Qeshta (previously Gishta) v M & Y Formwork Pty Ltd (No 1 and 2)
[2024] NSWPICMP 255
•1 May 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Qeshta (previously Gishta) v M & Y Formwork Pty Ltd (No 1 and 2) [2024] NSWPICMP 255 |
| APPELLANT: | Yousef S A Qeshta (previously Gishta) |
| RESPONDENT: | M & Y Formwork Pty Ltd |
| APPELLANT: | Yousef S A Qeshta (previously Gishta) |
| RESPONDENT: | M & Y Formwork Pty Ltd |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Mark Burns |
| MEDICAL ASSESSOR: | Neil Berry |
| DATE OF DECISION: | 1 May 2024 |
CATCHWORDS: | WORKERS COMPENSATION - Appeal against findings from lead and non-lead Assessors resulting in total 11% whole person impairment; whether either Medical Assessor’s (MA) obliged to advise claimant of his conclusions about claimant’s presentation; whether rules of procedural fairness relevant to an MA’s task; whether failure by MA to consider whether pre-existing condition was caused by the workplace injury an error; whether failure by MA to consider conditions within the Guides that had no relevance an error; Held – thorough and conscientious approach by appellant limited by lack of familiarity with the jurisdiction; procedural fairness not relevant to MA in forming opinion as to presentation; Wingfoot Australia Partners Pty Ltd v Kocak considered and applied; appellant misunderstood evidence concerning pre-existing conditions; no basis for claiming error for a MA not considering a guideline that had no relevance to the facts; Medical Assessment Certificates confirmed. |
ACKGROUND TO THE APPLICATION TO APPEAL
On 16 October 2023 Yousef S A Qeshta (previously Gishta), the appellant, lodged an Application to Appeal Against the Decision of Lead Assessor Dr Timothy Anderson, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
18 September 2023 in matter M2 -W3810-23.In the same Appeal Application the appellant appealed against the MAC also issued on 18 September 2023, by Medical Assessor Christopher Grainge, which is matter M3-W3810/23.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· both assessments were made on the basis of incorrect criteria, and
· both MACs contain a demonstrable error.
The delegate is satisfied that, on the face of the applications, 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 the appeal on which the appeals are 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, 4th ed
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 17 July 2020 Consent Orders were entered before Member Michael Wright and on 18 July 2023 this matter was remitted to the President. The President’s delegate referred the following claims to Medical Assessor Anderson as Lead Assessor for an assessment of WPI:
(a) right lower extremity (knee);
(b) lumbar spine;
(c) cervical spine, and
(d) digestive system – gastrointestinal
– all arising from an injury on 26 July 2016.
Also, on 17 July 2020 a referral was addressed to Medical Assessor Christopher Grainge as Non lead Assessor for assessment of the respiratory system – sleep apnoea.
On 26 July 2016 Mr Qeshta fell from the scaffolding he was working on a distance that was between 1.5m and 3m. He came down on his left flank on a metal structure and was taken to John Hunter Hospital where it was identified that he had a laceration to his spleen and fractures to the left 7th, 8th and 9th ribs.
There was an urgent embolisation of the spleen and it was later identified that he was suffering a haemo-pneumothorax on the left side. He was admitted to Liverpool Hospital where a chest drain was inserted. Subsequent clinical management has been conservative.
Investigation of Mr Qeshta’s lower back identified a pars inter-articularis defect at the L5/S1 articulation. A small spondylolisthesis was also found. He was advised to have surgical stabilisation and fusion but was not keen on the idea and has declined that treatment.
Mr Qeshta’s right knee was investigated and a tear of the medial meniscus was identified. Arthroscopic surgery was recommended but declined.
He has continued with conservative clinical management with a lot of emphasis on the use of analgesic medication which is essentially opiate based. He also has psychiatric assistance and support.
