Jawish v Hanson Construction Materials Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Jawish v Hanson Construction Materials Pty Ltd [2025] NSWPICMP 217
APPELLANT:	Nassim Jawish
RESPONDENT:	Hanson Construction Materials Pty Ltd
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	John Carter
MEDICAL ASSESSOR:	David Crocker
DATE OF DECISION:	31 March 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); whether Medical Assessor (MA) found that the appellant had not suffered an injury to urethral system; whether MA had regard to all relevant evidence; Held – MA found appellant had not suffered an injury to his urethral system which was contrary to the parties’ agreement and was an error; Appeal Panel found that MA did not engage with a report of appellant’s treating urologist which was relevant evidence; MA’s failure to engage with that was an error; appellant re-examined; MAC revoked; new certificate issued.

BACKGROUND TO THE APPLICATION TO APPEAL

Nassim Jawish, the appellant, worked for Hanson Construction Materials Pty Ltd, the respondent, as a driver of a semi-articulated vehicle. On 22 June 2019 he was standing on the connector point of that vehicle and slipped, causing him to fall astride on the beam and injuring his groin area.
On 8 December 2022 the appellant’s solicitors wrote to the insurer of the respondent advising it that the appellant claimed compensation under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for permanent impairment from his injury, which his solicitors advised was of the order of 31% whole person impairment (WPI). They provided the insurer copies of several documents to support the appellant’s claim, including reports of orthopaedic surgeon Dr Drew Dixon dated 15 March 2021 and general and diagnostic surgeon Dr John Garvey dated
30 September 2022, who had assessed the appellant’s permanent impairment. The appellant’s solicitors again wrote to the respondent’s insurer on 16 December 2022 providing further reports of Dr Drew Dixon and wrote again on 6 March 2024 providing a further report of Dr Garvey dated 28 February 2024. Also, in its letter of 6 March 2024, it advised the insurer that the appellant was now claiming compensation for permanent impairment of the order of 60% WPI.
Dr Garvey in his report of 28 February 2024 advised that he had assessed the appellant had permanent impairment of 52% WPI from his injury, being a combination of 40% WPI of the appellant’s urinary system and 20% WPI of the appellant’s reproductive system. Dr Dixon advised in his report of 6 October 2022 that he assessed the appellant’s permanent impairment from his injury was 19% WPI, being a combination of 7% WPI of the lumbar spine, 3% WPI of the right hip, 3% WPI of the left hip, 4% WPI of the right knee and 2% WPI of the left knee.
On 5 July 2024 the respondent’s insurer wrote to the appellant notifying him that pursuant to
s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) that it disputed it was liable to pay him compensation for permanent impairment from his injury. It set out at length in its correspondence its reasons for denying liability, but in summary they were that it disputed several parts of his anatomy and bodily systems that he had claimed were injured or affected by the incident on 22 June 2019 were in fact injured or affected. Secondly, with respect to those parts of his anatomy or bodily systems that it agreed were injured or affected by the incident on 22 June 2019, it disputed that the degree of his permanent impairment was greater than 10% and hence did not exceed the threshold imposed by
s 66(1) of the 1987 Act for him to be entitled to compensation for permanent impairment from his injury.
Following receipt of that correspondence from the insurer, the appellant initiated proceedings in the Personal Injury Commission (Commission) by filing with it an Application to Resolve a Dispute dated 19 August 2024 (ARD), seeking the Commission to determine his claim for compensation for permanent impairment. The appellant’s claim was referred to a Principal Member of the Commission, Ms Josephine Bamber, who on 18 September 2024, with the consent of the parties, made the following determinations:
“1. The lump sum claim is remitted to the President for referral to a Medical Assessor(s) to assess permanent impairment as follows:
a. Date of injury: 22 June 2019
b. Body systems: Lumbar spine, Urinary system and reproductive system
c. Documents to be referred: ARD and Reply.
2. Award for the respondent in relation to the alleged injuries to both hips and both knees, thoracic spine and primary psychological injury.”
On 8 October 2024 a referral was duly issued to two Medical Assessors, namely Dr Peter Heathcote to assess the degree of the appellant’s permanent impairment relating to his urinary system and reproductive system, and Dr Gregory McGroder to assess the degree of the appellant’s permanent impairment relating to his lumbar spine. Medical Assessor McGroder was appointed as the lead Medical Assessor to issue a Medical Assessment Certificate (MAC) in which the permanent impairment he assessed the appellant has was to be combined with the permanent impairment Medical Assessor Heathcote assessed the appellant. That referral was amended on 1 November 2024, for the purpose, it seems, of including documents in addition to those listed in the determination Principal Member Bamber had made, that were to be forwarded to the Medical Assessors, the critical one of which was a report of the appellant’s treating neurologist Associate Professor Vincent Tse dated 18 April 2024.
Medical Assessor Heathcote issued a MAC on 13 November 2024. In that he assessed that the degree of the appellant’s permanent impairment relating to his urinary and reproductive systems was “N/A%”.
The appellant has appealed this medical assessment.
Medical Assessor McGroder issued a consolidated MAC on 10 December 2024 in which he certified that he assessed the degree of the appellant’s permanent impairment was 7% WPI, which related entirely to the appellant’s lumbar spine and which had consolidated Medical Assessor Heathcote’s assessment of “N/A%” WPI.
In support of his appeal against Medical Assessor Heathcote’s assessment, the appellant relies on the following grounds for 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 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.
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, 4^th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

