Hussaini v Aust Superior Painting Pty Ltd

Case •

[2023] NSWPICMP 424

•

31 August 2023
DETERMINATION OF APPEAL PANEL
CITATION: Hussaini v Aust Superior Painting Pty Ltd [2023] NSWPICMP 424
APPELLANT: Qadir Hussaini
RESPONDENT: Aust Superior Painting Pty Ltd
APPEAL PANEL
MEMBER: Marshal Douglas
MEDICAL ASSESSOR: Mark Burns
MEDICAL ASSESSOR: Michael Long
DATE OF DECISION: 31 August 2023
CATCHWORDS: 

WORKERS COMPENSATION - Appellant referred for assessment for permanent impairment from injury to lumbar spine and consequential conditions of upper and lower digestive tracts; appellant contended Medical Assessor erred with respect to assessment of permanent impairment relating to upper and lower digestive tracts and applied incorrect correct criteria in making assessment; Appeal Panel disagreed; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

  1. On 18 May 2023 Qadir Hussaini lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Neil Berry, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 20 April 2023.

  2. The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):

    ·        the assessment was made on the basis of incorrect criteria, and

    ·        the MAC contains a demonstrable error.

  3. 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.

  4. Rule 128 of the Personal Injury Commission Rules 2021 (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.

  5. 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

  1. In April 2018 the appellant commenced employment as a painter with Aust Superior Painting Pty Ltd, the respondent. On 22 October 2019 he suffered an injury to his lumbar spine while moving a fence to enter the work site of the respondent. He subsequently developed a condition in his gastrointestinal tract due to analgesic medications he was taking as treatment for his lumbar spine injury.

  2. The appellant’s solicitors wrote to the respondent’s insurer on 11 May 2022 advising it that the appellant claimed compensation from it in the amount of $43,000 under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 17% WPI. The appellant’s solicitors advised that the appellant relied on reports of orthopaedic surgeon Dr Yuk Kai Lee dated
    5 October 2021, who assessed the appellant had 12% whole person impairment (WPI) relating to his lumbar spine from the appellant’s injury, and general and gastrointestinal surgeon Dr Anthony Greenberg dated 8 April 2022, who assessed the appellant had 3% WPI relating to his upper gastrointestinal tract and 3% WPI relating to his lower gastrointestinal tract. The appellant’s solicitors provided the insurer with copies of the reports of Dr Lee and Dr Greenberg.

  3. The Appeal Panel observes that Dr Greenberg recorded in his report that at the time he examined the appellant the appellant was taking the following medications:

    ·        Tramadol 100mg slow release, which the appellant took on average 10 tables a week;

    ·        Panadol 2-4 tables per day;

    ·        Nexium 20mg 1 tablet daily;

    ·        Mylanta as prescribed, and

    ·        Movicol as required.

  4. Following receipt of the appellant’s claim, the insurer arranged for the appellant to be examined by surgeon Dr John Garvey on 22 June 2022. In a report dated 28 June 2022
    Dr Garvey advised the insurer that he assessed the appellant had 12% WPI relating to his lumbar spine and 0% WPI relating to his upper digestive tract, 0% WPI relating to his lower digestive tract and 0% WPI relating to his anus.

  5. On 27 September 2022 the respondent’s solicitors wrote to the appellant’s solicitors advising them that they had been instructed to resolve the appellant’s claim by paying compensation of $28,612.50 under s 66 of the 1998 Act for 12% WPI relating to the appellant’s lumbar spine. The respondent’s solicitors also advised in their correspondence that they were obtaining the clinical records of Dr Chowdury and that they would seek a supplementary report from Dr Garvey once those records were to hand. The Appeal Panel notes that
    Dr Chowdury is a gastroenterologist who treated the appellant.

  6. On 26 October 2022 Dr Garvey provided a supplementary report to the respondent’s solicitors. He indicated in that that he had reviewed the clinical records of Dr Chowdury and Dr Greenberg’s report dated April 2022. Having reviewed those documents Dr Garvey advised that he assessed the appellant had 1% WPI for his upper digestive system. His reason for revising his opinion on that from the opinion he expressed in his earlier report was that a gastroscopy and biopsy that the appellant had undergone, and the results of which were contained within the clinical records of Dr Chowdury, had revealed mild reactive changes in the appellant’s oesophagus distally. Dr Garvey further advised that his assessment of the appellant’s lower digestive system remained as 0% WPI.

  7. On 18 January 2023 the respondent’s solicitors again wrote to the appellant’s solicitors advising it that they had been instructed to resolve the appellant’s claim by paying compensation of $31,803.08 under s 66 of the 1998 Act for 13% WPI.

