Meremere v Symbion Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Meremere v Symbion Pty Ltd [2022] NSWPICMP 506
APPELLANT:	Riki Meremere
RESPONDENT:	Symbion Pty Ltd
Appeal Panel
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	John Garvey
MEDICAL ASSESSOR:	Mark Burns
DATE OF DECISION:	9 December 2022
CATCHWORDS:	wORKERS cOMPENSATION - Appeal against half section 323 of the Workplace Injury Management and Workers Compensation Act 1998 deduction for pre-existing condition of obesity; appellant injured ankle and suffered a significant increase in his weight to the extent that bariatric was necessitated; appellant claimed the ankle injury had restricted his usually active life and whilst he had been obese at the time of the ankle injury, his restriction in motion had caused his weight to reach a point of morbid obesity; Held – Cole v Wenaline Pty Ltd and Fardell v Clinton Industries Pty Ltd considered and applied; relevant injury was to the digestive system; appellant’s obesity a relevant pre-existing condition, and significant in contributing to the morbid obesity that required surgical correction; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 1 September 2022 Riki Meremere, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 15 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 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 8 June 2022 the delegate of the President referred this matter to the MA for an assessment of WPI caused by injury to the left lower extremity and digestive system on 12 January 2018.
Mr Meremere was employed as a forklift driver for Symbion Pty Ltd (the respondent) and on 12 January 2018 suffered an inversion injury to his left ankle.
Conservative management was unsuccessful and on 24 May 2018 he came to arthroscopic procedure which has given a fairly good result.
The appellant also asserted that following the injury he gained weight drastically. The MA assumed that Mr Meremere weighed about 108kg at the time of the injury, and that his weight at one point subsequently was at 156kg.
He was referred to a Specialist Bariatric Surgeon, Associate Professor Dr Garett Smith, and came to surgery on 3 February 2020. This was a sleeve gastrectomy which has given the appellant a very good result and his weight is now around 75kg.
Following the gastrectomy the appellant encountered difficulties in eating and drinking as he was not able to swallow and a constriction was identified for which a dilation procedure was conducted in or about July 2020.
The MA thought that there might have been two gastroscopies following the gastrectomy.
Mr Meremere now consumes seven small meals a day and experiences a decreased frequency of bowel action as a result of the relatively small amounts he is eating.
The MA awarded 3% in relation to the injury to the left ankle (which is not the subject of any appeal) and 9% for the injury to the digestive system from which the MA deducted one half pursuant to s 323 of the 1998 Act.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties.
The appellant did not seek to be re-examined by a MA who was a member of the Appeal Panel. The issue being the application of s 323 of the 1998 Act, no re-examination was required.

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.

Medical Assessment Certificate

The parts of the medical certificate given by the MA 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 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 sole ground of the appeal was that the MA had fallen into error by making a deduction from the 9% awarded of one half pursuant to s 323 of the 1998 Act.

