ISS Property Services Pty Ltd v Ayoubi
[2022] NSWPICMP 293
•19 July 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | ISS Property Services Pty Ltd v Ayoubi [2022] NSWPICMP 293 |
| APPELLANT: | ISS Property Services Pty Ltd |
| RESPONDENT: | Meiz El Ayoubi |
| APPEAL PANEL: | Member John Wynyard Medical Assessor Dr Roger Pillemer Medical Assessor Dr James Bodel |
| DATE OF DECISION: | 19 July 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Appeal against assessment of 35% whole person impairment (WPI) for injuries to the fingers and thumb, right wrist, right elbow and right shoulder caused when a sash window fell on the worker’s hand; whether Medical Assessor (MA) failed to apply section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) deduction; whether MA had failed to consider surveillance material; whether the MA had failed to adequately consider evidence of inconsistent presentation; Held – there was no evidence or opinion upon which to base a deduction pursuant to section 323 of the 1998 Act; the MA did not consider the three surveillance reports as he was an experienced clinician who would have commented on it had he been aware of it; in any event the MA made a demonstrable error in not referring to it in his reasons; re-examination by one Panel MA with the other observing; Panel found no evidence of organic basis; worker’s presentation to MA and to Panel inconsistent with material in the surveillance reports and early clinical notes; surveillance descriptions of worker’s movements and photographs thereof showed normal use of injured right extremity; worker’s injuries at best psychologically based; no residual orthopaedic impairment; Medical Assessment Certificate revoked. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 11 January 2022 ISS Property Services Pty Ltd, the appellant lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr J Brian Stephenson, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 14 December 2021.
ISS Property Services Pty Ltd (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,
· 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 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 the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021 (the Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI" is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 1 September 2021 this matter was referred to the MA for assessment of WPI caused by injury to the right upper extremity (right hand and fingers and thumb, right wrist, right elbow, right shoulder) which occurred on 6 March 2020.
Meiz El Ayoubi (the respondent worker) was employed as a school cleaner by the appellant employer at Belmore North Public School where he had worked for over 25 years.
On 6 March 2020 he was trying to open a sash window which appeared to be firmly stuck, it being of some vintage. It was partly open and suddenly dropped striking the right hand across the dorsum of the hand at the metacarpal region.
He was stuck there for about 20 minutes until a cleaner was able to get the window up from the outside.
He sought medical treatment and underwent investigations, coming under the care of a hand specialist, Associate Professor Nicholas Smith.
An MRI of the right wrist in May 2020 revealed a probable undisclosed fracture of the triquetrum of metacarpal bones in close proximity to the pisotriquetral joint.
An MRI of the right elbow confirmed lateral epicondylitis with a complete tear of the common extensile origin as well as injury to the radial collateral ligament.
The worker also came under the care of a pain specialist.
The MA assessed a combined table value of 35% WPI.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties.
The employer sought that the worker be re-examined by an MA who is a member of the Appeal Panel. For the reasons given below, a combined re-examination was carried out by Dr Pillemer (Dr Bodel observing) on Tuesday 19 April 2022.
EVIDENCE
Documentary evidence
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.
Further medical examination
Dr Pillemer of the Appeal Panel conducted an examination of the worker on 19 April 2022 and reported to the Appeal Panel, with Dr Bodel observing.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions which have been considered by the Appeal Panel.
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 (Vegan) 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 employer raised three grounds of appeal:
· that the MA had fallen into error in failing to make a deduction pursuant to s 323 of the 1998 Act;
· that the MA had failed to consider the surveillance material, and
· that the MA had failed to properly consider evidence of inconsistency and accordingly test for consistency in his examination of the worker.
The MAC
The MA took a consistent history of the worker’s background and injury.
At [6], the MA made an extensive examination of the worker’s right shoulder, right elbow, right wrist, right hand and right fingers. He applied his findings to the “complex calculations” required by AMA 5 and the Guides. He calculated the 35% WPI, noting:
“Dr Michael McGlynn has reported to the applicant’s solicitors and what is remarkable is that he has found 36% WPI. There is only 1% WPI difference after this complex calculation by two independent examiners.”
The investigations were considered, including the radiologist’s remark following an X-ray of 7 March 2020 which noted a slight deformity of the fifth metacarpal bone suggestive of an old injury.
