HuTech Metal Products Pty Ltd v Hussain
[2024] NSWPICMP 581
•19 August 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | HuTech Metal Products Pty Ltd v Hussain [2024] NSWPICMP 581 |
| APPELLANT: | HuTech Metal Products Pty Ltd |
| RESPONDENT: | Mohammad Hussain |
| APPEAL PANEL | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Michael Davies |
| MEDICAL ASSESSOR: | Sophia Lahz |
| DATE OF DECISION: | 19 August 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; referral in respect of nervous system, lumbar spine, scarring and digestive system; lead assessor also assessed cervical spine which was not the subject of a claim or dispute; Skates v Hills Industries Limited; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 15 April 2024 HuTech Metal Products Pty Limited (HuTech) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor John O’Neill and Medical Assessor Cyril Wong and Medical Assessor O’Neill issued a Lead Assessor Medical Assessment Certificate (MAC) on 26 March 2024. Medical Assessor Wong assessed Mr Hussain’s digestive system and Medical Assessor O’Neill assessed Mr Hussain’s nervous system, lumbar spine and scarring. The appeal concerns Medical Assessor O’Neill’s assessment only and we will refer to him in this decision as the Medical Assessor.
HuTech relies on the following grounds of appeal under s 327(3) 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, being that the MAC contains a demonstrable error. 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
Mr Hussain suffered an injury to his lumbar spine on 6 February 2018 when he was lifting heavy boxes of metal parts. He claimed permanent impairment compensation in respect of his right upper extremity, right lower extremity, scarring, digestive system and nervous system.
With the assistance of a member of the Personal Injury Commission (Commission), Mr Hussain and HuTech entered into Consent Orders on 9 November 2023. Mr Hussain discontinued the claims with respect to his right upper and lower extremities. The parties agreed that the Medical Assessor should assess Mr Hussain’s lumbar spine, scarring (lumbar spine), digestive system and nervous system.
The Medical Assessor acknowledged the terms of the referral in the MAC. He recorded a history of symptoms and signs in Mr Hussain’s cervical spine and purported to determine that Mr Hussain suffered a consequential condition in his cervical spine.
The Medical Assessor assessed 22% whole person impairment (WPI) comprised of 7% for the nervous system, 12% for the lumbar spine, 0% for scarring and 5% for the cervical spine. He combined that result with 11% WPI assessed by Medical Assessor Wong for the digestive 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 Mr Hussain to undergo a further medical examination because there is sufficient information in the file to determine the appeal.
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.
HuTech summarised the medical evidence relied on by the parties, the claim made by Mr Hussain and the consent orders. It noted that the consent orders were made at a conciliation conference and arbitration hearing when Mr Hussain was represented by counsel.
HuTech submitted that the Medical Assessor was in error to assess Mr Hussain’s cervical spine when it did not form part of the claim made, referring to the decision of the Court of Appeal in Skates v Hills Industries Ltd[1] (Skates).
[1] [2021] NSWCA 142.
In reply, Mr Hussain submitted that the Medical Assessor had not erred and that HuTech’s appeal placed too much emphasis on the administrative documents rather than the substance of his impairment. Mr Hussain submitted that the President should reject the appeal. In the alternative, Mr Hussain submitted that the appeal should be adjourned to permit the parties to ventilate any dispute or claim with respect to the cervical spine, after which the matter should be referred back to the Medical Assessor. He submitted that ss 42 and 43 of the Personal Injury Commission Act 2020 (the 2020 Act) facilitated this approach.
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[2] 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.
[2] [2006] NSWCA 284.
In Queanbeyan Racing Club Ltd v Burton[3] 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.
[3] [2021] NSWCA 304 at [26].
The MAC
The Medical Assessor described the injury to Mr Hussain’s lumbar spine and the treatment he underwent, including surgery on 10 October 2018. He said that Mr Hussain suffered depression and was admitted to hospital after an episode of self-harm. A few days later, on 13 December 2018, police were contacted about threats of self-harm and Mr Hussain was taken to hospital and sedated. Mr Hussain was treated for “seizures”.