The MAC

The MA noted that Mr Meremere originally came from New Zealand and his parents came from the Cook Islands. He came to Australia in 1994.
The MA noted the history of the ankle injury on 12 January 2018, and the subsequent surgery on 24 May 2018 by Dr Sherif Rizkallah. The MA then observed:[1]
“The situation was further complicated by Mr Meremere’s excess weight. At the time of the injury, he had weighed about 108kg. Later his weight went drastically upwards. Mr Meremere mentioned that he had actually gone up to 156kg although I can only find written evidence in the file of getting up to 137kg. It was identified, however, that this was excessive and that it would be unlikely for any further improvement to the ankle to occur with this gross excess weight bearing down on it.”
[1] Appeal papers page 29.
The MA recorded that Mr Meremere accordingly came to bariatric surgery with Dr Garett Smith on 3 February 2020. This had the effect of reducing Mr Meremere’s weight to 75kg. The MA also noted that a dilation procedure had to be performed in July 2020 after complications arose.
The MA reported that there were no continuing gastrointestinal issues, apart from the need to take more frequent and smaller meals – the appellant now eats seven smaller meals per day, which has also resulted in decreased bowel movement about once every four to five days.
Regarding Mr Meremere’s social activities, the MA noted:
“In years gone past, he was a keen and gifted exponent at table tennis and apparently was at the junior level of world championship. He has also played rugby.”
In giving his reasons at [10], the MA relied on the appropriate guideline in AMA 5 and found that the signs and symptoms from which Mr Meremere were suffering included both anatomic loss and alteration due to the bariatric surgery.[2]
[2] Appeal papers page 33.
He noted that no continuous treatment was indicated but that Mr Meremere did have a need for an alteration in his diet with seven small meals per day. The MA said:
“His weight is maintained at a satisfactory level which in his case is fractionally over the upper level of healthy BMI. This class provides a whole person impairment ranging between 0% and 9%. With his need to alter his dietary intake to 7 small meals a day, he would be towards the upper end of this level, hence 9% is selected.”
In considering other opinions the MA noted that his assessment was very similar to the appellant’s medico-legal expert, Dr Neil Berry. He also agreed with the opinion of Dr Kim Edwards, the respondent’s medico-legal expert, that there was a substantial constitutional component, bearing in mind Mr Meremere’s significant weight at the time of the injury.
The reasons given by the MA for the one-half deduction at paragraph 11 of the MAC were:[3]
“Digestive System. There is a substantial constitutional contribution to the need for the bariatric surgery since Mr Meremere was already very overweight at 108kg when this injury to his left ankle occurred in January 2018. I am therefore persuaded that half of the need for the bariatric surgery is constitutional and the other half is associated with his lack of capacity for reasonable movement due to the left ankle injury. This therefore would technically reduce the 9% WPI down to 4.5% WPI which is then rounded up in his favour to 5% WPI.”

SUBMISSIONS
The appellant
[3] Appeal papers page 34.

The appellant submitted firstly that the MA had applied incorrect criteria in making an appropriate deduction. The reasoning exhibited at [11] of the MAC was alleged to be contrary to the Guides and s 323 of the 1998 Act. Reference was made to Marina Pitsonis v Registrar of the Workers Compensation Commission[4] in that regard, but we were not referred to any particular dicta.
[4] [2008] NSWCA 88.
The appellant submitted, as we understood him, that the MA had erred as he had not taken into account all the evidence before him. The drastic increase in weight had occurred after the injury, and we were referred to a determination of the Workers Compensation Commission of 26 November 2019 in that regard.[5] The decision ultimately led to the gastroscopy of 27 July 2020 under the care of Dr Garett Smith, the appellant contended.
[5] Riki Meremere v Symbion Health Ltd [2019] NSWWCC 377.
Mr Meremere referred to the evidence which confirmed the history taken by the MA, but submitted that there was no justification for the finding by the MA that such a deduction was warranted.
The appellant referred particularly to the opinion of Dr Neil Berry dated 14 April 2022, relying on his advice that Mr Meremere’s pre-existing obesity had not caused any anatomic alteration, and thus any deduction pursuant to s 323 “does not make sense”.
We were referred to the opinion of the general practitioner (GP), Dr Lim who suggested that Mr Meremere’s weight had been stable for a few years prior to the injury at about 112kg. There was no justification for any assumption that Mr Meremere would have gained weight anyway. Indeed the opposite inference was more likely, it was argued.
It was submitted that a deduction was not warranted because the anatomical change as a result of the appellant undergoing the gastrectomy procedure was not previously present, and would not have been present had the appellant not sustained the left ankle injury.
Mr Meremere also referred to the report of Dr Anthony Greenberg dated 16 July 2019, who advised that Mr Meremere had written to him setting out his activities prior to his ankle injuries. (These activities were also consistently described in Mr Meremere’s statement of 16 September 2019).[6] These activities included playing mixed competition of touch football, table tennis, rugby league, rugby union and indoor netball, as well as in performing domestic chores.
[6] Appeal papers page 50.
He submitted that whilst he was obese prior to the ankle injury his weight verifiably increased quite drastically as a result of his left ankle injury and the restriction in movement it had caused. It had led to the drastic weight increase which in turn had been the cause of the gastric surgery.
It was submitted that the MA had not considered the totality of the evidence and thus breached the guidelines. It was submitted that the MA focussed on “solely upon the fact the appellant was obese prior to the left ankle injury which is based on incorrect criteria.” This, it was submitted, constituted the application of a wrong legal test.
The appropriate legal test had been identified by Schmidt J in Cole v Wenaline Pty Ltd,[7] and applied in Fardell v Clinton Industries Pty Ltd.[8]
[7] [2010] NSWSC 78.
[8] [2022] NSWSC 111 at [79].
It was submitted that the MA had not used his medical judgment, knowledge or experience as required and that he did not undertake the statutory exercise in the light of the evidence that he was required to do.
A demonstrable error was also asserted in that the MA failed to take into account relevant circumstances.