The Lead Assessor assessed 5% WPI in respect of the injury to the cervical spine, and 7% WPI in relation to the lumbar spine from which that assessment he deducted 1/10th giving a combined table value of 11%. He found no impairment had been caused to the digestive system. The Non lead Assessor similarly found that no impairment had been caused to the respiratory system.
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 it was not necessary for the worker to undergo a further medical examination. None was sought by the appellant and we could find no reason to justify a re-examination in view of the fact that no error was found in either MAC.
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.
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 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.
Matter W2 – 3810/23
The Lead Assessor MAC
The Medical Assessor described the following symptoms on presentation:[1]
“Pain in the neck, radiating to each shoulder. The left side is more severe than the right.
He has lower back pain which radiates down both legs. The right side is more severely affected than the left. With this, he has pain and associated stiffness.
He described abdominal pain in the mid to upper left abdomen. He described that eating salads do not cause any particular problem but other food can result in constipation.”
[1] Appeal papers page 59.
The Medical Assessor noted Mr Qeshta’s prior history:[2]
“Mr Qeshta originally comes from Palestine. He made his way to Indonesia and from there, as a refugee, to Australia in 2013. Apparently he has a wife and three small children who still remain in Palestine. In the file it is described that he did actually get back to see them some years ago, before returning to Australia and as a result of this visit, the third child was conceived.”
[2] Appeal papers pages 59-60.
On examination the Medical Assessor noted Mr Qeshta to be of tall stature at 1.88m. The Medical Assessor said:[3]
“He held himself with a stooped posture, which would increase the static loading of the spinal column. Physically he was extraordinarily deconditioned and gave the impression of being in excessive pain. Unfortunately, throughout this assessment there were extensive red flags. Every effort was made to place Mr Qeshta at his ease.”
[3] Appeal papers page 60.
The Medical Assessor made the following comments in relation to his examination:[4]
“Cervical Spine. Pain was described throughout the neck and in the para-cervical musculature on each side. There was associated tenderness throughout. Movement of the head and neck was grossly restricted in all directions.
Upper Limbs. Whilst there was reduced movement of the shoulders symmetrically, particularly in elevation, the elbows, wrists, hands and all digits presented normally. There were no neurological features.
Back. Pain was again located throughout the lumbar spine. He was extraordinarily stiff. There was an associated claim of tenderness throughout.
On forward flexion he could only reach his mid-thighs with a McRae-Wright movement of 2cm. This is very stiff. 5cm is the lower limit of normal. Extension was minimal. Lateral flexion and rotation to each side were throughout half of the normal range.
Lower Limbs. He walked with an almost staggering gait and was keen to hold onto objects of furniture. He was able to stand on his heels and toes but could not squat. The legs were equivalent in length and in circumference at thigh and calf. No significant features were identified with the hips or the ankles. At the knees I was unable to demonstrate any significant dysfunction of the right knee. He had full extension of both knees with flexion through to 120° bilaterally.
Sensation was difficult to demonstrate, although I was unable to identify any dermatomal or peripheral neurological features. Reflexes were present, equivalent and easy to demonstrate at the knees (L4) and at the ankles (S1). Power of the extensor hallucis longus (L5) was equivalent.
He was able to sit on the edge of the couch and could fully extend each knee, although described that he felt difficulty in achieving this.
Abdomen. There was pain in the left mid and upper abdomen. He described tenderness, although this examination was conducted extremely gently. No masses were identified. Bowel sounds were completely normal.”
[4] Appeal papers pages 60-61.
The Medical Assessor had access to a number of investigations at [7] of his MAC, which included an MRI scan of the lumbar spine dated 4 September 2017 and which showed:
“Pars inter-articularis defect at L5/S1. Small associated spondylolisthesis. Degenerative changes at L4/5.”
The investigations also showed an MRI dated 17 July 2018 of a medial meniscus tear in the right knee. They also showed endoscopy and gastroscopy results of 20 October 2020 with mild antral gastritis and mild sigmoid inflammation respectively.
