Ibrahim v Sellers Fabrics Pty Ltd
[2022] NSWPICMP 471
•18 November 2022
| 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, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th 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, which in turn will lead to a quicker resolution… Dr Thornley, is entitled to change his opinion and such opinion ought to be relied upon by the appellant.”
The appellant also submits that the evidence was not available before the medical assessment and could not reasonably have been obtained before that medical assessment.
In a document described as an Application to Admit Late Documents filed in the Personal Injury Commission (Commission) on both 4 and 5 October 2022, the appellant included a “Reply To Notice of Opposition Submissions” by Mr Jobson of counsel dated 4 October 2022, and the supplementary report of Dr Thornley. Correspondence between the legal representatives of both parties was also included.
In that correspondence the appellant said:
“Attached herewith, by way of service, is a report received by Dr Thornley in which he has accepted an obvious error in his previous report and deducted only 10% s 323 reduction for previous condition, instead of 30% deduction opined by him in his previous report included in the ARD.
We put you on notice will be filing a separate application for additional evidence on the complex issue of s 323 reduction for genetic conditions.
We have the benefit of reading your reply and will seek to amend the grounds and submissions in respect the MA’s expertise on endochronology [sic].”
The respondent did not reply to this correspondence.
None of this was foreshadowed in the Application. The appellant merely asserted that the deduction made by the MA was excessive or should not have been made at all.
The appellant has failed to adhere to the procedural requirements relating to an appeal which we consider has only confused the respondent, not to mention the Appeal Panel.
The Appeal Panel determines that the evidence should not be received on the appeal for the following reasons.
The report is merely a reply to a letter of the same date from the appellant’s solicitor. In that report Dr Thornley changed his deduction under s 323 from 30% to 10% but it is unclear whether this in fact was done by Dr Thornley or simply suggested by the appellant’s solicitor.
No explanation has been given by Dr Thornley as to why he apparently changed his opinion.
The appellant’s submissions do not address the relevant statutory requirements.
Further, in State of New South Wales v Ali [2018] NSWSC 1783, Harrison J said
“s327(3)(b) limits that right of appeal to circumstances where additional relevant information is available, but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment. Her Honour relevantly stated: ‘section 327(3)(b) cannot be read in any other way: it deals with the circumstances in which an appeal will lie from an assessment that was allegedly made without the benefit of information that existed at the time. It is not concerned with offering an aggrieved party the chance to run the assessment again because circumstances have since changed. It may be contrasted with s 327(3)(a), which contemplates an appeal when circumstances have actually changed, although limited to cases of an increase in the degree of permanent impairment and not the opposite. That limitation suggests, as a matter of ordinary statutory construction, that an appeal with respect to an alleged reduction in the degree of permanent impairment is neither contemplated by the words of s 327 in general nor provided by s327(3)(b) in particular.’”
For these reasons, and others which will become apparent in the body of this decision, the further report of Dr Thornley is rejected.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.
There appears to be an application to admit fresh evidence which we will discuss under the submissions below.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the MA erred in the deduction he made pursuant to s 323 of the 1998 Act with respect to the appellant’s diabetes.
In reply, the respondent submits that no errors were made.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 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.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the 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.
The appellant was referred to the MA for assessment of whole person impairment (WPI) in respect of the lumbar spine, the right upper extremity (shoulder), the right lower extremity (knee) and the endocrine system resulting from an injury on 15 January 2009.
The MA obtained the following history:
“Mr Ibrahim reported that on the 15 January 2009 he was lifting cotton rolls onto a conveyer belt at work. One of the rolls fell backwards and landed on his right shoulder and then ran down the front of his body and struck his right knee. He reported that he developed pain and discomfort initially in his right shoulder, right knee and low back…
In 2020 he was diagnosed with type 2 diabetes. He reported that he was commenced on medication in the form of Diabex 1G twice a day…
Mr Ibrahim reported that he had no past injuries involving either his back, right shoulder or right knee. He also reported that he has no knowledge of any family history of diabetes. On questioning though it appears that he has not put on significant weight since the injury in 2009 and that his main problem has been his lack of exercise…”
The MA then set out details relating to Mr Ibrahim’s present treatment and symptoms, general health, findings on examination and other matters.
When asked: “Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality?” the MA replied: “Yes - Diabetes.”
The MA assessed a total of 13% WPI.
In respect of Mr Ibrahim’s diabetes, the MA assessed 6% WPI from which he deducted 30% leaving a total of 4% WPI.
He then commented on the other medical opinions and said:
“I note the Independent Medical Examination report of Dr Stephen Thornley, Endocrinologist dated 9 June 2021. Dr Thornley has assessed his diabetes as being in Class 2 from Table 10.8 and assessed 8% whole person impairment with a three tenth deduction due to genetics. Whilst I agree with the three tenth deduction I believe he would be at the lower end of the Class at 6% rather than 8% as recently his medication has been cut back to the lowest dose if Diabex (Metformin).