The respondent

The respondent firstly submitted that the appellant had not identified which incorrect criteria had been used by the MA, nor how the MA had made a demonstrable error.
The respondent noted that the appellant’s estimate of his weight at the time of his ankle injury as being 103kg. Contemporaneous evidence, it was submitted, demonstrated that his subsequent weight gain was less than the appellant claimed. This was based on:
·        a note dated 7 February 2018 signed by the appellant on Dr Sheriff Rizkallah’s letterhead (130kg)[9];
·        a Venus Thromboembolism Risk Assessment dated 24 July 2018 (127kg)[10];
·        a referral from Dr Lim to Dr Garett Smith dated 29 October 2018 (137kg)[11].
[9] Appeal papers page 469.
[10] Appeal papers page 292.
[11] Appeal papers page 416.
It followed, the respondent argued, that the appellant’s weight at the time of the injury must have been approximately 130kg, as Dr Rizkallah’s note showed that weight within a month of his ankle injury on 12 January 2018. The respondent conceded however, that by 23 July 2019 Mr Meremere’s weight had been 141.9kg.[12]
[12] Appeal papers page 423.
The respondent submitted that it was clear that the MA had examined the material before him saying “I can only find written evidence in the file of getting up to 137 kg”.
It was submitted that the evidence before the MA established that the appellant’s pre-injury weight was considerably greater than the appellant alleged, and the post injury weight gain was accordingly less than he maintained.
The respondent submitted that the appellant’s pre-injury morbidly obese state contributed to the need for bariatric surgery. It submitted that the 50% deduction made by the MA was open to him and a deduction of 1/10^th as suggested by Mr Meremere would be at odds with the available evidence.
The respondent also referred to the pre-existing condition suffered by Mr Meremere of gout which would also have contributed to the weight gain as it has been in existence since at least 2014.
With regard to the appellant’s reliance on Cole v Wenaline Pty Ltd the respondent submitted that the MA had applied the deduction in accordance with the required test.

DISCUSSION

Section 323 of the 1998 Act provides relevantly:
“(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.”

In Fardell Harrison As J said at [76]:
“76 The legal principles to be applied when making a deduction under s 323 of the Workplace Injury Act have been clearly set out by Schmidt J in Cole. As set out earlier, Her Honour stated (at [38]) that this involves a three step test which requires a consideration of firstly, what the level of impairment after the second injury was; secondly, whether a proportion of that impairment was due to the first injury; and thirdly, what that proportion was.”
In the present case the relevant deduction was concerned with Mr Meremere’s pre-existing condition, rather than a prior (“first”) injury, but the test is the same. The appellant submitted that the MA had fallen into error because although he applied the three steps in calculating the appropriate deduction, he did not sufficiently take into account the evidence before him.
There was some controversy about the actual level of obesity Mr Meremere suffered from at the time of the injury, but in the context of the appellant’s submissions, not much turns on it. Mr Meremere estimated that his weight fluctuated between 105-108kg in his statement.[13] The MA accepted that Mr Meremere’s weight at the time of the ankle accident was 108kg, and the respondent drew our attention to the first weight recorded by Dr Rizkallah on 7 February 2018 of 130kg, from which we were asked to infer that the appellant was the same approximate weight at the date of injury 18 January 2018.
[13] Appeal papers page 50.
In any event there is no dispute that the ankle injury of 18 January 2018 had the effect of restricting Mr Meremere’s activities of daily living, and that his weight increased as a result to 141.9kg at the time he saw Nazy Zarshenas, the Dietitian in Dr Garett Smith’s practice, on 23 July 2019.
Dr Garett Smith noted in a report to Dr Lim dated 17 January 2019 that Mr Meremere’s weight was then 136kg.[14] Nazy Zarshenas recorded Mr Meremere’s weight on 23 July 2019 at 141.9kg, noting:[15]
“Riki 's minimum weight was 110 kg and he report to have gradually gained weight over the years, with this worsening following his injury . In the past he has not tried any specific diets but was able to reduce the quantity and frequency of his eating and achieve a 25 kg weight loss. Expectedly and unfortunately, he was not able to maintain this...”
[14] Appeal papers page 418.
[15] Appeal papers page 423.
On 12 August 2019 Dr Smith reported the appellant’s weight at 140kg[16] and on 9 September 2019 at 138.7kg.[17] Following the bariatric surgery on 2 February 2020, Dr Smith’s rooms reported a weight loss of 40kg on 1 July 2020.[18]
[16] Appeal papers page 425.
[17] Appeal papers page 426.
[18] Appeal papers page 4.