  8. Subsequent to that, the appellant registered with the Personal Injury Commission (Commission) an application to resolve a dispute dated 21 February 2023 seeking determination of his claim for compensation under s 66 of the 1998 Act. On 16 March 2023 a delegate of the President referred to the Medical Assessor the medical dispute between the parties relating to the degree of the appellant’s permanent impairment resulting from his injury.

PRELIMINARY REVIEW

  1. 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.

  2. As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the appellant to undergo a further medical examination. This is for two reasons. Firstly, the Appeal Panel, for reasons explained below, found that neither of the grounds for appeal on which the appellant relied was established. Consequently, the Appeal Panel confirmed the MAC and did not need to re-assess the medical dispute that had been referred for assessment. Secondly, absent the Appeal Panel finding error in the MAC, the Appeal Panel does not in any event have power to examine the appellant.[1]

    [1] NSW Police Force v Registrar of the Workers Compensation Commission of NSW [2013] NSWSC 1792 at [33]; Ziraki v The Australian Islamic Liverpool Area [2019] NSWSC 1158 at [74]; Coenradi v the GEO Group Australia Pty Ltd [2002] NSWSC 864 at [134]; and Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38 at [125]-[130].

EVIDENCE

  1. 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

  1. The Appeal Panel notes the appellant’s appeal against the MAC relates only to the Medical Assessor’s assessment of his permanent impairment relating to his upper digestive tract and lower digestive tract. Neither party took issue with the Medical Assessor’s assessment of the appellant’s permanent impairment relating to his lumbar spine, which was 12% WPI. Consequently, the Appeal Panel will deal only with those parts of the MAC that relate to the Medical Assessor’s assessment of the appellant’s impairment of his upper digestive tract and his lower digestive tract.

  2. The history the Medical Assessor obtained from the appellant included that the appellant had developed severe constipation and heart burn and that he had been referred to
    Dr Chowdhury who undertook a gastroscopy and colonoscopy that revealed changes in his lower oesophagus and stomach. The Medical Assessor also noted that Dr Chowdhury had found that the appellant had internal haemorrhoids that were seen on retroflexion of the scope.

  3. The Medical Assessor recorded that the appellant advised that his symptoms varied from day to day. The Medical Assessor noted that the appellant experienced reflux and also heartburn, but his constipation had improved. The Medical Assessor noted that the appellant occasionally sees bleeding but has no other symptoms related to the anal region.

  4. The Medical Assessor recorded the appellant reported the medications he took consisted of Movicol, Avanza, Nexium, and Tramal. The Medical Assessor also noted that the appellant advised that he had been taking Panadeine Forte but ceased that because it was contributing to his constipation.

  5. The Medical Assessor recorded that the gastroscopy carried out on 14 October 2021 was reported to reveal thickening of mid and distal oesophageal mucosa with erythematous changes and gastritis in the stomach. The Medical Assessor noted that the colonoscopy carried out on 14 October 2021 was reported as normal apart from grade 1 haemorrhoids seen on retroflexion. The Medical Assessor noted that histopathology confirmed reactive changes in the lower oesophagus and that there was no evidence of helicobacter pylori and that the colonic biopsies were normal.

  6. The Medical Assessor recorded the following findings from his examination of the appellant’s abdomen:

    “The claimant’s abdomen was non-tender and slightly protuberant. There was no guarding and there were no palpable masses.
    With the claimant in the left lateral position, the anal region appeared normal.”

  7. The Medical Assessor considered the appellant had developed reflux and constipation that was medication induced.

  8. The Medical Assessor assessed the appellant had 2% WPI relating to his upper digestive tract and 0% WPI relating to his lower digestive tract. He provided the following explanation for his assessment:

    “In terms of his gastrointestinal system, the first thing to be determined is the presence or absence of nutritional impairment using Table 6-1 (Desirable Weights by Height and Body Build) on page 120 of the AMA 5th Edition. At 180 cm in height the claimant should have a desirable weight range of 66.1 - 83.3 kgs and therefore at 85 kgs he is above his desirable weight range indicating that there is no evidence of nutritional impairment.
    The upper digestive tract is assessed using Table 6-3 on page 121 which is modified by Paragraph 16.9 in the NSW Workers Compensation Guidelines for the Evaluation of
    Permanent Impairment 4th Edition, to read there needs to be ‘signs and symptoms’ of digestive disease. Clinically, Mr Hussaini has symptoms but there are no clinical
    findings of tenderness, however, he does have endoscopic changes in the stomach and oesophagus and I would place him in Class 1 and assign a 2% Whole Person Impairment.
    In terms of his constipation, I refer you to the NSW Workers Compensation Guidelines,
    Paragraph 16.9 on page 78 and you will note that constipation is considered a symptom and without any changes in the colon there is a 0% Whole Person Impairment.
    In terms of his anal region, the claimant is assessed using Table 6-5 on page 131 and

    while there are endoscopic findings of grade 1 haemorrhoids there is no evidence of any anal disease clinically and no evidence of incontinence and I would therefore assign a 0% Whole Person Impairment.”

