Ibrahim v Sellers Fabrics Pty Ltd - [2022] NSWPICMP 471

DETERMINATION OF APPEAL PANEL
CITATION:	Ibrahim v Sellers Fabrics Pty Ltd [2022] NSWPICMP 471
APPELLANT:	Ahmed Ali Ibrahim
RESPONDENT:	Sellers Fabrics Pty Ltd
Appeal Panel
MEMBER:	Deborah Moore
MEDICAL ASSESSOR:	David Gorman
MEDICAL ASSESSOR:	Margaret Gibson
DATE OF DECISION:	18 November 2022
CATCHWORDS:	wORKERS cOMPENSATION - Appellant submitted the Medical Assessor (MA) erred in his assessment and deduction in respect of his diabetes; Held – no errors; MA’s assessment in line with all other doctors and consistent with all the evidence; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 24 August 2022 Ahmed Ali Ibrahim (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor (the Application). The medical dispute was assessed by Dr Mark Burns, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 3 August 2022.
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 MAC contains a demonstrable error.
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.
The WorkCover Medical Assessment Guidelines 2006 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 the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because none was requested, and we consider that we have sufficient evidence before us to enable us to determine the appeal.

Fresh evidence

Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in additional to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant seeks to admit the following evidence:
(a) further report of Dr Thornley dated 15 September 2022.
The appellant makes no specific submissions as to the relevance of this evidence but states:
“The document will assist in ensuring the matter is adequately and accurately understood by the parties,…

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: [2022] NSWPICMP 471
Decision Date: 18 November 2022

CaseChat Overview and Summary

In the case of Ibrahim v Sellers Fabrics Pty Ltd, the appellant challenged the decision of the Medical Assessor (MA) regarding the extent of his diabetes and its relation to his employment. The appellant argued that the MA's assessment was incorrect and that the resulting deduction in his workers' compensation claim was unjust. The matter was heard in the Court of Appeal, which was tasked with determining whether the MA's assessment was accurate and whether the deduction was justified.

The court was required to examine the MA's assessment of the appellant's diabetes and its connection to his employment, as well as the consistency of the MA's findings with other medical opinions. The appellant argued that the MA had erred in concluding that his diabetes was not significantly related to his employment and that this resulted in an incorrect assessment of his entitlements. The court had to consider the evidence presented, including medical reports, testimonies, and the MA's assessment, to determine whether the MA's decision was correct and whether it was supported by the evidence.

The Court of Appeal found that the MA's assessment was consistent with other medical opinions and that the MA had followed the appropriate process in reaching his conclusions. The court held that the MA's assessment of the appellant's diabetes and its relation to his employment was in line with all other doctors and was consistent with the evidence presented. The court confirmed that the MA's findings were accurate and that the deduction made in the appellant's compensation claim was justified. Consequently, the appellant's challenge to the MA's assessment was dismissed.

The Court of Appeal confirmed the Medical Assessment Certificate, affirming the MA's assessment and the resulting deduction in the appellant's workers' compensation claim. The court's decision upheld the MA's findings, concluding that the appellant's challenge was unfounded and that the MA's assessment was accurate and supported by the evidence.

Orders