The Guidelines

The relevant table is Table 6-3 of Chapter 6 of AMA 5 at page 121. The table provides for a range between 0% - 9% WPI where there are:
“Symptoms and (modified by SIRA guidelines #4) signs of upper digestive track disease, or anatomic loss or alteration
and
continuous treatment not required
and
maintains weight at desired level
or
no sequelae after surgical procedures.”
The 9% assessment has not been challenged, and was open to the MA. The error alleged was that insufficient attention had been paid to evidence concerning Mr Meremere’s weight. In her reasons for the Certificate of Determination of Arbitrator Rimmer dated 26 November 2019, she found:
“78…The medical evidence establishes that Mr Meremere was obese before the injury but his BMI has increased since the injury so that he is now classified as morbidly obese. Morbid obesity is defined as a state of being overweight such that the obesity prevents normal activity or bodily function and will likely cause a serious or life-threatening disorder.”
The evidence establishes that Mr Meremere experienced a gradual increase in his weight over the years. Arbitrator Rimmer accepted that at 20-years-old, he weighed 82kg, at 30 years he weighed 90kg and that his weight prior to the injury varied between 105 and 107kg, but weighed 141.9kg by July 2019. She said at [76]:
“….It appears that Mr Meremere gained 8 kg in the decade after he turned 20, which is less than 1 kg per annum. Mr Meremere gained a further 15-17 kgs in the period between when he turned 30 and injury on 12 January 2018, that being approximately a 13-year period, which would average about 1.23kg per annum. Dr Greenberg on 16 July 2019 calculated a weight gain post injury of 34.5 kg. Such a significant gain in weight over about a period of 18 months was quite different to the pattern of weight gain pre-injury.”