In his summary at [7], the MA made the following diagnosis:
“The injuries sustained by the direct blow from a falling window after the sash broke impacted the dorsum of the right hand in particular causing soft tissue injury, capsulitis of the small joints of the hand and fingers, in the large joints of the right upper extremity of the shoulder. Diagnosis is consistent with subacromial bursitis manifested by the injury with confirmation of subscapularis and supraspinatus tendonitis.”
The MA diagnosed a full thickness tear of the common extensor tendon at the right elbow, which had been “sustained by the sudden, acute impact on the hand with a forcing, twisting injury to the large joints of the right upper extremity, with an underlying radial collateral ligament tear which avoided the ulnar nerve injury at the right elbow.”
He also accepted the MRI finding of 1 May 2020 that there had been an undisplaced fracture of the triquetrum bone in the carpus of the right wrist caused by the impact of the window falling on the hand. The MA diagnosed “acute impact trauma” causing restriction in the range of motion in the three joints of each of the four fingers.
The MA found Mr El Ayoubi’s presentation to be “consistent with the history of injury, findings, radiological investigations and medical/surgical reporting.”
At [10a] the MA gave his reasons for his assessment of WPI, which were based on his findings on examination the findings of the radiological investigations. He said:
“Matters of History of the Assessment
The history is that of an extreme heavy blow and contusion to the dorsum of the right hand over the metacarpal region causing the hyperextension strain injury to the right wrist with an undisplaced fracture of the triquetrum bone. With the impact of the heavy window lasting through approximately 20 minutes until he could be freed by a colleague by raising the window from the outside of the building.”
At 10[c] the MA commented on the other medical opinions before him. He considered the report dated 8 September 2020 of the qualified expert retained by the appellant employer, Dr Robert Breit, orthopaedic surgeon and disagreed with his diagnosis of a disease injury in the right shoulder. He did not refer to Dr Breit’s opinion that the primary diagnosis was of abnormal illness behaviour[1]. He did not mention Dr Breit’s second report dated 1 October 2020, which described the worker’s condition as “a factitious disorder.”[2]
[1] Appeal papers p 317.
[2] Appeal papers p 321.
SUBMISSIONS
The appellant submitted that with regard to the alleged demonstrable error concerning s 323 that the MA simply said that there was no deductible proportion at paragraph 11 and in doing so, failed to consider adequately the evidence before him which revealed the presence of relevant pre-existing conditions.
The appellant employer referred to the investigations that were before the MA, noting the MA’s opinion that there was a slight deformity of the fifth metacarpal bone which was suggestive of an old injury in the X-ray of the right hand dated 7 March 2020.
The MRI of the right hand dated 1 May 2020 also showed degenerative changes in the distal radial ulnar joint.
We were also referred to the clinical notes of the worker’s local medical officer and particularly and entry of 22 February 2020 which recorded complaints of symptoms in the right first MCP and also the presence of a positive Finkelstein sign for tenosynotitis.
The appellant employer referred to the opinion of its medico-legal specialist Dr Robert Breit who thought that there had been an aggravation of chronic changes in the elbow.
Although the appellant employer acknowledged that the assessor referred to that opinion and disagreed that there was any evidence of disease, he did not otherwise refer to the relevant radiological imaging or the entries in the clinical notes which suggested the existence of pre-existing degenerative change.
Respondent’s submissions
The respondent submitted that it was incumbent upon the employer to show that the prior condition was contributing to the current impairment referring to Cole v Wenaline Pty Ltd[3]. It was submitted that there was no other opinion before the MA that suggested the pre-existing conditions had contributed to the impairment on the fifth metacarpal joint.
[3] [2010] NSWSC 78 at [32]-[38].
As to the submission that the evidence showed that there was a pre-existing disease condition in the elbow, the respondent worker submitted that the MA had the benefit of his clinical examination together with an examination of the medical material before him and the mere fact that he disagreed with Dr Breit did not establish a demonstrable error.
Neither did the appellant employer explain how the Finkelstein sign for tenosynotitis was relevant.
CONSIDERATION
This issue may be dealt with shortly. We do not find this ground to be made out. It requires more than a simple reference to evidence that may have indicated a pre-existing condition or prior injury to found a s 323 deduction. There was no opinion before the MA that suggested any contribution from a prior condition to the assessed impairment caused by the subject injury. This ground is rejected.
Ground 2
The appellant employer relied on the content of surveillance reports in relation to this ground.
