Muscat v Tuscany Foods Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Muscat v Tuscany Foods Pty Ltd [2022] NSWPICMP 498
APPELLANT:	Charles Muscat
RESPONDENT:	Tuscany Foods Pty Ltd
Appeal Panel
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	John Garvey
MEDICAL ASSESSOR:	Mark Burns
DATE OF DECISION:	6 December 2022
CATCHWORDS:	wORKERS cOMPENSATION - Appeal from 0% whole person impairment finding for hernia condition; additional evidence tendered said to show deterioration due to hospitalisation six days prior to the Medical Assessor assessment, and a further hospitalisation four days later in which a spigelian hernia was detected; additional evidence consisted of a further statement from the appellant, the discharge summary from the Hawkesbury Hospital dated 6 June 2022 and 20 June 2022; Held – appellant’s statement rejected as being unreliable; Lukacevic v Coates Hire Operations Pty Limited considered and applied; the two discharge summaries admitted; Medical Assessment Certificate confirmed as hernias the subject of the referral were caused by a straining incident in 2006; the spigelian hernia discovered on 20 June 2022 was unrelated and diagnosed after an emergency admission for sudden left flank pain; the admission on 7 June 2022 was unrelated to any hernia occurrence or recurrence.

BACKGROUND TO THE APPLICATION TO APPEAL

On 19 July 2022 Charles Muscat, the appellant lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Cyril Wong, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 21 June 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):
· deterioration of the worker’s condition that results in an increase in the degree of permanent impairment, and
· availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against).
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 7 June 2022 a delegate of the President referred this matter for an assessment of WPI caused by injury to the “Digestive System (hernia), Thoracic Spine, as duly amended by agreement of the parties,” which injury occurred on 11 October 2006.
Mr Muscat was employed as a forklift driver when he suffered an injury to his thoracic spine on 11 October 2006, which was further aggravated during his work. This appeal is concerned with the assessment of Mr Muscat’s concurrent hernia condition, which was referred to the MA after it was earlier certified as not having reached maximum medical improvement by an order of the Workers Compensation Commission on 7 August 2019. The order also stated that the proceedings may be restored when the applicant had attained maximum medical improvement.
Around December 2006 Mr Muscat noticed a lump in his umbilicus, which was diagnosed as a hernia. (This history contrasts with that given in the earlier MAC, that Mr Muscat noted a swelling in the mid abdomen a few days after the 11 October 2006 thoracic spinal injury. Nothing turns on that inconsistency in the circumstances of this case.) Surgery was not performed until 27 October 2010 because Mr Muscat suffered a weight problem. The hernia repair was performed in Windsor Hospital by Dr Thomas Aczel. Dr Aczel noted that he had in fact performed similar surgery in 2005, being a laparoscopic repair of an incisional hernia in Mr Muscat’s right lower abdomen, although Mr Muscat had no recollection of it.
A large recurrent hernia occurred two months following the repair of 27 October 2010, but, again on account of Mr Muscat’s weight problem, he did not come to further repair surgery until 27 August 2020 after he had developed bowel obstruction, and was operated on as an emergency. The MA recorded that there had been no further hernia recurrence when he assessed Mr Muscat on 16 June 2022. No further treatment was planned.
Mr Muscat suffered co-morbid problems of chronic obstructive lung disease and ischaemic heart disease, for which he has had four stentings. His weight difficulties persist and he has been receiving counselling for emotional problems.
The MA assessed 7% WPI, being 7% for the thoracic and 0% for the hernia.

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 member of the Appeal Panel and as we have rejected the appellant’s submissions, no re-examination is required.

Fresh evidence

Section 328(3) of the 1998 Act provides:
“(3) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that 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)    Hawkesbury District Health Service Discharge Summary dated 7 June 2022;
(b)    Hawkesbury District Health Service Discharge Summary dated 22 June 2022, and
(c)    statement of the appellant dated 15 July 2022.

