies on the grounds of appeal under s 327(3)(c) and (d) 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 President’s delegate was satisfied that, on the face of the application, at least one ground of appeal was made out. The delegate noted the parties’ agreement that the referral should have included the central nervous system but determined that it was appropriate to refer the matter to us rather than to remit that aspect to the Medical Assessor. Subject to that point, we conducted a review of the original medical assessment, limited to the grounds 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 Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Ms Huang was employed by GMP Pharmaceuticals Pty Ltd (GMP) as a process worker. She was injured on 14 October 2019 when she was bent over cutting boxes and a colleague pulled a shelf, causing a box to fall onto her head and neck. In a Certificate of Determination dated 31 May 2024, a Member of the Personal Injury Commission (Commission) determined that Ms Huang had suffered a traumatic brain injury. The Member remitted the matter for referral to a Medical Assessor to assess Ms Huang’s permanent impairment as a result of injury to her head, neck and central and peripheral nervous systems.
The form of referral omitted the central nervous system and neither party alerted the Commission to the need for amendment.
The Medical Assessor assessed 0% whole person impairment (WPI), assessing Ms Huang’s head, cervical spine and peripheral nervous system.
PRELIMINARY REVIEW
We 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, we determined that it was not necessary for Ms Huang to undergo a further medical examination because the MAC does not disclose error.
EVIDENCE
We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
The parts of the MAC that are relevant to the appeal are set out below.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but we have considered them. The appeal is of very narrow compass and deals only with the assessment of the central nervous system and traumatic brain injury.
In summary, Ms Huang submitted that the Medical Assessor did not comply with the referral in that he did not assess her central nervous system. She said that the Medical Assessor erred because the Commission found that she suffered a traumatic brain injury and the Medical Assessor’s finding that there was no such injury conflicted with that of the Commission. Ms Huang relied on Haroun v Rail Corporation New South Wales[1] (Haroun) and Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd[2] (Bindah).
[1] [2008] NSWCA 192 at [z].
[2] [2014] NSWCA 192 at [16].
Ms Huang did not make any submissions about the methodology that the Medical Assessor adopted.
In reply, GMP observed that Ms Huang did not object to the form of the referral to the Medical Assessor and that the Medical Assessor assessed in accordance with it. GMP accepted that there was an error in the referral and submitted that it would be appropriate to refer the matter back to the Medical Assessor. With respect to Ms Huang’s second ground, GMP said that it is clear that the Medical Assessor relevantly assessed Ms Huang’s head and did not find any cognitive deficit. His assessment of 0% WPI would not be any different even if he had accepted that Ms Huang had suffered a traumatic brain injury.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is 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[3] the Court of Appeal held that an 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.
[3] [2006] NSWCA 284.
In Queanbeyan Racing Club Ltd v Burton[4] the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. We have only considered those grounds specifically raised by the appeal.
[4] [2021] NSWCA 304 at [26].
The form of referral prepared by the Commission omitted the central nervous system, which had formed part of the Member’s determination. GMP said that Ms Huang did not point the error out in response to the Commission’s request that any objection to the referral be notified within three days. We observe that, when the referral was clearly incorrect, it was the responsibility of the legal practitioners for both parties to alert the Commission to the omission to avoid the possibility of a need for reconsideration. On that basis, GMP’s submission that the Medical Assessor had assessed Ms Huang in accordance with the referral was inappropriate.
The MAC
The Medical Assessor set out a history of the injury and Ms Huang’s presentation to the Emergency Department of Blacktown Hospital. He said:
“A report from the hospital records her attendance on 14 October 2019 at 1936 hours and her discharge on the following morning at 1053 hours. The report details the accident and her main complaint being headache and neck ache. The headache was described to be ‘heavy and of 6/10 severity’ and it became worse with yawning and opening her mouth. There was reference to the possibility of ‘loss of consciousness (LOC) for two to three seconds’. Enquiry was made regarding vomiting or visual disturbance and there was none following the impact. Investigations were performed including CT of the brain, facial bones and cervical spine and no abnormalities were detected. The physical examination makes reference to the absence of bruising or laceration of the scalp and refers to mild tenderness over the cervical spine. The neurological examination was referred to and no abnormalities were detected. Examination of the chest, cardiovascular systems and abdomen and no abnormal signs were recorded. Prior to discharge, reference was made to normal alignment of the cervical spine without evidence of fracture or dislocation and minor degenerative changes were noted in the mid cervical region. She was discharged to the care of her general practitioner.”
The Medical Assessor recorded Ms Huang’s present symptoms:
“Ms Huang informed me that the main existing problem is constant pain in the posterior part of the scalp at the site of the impact. Pain also extends upwards to the vertex, downwards to the cervical region and further caudally in the midline to the region between the scapulae down to the lower lumbar region. She also reports pain extending outwards to the right side involving the whole of the right side of her body.