There were three such reports, dated 24 August 2020, 14 December 2020 and 19 April 2021.[4] They contained clear colour photographs of the worker and unchallenged accounts of what the operative witnessed.
[4] Appeal papers pp 350, 381 and 363 respectively.
The respondent reported that there had been some confusion in the lodgement of the reports. Orders for their admission had been made by consent orders in a Certificate of Determination issued on 31 August 2021. However, the respondent had been late in lodging the surveillance by some 15 minutes and that there had been some consequential discussion with the Personal Injury Commission (the Commission) before the surveillance evidence was eventually lodged. (The respondent worker conceded that the surveillance material was before the Commission).
The documents were forwarded to the MA in two Applications to Admit Late Documents (AALD), one dated 20 August 2021 which contained surveillance reports dated 24 August 2020 and 19 April 2021, and another AALD dated 1 December 2021 containing a further surveillance report dated 14 December 2020. The Commission by email of 1 December 2021 confirmed that the relevant documents were sent to the MA.
The appellant employer noted that the MA did not refer to those reports, and that under the circumstances his failure to consider them and reference them constituted a demonstrable error.
It was argued that the reports contained a number of significant observations that would raise doubt about the veracity of the worker’s presentation to the MA - particularly in relation to the results of the examination. The appellant employer accurately summed up the evidence of the surveillance by saying:
“(i) In the report of 14 December 2020, the worker was shown to:
a. Use his right hand to smoke a cigarette
b. Use his right hand to grasp various items
c. Use his right hand to use a hose, a bucket and a broom, specifically using the
fingers on the hand assessed by the AMS as being severely affected with
respect to range of motion
(ii) In the report of 19 April 2021, the worker was shown to:
a. Use his right hand/fingers to use mobile phone
b. Use his right hand to manoeuvre a trolley
c. Use his right hand to open a car door
d. Use his right hand to carry bags of shopping, grasping the hand in a fist to
perform that task.”
This surveillance revealed a range of motion that was significantly less restricted than that noted by the MA, it was submitted.
The 72% impairment of the four assessed digits of the right hand were shown to be inconsistent with Mr El Ayoubi’s use of his fingers as depicted in the relevant photographs.
In making that submission the appellant employer acknowledged that an MA was not required to specifically refer to every document that was before him, but that in view of the significant contrast between the conduct of the worker on examination by the MA and the inconsistent actions shown in the surveillance, the MA was obliged to address and consider the surveillance evidence.
Respondent’s submissions
The respondent submitted that the surveillance material was before the MA, notwithstanding there had been some confusion regarding its admission. It was common ground in the medical evidence that Mr El Ayoubi had suffered a severe impairment. The worker submitted that no doctor had commented on the surveillance and that “doctor[s] agree the applicant has a severe impairment for which the prognosis is poor.” Accordingly, the surveillance material would not have altered the assessed WPI.
Ground 3
Submissions
Ground 3 really followed on from ground 2 and was based on Dr Breit’s opinions, indicated above.
The MA’s comment that the worker’s presentation was consistent was difficult to accept, in view of the contrast shown between Dr Breit’s comments (“There are so many inconsistencies that they are the only consistent finding”) and the surveillance reports, it was submitted.
The appellant employer submitted that the MA had failed to consider the evidence before him, which had he done so, would have caused him by virtue of Chapters 1.36 and 2.5 of the Guides to repeat his examination findings to ensure that they were consistent.
The failure to consider, or as we understood the appellant employer, to properly consider the evidence, has led to the commission of a demonstrable error and the MAC should be revoked, the appellant employer argued.
Respondent’s submissions
The respondent submitted that there was no evidence of inconsistency, except Dr Breit’s finding of “abnormal illness behaviour” which was at odds with the other medical evidence and was rejected by the MA.
The MA has specifically found there were no inconsistencies in his summary regarding either the summary of injuries, the diagnoses, or the consistency of presentation.
It was only Dr Breit who suggested that Mr El Ayoubi had been inconsistent, the worker argued, and a disagreement between the respondent’s medico-legal examiner and the MA did not constitute grounds for a successful appeal.
Discussion
Whilst it is true that there is a presumption of regularity that attends the decisions of administrative decision makers, that presumption can be rebutted by evidence.[5]
[5] See eg Bojko v ICM Property Service Pty Ltd [2009] NSWCA 175 per Handley AJA at [36].