THE MEDICAL ASSESSMENT CERTIFICATE

Medical Assessor Heathcote detailed in the MAC that the appellant had been referred to several neurologists for care and treatment following his injury on 22 June 2019, namely
Dr Nestor Lalak, Professor Mohamed Khadra, Dr Kayvan Haghihi and Dr Vincent Tse. The Medical Assessor noted that Dr Tse had undertaken urodynamic studies which initially showed a stable bladder with filling, low pressure and low flow voiding phase. The Medical Assessor noted that when Dr Tse repeated those studies in April 2022, they again showed low pressure, low flow voiding phase and no detrusor instability. The Medical Assessor noted that imaging studies done of the appellant’s lumbar sacral spine showed disc disease and partial protrusions at L4/5 and L5/S1 but no evidence of cauda equina for focal nerve root compression.
The Medical Assessor noted that the appellant described having a constant urge to urinate and void small amounts of urine frequently and had episodes of urgency urinary incontinence. The Medical Assessor noted that the appellant also described stress urinary incontinence. The Medical Assessor noted that the appellant wears incontinence pads and consequently passes urine into those pads, and described passing urine five to six times during the evening. The Medical Assessor noted that the appellant reported not having a sexual erection for the previous two years.
The Medical Assessor noted that well before the appellant’s injury, he had undergone a right orchidectomy for seminoma. The Medical Assessor noted that the appellant had subsequently fathered four children and that a scrotal ultrasound that was done shortly before his injury showed a normal left testicle.
The Medical Assessor recorded the following findings from his examination of the appellant:
“Verbal consent was obtained after explanation of the proposed physical examination
including genital and rectal examination. A soaked incontinence pad was noted. A healed, non-tender right inguinal incision was noted. The left testicle was small in volume, but otherwise palpably normal, as were the cord structures. It was non-tender.
The applicant displayed normal secondary sexual characteristics.
Perianal sensation and perineal sensation was normal.
Anal tone was normal. There was a brisk and normal bulbocavernosus reflex.
The rectum was empty.”
Medical Assessor Heathcote provided the following summary and diagnoses of the appellant’s injuries:
“• Left testicular injury
Whilst the mechanism of injury could potentially injury the applicant’s left testicle, there is no evidence of any injury to the left testicle based on the initial ultrasound on 1st July 2019, examination by his urologists over the ensuing years and finally, by my examination on 13th November 2024.
The applicant does have diminished seminal fluid analysis, but this is consistent with a
past history of seminoma and in any case, he claims to have fathered four (4) children.
In conclusion, there is no evidence of left testicular injury.
• Urethral injury
The mechanism of injury described can potentially cause urethral injury.
Having said that, he has had a urethrogram and two (2) cystourethroscopies and other
urethral instrumentations by Dr Haghighi and Dr Tse, all of which have excluded urethral injury.
In conclusion, there is no evidence of any urethral injury.
• Lower urinary tract dysfunction/bladder symptoms
The applicant’s symptom complex has changed significantly over time. Furthermore, none of his treating urologists have been able to precisely explain the correlation between his symptoms and investigations.
On one hand he describes overactive bladder symptoms, but there is no evidence of that on urodynamic testing.
On the other hand, he describes symptoms suggestive of cauda equina syndrome, but
there is no radiologic evidence of cauda equina impairment and my examination does not show any evidence of S2/3/4 impairment, which one would expect in a cauda equina injury causing significant urinary incontinence.
None the less, the applicant describes a strong historical relationship between his injury and his urinary incontinence. The urinary incontinence did not come on immediately and as stated above, his symptoms have progressed and changed over time.
I note the history of depressive disorder and post-traumatic stress disorder and
medications in the setting of a significant pelvic pain syndrome.
It is my opinion that there is no neurologic or urologic causation for the applicant’s bladder symptoms. He may wish to seek a psychologic or psychiatric causation.
• Sexual and erectile dysfunction
The applicant’s history of sexual and erectile dysfunction has changed significantly over time.
Whereas he initially described satisfactory erections but inability to complete sexual
activity due to pain he now describes complete erectile dysfunction.
There is no objective evidence on testing of any possible causation of erectile dysfunction.
It is my opinion that there is no neurologic or urologic cause for his erectile dysfunction.”
The Medical Assessor expressed his opinion that the appellant had “no evaluable permanent impairment” relating to his “urinary and reproductive systems that can be related to the work injury on 22 June 2019”.