There are also complaints of impaired memory and difficulty concentrating which appeared a few months after the injury on 14/10/2019. Those symptoms have remained without significant change.
On direct enquiry there was no history of disorientation or abnormalities regarding judgement, community affairs, home or personal hygiene. There was also no history of abnormality of behaviour or disordered mood other than a high measure of anxiety. There is also no history of episodic disorder of consciousness or episodes of unconsciousness.”
Setting out his findings on examination, the Medical Assessor said:
“Ms Huang was alert and cooperative and no exhibited signs of disoriented cognitive function. There was no abnormality of the normal rhythm of gait or of accessory upper extremity or truncal movements.
She was able to assume the seated position on the examination couch with hips flexed and knees extended and was in no discomfort in that position. She could rise from a low chair without assistance.
Cervical movements were performed without caution over a normal range. There was no abnormality of the range of shoulder, elbow, wrist or finger movements.
Examination of the cranial nerves included the visual fields and olfaction which were normal. Head impulse was unimpaired. There was no evidence of impairment of a sensory level.
There was no disorder of contour, posture, tone, power production, coordination or of superficial or deep sensation in the upper or lower extremities. The deep tendon reflexes were symmetrical and normally brisk and the plantar responses were flexor.
There was no ataxia of gait and Rombergism was absent.”
The Medical Assessor considered the radiology in the file. Summarising the injuries and diagnoses, the Medical Assessor said:
“Ms Huang was injured as described above and is able to remember details of the injury sequentially without any indication of retrograde or anterograde amnesia, and she was able to walk normally shortly after the injury. The details from Blacktown Hospital indicate that thorough scanning and a detailed physical examination was performed and no abnormal signs or evidence of an intracranial or spinal injury was identified.”
The Medical Assessor summarised the medico-legal reports in the file. In the table, he assessed Ms Huang’s head injury by reference to Chapter 5 of the Guidelines, paragraphs 5.4, 5.5 and 5.9, and Chapter 13 of AMA 5.
Assessment of the central nervous system
Ms Huang’s first ground of appeal is that the Medical Assessor did not comply with the referral in that he failed to assess her central nervous system.
While the referral omitted a reference to the central nervous system, the Medical Assessor did assess it appropriately and set out his findings in respect of the head injury. His examination findings show that he recorded the symptoms that Ms Huang described to him and that he asked her about other symptoms relevant to the assessment, which he set out in the third paragraph under the heading “Present symptoms”. Similarly, the Medical Assessor set out his relevant observations when undertaking his examination, referring for example, to his findings on examination of the cranial nerves.
The central and peripheral nervous systems are assessed under Chapter 13 of AMA 5, as amended by Chapter 5 of the Guidelines. The introduction to Chapter 13 of AMA 5 says that it applies to “impairments due to documented dysfunction of the brain, cranial nerves, spinal cord, nerve roots, and/or peripheral nerves and muscles.” There is no separate chapter which deals with the head.
Paragraph 5.9 of the Guidelines relevantly provides:
“For traumatic brain injury, there should be evidence of a severe impact to the head, or that the injury involved a high-energy impact.
Clinical assessment must include at least one of the following:
• significant medically verified abnormalities in the Glasgow Coma Scale score
• significant medically verified duration of post-traumatic amnesia
• significant intracranial pathology on CT scan or MRI.”
The Medical Assessor was required to set out his observations on the day of the examination[5] and make his assessment relying on those observations and using his clinical judgement.
[5] Guidelines paragraph 1.6.
Based on his findings, the Medical Assessor’s assessment was correct. As he noted, there was no reference to a Glasgow Coma Scale score in the notes from Blacktown Hospital. That omission is best explained by fact that Ms Huang’s husband took her to hospital, rather than an ambulance, and the reference to a very brief loss of consciousness, recorded as 2 to 3 seconds.
There is no reference in the medical evidence to any post-traumatic amnesia. The discharge summary records that Ms Huang was alert and her neurological examination was intact.
The Medical Assessor’s summary of the brain scan dated 21 October 2019 contained a typographical error when he said that there was a suggestion of oedema or gliosis. The conclusion of Dr Ng’s report dated 21 October 2019 reads:
“Essentially normal MRI of the brain with no altered signal to suggest evidence of brain parenchymal oedema, or gliosis.
No evidence of hypo intensity to suggest evidence of cerebral haemorrhage.
No evidence of restricted diffusion to implicate an acute/subacute ischaemic focus.
Essentially normal MRI of the brain. No cranial volt abnormality.”