The Medical Assessor reviewed the radiological evidence and said:
“There was an MRI of the whole spine on 20 May 2019 because of ongoing left lower back and leg pain and right arm pain. Spondylotic changes were noted from C2/3 to C6/7 inclusive. At the latter level there was felt to be a mild posterior disc bulge and mild bilateral uncovertebral osteoarthrosis resulting in mild bilateral foraminal stenosis. It was stated there was a mild posterior disc bulge at L4/5 with mild narrowing of the lateral recesses which was felt to be less marked when compared to the MRI of February 2018.
An MRI of the whole spine was arranged on 2 November 2022. Spondylotic changes from C3/4 to C6/7 were causing mild bilateral foraminal narrowing. There was no change in the appearance at L4/5 when compared to imaging in 2019. Specifically, there was no evidence of nerve root compression.
Mr Hussain said he had seen a neurosurgeon about his neck. He said an injection had been tried without benefit. He said he was not considering surgery.”
Mr Husain told the Medical Assessor that he had daily pain in his neck and down the right arm. On examination, the Medical Assessor observed:
“Cervical spine movements were limited in all directions with asymmetry of movement which was worse with extension than flexion.”
The Medical Assessor’s summary of injuries and diagnoses included:
“Mr Hussain has neck and right arm pain. This began in the setting of physical arrests by police and falls due to seizures, all secondary to depression and polypharmacy arising after failed back surgery. He has no symptoms or signs of cervical radiculopathy and nor would this be expected from his radiological studies.”
With respect to consistency of presentation, the Medical Assessor said:
“Mr Hussain gave his history in a clear and honest fashion. There were findings on neurological examination which were non-anatomical and those included give-way weakness in the right arm and left leg and global blunting of pinprick throughout the left leg.”
Setting out his reasons for the assessment, the Medical Assessor said:
“I felt neck and right arm pain developed as a consequence of physical constraints by police and the falls associated with seizures and that these events were all a consequence of failed back surgery. There was a substrate for the development of mechanical neck pain in the presence of pre-existing but asymptomatic spondylotic disease of the cervical spine. I found no evidence of cervical radiculopathy or myelopathy but there was asymmetry of neck movement.
I felt current symptoms in the neck and right arm had best fit with DRE Cervical Category 2 (AMA5, Table 15.5, p392) with 5% WPI.”
Evidence
Mr Hussain said in his statement dated 14 September 2023:
“Due to my ongoing symptoms and the financial fear following injury, I began to experience low mood and low self-esteem. I fell into a heavy depression and attempted suicide on several occasions. In February 2021 when I was tackled by several police officers to be retained following a suicide attempt I also suffered injury to my right knee and cervical spine.”
Mr Hussain made a claim for permanent impairment compensation on 3 April 2023 relying on the reports of Dr Sethi, gastroenterologist, Dr Granot, neurologist, and Dr Bodel, orthopaedic surgeon.
In his report dated 14 November 2022 Dr Bodel said that Mr Hussain suffered an injury to his low back on 6 February 2018. He said:
“The work capacity certificates are noted confirming that he has had a number of other illnesses in addition to the original back injury, and that relates to cervical degenerative disc disease, visual disturbances, seizures, opioid toxicity and abnormal liver function tests.”
Describing his examination, Dr Bodel said:
“He has a good range of neck flexion, extension and rotation in all directions, and there is no asymmetry of neck movement.”
Dr Bodel said:
“This gentleman’s musculoskeletal injury primarily was an injury to the disc at the L4/5 level in an incident that occurred at work on 06 February 2018. The repeated bending, twisting and lifting of heavy metal boxes up to 20 kg caused a disc rupture at that time, and the initial x-rays and MRI scans showed a very large central and slight left-sided disc prolapse. He eventually did have the compressive surgery with a poor outcome. Since then, his medical management has been very complicated by the development of seizures, opioid toxicity, and psychological disturbances. He has now a rateable restriction of right shoulder movement. He has had a successful carpal tunnel release done very recently, and he has a restricted range of right knee movement, which are complications or consequential injuries of the original disc injury as they have occurred because of the development of the seizures, which appears to have developed as a consequence of the excessive narcotic analgesic medication that he had been on.”
