Ibrahim v Sellers Fabrics Pty Ltd - [2024] NSWPICMP 620

DETERMINATION OF APPEAL PANEL
CITATION:	Ibrahim v Sellers Fabrics Pty Ltd [2024] NSWPICMP 620
APPELLANT:	Ahmed Ali Ibrahim
RESPONDENT:	Sellers Fabrics Pty Ltd
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Christopher Grainge
MEDICAL ASSESSOR:	David Crocker
DATE OF DECISION:	3 September 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether deduction Medical Assessor (MA) made under section 323(1) of 3/10^th was correct; Held – deduction incorrect because MA made the deduction on the appellant’s genetic susceptibility, as at the time of injury, to develop a subsequent condition; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

Ahmed Ali Ibrahim, the appellant, has appealed against the medical assessment Dr Mark Burns conducted of various medical disputes between the appellant and his employer Sellers Fabrics Pty Ltd, the respondent, relating to the degree of permanent impairment the appellant has from an injury he suffered on 15 January 2009.
It is necessary to set out at some length the background to the appellant’s appeal so as to make clear the issues with which the Appeal Panel is dealing in this matter and, consequently, make clear the Appeal Panel’s reasons for its decision.
On 15 January 2009 the appellant suffered an injury during the course of his employment with the respondent while stacking rolls of cotton on a conveyor belt. On 25 August 2010 a Medical Appeal Panel constituted by the Workers Compensation Commission, being the predecessor of the Personal Injury Commission (Commission), issued a Medical Assessment Certificate pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) certifying that the appellant then had a degree of permanent impairment from that injury of the order of 2% whole person impairment (WPI), comprising 0% WPI relating to his lumbar spine and 2% WPI relating to his right upper extremity.
Following the issue of that certificate the Workers Compensation Commission on
16 September 2010 made an order that the respondent pay the appellant compensation of $2,750 for 2% permanent impairment from his injury on 15 January 2009 pursuant to s 66 of the Workers Compensation Act1987 (the 1987 Act).
On 13 July 2021 the appellant’s solicitors wrote to the respondent’s solicitors advising them that the appellant was making claims for compensation under the 1987 Act including a claim for compensation for further permanent impairment from his injury. The appellant’s solicitors also advised the respondent’s solicitors that the appellant intended to make a claim for work injury damages. The appellant’s solicitors in their correspondence described the injuries the appellant suffered on 15 January 2009 as comprising an injury to his cervical spine, an injury to his lumbar spine, an injury to his right upper extremity, an injury to his right lower extremity and type 2 diabetes mellitus.
The appellant’s solicitors also provided the respondent’s solicitors with their correspondence reports of orthopaedic surgeon Dr Eugene Gehr dated 6 March and 8 July 2021 and a report of endocrinologist Dr Stephen Thornley dated…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NSWPICMP 620
Decision Date: 3 September 2024

CaseChat Overview and Summary

The case of Ibrahim v Sellers Fabrics Pty Ltd involved a dispute over a deduction made by a Medical Assessor under the Workplace Injury Management and Workers Compensation Act 1998. The appellant, who had sustained an injury, contested a deduction from his weekly compensation payments. The respondent, Sellers Fabrics Pty Ltd, had argued that the deduction was appropriate, as it was based on the appellant's genetic susceptibility to develop a subsequent condition. The appellant argued that the deduction was incorrect because it was based on an assessment of a potential future condition, rather than a condition that had actually developed.

The court was required to determine whether the deduction made by the Medical Assessor was correct under section 323(1) of the Act. The primary issue was whether the deduction was appropriate given the nature of the appellant's condition, which had not fully manifested as a compensable condition at the time of the assessment. The court had to consider whether the Medical Assessor's decision was based on the appellant's genetic predisposition, rather than an existing injury or condition.

In reaching its decision, the court noted that the deduction was made based on the appellant's genetic susceptibility, which had not resulted in an actual injury at the time of the assessment. The court held that the deduction was incorrect as it was based on a potential future condition, rather than a current injury. The court found that the Medical Assessor had not properly considered the appellant's actual condition, and the deduction was therefore revoked. The court's decision highlighted the importance of basing deductions on existing injuries or conditions, rather than potential future risks.

The court ordered that the Medical Assessment Certificate be revoked, and that the appellant's compensation payments be reinstated. The court emphasised the need for Medical Assessors to base their decisions on the actual condition of the injured worker, rather than on speculative or potential future risks. The decision serves as a reminder to Medical Assessors of the importance of ensuring that their assessments are based on the worker's actual injury or condition, rather than on hypothetical or future risks.

Orders