Submissions as to admissibility
Appellant

The appellant submitted that the evidence is relevant to the question of whether his compensable condition has deteriorated, and has accordingly not reached maximum medical improvement. The appellant submitted that the evidence was not available and could not reasonably have been obtained because, as we understood the evidence, the development of the deterioration of his condition occurred at a time when he was unaware of the significance of his admission to Hawkesbury Hospital on 7 June 2022 when the assessment with the MA occurred on 16 June 2022. It was not until he was admitted again on 20 June 2022 as an emergency because his bowel became obstructed that he became aware that he was again suffering from a hernia.
The appellant referred us to Mr Muscat’s explanation as to why he did not advise the MA of the 7 June 2022 admission to Hawkesbury Hospital, but we have some reservations in that regard, as will be seen.
It was submitted that the additional evidence regarding the admission to Hawkesbury Hospital on 20 June 2022 was admissible as it occurred after the assessment with the MA, and accordingly was not available to the party before that assessment and could not reasonably have been obtained before it.
The same argument applied to Mr Muscat’s statement, the appellant said.

Tuscany Foods Pty Ltd (the respondent)

The respondent objected to the admission of this evidence. It conceded that the Discharge Summary of 22 June 2022 could not have been obtained prior to the MA assessment for obvious reasons, and made the same concession regarding the appellant’s statement.
The respondent submitted however that the Discharge Summary of 7 June 2022 had been available prior to the 16 June 2022 assessment, and moreover that it could reasonably have been obtained by the appellant before that assessment. No explanation, it submitted, had been advanced by the appellant as to why it had not.
The respondent however objected to all the additional evidence, citing Ross v Zurich Workers Compensation Insurance[1] in support of a submission that the appellant was obliged to establish that the additional evidence was of such probative value that it might change the outcome of the case.
[1] [2002] NSWWCCPD 7.
The appellant was unable to do so, the respondent argued, as there was no recommendation for surgery made at the 7 June 2022 admission to Hawkesbury Hospital.
The respondent submitted further that the applicant’s additional statement had insufficient probative value. We were referred to a Medical Appeal Panel decision of Halliday v G4S Custodial Services Pty Ltd[2] in that regard.
[2] Unreported M1-1452/19 (20 August 2019).
These submissions will be incorporated into our discussion, below.

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 appeal was based on the allegation that Mr Muscat had suffered a deterioration of his hernia condition since the assessment by the MA. To establish this ground an application pursuant to s 328(3) was made to admit further evidence.
The effect of this evidence, it was submitted, should cause the certificate to be revoked and a finding that maximum medical improvement had not occurred be substituted.

The MAC

We have noted in the history taken by the MA that there had been no further recurrence since the emergency surgery on 27 August 2020. In noting Mr Muscat’s present systems, the MA said “there was mild pain at the hernia site”[3].
[3] Appeal papers page 49.
On physical examination the MA said:[4]
“There was no hernia recurrence. Mr Muscat had two operations but only one recurrence. SIRA4 S16.6 requires more than 1 work related hernia recurrence with limitations of ADL to be assessed as Class 1. There was no induration at the abdominal wall. Thus, there were no rateable clinical findings. The hernia condition is rated as 0% WPI.”
[4] Appeal papers page 50.
The MA had before him investigations in the form of ultrasounds of the abdominal wall taken on 16 May 2007, 24 January 2008 and 20 June 2014.
In his summary at [7] of the MAC the MA noted the work related umbilical hernia requiring two surgical procedures. He said:
“[Mr Muscat] has a well repaired umbilical hernia.”
The MA found no inconsistency in the examination.
In giving his reasons for assessment at [10] the MA said:
“The digestive system has impairment arising from a work related umbilical hernia. The hernia was repaired but recurred requiring a second operation. The hernia condition has no rateable clinical finding and it is rated as 0% WPI.”
The MA considered other opinions before him.[5] He noted the report of Dr Peter Conrad noted 24 November 2014 when the hernia was rated as class 2 at 15% WPI on the basis of a palpable defect and persistent protrusion at site of defect.
[5] Appeal papers page 52.
The MA also noted a MAC dated 17 April 2019 by Dr Richard Crane that found that maximum medical improvement had not been achieved on the basis that there was an expected hernia repair in the future. He found an abdominal hernia mass of 29cm x 15cm.
On 27 February 2015 Dr Sikander Khan rated 15% WPI for the hernia and on 7 May 2021 Dr Phil Truskett rated 0% WPI of the hernia.