A further MRI scan of the brain dated 24 March 2023 also does not show evidence of a traumatic brain injury.
The criteria for assessment of a traumatic brain injury under paragraph 5.9 of the Guidelines were not fulfilled. The ongoing headaches that Ms Huang suffers are not a result of a traumatic brain injury, nor does the diagnosis of post-concussion syndrome mandate an assessment in respect of it.
Among other aspects of Chapter 13 of AMA 5, the Medical Assessor considered table 13-5, which was the table relied on by Dr Teychenne to assess permanent impairment. The table provides a clinical dementia rating and measures the symptoms that the Medical Assessor asked Ms Huang about in the third paragraph under the heading “Present symptoms”. The Medical Assessor’s observations on the day of his examination do not result in an impairment rating under table 13-5.
Ms Huang has been seen by a number of neurologists. The only one to have diagnosed a traumatic brain injury is Dr Teychenne. Those who have treated her – such as Dr Martin and Dr Duma - have treated her for possible post-concussion syndrome and headaches.
The Medical Assessor appropriately assessed the body parts referred to him.
Findings about traumatic brain injury
Ms Huang’s second ground of appeal was that the Medical Assessor was in error to say that there was no traumatic brain injury when the Commission had determined that there was. The Member found:
“Whilst I have rejected Dr Teychenne’s diagnosis regarding a central cord lesion I believe the balance of his physical findings, in conjunction with the physical findings of the other neurological specialists supports a diagnosis of a traumatic brain injury. Certainly, the applicant has suffered a serious traumatic injury to her head and neck and, given her symptoms, which I have no reason to reject as not credible, I am persuaded that the applicant has suffered a brain injury and an injury to her central and peripheral nervous system, an injury best assessed by a Medical Assessor.” (our emphasis)
The Commission and the Medical Assessor have different roles, as reflected in the Member’s comment emphasised above. The Commission was required to determine the nature of the injury to determine the parameters of the referral to the Medical Assessor. Once that referral was made, the Medical Assessor was required to determine the extent of permanent impairment under AMA 5 and the Guidelines. Before the Medical Assessor could determine the extent of permanent impairment, he was required to exercise his clinical judgement, to determine if there was a traumatic brain injury.
The precise references to case law in Ms Huang’s submissions do not support her argument. In Haroun, the worker argued that a consent finding made by the Commission at the request of the parties - that the effects of two injuries continued to contribute to a worker’s impairment - bound an Approved Medical Specialist (AMS) and an Appeal Panel. In that context, and in the paragraph relied on by Ms Huang, Handley AJA said:
“In my judgment the Panel were not only entitled to treat the finding as irrelevant, they were bound to do so if they independently came to a different conclusion. The scheme for the settlement of compensation disputes established by the 1998 Act read with the Workers’ Compensation Act 1987 (the 1987 Act) is to have factual and legal issues resolved by an Arbitrator subject to an appeal to a President or Deputy President, and to have certain medical issues decided by an AMS subject to appeal to a Panel.”
The paragraph from Bindah on which Ms Huang relied explains the functions of a Member and a Medical Assessor and shows why her argument is untenable. Emmet JA said:
“Generally, the scheme for the settlement of compensation disputes established by the Management Act, read in conjunction with the Compensation Act, is to have factual and legal issues resolved by an arbitrator, subject to an appeal to a President or Deputy President of the Commission, and to have certain medical issues decided by an approved medical specialist, subject to an appeal to an Appeal Panel. That scheme is designed to ensure that the degree of permanent impairment that results from injury, and any contribution to the worker's total impairment that is due to an earlier injury or pre-existing condition, are assessed in accordance with Pt 7 of Ch 7 of the Management Act, and not otherwise. If there is a medical dispute within the meaning of that term in s 319 of the Management Act, an arbitrator would have no jurisdiction to decide it. However, an arbitrator may refer such a medical dispute for assessment by an approved medical specialist under s 321. Section 321 confers a power that, in a proper case, an arbitrator is bound to exercise in aid of the private rights of the parties. Thus, because an arbitrator has no jurisdiction to decide a medical dispute, an arbitrator has no jurisdiction to make findings that are binding on an approved medical specialist or on an Appeal Panel. A finding made by a person without jurisdiction cannot bind a person or persons who have jurisdiction (see Haroun v Rail Corporation New South Wales [2008] NSWCA 192 at [16] and [19] - [21]).”
The Member’s finding that Ms Huang suffered a traumatic brain injury cannot bind the Medical Assessor. The Medical Assessor was required to form his own diagnosis[6] and did so.
[6] Guidelines paragraph 1.6 (b).
For these reasons, we have determined that the MAC issued on 17 July 2024 should be confirmed.
0
4
0