In his summary of injuries and diagnoses the Medical Assessor said:[5]
“Mr Qeshta gives a history of experiencing quite a severe injury, particularly of his left flank in late July 2016. This resulted in a laceration of the spleen and associated fractures of ribs on the left side. It is also claimed that he injured his neck and lower back in the same event, which is quite plausible.
His clinical management has included embolisation of the spleen, which gave him a fairly good result. There was also a haemo-pneumothorax, which was managed by chest drainage.
Recommendations for a fusion at L5/S1 and also for an arthroscopy of his right knee were made but Mr Qeshta has declined such invasive procedures. His further clinical management has remained conservative.
No significant features associated with his gastro-intestinal system have been identified.”
[5] Appeal papers page 60.
In commenting on Mr Qeshta’s consistency on presentation the Medical Assessor said:[6]
“As already advised, unfortunately Mr Qeshta demonstrated excessive red flags throughout his presentation. This was an extremely difficult assessment to conduct as a result.”
[6] Appeal papers page 61.
In explaining his calculations at paragraph 11(b) the Medical Assessor said:[7]
“Cervical Spine. Mr Qeshta has continuing pain and restriction of movement in the cervical spine, although there is no radiculopathy. This places him into DRE Cervical Category II in Table 15-05 on Page 392 of AMA 5. This provides a whole person impairment ranging between 5% and 8%, depending on his activities of daily living. His impairment remains at 5% since the activities of daily living will be attributed to the lumbar spine and can only be attributed to one spinal area.
Lumbar Spine. This is addressed in AMA 5 Page 384, Table 15-03. Mr Qeshta continues to have dysfunction of his lumbar spine, although there is no radiculopathy. As a result, he is in DRE Lumbar Category II, which provides a whole person impairment ranging between 5% and 8%, depending on his activities of daily living. For this he would attract a further 2%, giving 7%.
Right Lower Extremity. No significant features were identified with the right lower extremity which would result in a numerical whole person impairment.
Digestive System. No significant symptoms were identified with the upper gastrointestinal system. Mr Qeshta prefers to eat salads and under these circumstances seems to be fairly well. The endoscopy report of 20/10/20 advises that there was mild antral gastritis. This is addressed in AMA 5 Page 121, Table 6-3. There are no significant symptoms or signs of upper digestive tract disease, hence the whole person impairment is 0%.
The lower gastro-intestinal system is addressed in AMA 5 Page 128, Table 6-4. No specific features are identified. In the SIRA Guidelines Page 78, Chapter 16, constipation is identified as a symptom, not a sign and carries a whole person impairment of 0%. No other lower gastro-intestinal features were identified.”
[7] Appeal papers page 62 and following.
When commenting on other expert opinions that were before him the Medical Assessor disagreed with the findings of 0% WPI made by Dr Rimmer. He referred to the reports of orthopaedic surgeons Dr Peter Giblin of 5 January 2018 and Dr James Bodel of
6 September 2021 who made the same assessments as he did. He noted however that neither specialist made any deduction for pre-existing condition.As to the appeal regarding the digestive system, the Medical Assessor said:[8]
“Specialist Gastro-enterologist, Dr Sidarth Sethi in his report of 25/11/18 and Specialist Surgeon, Dr Phil Truskett in his report of 23/12/22 both advise that there is no assessable impairment of the gastro-intestinal system, either upper or lower. I am in agreement with these findings. Specialist Gastro-intestinal Surgeon, Dr Anthony Greenberg in his report of 21/03/22 advises that there is 0% WPI for the upper gastro-intestinal tract (with which I would agree), although applies 3% WPI for the lower gastro-intestinal tract. As already advised, my finding was 0%.”
[8] Appeal papers page 63.