Dr Bodel considered that Mr Hussain suffered an injury to his lumbar spine and consequential conditions in his right shoulder and right knee and in the form of right carpal tunnel syndrome.
The only references to Mr Hussain’s cervical spine in the treating medical evidence are the whole spine MRI scan reports dated 20 May 2019 and 2 November 2022. There is only one report from his treating neurosurgeon, Dr McKechnie, who made no reference to the cervical spine.
The hospital discharge summaries for admissions on 13 December 2018, 12 February 2019, 19 February 2019, 4 March 2019 and 11 March 2019 together with an ambulance record dated 16 July 2019 do not contain any reference to neck pain or injury. A psychiatry review in a discharge referral for 19 February 2019 identifies the admission to Bankstown Hospital in December 2018 as one occasion when Mr Hussain was taken to hospital by police. The ambulance record for 16 July 2019 is another. There is no document for an occasion in 2021 identified in Mr Hussain’s statement.
There are no notes from Mr Hussain’s general practitioner and the report dated
26 November 2021 prepared in support of a claim for assistance from the NDIS refers to cervical/thoracic disc prolapse in 2018 as part of the past history.HuTech’s insurer arranged for Dr Mellick, neurologist, to examine Mr Hussain and he reported on 4 May 2023. Mr Hussain complained of pain in his back and left leg, right knee and in both shoulders. He said he had a laceration above his right eyebrow as a result of a fall during a seizure. Dr Mellick said:
“Cervical movements were unrestricted. There was no abnormality of the range of shoulder, elbow, wrist or finger movements bilaterally.
There was no abnormality of contour, posture, tone or coordination in the upper or lower extremities. The deep tendon reflexes were symmetrical and normally brisk.”
And:
“The history indicates that Mr Hussain experienced back pain during the course of his employment as reported above, with symptoms extending down the left leg. Surgery was performed without therapeutic benefit. He reports that the symptoms were considerably worse subsequent to surgery and, in addition, other problems arose including ‘seizures’. Because of the seizures, he suffered other injuries including a fall which has resulted in persisting pain and symptoms in his right knee. He also reports other injuries to the supraorbital region on the right side and to both shoulders. Successful surgery was performed on the right carpal tunnel, which is now symptomless.”
In a report dated 21 June 2023, Dr Frommer, gastroenterologist, recorded the onset of pain in Mr Hussain’s “right upper extremity, right lower extremity, right wrist, right shoulder and right knee” in addition to his lower back. He did not obtain a history of neck pain.
The dispute
There was no dispute between the parties that Mr Hussain suffered an injury to his lumbar spine. Despite the explanation for cervical spine pain in his statement, Mr Hussain did not claim compensation in respect of his cervical spine.
HuTech’s insurer said in its s 78 notice dated 14 August 2023 that it accepted that Mr Hussain had gastrointestinal and neurological conditions but disputed that he had consequential conditions in his right upper extremity or right lower extremity.
Mr Hussain did not dispute the information in HuTech’s submissions that the consent orders were made at a conciliation conference and arbitration hearing where he was represented by counsel.
The dispute as to the extent of permanent impairment which was referred to the Medical Assessor was limited to Mr Hussain’s lumbar spine, scarring, digestive system and nervous system.
In Skates, Basten JA said that:
“… the jurisdiction of the Commission in relation to a claim for lump sum compensation under s 66 of the Workers Compensation Act was not at large. The claim was made with respect to a specific injury which occurred in the course of employment on a specified date. The form for an application to resolve a dispute required identification of the date of the injury, a description of the injury, and a description of how the injury occurred.
…
Medical reports enclosed with the application referred to specific injuries of the left wrist and hand; it was these injuries to which the insurer admitted liability and as to which a dispute arose concerning the precise extent of the injury…
As the primary judge found, this material defined the proper scope of the referral.”[4]
[4] At [27]-[30].