It is also true that the function of an MA is “neither arbitral nor adjudicative: it is neither to choose between competing arguments nor to opine on the correctness of other opinions on [the referred] medical question.”[6] However it is incumbent on an MA to set out the actual path of reasoning by which he arrived at his opinion,[7] and where more than one conclusion is open to an MA in view of the evidence, he is obliged to give some reasons to explain why he preferred the conclusion he reached, as we have noted at the outset of these reasons in Vegan.
[6] Wingfoot Australia Pty Ltd v Kocak [2013] HCA 43 (Wingfoot); see also Western Sydney Local Health District v Chan [2015] NSWSC 1968.
[7] Wingfoot at [48].
The MA approached his function in an extremely technical manner, with respect. Although he reproduced the many measurements he took of the joints of the fingers of the right hand, and although he referred to “restricted” range of motion in the shoulder, elbow and wrist, he did not describe the extent of those restrictions. The measurements the MA recorded demonstrated that there was very little movement in the fingers at all, and that the range of motion in the shoulder, elbow and wrist were grossly limited.
These limitations were observed by Dr Breit, who noted there was negligible movement in any of the joints on testing, including the uninjured thumb, and that the worker’s neck and shoulder movements on formal examination were inconsistent with the movements in informal moments such as when talking to his daughter in the consulting room.[8]
[8] Appeal papers p 316
The medical experts on the Panel were satisfied that the evidence contained in the photographs to which the appellant referred showed a range of motion in the digits under examination that was significantly at odds with the much more restricted range of motion accepted by the MA.
The surveillance evidence was not referred to by the MA, and in view of the contrast in presentation between what was observed and photographed by the investigator and that reported by the MA, the conclusion inevitably follows that the MA did not see the surveillance material. The MA is an experienced and respected clinician, and it is improbable that he would not have commented on that material, had he been aware of it.
We are therefore satisfied that the MA has made a demonstrable error in both failing to consider the surveillance material, and therefore failing to give any explanation as to why the use of the worker’s fingers, hand, arm and elbow reported in the surveillance evidence was not inconsistent with the worker’s presentation to the MA.
Accordingly, the worker was re-examined by Dr Pillemer of the Panel, with Dr Bodel observing, on 19 April 2022. Dr Pillemer’s report follows:
“REPORT OF THE EXAMINATION BY MEDICAL SPECIALIST MEMBER OF THE APPEAL PANEL
Matter No: M1-W3347/21
Appellant: ISS Property Services Pty Ltd
Respondent: Meiz EL AYOUBI
Examination Conducted By: Roger Pillemer with Dr J Bodel in attendance. An
interpreter was also present during the consultation.
Date of Examination: 6 June 2022
1. The workers medical history, where it differs from previous records
I read Mr El Ayoubi the history taken by Dr J Brian Stephenson on 1 December 2021 and Mr El Ayoubi was happy that this was correct.
2. Additional history since the original Medical Assessment Certificate was performed
On specific questioning Mr El Ayoubi does not feel that there has been any improvement since he saw Dr Stephenson in December 2021.
He continues to complain of pain extending from the base of the neck on the right side down into all the digits of his right hand and these symptoms are described as being constantly present and ranging between 6-8/10. Symptoms are aggravated by sleeping, and any attempt at movement of his right arm, and also when he is travelling. He does get some relief by resting his arm on a pillow but does not feel that tablets help at this stage.
On specific questioning he gets pins and needles and numbness extending all the way down his arm and into the digits of his right hand.
Mr El Ayoubi feels he is significantly restricted with regard to use of his right arm, and I asked him to lift a small book in the consulting room today but he felt this would be too heavy for him.
He lives at home with his wife and one child, and a daughter who also helps, and he cannot do anything in the way of housework, he cannot drive and he cannot go shopping.
He needs help with dressing.
3. Findings on clinical examination
Mr El Ayoubi was an adult male who needed assistance with removing his upper garments and replacing these.
He shows moderate to significant restriction of cervical movement particularly extension and rotation to the right.
He had a full range of pain free left shoulder movement but marked restriction of right shoulder movement, only flexing and abducting to 20° with no extension, abduction or adduction being present. Attempted shoulder movements were accompanied by simultaneous contraction of agonistic and antagonistic muscles (that is, isometric) with minimal or no movement occurring. Any attempt to passively test rotational movements seemed to cause significant discomfort.
Mr El Ayoubi also keeps his right elbow at full extension and will only allow approximately 5° of flexion to be carried out passively.