The deduction made by the Medical Assessor was explained at [12] of the MAC. The Medical Assessor said:[9]
“Attention is drawn to the L5/S1 pars inter-articularis defect. It is likely that it was for this reason that the recommendation was made to carry out a spinal fusion. This condition is a pre-existing pars inter-articularis defect and was not caused by this event. Therefore, a one tenth deduction is applied.”
Submissions
The appellant
[9] Appeal papers pages 63-64.
The appellant referred paragraph [12], that we have just reproduced above. He then said “one may care as well to note” that a DRE category II assessment was made. We were directed to the Medical Assessment’s finding that Mr Qeshta was “extraordinary stiff” and his comment that we have also reproduced above, “unfortunately, throughout this assessment there were extensive red flags”.
This latter comment Mr Qeshta described as “prejudicial and meaningless. For the inclusion of this prejudicial statement alone this medical assessment should be sent, as the honourable the President may elect, for reassessment, reconsideration or medical review”.
The appellant returned to [12] of the MAC, submitting that his statement that the pars defect was “likely” the reason for the recommendation of surgery was “quite at odds” and “simply incorrect”. We were referred to a report of Dr Geoffrey Rosenberg, orthopaedic surgeon dated 4 December 2018, who identified, it was submitted, pathology at L4/5 that Dr Rosenberg considered was “the new injury” as the disc was desiccated, had lost a little height and had a large central tear. This pathology, the appellant argued, was at odds with the description by the Medical Assessor of “degenerative changes at L4/5”.
It was “clearly incumbent” for the Medical Assessor to have engaged with Dr Roseberg’s opinion in these circumstances, it was submitted. The Medical Assessor had failed to consider whether the L4/5 pathology had been caused by the injury, and had erred in finding it was pre-existing, as we understood Mr Qeshta. There had at least been a failure to give adequate reasons to explain why a s 323 deduction had been made.
It would appear that the next ground (the appellant did not number his paragraphs) also concerned the deduction made by the Medical Assessor of 1/10th in relation to the lumbar spine assessment.
The appellant submitted that the Medical Assessor had failed to give adequate reasons for stating that the inter-articularis defect was pre-existing. It was alleged that the Medical Assessor was required to consider whether that pathology had been caused by the incident and as such it was an error identified in Wingfoot Australia Partners Pty Ltd v Kocak.[10]
[10] [2013] HCA 43.
It was alleged that the Medical Assessor had issued a “confused” MAC as to the pathologies involved. He had failed “to provide reasons to exclude the pars defect as having been caused by the momentous fall.” His failure to engage with the “annual derangement of L4/5” did ‘not permit confidence that the medical assessment has not excluded the ‘pre-existing’ pars defect or the “degenerative L4/5 pathology without the ambit of the assessment of WPI of the lumbar spine”.
The appellant also submitted, without making any further submissions, that s 323 of the 1998 Act had been “misapplied”.
It was further submitted that the Medical Assessor had “failed to engage at all” with the L4/5 pathology which the appellant described as a “demonstrated annular derangement”.
It was alleged that the reasons by the Medical Assessor did “not permit confidence that the medical assessment” has not excluded pre-existing pars defect or the “degenerative L4/5 pathology” as being “without the ambit of the assessment of WPI of the lumbar spine”. This it was alleged constituted a failure to provide adequate reasons.
The appellant then referred to the record made by the Medical Assessor of the appellant’s present symptoms. It was submitted that the “contents of the last three paragraphs on page 4” appear to “downplay but not exclude definitively radiculopathy attributable to the lumbar injuries.” In the midst of this submission the appellant noted that the Medical Assessor had said “there is no radiculopathy”.
We note that the three paragraphs identified referred to the presentation of the appellant in a manner which was in the view of the examining assessor “in excess of the pathology”. We were referred to Table 15-3 of AMA 5, which lists criteria for rating the severity of lumbar spine injuries.[11] It was argued, quite correctly, that the Medical Assessor had not given reasons for excluding the criteria from a DRE category III rating linked to a posterior element fracture with displacement disrupting the spinal canal. There had been, it was argued, a general failure by the Medical Assessor to consider whether a DRE category III assessment was appropriate, and to explain why it was not.