His Honour said:
“Further, it is apparent that the referral by the Registrar was in a standard form, as was the application to resolve a dispute. There was no suggestion that these forms were not in appropriate terms. It follows that the primary judge was correct in finding that the Appeal Panel (subject to the identified concession which it was held should have been taken into account in assessing the claim) was correct in concluding that Dr Machart’s assessment contained demonstrable error in failing to be limited to the terms of the claim.”[5]
[5] At [35].
Leeming JA agreed and said:
“The starting point is a ‘medical dispute’. That term is defined in s 319 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), reproduced in the other judgments. The term is defined by reference to the existence of a ‘dispute between a claimant and the person on whom a claim is made’ about any of seven related subject matters including the degree of permanent impairment as a result of an injury, whether the impairment is permanent, whether it is partly due to a previous injury or pre-existing condition and whether it is fully ascertainable. It may be expected that as a consequence of the ordinary operation of the regime at least in most cases the dispute will have been identified by a written exchange of competing claims.”[6]
And:
“The paperwork associated with the administration of the legislation seems to have led to a tendency to give to the document comprising the “referral” to an Approved Medical Specialist a greater status than it warrants. The document is important. However, the fundamental legal concept is a dispute. In the absence of a dispute, the worker and the insurer would not need to go to the Commission. An important category of disputes is medical disputes, and the referral of the medical dispute to an Approved Medical Specialist is but an aspect of the statutory scheme to resolve the dispute.”[7]
[6] At [44].
[7] At [48].
No claim was made in respect of Mr Hussain’s cervical spine, despite the opinion expressed in his own statement. The material in the file does not support such a claim – either in terms of factual causation or in terms of an assessment of impairment. The terms of the referral to the Medical Assessor were settled when Mr Hussain had the advice of counsel and the document sent to the Medical Assessor accurately reflected the agreement set out in the consent orders.
The question of whether an injury or consequential condition has been suffered is to be determined by the Commission[8] and not by a Medical Assessor. In the absence of a claim, a dispute and a determination that Mr Hussain had suffered a consequential condition in his cervical spine, the Medical Assessor made a demonstrable error in assessing permanent impairment resulting from it.
[8] Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264 at [111].
In submissions signed by his solicitor but also bearing the name of counsel (who did not appear for Mr Hussain at the conciliation conference) Mr Hussain submitted that it would be appropriate to “adjourn” the appeal to allow both parties to “ventilate any dispute and/or claim” with respect to the cervical spine. He referred to the guiding principle in s 42 of the 2020 Act without setting it out. The guiding principle is “to facilitate the just, quick and cost effective resolution of the real issues in the proceedings”.
The real issue in the appeal is the resolution of the medical dispute between the parties as to the assessment of permanent impairment based on the claim made and the dispute raised. The powers of an Appeal Panel are set out in s 328 of the 1998 Act. Section 328(2) provides that the review is limited to the grounds on which the appeal is made. In this case those are the grounds in HuTech’s appeal. Subsection (5) provides that we can confirm or revoke the MAC. If we revoke the MAC, we can reassess permanent impairment based on the matters referred to the Medical Assessor or we can decline to make that assessment on the basis that the degree of permanent impairment is not yet fully ascertainable. We do not have the power to expand the scope of the dispute that the parties agreed should be referred to the Medical Assessor.
For these reasons, the Appeal Panel has determined that the MAC issued on 26 March 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W7252/23 |
Applicant: | Mohammad Hussain |
Respondent: | HuTech Metal Products Pty Limited |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor John O’Neill and issues this new Medical Assessment Certificate as to the matters set out in the table below:
Table - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| Nervous system | 6/2/2018 | Table 13.2, p 309 | 7 | Nil | 7% | |
| Lumbar spine | 6/2/2018 | Chapter 4, paragraph 4.35, p 28 | Table 15-3, p 384 | 12 | Ni | 12% |
| Scarring | 6/2/2018 | TEMSKI Table 14.1 p 74. | 0 | N/A | 0 | |
| Digestive system | 6/2/2018 | Chapter 6, Table 6.7 | 11 | Nil | 11% | |
| Total % WPI (the Combined Table values of all sub-totals) | 27% | |||||
0
4
0