DISCERNMENT

The appellant’s submissions we found to be somewhat discursive, but his point appeared to be that the MA had not considered the evidence before him with sufficient particularity. Doing the best we can, the evidence to which Mr Meremere referred was firstly concerned with the fact that he had experienced a drastic increase in his weight following the injury, which had occurred because his movements were restricted by his ankle injury.
The evidence from Mr Meremere’s statement, and the contents of the letter he wrote to Dr Greenberg, which we have referred to whilst considering the appellant’s submissions, were not referred to by the MA in terms. The MA noted, as we have indicated, that “in years gone past”, Mr Meremere had been an exceptional table tennis player, and had played rugby.
The evidence which the MA had not taken into account, we apprehended the appellant to argue, consisted of the contents of Mr Meremere’s letter to Dr Greenberg, and perhaps Mr Meremere’s statement. The letter quoted by Dr Greenberg in his report of 16 July 2019 stated, relevantly:[19]
“Sports and activities that I was doing before my injury occurred was playing mixed competition of touch football, table tennis, rugby league , rugby union, indoor netball ...
I was very active before I got injured. I was very helpful around the house. As well as playing sports I used to help with cooking, cleaning and everyday household chores….
Reason being is that I am lazy and can't do any things I used to because of the injured ankle….”
[19] Appeal papers page 101.
In his statement of 16 September 2019, Mr Meremere said:[20]
“I have always been a solid build and I am 172 centimetres tall. Prior to my work injury, my weight fluctuated slightly, between no more than 105-108 kilograms.
13 . Since the injury, I now weigh around 35 kilograms more than I did before my injury.
14. I used to enjoy playing sports and this included table tennis, touch football, rugby league, rugby union and indoor netball. I always enjoyed playing all sorts of sports and my partner and I would enjoy these activities together and with friends.”
[20] Appeal papers page 49.
We do not view this evidence as indicating that the MA has made any factual error. The tenor of Mr Meremere’s submission was that, had the MA been aware of this detail, he would have estimated a lesser contribution of the appellant’s pre-existing obesity to the WPI caused by the injury.
However, the relevant injury was to the digestive system, caused by the significant increase in weight Mr Meremere experienced following the injury to his ankle.
We adopt Arbitrator Rimmer’s finding that the effect of the injury was to convert Mr Meremere’s obesity to a morbid obesity, which then required surgical treatment. We also adopt Arbitrator Rimmer’s finding that his pattern of weight gain following the ankle injury was quite different to that of his past. We bear in mind that the respondent has referred to evidence that has cast some doubt as to the extent of the weight gain, but the pattern nonetheless is clear, as the respondent conceded in referring to the July 2019 weight of 141.9kg weight.
We are, however, unable to ascribe to the evidence relied on by the appellant in this regard any relevance. Firstly, we note that the history taken by the MA acknowledged that the table tennis experiences were “in years gone past.” Mr Meremere stated that he “used to” enjoy playing sports, although it was not clear whether his use of the past tense was a referral to the time before his ankle injury. In any event there was a degree of uncertainty as to his meaning.
Secondly, the reason Mr Meremere’s pre-existing condition developed into its morbid state was not relevant. The injury to his ankle had the unfortunate effect of aggravating Mr Meremere’s pre-existing obesity because, it was argued, his movements were thereby restricted. The purpose of s 323 is to enquire whether the pre-existing condition contributed to the impairment caused by the subject injury. Regardless of the effect of the ankle injury, the subject injury to the digestive system would not have been so significant had it not been contributed to by Mr Meremere’s already obese state.
As we understood the appellant’s submissions, his second point was that Dr Berry’s criticism of a 100% deduction pursuant to s 323 made by Dr Edwards for the respondent was an error that could also be applied to the 50% deduction made by the MA. Dr Berry said:[21]
“You will note that I assessed the patient as Class 1, allowing the maximum of 9% Whole Person Impairment taking into account that Mr Meremere has had anatomic alteration by way of a sleeve gastrectomy. Dr Edwards has …assessed a pre-existing condition of 100% deduction. However, while Mr Meremere may have been obese, he had no anatomic alteration prior to the surgery, therefore the deduction does not make sense.”
[21] Appeal papers page 85.
With respect, we do not agree that whether there was an anatomic alteration prior to the bariatric surgery is necessarily a relevant issue. The question, as we have discussed above, is whether Mr Meremere’s pre-existing condition contributed to the impairment which he is now suffering, and to what degree.
Thirdly, the appellant made some general submissions that in focussing on Mr Meremere’s pre-existing obesity, the MA had fallen into error. The submission that the MA did not consider the totality of the evidence as he was required to do, we had difficulty understanding, with respect, in context.
The appellant’s pre-existing condition was known to Mr Meremere and there was no suggestion that it had been an asymptomatic condition of which he had been unaware. It is nothing to the point to argue that the ankle injury was the cause of the injury to the digestive system because Mr Meremere became restricted in his movement. That was a predictable outcome, given the existence of the pre-existing condition. Thus the first two steps identified in Cole have been identified:
· the level of impairment caused by the injury to the digestive system has been identified, and
· a proportion of that impairment was found to be due to the pre-existing condition of obesity.
It is not to the point to posit, as the appellant has, that but for the ankle injury, the impairment would not have been as great, but rather the question in considering the extent of the above proportion – the third step in Cole – is whether the impairment would not have been so great but for the pre-existing condition. Clearly in the context of the nature of the injury and the pre-existing condition, the extent of the contribution must be significant. The degree of contribution found was open to the MA.
For these reasons, the Appeal Panel has determined that the MAC issued on 15 August 2022 should be confirmed.

[2022] NSWPICMP 506

9 December 2022