[11] AMA5 page 384.
It was then submitted that the Medical Assessor had failed to explain why he had only awarded a 2% weighting for “ADL”. His observations within the reasons raised the issue, it was maintained. Mr Qeshta referred us to Chapter 1.9 of the Guides, and submitted “the absence of reason defies reasonable understanding of the process of assessment”.
With reference to the right lower extremity assessment, the appellant submitted that the Medical Assessor’s reasons did “not permit understanding of that examination of right knee was undertaken [sic].” It was submitted that “there is no record of looking for the presence of crepitus or laxity”. The appellant again mentioned the Medical Assessor’s observations about “red flags”.
As to the digestive system, the appellant submitted again that the Medical Assessor referred to “excessive red flags” and his difficulty in conducting the assessment as a result it was submitted that he appeared “not to comprehend the other internal organ injuries occasioned by the serious construction site fall.” It was submitted:
“In the circumstances where there are competing GIT specialist opinions based on disciplined observations, the expertise of the occupational physician appears wrongly fielded lacking, and defeat confidence in the reasons’ assertions of competency in the field.”
The appellant then submitted that procedural fairness has not been shown by the Medical Assessor because his reference to “red flags” meant that his assessment was conducted “disbelievingly”.
It was submitted that the Medical Assessor had not warned “the seriously injured worker” of the “doubt or suspicion” held by the Medical Assessor. Doing so the Medical Assessor had failed to “oblige the law” and offended procedural fairness.
M & Y Formwork Pty Ltd (the respondent)
We were grateful for the respondent’s submissions, and note that, in the main, they accord with our views as to this appeal. We shall accordingly incorporate them into our discussion, as there is no utility in reproducing them twice.
DISCUSSION OF M2-W3810/23
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.”
The appellant’s submission that the Medical Assessor had failed to give adequate reasons to explain a perceived conflict between his opinion and that of Dr Rosenberg as to the pre-existing condition of Mr Qeshta’s lumbar spine, whilst demonstrating a thorough and conscientious consideration of Mr Qeshta’s case, missed the point, with respect.
Indeed Mr Qeshta’s representative has advanced every issue such a review might have revealed. Regrettably, it appears that perhaps the appellant is not as familiar with this jurisdiction as he might be, and there are some preliminary points that need to be discussed.
Firstly, the function of a Medical Assessor was discussed in Western Sydney Local Health District v Chan:[12]
“In Wingfoot Australia Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480, the High Court considered the task of a Medical Panel responsible for determining a medical dispute pursuant to s 68 of the Accident Compensation Act 1985 (Vic). The Medical Panel’s task in that case is analogous to the role of the AMS under the Act, insofar as both are responsible for determining medical disputes by forming medical opinions based on their own inquiries as well as reports provided by both parties to the dispute. The Court (French CJ, Crennan, Bell, Gageler and Keane JJ agreeing) held that –
‘[47] The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions [cf Masters v McCubbery [1995] VICSC 209; [1996] 1 VR 635 at 645]. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.
[48] The reasons that s 68(2) of the [Accident Compensation] Act obliged the Medical Panel to set out in a statement of reasons to accompany the certificate as to its opinion were the reasons which led the Medical Panel to form the opinion that the Medical Panel was required to form for itself on the medical question referred for its opinion. What is to be set out in the statement of reasons is the actual path of reasoning by which the Medical Panel arrived at the opinion the Medical Panel actually formed for itself’.’….”
[12] [2015] NSWSC 1968 at [13] per Adams J.
Thus the reservations the Medical Assessor expressed on many occasions regarding Mr Qeshta’s presentation did not have to be put to him.