It should be noted then that while undressing and dressing, a range of flexion of the elbow was noted to slightly over a right angle, and elevation of the right shoulder to approximately 70°.
Reflexes in his upper limbs are present and equal, and Mr El Ayoubi complained of anaesthesia to pinprick of the whole of the right upper extremity extending onto the right side of his face. This was distinct and present with repeated testing and is non-organic.
When testing movements of the wrist and hand, no active movements were present and he keeps his fingers in full extension and no movement of any of the digits was possible today.
There was no wasting of his forearms to circumferential measurement, no intrinsic wasting, and nothing to suggest any vasomotor, sudomotor, or trophic changes.
It was not possible to test for Tinel’s sign in relation to median and ulnar nerves as Mr El Ayoubi complains of significant discomfort to percussion anywhere in his right arm.
4. Results of any additional investigations since the original Medical Assessment Certificate
Mr El Ayoubi has not had any further investigations carried out since his last visit.”
The report of Dr Pillemer is adopted, and a number of issues accordingly arise.
The re-examination confirmed that there was no obvious organic problem. When active movement of his shoulder and elbow were attempted, these were minimal, but not confirmed on indirect observation. The isometric contraction noted by Dr Pillemer indicated voluntary restriction of movement.
Importantly, there was no circumferential wasting or intrinsic wasting. There was accordingly no clinical evidence that the worker had been using his right hand and upper extremity in anything but a normal fashion.
There was no organic basis for the diffuse sensory loss the worker complained of, and his inability to move any of his digits was purely voluntary.
These clinical findings are consistent with the contemporaneous clinical notes recorded by the worker’s general practitioner (GP), Dr David Huynh of 7 March 2020, the day after the injury. Dr Huynh noted on examination:[9]
“mild swelling right 4th and 5th digit,
Minimal flexion only”
[9] Appeal papers p 148.
On 11 March 2020 Dr Huynh noted that the swelling was much less, although complaints of pain were noted,[10] and we note the subsequent onset of more generalised complaints within the clinical notes of significant problems with the worker’s hand, elbow and shoulder in May of 2020.
[10] Appeal papers p 150.
These clinical observations have to be considered in the light of the surveillance evidence. The reports of the investigator showed the worker using his right hand in a normal fashion. He was seen in December 2020 variously smoking a cigarette; grasping various items; using his right hand to hold a hose, a bucket and a broom, and the report specifically noted the use of the fingers of the right hand in those functions. Further observations in April 2021 showed him using a mobile phone with the fingers of his right hand, opening a car door and carrying bags of shopping – that is to say, apparently using his hand and fingers in a normal fashion. This evidence is consistent with the lack of wasting noted in Dr Pillemer’s re-examination.
Moreover, we had before us the photographs taken by the investigator on 21 April 2020. The worker was seen placing his right hand at the back of his head with significant elevation of the right shoulder. Another photograph showed him scratching the back of his left shoulder with his right hand, showing a full range of adduction.
A further photograph showed him leaning forward and resting his chin on his right hand, being supported by his thumb and index finger, with the other fingers flexed at the level of the MP joint. These actions are inconsistent with the clinical picture he presented both before the MA, and before us.
Whilst the worker suggested in submissions that Dr Breit’s opinion was not a basis for challenging the assessment, we disagree. Our findings confirm Dr Breit’s findings that there was an abnormal illness behaviour in the worker’s presentation to him. We note that the MA referred to Dr Breit’s report, but not to that opinion, nor the opinion in Dr Breit’s subsequent opinion that Mr El Ayoubi was suffering from a “factitious disorder.”
We are accordingly satisfied that the injuries sustained on 6 March 2020 would have settled within a month or so, certainly by December 2020, when he was seen using his right hand and fingers in a normal fashion. Mr El Ayoubi’s problems are now at best psychologically based, and beyond the expertise of this Panel. There is no residual orthopaedic impairment.
For these reasons, the Appeal Panel has determined that the MAC issued on 14 December 2021 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
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 Dr Stephenson 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) |
| Right upper extremity (hand and fingers and thumb, right wrist, right elbow, right shoulder) | 6 March 2020 | Chapter 2 | pp 436-437 | 0% | n/a | 0% |
| Total % WPI (the Combined Table values of all sub-totals) | 0% | |||||
John Wynyard
Member
Dr Roger Pillemer
Medical Assessor
Dr James Bodel
Medical Assessor
19 July 2022
0
5
0