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 Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that the appellant should undergo a further medical examination. This is because the Appeal Panel, for reasons explained below, found that the MAC contained a demonstrable error which the Appeal Panel would need to correct. The Appeal Panel considered it would require further clinical data in order to correct that error which could only be obtained from a further examination of the appellant. The Appeal Panel appointed one of its members, namely Medical Assessor John Carter, to conduct that examination, which he did on 4 March 2025. His report to the Appeal Panel is set out below under the heading Findings and Reasons.

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.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that Medical Assessor Heathcote erred by finding he did not suffer a urethral or a left testicle injury. The appellant said the parties had agreed he had suffered such an injury. The appellant submitted that Medical Assessor Heathcote was not permitted to make a finding contrary to what the parties had agreed regarding the appellant’s injury.
The appellant submitted that the Medical Assessor failed to consider the evidence of Dr Tse regarding the “objective urodynamic test results”, which the appellant submitted indicated urinary incontinence.
In reply, the respondent submitted that Medical Assessor Heathcote was not bound to accept that the appellant’s injuries to his reproductive and urinary systems resulted in urethral stricture, infertility, erectile dysfunction or any of the other symptoms the appellant reported experiencing. The respondent submitted that the Medical Assessor’s conclusion was not that there was no injury, but rather there was no evaluable impairment from the injury. The respondent submitted it was open to Medical Assessor Heathcote to make that conclusion.
The respondent submitted that the Medical Assessor’s conclusion that there was no evidence of a left testicular injury was the Medical Assessor saying essentially that the appellant had no ongoing pathology in his left testicle and hence no permanent impairment with respect to the injury he suffered, rather than saying there was no injury.
The respondent submitted that Medical Assessor Heathcote considered the evidence of
Dr Tse given he noted the letters that Dr Tse wrote in March 2021 and again in April 2022. The respondent highlighted that the Medical Assessor said that the urethrogram and the two cystourethroscopies and other urethral instrumentations the appellant had undergone, had all excluded urethral injury. The respondent highlighted that the Medical Assessor noted that the appellant’s treating neurologist could not precisely explain the correlation between the appellant’s symptoms and the investigations. The respondent submitted that Medical Assessor Heathcote gave proper consideration to the evidence of Dr Tse and also to the other medical evidence that was before him.
The respondent submitted that “in light of the evolution in the appellant’s presentation and alleged symptoms complex over time … it was open for the Medical Assessor to conclude that there is no neurologic or urologic causation for the appellant’s bladder symptoms”.