This matter was referred to the Medical Assessor for his opinion as to the level of whole person impairment if any, that the appellant had suffered as a result of his injuries. His function is clearly set out in Wingfoot and the High Court did not at any point suggest that a Medical Assessor was obliged to advise a worker that he had some doubts about his/her reliability.
Secondly, it is well recognised that people who come to be assessed can be affected by the importance of the consultation. An injured worker sometimes quite unconscious propensity to exaggerate or indulge in histrionic behaviour whilst undergoing an assessment which might result in financial gain, is one of the clinical issues for the judgement of a Medical Assessor. The Medical Assessor was entitled to record his reservations as to the reliability and consistency in the appellant’s presentation. That was a relevant issue insofar as the application of his clinical judgment reflected on the criteria he was obliged to apply. It would be absurd if a Medical Assessor was required to tell an injured worker that the injured worker’s conduct and statements were not considered credible, or inconsistent, or histrionic or exaggerated, as is not uncommon. What purpose such a requirement would serve was not addressed by the appellant and these submissions illustrate, with respect, the shortcomings of his familiarity with the jurisdiction. Moreover, Chapter 1.36 of the Guides recognises that inconsistent presentation by a worker can sometimes be of such concern that modifications can be made.[13] There is no suggestion that such inconsistency has to be conveyed to the worker:
“Inconsistent presentation
1.36 AMA5 (p 19) states: ‘Consistency tests are designed to ensure reproducibility and greater accuracy. These measurements, such as one that checks the individual’s range of motion are good but imperfect indicators of people’s efforts. The assessor must use their entire range of clinical skill and judgment when assessing whether or not the measurements or test results are plausible and consistent with the impairment being evaluated. If, in spite of an observation or test result, the medical evidence appears insufficient to verify that an impairment of a certain magnitude exists, the assessor may modify the impairment rating accordingly and then describe and explain the reason for the modification in writing.’ This paragraph applies to inconsistent presentation only’.”
[13] Guides page 7.
Thirdly, the duty to give adequate reasons varies in each case. It can be seen that Vegan, which we mentioned at the outset of these reasons, requires that the reasons need not be extensive or detailed by a medical professional reaching a professional judgement. In particular, a Medical Assessor is not required to consider hypothetical scenarios with no relevance to the case before him.
Accordingly, no error was made by the Medical Assessor in either reporting the reservations he had about Mr Qeshta’s presentation, or by making a clinical judgement that reflected them. Whilst they may have been prejudicial to the impression the appellant was attempting to convey, they were not “meaningless.” The Medical Assessor described the “red flags” he noted:
· the appellant held himself in a stooped posture;
· he was extraordinarily deconditioned;
· he gave the impression of being in excessive pain;
· there was gross restriction of head and neck movement;
· pain was located throughout the lumbar spine;
· he was extraordinarily stiff in the lumbar spine;
· he walked with a staggering gait and was keen to hold onto objects of furniture, and
· he described tenderness on an extremely gentle examination of the abdomen.
We accept that the Medical Assessor found the assessment extremely difficult to conduct, but we find these comments to be an adequate explanation of why he found Mr Qeshta’s presentation to demonstrate “excessive red flags.” The finding was a relevant part of his clinical assessment and explained his final assessment. It certainly confirmed that the Medical Assessor had reservations about the appellant’s presentation, and that he took them into account when applying the various guidelines, which require an objective standard.
To return to the appellant’s submission about the report of Dr Rosenberg, the appellant submitted that the Medical Assessor was “confused” because, amongst other things, he had not given reasons for finding that the pars interarticularis defect was pre-existing, nor had he explained why the defect had not been itself caused by the workplace injury.
We had some difficulty in following Mr Qeshta’s argument in this respect. There was no suggestion in the evidence that the pars inter-articularis defect was anything but pre-existing. Neither Dr Giblin, Dr Bodel nor even Dr Rimmer expressed any view but that the pathology was pre-existing.