SUBMISSIONS

The appellant

The appellant summed up the basis of his appeal by stating the facts which the additional evidence was said to show.
It was alleged that on 6 June 2022, that is to say, nine days before the assessment with the MA, Mr Muscat attended at Hawkesbury Hospital complaining of lower abdominal pain. The notes from Hawkesbury Hospital, which were part of the tender of additional evidence, revealed tenderness to the lower abdomen and “diverticulitis?”[6] The notes also recorded that “outside food” had been consumed, and that the appellant’s mother had also been admitted, suffering from diarrhoea.
[6] Appeal papers page 22.
The treating doctor at the hospital advised, inter alia, that there was a fluid filled proximal small bowel loop with wall thickening, which was suggestive of an underlying inflammation, possibly related to gastroenteritis.
The doctor also advised that Mr Muscat had a partial faecal loaded colon and other findings. He was advised to follow up with his general practitioner (GP). There was no mention of any hernia.
On 20 June 2022 the appellant presented to Hawkesbury Hospital with a proximal small bowel obstruction secondary to a left sided Spigelian hernia.
Mr Muscat submitted that the absence of the history of his attendance at Hawkesbury Hospital on 6 June 2022 was a matter that, had the MA been aware, might have made him take a different view regarding maximum medical improvement of the hernia. It was submitted that the recommendation on 20 June 2022 that there be further hernia surgery was supportive of the submission that there had been a deterioration.
The fresh evidence, it was submitted, demonstrated that there had been a deterioration within the definition of s 327(3) (a), and could well result in an increase in his level of impairment.
As to the admission of the additional information we were referred to Petrovic v BC Serve No 14 Ply Limited & Ors[7] and in particular Hoeben J’s interpretation that “additional relevant information” in the context of s 327(3)(b) was to be information of a medical kind which was directly related to the question required to be decided by the MA.
[7] [2007] NSWSC1156.
It was submitted that the evidence that Mr Muscat sought to rely on satisfied that definition.
Also tendered was a statement from the appellant which, it was argued, explained why the MA was not advised of that attendance. It was also said to be relevant because although Mr Muscat had initially refused the surgery offered on 22 June 2022, subsequent advice from a GP was that he should go ahead with the surgery and he had been referred to a specialist for that purpose.
It was submitted that the recurrence of the hernia on 22 June 2022 was the second hernia recurrence since his initial surgery in October 2010.
We were referred to chapter 16.6 of the Guides, which would have given the appellant an entitlement to be assessed pursuant to the relevant Table in AMA 5 as ‘herniation class 1’.[8]
[8] AMA 5 page 136, Table 6-9.

The respondent

The respondent submitted that the appellant worker had not established that the hernia diagnosed by the additional evidence related to the accepted work injury of 11 October 2006 that was assessed by the MA.
The respondent submitted that the relevant hernia was an umbilical hernia which was repaired in 2010 and recurred not long thereafter leading to emergency repair in 2020 as the facts above reveal.
It was submitted that there was no evidence that the Spigelian hernia was causally related to the accepted umbilical hernia, and no claim for compensation in respect to the Spigelian hernia had been made.
The Spigelian hernia did not occur in the same place at the same site in conformance with chapter 16.6 of the Guides and accordingly would not have any relevance to the assessment of impairment by the MA from the subject hernia injury, it was argued.
The respondent submitted that there were no grounds on which to find that there had not been maximum medical improvement.