  9. The Medical Assessor noted that Dr Greenberg had assessed the appellant had 3% WPI relating to his upper digestive tract. The Medical Assessor said that he considered 2% WPI was more appropriate because clinically the appellant had no tenderness to palpitation and because there were no objective clinical signs apart from the endoscopic evidence of gastritis. The Medical Assessor also noted that Dr Greenberg had assessed the appellant had 3% WPI with respect to his lower digestive tract but the Medical Assessor considered that 0% WPI was appropriate because the Guidelines stipulated that constipation is a symptom and not a sign.

  10. As said, the Medical Assessor assessed the appellant had 12% WPI relating to his lumbar spine. When that is combined with 2% WPI the Medical Assessor assessed the appellant had with respect to the appellant’s upper digestive tract, the figure of 14% WPI is obtained and, accordingly, the Medical Assessor certified that was the degree of permanent impairment the appellant had from his injury.

SUBMISSIONS

  1. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.

  2. In summary, the appellant submitted that the Medical Assessor did not provide an explanation for why he assessed 2% WPI for the upper digestive tract. The appellant submitted that the Medical Assessor did not explain why he disagreed with the assessment of Dr Greenberg relating to the upper digestive tract. The appellant submitted that his symptomology is more consistent with example 6-4 on page 122 of AMA5. The appellant submitted that the Medical Assessor did not take his statement into account in which set out a history of multiple instances of acid reflux, burning sensation in the throat, abdominal pain, and severe nausea. The appellant submitted that the Medical Assessor failed to engage
    Dr Greenberg’s report or the appellant’s Statement of Evidence.

  3. The appellant submitted that the Medical Assessor did not explain why he preferred Table 6-3 over Table 6-4 with respect to the assessment of his impairment of the upper digestive tract.

  4. The appellant further submitted that with respect to the Medical Assessor’s assessment of his impairment of the lower digestive tract the Medical Assessor did not provide adequate reasons for his assessment and did not provide adequate reasons for disagreeing with
    Dr Greenberg. The appellant submitted that whilst the Guidelines state that constipation is a symptom and not a sign, that “does not provide a mandate that if an injured worker is making a complaint of constipation that somehow mandates against an assessment of this bodily system”. The appellant submitted that Dr Greenberg considered he has a medication induced gastrointestinal motility disorder, which the appellant submitted goes beyond mere constipation.

  5. In reply, the respondent submitted that the appellant did not cavil with the Medical Assessor assigning the appellant’s upper digestive tract impairment as being Class 1, which the respondent observed provides for a WPI rating of between 0%-9%.

  6. The respondent observed the Medical Assessor recorded that the appellant’s symptoms vary from day to day and that the appellant experienced reflux and also heartburn, but his constipation had improved. The respondent observed that the Medical Assessor noted that the appellant had been taking Panadeine Forte but had ceased that some time prior to the assessment. The respondent observed that the Medical Assessor noted that the appellant’s abdomen was non-tender and that there was no guarding and no palpable masses and that the appellant’s anal region was normal and sensory testing excluded any persistent cauda equina lesion.

  7. The respondent submitted that the Medical Assessor had justified his assessment of 2% WPI for the appellant’s upper digestive tract on the basis that there was no tenderness to palpitation and no other objective clinical signs apart from endoscopic evidence of gastritis.

  8. The respondent submitted that the Guidelines state that Table 6-3 is to be used when assessing impairments relating to the upper digestive tract and that Table 6-4 is to be used when assessing impairments due to colonic and rectal disorders.

  9. The respondent submitted that the Medical Assessor’s assessment of 0% WPI for the appellant’s lower digestive tract accords with the Guidelines which state that in regard to the effects of analgesics in the lower digestive tract, “constipation is a symptom, not a sign and is generally reversible”. The respondent submitted that the Guidelines provide that “a WPI assessment of 0% applies to constipation”. The respondent submitted that the Medical Assessor reasoned that the appellant has 0% WPI on the basis that there were no changes in the appellant’s colon and no evidence of disease. The respondent submitted that the Medical Assessor provide adequate reasons for his assessment.

  10. The respondent submitted that the Medical Assessor had the benefit of an examination of the appellant and addressed the appellant’s current symptomology and undertook a review of the relevant medical evidence. The respondent submitted that the identification of error in a MAC requires more than the Appeal Panel simply reaching a different opinion from an AMS where the opinion expressed by the AMS was one that was reasonably open.

FINDINGS AND REASONS

  1. The procedures on appeal are contained in s328 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.

  2. In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons.

  3. In accordance with Clause 1.6 of the Guidelines a Medical Assessor must conduct an assessment based on how the worker presents at the time of assessment. The Medical Assessor must regard to the worker’s relevant history and all available medical information.