There was no “confusion,” with respect. The MRI scans of the lumbar spine taken on 4 September 2017 and 11 July 2017 demonstrated pathology that was accepted as pre-existent. Mr Qeshta found a report dated 4 December 2018 from Dr Rosenberg which he made the basis of his submission that there had been an error because the Medical Assessor had not excluded the possibility that the workplace injury had caused the L4/5 dessicated disc, which had lost a little height and had a large central annular tear.
Mr Qeshta however overlooked an earlier report of Dr Rosenberg dated 20 October 2018, which acknowledged that the pathology was pre-existent. Dr Rosenberg said:[14]
“Thank you for referring Yousif Gishta whom I have not seen for over a year. He looks dreadful, and feels worse. He continues to suffer with back pain and leg pain. You may recall he has an annular tear at L4/L5, and he has pars defects at L5/S1 with a slip. He obviously has been rendered symptomatic by the significant trauma he suffered. Non operative treatments are a short term benefit at best.”
[14] Appeal papers page 745.
The comment that Mr Qeshta had been rendered symptomatic was an indication that the annular tear at L4/5 and the spondylolisthesis were pre-existing.
In his report of 4 December 2018, Dr Rosenberg referred to a “new MRI.” He noted that there was no slip shown – that is to say a slip of L4 over L5, (a spondylolisthesis) – because the new MRI was taken with Mr Qeshta “supine,” that is to say, lying down. He did not suggest that it was no longer there. The new MRI was not before us, but Dr Rosenberg, along with all other medical practitioners who considered this issue were satisfied that the appellant had aggravated pre-existing asymptomatic change in his lumbar spine.
In the context of the challenge to the application of s 323 in any event, this submission does not advance the appellant’s case. The impairment to Mr Qeshta’s back was caused by the degenerative change already present being rendered symptomatic. We doubt, with respect, that Dr Rosenberg was correct to nominate the annular tear at L4/5 as being caused by the workplace injury, but even if it had, the already degenerate condition of the L4/5 disc and the pars interarticularis defect in Mr Qeshta’s back were relevant considerations in the application of s 323. We note Dr Rimmer’s description of the spondylilosthesis was a congenital defect, which we find to be probable and there is no error in the methodology adopted by the Medical Assessor in reaching his conclusion that a one tenth deduction was appropriate. Such a decision was open to him.
As to the appellant’s mention of radiculopathy, this occurred in a submission that suggested that the Medical Assessor should have explained why he did not find that Mr Qeshta fitted a DRE lumbar category III assessment, on the specific basis that he had not considered and excluded that Mr Qeshta’s case involved:
“(2) posterior element fracture with displacement is disrupting spinal canal.”
This submission was not maintainable, with respect. There was no support in the evidence for the presence of any radiculopathy, nor was there any suggestion that Mr Qeshta had suffered a “posterior element fracture” which displaced the spinal cord. As we noted above, a Medical Assessor is not required to consider hypothetical scenarios with no relevance to the case before him.
Similarly, the appellant’s submissions regarding “ADL” were misconceived, with respect. Chapter 1.9 of the Guides allows a Medical Assessor to choose the higher of two competing assessments reached by different methods. “ADL” is in fact a reference to the criteria set out in Chapter 4.33-4.35, which we are satisfied were correctly applied. Chapter 1.9 is of no relevance.
As to the submission relating to the assessment of the right lower extremity, it was submitted that there was no record that in examining Mr Qeshta’s knee had tested for laxity or crepitus. We were not referred to any guideline that required such a record, and the short answer to that challenge is that the Medical Assessor was under no obligation to make such a record. His findings on examination we have reproduced above, and his finding that he was unable to demonstrate any significant dysfunction carried with it a presumption that he had properly carried out his examination. There is a presumption of regularity that attends the function of administrative decision makers[15] and whilst presumptions are rebuttable, the appellant has not referred to any evidence or authority that supports its submission. It can accordingly be presumed hat the Medical Assessor did test for crepitus and laxity.