DISCUSSION

Section 327(3) of the 1998 Act provides:
“(3) The grounds for appeal under this section are any of the following grounds--
(a) deterioration of the worker's condition that results in an increase in the degree of permanent impairment,
(b) availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against),
(c)the assessment was made on the basis of incorrect criteria,
(d) the medical assessment certificate contains a demonstrable error.”
It can be seen that Mr Muscat does not allege that there was any application of incorrect criteria or demonstrable error made by the MA in his MAC. The grounds of appeal were pursuant to those provided by s 327(3)(a) and (b).
We have above reproduced s 328(3) of the 1998 Act, which applied when the additional evidence was being considered by the Medical Appeal Panel itself.
It follows that for Mr Muscat’s appeal to be successful, the additional evidence he relied upon needed firstly to be admissible. We note the respondent’s reliance on Ross for the proposition that in order for additional evidence to be admissible, it had to be of such probative value that it might change the outcome of the case. Ross was an early decision from the Workers Compensation Commission, which was decided by Deputy President Fleming (as she then was), was dealing with s 352 of the 1998 Act, which related to appeals from arbitrators to the Presidential level.
In Lukacevic v Coates Hire Operations Pty Limited[9] the relevant legislation, s 328(3) of the 1998 Act, was considered by the Court of Appeal. At issue was the admissibility of a statement made by the worker following his assessment with the Approved Medical Specialist (AMS) (the forerunner of the MA within the Personal Injury Commission).
[9] [2011] NSWCA 112.
At [78] Hodgson JA, with whom Handley AJA agreed (Giles JA dissenting) stated:
“A dispute by the worker as to the history set out in the certificate, or the observations made by the AMS, can readily be raised; and it could be raised honestly or dishonestly, on strong or flimsy grounds. Having regard to the matters I have set out, in my opinion it would be reasonable for an AP not to admit evidence raising such a dispute unless that evidence had substantial prima facie probative value, in terms of its particularity, plausibility and/or independent support. Otherwise, simply by raising such a dispute, going to a matter relevant to the correctness of the certificate, a worker could put the AP in a position where it had to have a further medical examination conducted by one of its members. I do not think this would be in accord with the policy of the WIM Act.”
This dicta was broadly paraphrased by the Medical Appeal Panel in Halliday, in the passage relied on by the respondent, namely, that the admission into evidence of statements which essentially cavil with the opinion of an assessor ought not to be admitted.

Mr Muscat’s statement

Mr Muscat made a statement apparently dated 15 July 2022 (the actual date on the document was not legible)[10].
[10] Appeal papers page 37.

Mr Muscat described his admission to Hawkesbury Hospital on 6 June 2022. He said he then attended the assessment with the MA on 16 June 2022 during which the MA:
“…asked me questions regarding my work injury and my medical treatment and I answered those as best as I could”.
Mr Muscat said that he was then asked about his day to day activities and that:
“…I answered them.”
Mr Muscat then said:
“[6]. During the course of the appointment I occasionally tried to volunteer information but he would quicky shut me down and simply asked me to answer the question. He repeatedly said to me words to the effect:
‘Just be quiet and answer the questions yes or no’.”
Mr Muscat said that consequently he “did not have an opportunity to advise him that I had been to hospital about 10 days before the examination.”
Mr Muscat then described his admission to hospital on 20 June 2022 and that a hernia was there discovered. He explained that he declined the emergency surgery because he was anxious and his twisted bowel had untwisted by the time he had his second scan. He subsequently saw his GP and is due to have surgery at some undefined time.
We have some reservations regarding the allegations made against the MA. The appellant’s statement confirmed that the MA asked Mr Muscat a number of questions regarding the work injury and the medical treatment, to which Mr Muscat said he answered them as best as he could. He said also he was asked questions about his day-to-day activities and he answered those questions as well as he could.
It is stretching credulity to accept that Mr Muscat “occasionally tried” to volunteer information, when the tenor of his statement up to that point was that he had been doing precisely that. It is also implausible that, having been seeking information by asking questions, as was stated by the appellant, the MA should suddenly tell the appellant to be quiet and answer his questions “yes or no.” Such an exchange we find to be highly unlikely and contrary to the expectation that an MA in performing his task would ask relevant questions regarding the claimant’s condition.[11]
[11] See Bojko v ICM Property Service Pty Ltd [2009] NSWCA 175 per Handley AJA at [36] regarding the presumption of regularity which attends administrative action.
In any event, the explanation advanced by Mr Muscat for his failure to advise the MA of the earlier admission to Hawkesbury Hospital on 6 June 2022 was of little relevance, as the documents spoke for themselves.
The basis of this appeal, as we have indicated, is not concerned with the actual assessment by the MA - it is rather based on the proposition that a similar medical condition later arose, of which the MA had no notice at the time of his assessment. In that regard the evidence of both admissions to Hawkesbury Hospital and indeed Mr Muscat’s narrative as to what happened to him on 20 June 2022 is admissible.
We reject the respondent’s submission that the discharge summary of 7 June 2022 could reasonably have been obtained prior to the assessment. The content of the documents that were part of that discharge summary we have mentioned above whilst considering the appellant’s submissions.
The discharge summary also contained an opinion from Dr Vincent Lai concerning a CT taken of the abdomen and pelvis with contrast. It was established in the report of the CT abdomen and pelvis with contrast that:[12]
“Stomach is of normal appearance. Proximal small bowel loop is prominent and mildly fluid filled with minimal to mild degree of wall thickening, suggestive of underlying inflammation which can be related to gastroenteritis or low-grade enteritis. Terminal ileum is normal. Appendix is not visualised. Colon is partially faecal loaded, scattered small colonic diverticula are found along ascending colon, descending colon and sigmoid colon, more prominent along sigmoid colon. No complicated acute diverticulitis is demonstrated. No pneumoperitoneum is identified.
Aorta is patent and is of normal calibre. Small para-aortic, aortocaval and small to prominent pelvic lymph nodes are observed, clinical significance of which is uncertain. No ascites is observed. Small calcified bilateral pelvic phleboliths are noted, Prior repair of right inguinal hernia is observed with presence of mesh graft soft tissue thickening is seen at the anterior abdominal wall, can be attributed to postoperative changes. Mild fat is seen along the bilateral inguinal canals.
Both lung bases are largely clear. Mild degenerative changes are seen along lumbar spine. Schmorl’s nodes are seen along lower thoracic spine.”
[12] Appeal papers 29-30.
The opinion of Dr Lai was expressed as follows:
“OPINION:
1.     Mildly fluid filled proximal small bowel loop with minimal to mild degree of wall thickening, suggestive of underlying inflammation which can be related to gastroenteritis or low grade enteritis. No Intestinal obstruction is found. No pneumoperitoneum or local intra-abdominal fluid collection is demonstrated.
2.      Partially faecal loaded colon and scattered small uncomplicated colonic diverticula, more prominent along sigmoid colon.
3.      Mild fatty liver and focal fully sparing.
4.      Mild fatty pancreas.
5.      Small left renal cyst (6 mm). No discrete calcified urinary calculus nor hydronephrosis/hydroureter, is detected.
6.      Small para-aortic and small to prominent pelvic lymph nodes of uncertain clinical significance”.
It can be noted that there was no suggestion that there had been any hernia recurrence at that time, the prior repair of the right inguinal hernia having been noted, together with subsequent post operative changes. Indeed, as indicated, the cause for the admission on 6 June 2022 may well have been the consumption of “outside food,” as Mr Muscat’s mother was admitted at the same time with diarrhoea.
Any possible significance to that Hospital admission did not become apparent until Mr Muscat’s second admission on 20 June 2022 - four days following the assessment with the MA. On that occasion, a left sided Spigelian hernia was identified on the CT at the pelvis scan.[13] He was diagnosed with a proximal small bowel obstruction secondary to the Spigelian hernia.
[13] Appeal papers page 31.