  4. A Medical Assessor is required in accordance with s 325(2) of the 1998 Act to set out his or her reasons for the assessment made and to set out the facts upon which the assessment is based. That obligation requires a Medical Assessor to reveal the reasons by which he or she arrived at the assessment in sufficient detail such that it can be ascertained whether there is any error in their reasoning.[2] That obligation does not require the Medical Assessor to explain why he or she did not form an opinion that he or she did not reach.[3] In other words, a Medical Assessor is not required to explain why his or her opinion differs from the opinions of other medical examiners

    [2] Wingfoot Aust Partners Pty Ltd v Kocak [2013] HCA 43, 22 CLR 480 (Wingfoot) at [55]; applied by Campbell J in State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC 346 at [24]-[25] (Kaur) and by Harrison AsJ in Broadspectrum (Aust) Pty Ltd v Fiona Louise Wills [2018] NSWSC 1320.

    [3] Wingfoot at [56].

  5. The Appeal Panel considers that the Medical Assessor adequately disclosed his reasoning why he considered the appellant had 2% WPI relating to his upper digestive tract. His reasons were that there was no evidence that the appellant had any nutritional impairment; that the appellant had symptoms but no clinical findings of tenderness; and that the appellant had endoscopic changes in his stomach and oesophagus.

  6. The Appeal Panel observes that the findings from the endoscopy that the appellant had were minimal. The Appeal Panel also observes that there had been a change in the appellant’s medication between the time Dr Greenberg examined the appellant and the Medical Assessor assessing the appellant’s impairment. The Appeal Panel observes that
    Dr Greenberg disclosed in his report that he had not been able to find a copy of
    Dr Chowdhury’s gastrointestinal endoscopy reports. As the Appeal Panel mentioned those reports revealed minimal pathology only in the appellant’s upper digestive tract, specifically gastritis and patchy superficial erosive changes involving the duodenal cap and thickening of the mid and distal oesophageal mucosa with erythematous distal oesophagus, and a 5mm oesophageal hiatus hernia. The Medical Assessor had regard to the reports on that examination.

  1. The Medical Assessor also had regard to the appellant’s statement. This is apparent because the Medical Assessor indicated in the MAC that the documents to which he had regard in making his assessment included the documents attached to the appellant’s application. The appellant’s statement was one of the documents attached to his application.

  2. At the time the Medical Assessor conducted the assessment of the appellant’s impairment the Medical Assessor obtained a history from the appellant regarding the symptoms the appellant experienced and also with respect to the medications he was currently taking and had been taking.

  3. In the Appeal Panel’s view the Medical Assessor’s assessment that the appellant had 2% WPI relating to his upper digestive tract was based upon the history the Medical Assessor obtained, his findings from his examination of the appellant’s abdomen, which did not reveal any clinical signs of the upper digestive tract, and the findings from the endoscopy which revealed minimal disease. In the Appeal Panel’s view the Medical Assessor’s assessment of the appellant’s impairment relating to his upper digestive tract was open to him and, as the respondent has submitted, the fact that his opinion may have differed from either Dr Garvey or Dr Greenberg’s opinion with respect to the degree of permanent impairment the appellant had relating to his upper digestive tract does not demonstrate error in the MAC.

  4. The Medical Assessor also applied the correct criteria to assess the appellant’s impairment relating to his upper digestive tract in that he assessed it by reference to the criteria set out in Table 6-3 of AMA5. That table provides the criteria for rating permanent impairment due to the upper digestive tract (oesophagus, stomach and duodenum, small intestine and pancreas). Table 6-4 provides criteria for assessing permanent impairment due to colonic and rectal disorders and not the upper digestive tract.

  5. The Appeal Panel also considers that example 6-4 of AMA5 provides no assistance or guidance for assessing the appellant’s WPI of his upper digestive tract. That example involved someone who had recurrent acute pancreatitis. The appellant does not.

  6. The Appeal Panel does not accept the appellant’s submissions with respect to the Medical Assessor’s assessment of his lower digestive tract. Clause 16.9 of the Guidelines stipulates as follows, regarding the 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.”

  7. As said, the Medical Assessor’s examination of the appellant’s abdomen did not reveal any clinical signs in his lower digestive tract. In other words, there was no evidence of a motility disorder. Given that the appellant did not exhibit any signs with respect to his lower digestive tract during examination, and his only symptom was constipation, the Medical Assessor was correct to assess the appellant had 0% WPI with respect to his lower digestive tract. The Medical Assessor applied the correct criteria to make that assessment.

  8. For these reasons, the Appeal Panel has determined that the MAC issued on 20 April 2023 should be confirmed.


Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0

Cases Cited

8

Statutory Material Cited

0

New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792
Ziraki v The Australian Islamic Liverpool Area [2019] NSWSC 1158
Lawler v Johnson [2002] NSWSC 864