I note the Independent Medical Examination report of Professor John Carter, Endocrinologist dated 16 August 2021. Dr Carter has assessed his diabetes as Class 2 and given 6% whole person impairment with which I would agree. He believes though that the major cause of his diabetes is genetic and has taken a two thirds deduction to give 2% whole person impairment. I believe that a three tenth deduction is probably more appropriate as he did have significant decrease in activity and exercise over many years, which would have sped up his development of diabetes.”
The appellant’s primary submission is that “there is no evidence regarding the appellant’s specific genetic circumstances sufficient to allow the MA to make any percentage deduction in respect of the appellant’s purported genetic condition.”
The appellant added:
“The appellant relies on the Australian Law Reform Commission Report ‘Essentially Yours: The Protection of Human Genetic Information in Australia’ [2003] (ALRC) which may be followed as a guideline on the subject of the use of genetic information in workers compensation.
The appellant cites the observation made by Dr Paul Henman, in respect of the use of genetic information in workers compensation at 33.39: ‘A possible consideration of genetic information by employers relates to claims for workers compensation that may involve a genetic component. This is a more complex matter as a workplace injury may combine with a genetic predisposition to a specific injury. In this scenario, it would only be appropriate (if at all) for the employee’s genetic information to be made available when a claim for worker’s compensation is made. This will enable a court to assess the extent to which an injury results from a workplace activity or from a pre-existing condition.’
The MA was not provided with any research or evidence with respect to the increased likelihood or vulnerability of individuals hailing from the same ethnic background as the appellant to [sic] suffering from diabetes mellitus. The appellant submits it is not for an MA to make such a prejudicial determination in the absence of the appropriate and necessary evidence shedding light on the appellant’s specific genetic circumstances.
The lack of information surrounding the appellant’s genetic circumstances is compounded by the clear absence of the appellant’s family history of type 2 diabetes, noted in the report of Dr Thornley…
The appellant submits the absence of family history makes it inappropriate for an MA to assume any predisposition exists…
Even if the MA was provided with the appropriate and necessary evidence surrounding the appellant’s genetic circumstances, the appellant submits there are no appropriate guidelines or regulations for an MA to follow in respect of applying such genetic information….
The appellant submits there is an absence of policy regarding the appropriate use of genetic information in the assessment of workers compensation claims or applying genetic information in the context of diabetes mellitus…”
The appellant’s submissions generally continue in the same vein, namely by reference to the ALRC information.
The appellant continued:
“The appellant submits is not appropriate for an MA to make a prejudicial deduction in respect of the appellant’s genetic condition where the MA is unqualified in the study of genetics. The appellant notes the MA’s speciality is in occupational medicine, rather than an endocrinologist or geneticist. The appellant submits to do so is contrary to guideline 1.40 of the Guidelines for the assessor to have qualifications, training and experience relevant to the body system being assessed.
Alternatively, the appellant submits deductions made under s 323 were not intended to include deductions on the basis of genetic predispositions or susceptibility. Genetic predispositions cannot be considered to give rise to pre-existing levels of impairment as required by s 323.
The appellant relies on the following principle enunciated by Schmidt J in Cole v Wenaline Pty Limited [2010] NSWSC 78 at 59-62:
‘What s 323 required was a deduction for any proportion of the impairment that is due to any previous injury, pre-existing condition or abnormality. The majority noted the defendant's contention that Mr Cole's previous problems with his lumber spine contributed to at least half of his present impairment and observed: It is not a matter of predisposition or vulnerability, it is a matter of the previous impairment. That is, an impairment that was present prior to the injury in October 2005…’
Section 323 understood in this way excludes any deductions made on the sole basis of genetic predisposition or vulnerability.
The appellant submits s 323 was not intended to include predispositions or susceptibilities since these diagnoses rest on probability and do not necessarily mean the disease is going to emerge…
The appellant submits there is a distinction between an increased susceptibility arising from genetics to type 2 diabetes against the actual level of impairment an individual will have from type 2 diabetes as a result of genetics. Even though an individual may have an increased predisposition to develop type 2 diabetes, that does elucidate the level of impairment that arises from genetics. The distinction makes it inappropriate to make a deduction under s 323 on the basis of genetics.