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.
It can be inferred from the fact that the parties consented to Principal Member Bamber’s determination, that they ultimately agreed the appellant suffered injury to his urinary system and reproductive system. Consequently, the Medical Assessor had to accept that and assess the degree of the appellant’s permanent impairment from the injury that the parties had agreed he had suffered to his urinary and reproductive systems.
The Appeal Panel considers that Medical Assessor Heathcote has not conducted the assessment of the medical dispute that was referred to him to assess on that basis. The Appeal Panel considers that when the MAC is read as a whole, Medical Assessor Heathcote concluded that the appellant did not suffer injury to his urinary system and productive system in the incident of 22 June 2019. In other words, the Appeal Panel does not consider, when the MAC is read as a whole, that this is a situation where the Medical Assessor has accepted the appellant has suffered injury to his urinary system and reproductive system but has assessed that the appellant, as at the time of assessment, had no impairment resulting from that injury. That latter situation can occur, for example, as a consequence of an injury healing completely or as a consequence of the ongoing signs or symptoms from an injury not correlating with any other criteria of the Guidelines by which an impairment can be rated.
Here Medical Assessor Heathcote noted that the manner by which the appellant suffered injury on 22 June 2019 could “potentially cause urethral injury”, but he concluded “there is no evidence of any urethral injury” because, in the Medical Assessor’s view, the studies that the appellant’s treating urologists, namely Dr Haghihi and Dr Tse, had done did not reveal pathology. In other words, the Medical Assessor has acknowledge the potential for the incident on 22 June 2019 to have caused the appellant a urethral injury, but came to the conclusion, because he considered the investigations the appellant had undergone did not reveal pathology, that potential did not materialise.
To repeat, the medical disputes that were referred to Medical Assessor Heathcote to assess were referred on the basis that the appellant had suffered an injury to his urinary system. Hence, Medical Assessor Heathcote erred by finding to the contrary.
Medical Assessor Heathcote also made a second error, for the reasons which follow.
Section 325(2)(c) and (d) of the 1998 Act requires a Medical Assessor to set out the reasons for his or her assessment and set out the facts on which the assessment is based. That obligation requires a Medical Assessor to expose the path of reasoning for the assessment he or she makes. That in turn, requires a Medical Assessor to consider whatever material that has been placed before them that is relevant to the assessment the Medical Assessor makes.