Discernment

The MAC must be confirmed. The injury of 11 October 2006 was the subject of an earlier MAC on 17 April 2019 in which the AMS assessed the hernia which followed the straining incident on 11 October 2006. The history taken by the AMS was that a few days later Mr Muscat noted swelling in his abdomen and investigations showed a “para-umbilical hernia”. On examination the hernia was situated at the supra-umbilical position. The AMS diagnosed a para-umbilical hernia which was repaired in 2005 and then was repaired again on 27 October 2010 after which time it had recurred further.
A search of the evidence before us showed references to various types of hernias suffered by Mr Muscat – umbilical, paraumbilical, periumbilical, epigastric, supraumbilical and incisional to name a few. However there was no prior left Spigelian hernia. The discharge summary of the Hawkesbury Hospital on 22 June 2022 showed that Mr Muscat had experienced a sudden onset of left flank pain prior to admission. This proved to be caused by a dilation of the third part of the duodenum measuring 35mm in width with a length of dilated proximal small bowel up to an end abdominal hernia which was lateral to the left rectus muscle consistent with a Spigelian hernia.[14]
[14] Appeal papers page 34.
This injury is not related to the injury of 11 October 2006 and accordingly it cannot be said that it is a deterioration of the para-umbilical hernia which had been treated. The site of the rare Spigelian hernia is anatomically separate to the prior paraumbilical hernia (centrally located), it is a defect in the lower quadrant of the abdomen at the junction between the Rectus abdominis (linear semilunaris) and Transversus abdominus (arcuate line) and the circumstances under which it occurred have no temporal or anatomical connection with an injury that occurred some sixteen years ago.
For these reasons, the Appeal Panel has determined that the MAC issued on 21 June 2022. should be confirmed.

[2022] NSWPICMP 498

6 December 2022