The appellant submits allowing the MA to make a deduction in respect of the appellant’s genetic condition is a misuse or misunderstanding of ‘genetics’ and has a prejudicial and unreasonable effect on the worker. Therefore, the MA fell into error by applying the s 323 deduction…
Alternatively, the appellant submits the appellant would have been unlikely to have developed type 2 diabetes. The evidence in this matter demonstrates no form of diabetes was present prior to the work injury. The evidence does not suggest the appellant had an underlying disease condition or impairment. The appellant has a noted absence of family medical history of type 2 diabetes…”
As to the deduction, the appellant submits as follows:
“The s 323 assumption is the appropriate deduction to be made since it would be too difficult or costly to determine to determine the deduction.
Medical literature itself cannot be said to shed light on pre-existing impairment with sufficient precision in the context of the plethora of factors which may contribute to the onset of type 2 diabetes. Therefore, the deduction would be too difficult or costly to determine in the appellant’s case.
The appellant refers to the report of Prof John Carter where he opines: ‘Type 2 diabetes is a genetic condition, and the person must have an underlying genetic predisposition for the condition to develop. The timing of onset of the diabetes depends on numerous factors including increasing age, drug therapy, and factors that can increase insulin resistance… two of the commonest causes of insulin resistance are increased weight and reduced physical activity/ fitness’.
The appellant refers also to the report of Dr Thornley where he notes: ‘Type 2 diabetes mellitus is a genetic disease and the absence of family history does not exclude a genetic contribution to the development of type 2 diabetes mellitus. It is likely however, that the workplace injury… has brought forward the diagnosis of type 2 diabetes mellitus…. Chronic pain can also contribute towards the development of type 2 diabetes mellitus.’
Generalised research evidencing the link between genetics and a predisposition to develop type 2 diabetes cannot be considered evidence that allows an MA to define with reasonable precision the extent of a s 323 deduction.
The MA was in error to depart from the s 323 assumption. Drawing inferences from generalised medical research explicating the relationship between diabetes and genetics is not of a significant enough threshold such that it can be considered ‘at odds’ with the available evidence in this matter.
The appellant submits the 10 percent deduction should be applied in the majority of cases and acts almost as a statutory presumption due to the inherent difficulty with determining with any accuracy the correct level of impairment caused by a pre-existing injury or condition…
Furthermore, previous decisions of the Medical Appeal Panel have indicated a high threshold of evidence is required before an MA may depart from the assumption…”
The appellant’s submissions regarding the “genetic” issue are misconceived to the extent that the terms of the referral to the MA made it abundantly clear that Mr Ibrahim (a) had diabetes and (b) it was related to his injuries hence the terms of the referral.
The MA at no stage referred to any “predisposition or vulnerability” in the context of assessing impairment. He assessed 6% WPI from which he deducted 30% because of any “previous injury, pre-existing condition or abnormality” in accordance with the requirements of the 1998 Act.
It was clear from all the medical evidence that Mr Ibrahim’s diabetes had a genetic origin which Dr Thornley, Dr Carter and the MA all considered warranted a deduction.
As the respondent correctly pointed out:
“All three Doctors, the MA, Dr Thornley and Professor Carter were all in agreement that the Worker’s injuries did not cause his Diabetes condition, rather his lack of exercise was a contributing factor to the early onset of the condition. All three Doctors referred to the genetic component of the condition. On this basis, the Respondent submits that all three Doctors correctly made a deduction for a pre-existing condition or abnormality.
In this respect, the Respondent refers to the Court of Appeal decision of Vitaz v Westform (NSW) Pty Ltd 34 NSWCA 254 where it was held that if a pre-existing condition was a contributing factor to the impairment caused by the subject injury, even if it had been asymptomatic, a Medical Assessor would be entitled to make a deduction without giving an explanation.
A deduction of less than 30% for the pre-existing condition or abnormality with respect to the assessment for Diabetes would be at odds with the evidence, noting the deductions made by the three Doctors who assessed the Appellant.”
For these reasons, the Appeal Panel rejects the appellant’s submissions regarding “genetic information” as providing a ground for establishing error.
The numerous references to the ALRC are not relevant in the context of the task of a MA.
Nor are the appellant’s submissions regarding the absence of “appropriate guidelines or regulations for an MA to follow in respect of applying such genetic information” and the “absence of policy regarding the appropriate use of genetic information” in medical assessments.
We also do not accept the submissions regarding the expertise of the MA.
Again, as the respondent correctly points out:
“The Respondent notes that the Appellant has questioned the qualification of the MA to assess Diabetes, which is part of the Endocrine System. The Respondent submits that the MA is appropriately qualified to assess the Endocrine System, with the Endocrine System noted on the SIRA website as one of the Body Systems that the MA is qualified to assess.”
As regards the submissions relating to the deduction made, as we said, the MA’s deduction was broadly consistent with both Dr Thornley and Dr Carter.
We have explained earlier why the further report of Dr Thornley was rejected.
For these reasons, the Appeal Panel has determined that the MAC issued on 3 August 2022 should be confirmed.
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