The requirement of a Medical Assessor to explain his or her reasons does not however require the Medical Assessor to refer to every piece of evidence that has been placed before them. However, it seems to the Appeal Panel that the obligation of the Medical Assessor to explain his or her reasons requires a Medical Assessor to engage with the critical components within the evidence relating to a worker’s clinical history.
In this case, noting that there was a medical dispute regarding the degree of the appellant’s permanent impairment from an injury to his urinary system and noting the appellant suffered incontinence, the urodynamic studies that Dr Tse had conducted of the appellant and his discussion of them were critical evidence. The Medical Assessor engaged with Dr Tse’s correspondence relating to those studies that he sent to the appellant’s general practitioner shortly after the studies were done, but he did not engage with the report Dr Tse provided to the appellant’s solicitor on 23 October 2024, in which Dr Tse noted that both urodynamic studies the appellant had done revealed detrusor contraction that the appellant could not voluntarily control. In other words, as Dr Tse noted, the appellant could not manipulate the findings of the studies. Dr Tse in his report had, in substance, identified a pathology based on the studies and had correlated the appellant’s symptoms with the findings from those studies.
In the Appeal Panel’s view this was key evidence with which Medical Assessor Heathcote ought to have engaged and, if of a different view, and implicitly he was, explained why he considered otherwise. In other words, it seems to the Appeal Panel that Medical Assessor Heathcote ought to have explained why the adverse urodynamic findings did not explain the appellant’s symptoms, particularly given that the impairment of the appellant’s urinary system is rated by reference to those symptoms. That was an error on the part of the Medical Assessor.
As noted earlier, because the Appeal Panel found demonstrable errors in the MAC the Appeal Panel need to correct those errors and to that end had Medical Assessor Carter to examine the appellant. His report to the Appeal Panel follows:
“Examination of Nasim Jawish at the PIC rooms at 1 Oxford St Darlinghurst at 2:00 PM on 4/3/2025
He was accompanied by an Arabic interpreter Ramiz Shinodia
On 22 June 2019 Mr Jawish fell astride a beam and injured he is groin area. He suffered soft tissue injuries but within 12 months he started to develop urinary urgency, & around 2 1/2 years ago, this progressed to urge incontinence. The severity of the incontinence has subsequently progressed. He has been wearing incontinence pads for the last 2 1/2 years and he estimates that 12 months ago he was wearing 5 pads per day but currently is wearing 6 to 8 pads per day. He wears one pad at night. He has the urge to micturate every 30 minutes.
He developed pain in his lower back following the accident on 22 June 2019 and this has progressed to the extent that the pain is present all the time and is progressively increasing in severity. Back surgery was recommended but he declined this treatment option. He had no back symptoms prior to the injuries in June 2019.
Examination of his genitalia was unremarkable except for a single, normal sized testis in his scrotum. His penis was normal on examination & there were no palpable abnormalities in the urethra. There were no obvious sensory abnormalities. He was wearing an incontinence pad which was moist.
Impression
I agree with Dr Tse (in his report of 18/10/24) that he is not manipulating his symptoms. The history indicates deterioration of his urological symptoms associated with progression of his back pain. Dr Tse has outlined a possible mechanism for the urinary symptoms, including his urodynamic abnormalities, on the basis of his disc abnormalities at L4/5 & L5/S1 shown on MRI.
There is no indication of urethral stricture except on a cystourethroscopy on 21/4/21 where there was “minimal scarring in the mid-bulbar urethra”—“not very narrow”.
WPI according to the NSW workers compensation guidelines for the evaluation of permanent impairment 4^th ed – 1 April 2016
Urinary & Reproductive Systems
Chapter 7 p38-39
Table 7-3 WPI due to Urethral Disease
He has Class 1 impairment 0%-10% regarding the “minimal scarring in the mid-bulbar urethra”. Since he has no symptoms or signs of this, & he does not require therapy, I conclude he has 0% WPI.
Urinary Incontinence. Paragraph 7.8
He has urge urinary incontinence which has a WPI rating of 16%-40%. In view of the severity, I conclude he has 25% WPI.”
The Appeal Panel adopts the findings of Medical Assessor Carter from his examination of the appellant. The Appeal Panel also agrees with the view that Medical Assessor Carter expressed in his report to it that, noting the abnormalities from the appellant’s urodynamic studies and the findings of abnormalities of L4/5 and L5/S1 shown on the MRI scan the appellant had done, that the appellant’s incontinence derives from an adverse pathology consequent upon the injury he suffered. As Medical Assessor Carter reported to the Appeal Panel, paragraph 7.8 of the Guidelines provides an assessment range of 16 to 40% for urge urinary incontinence. Noting the extent to which the appellant suffers incontinence, the Appeal Panel agrees with the rating Medical Assessor Carter has made of 25% WPI, and adopts that.
For these reasons, the Appeal Panel has determined that both the MAC Medical Assessor Heathcote and the Consolidated MAC Lead Medical Assessor McGroder issued on
13 December 2024 should be revoked (given that Lead Medical Assessor’s McGroder’s MAC combined the erroneous assessment of Medical Assessor Heathcote), and that a new consolidated 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:	W25153/24
Applicant:	Nassim Jawish
Respondent:	Hanson Construction Materials Pty Ltd

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 Heathcote and the consolidated Medical Assessment Certificate McGroder 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)
Lumbar spine	22/06/2019	Chapter 4	Table 15-3	7%	-	7%
Urinary system		Chapter 7 Paragraph 7.7 Table 7-3 Paragraph 7.8	Chapter 7	25%	-	25%
Reproductive system		Chapter 7 Paragraph 7.12	Chapter 7	0%	-	0%
Total % WPI (the Combined Table values of all sub-totals)					30%

[2025] NSWPICMP 217

31 March 2025