[15] Bojko v ICM Property Service Pty Ltd [2009] NSWCA 175 per Handley AJA at [36]; Jones v Registrar WCC [2010] NSWSC 481.
The submission by the appellant regarding the assessment of the digestive system we again had difficulty deciphering. What relevance any damage to Mr Qeshta’s “other internal organ injuries” had to this assessment was not explained. There was a reference to “the occupational physician” who was not identified, and his appearance as being “wrongly fielded lacking” was a grammatical puzzle that the expression “to defeat confidence of the reasons’ assertion of competency” did nothing to solve. It appeared that the appellant might have been challenging the Medical Assessor’s competency to assess the digestive system, but the reference to “splenic pathology,” which has nothing to do with the digestive system, left us unable to comprehend the submission’s meaning. We have considered the Medical Assessor’s assessment of a nil impairment, and the reasons on which he based it. We are satisfied that he did not err in this determination.
For these reasons the findings of the Medical Assessor in matter M2-3810/23 are confirmed.
M3-W3810/23
This appeal concerned the nil impairment found by Medical Assessor Christopher Grainge, the Non lead Medical Assessor appointed to assess the claim for the “respiratory system – sleep apnoea.”
The MAC
The Medical Assessor also took a history that Mr Qeshta fell and slipped approximately 3m hitting the left side of his chest on a metal beam. He took a consistent history of a ruptured spleen and a subsequent admission to Liverpool Hospital to have a pleural effusion drained in an unrelated problem.
The Medical Assessor took a history that the appellant’s difficulties with breathing were present “all the time”. The Medical Assessor said:[16]
“… unusually he describes his breathlessness as worse overnight when he relates this to the absence of any external stimulation rather than to symptoms in keeping with paroxysmal nocturnal dyspnoea or orthopnea.”
[16] Appeal papers page 67.
The Medical Assessor took a history that Mr Qeshta’s current sleep pattern was highly variable:[17]
“…On the night before my meeting him he retire[d] to bed around 22:00hr, initiation with sleep took between three and four hours apparently because his breathing is so difficult with the lack of stimulation at night. He also thinks that he woke several times overnight, rising about 5:00hrs. it was essentially impossible to determine any standard pattern of sleep from Mr Qeshta despite extensive discussion with him.”
[17] Appeal papers page 67.
The Medical Assessor also recorded:[18]
“Mr Qeshta describes to me that he is in constant intractable pain and that he is essentially unable to do any activities of daily living or self-care. His symptoms of sleep are such that he states that he essentially does not sleep and his Epworth Sleepiness Score today was 22 out of a potential 24 with only 1 score less than 3 in the sitting and chatting to someone domain where he gave himself a 1.”
[18] Appeal papers page 67.
The respiratory examination was “unremarkable”. The Medical Assessor noted under “General Health”:
“Mr Qeshta managed to very slowly hobble from the waiting room approximately 5m to the consultation room with the assistance of his Carer although he was of a reasonable weight and musculature.”
The Medical Assessor noted a diagnostic sleep study performed on 14 August 2019 that showed an apnoea-hypopnea index of 15.4 per hour with some obstructive events and a CPAP titration study on 22 October 2019 showed a good control of sleep apnoea at 10cm of water pressure.
The Medical Assessor concluded that Mr Qeshta had “mild obstructive sleep apnoea.” As to consistency of presentation the Medical Assessor said:[19]
“Mr Qeshta has an Epworth Sleepiness Score of 21 out of 24 indicating almost completely incapacitating hypersomnolence. His appearance and behaviour was not in keeping with such a degree of hypersomnolence. I was surprised that the only element of the Epworth. Score that he did not self mark at the maximum was the ‘sitting and talking to someone’ domain. My concern is that he was aware that this was the only element I was able to directly observe, and hence the reduction in self scoring.”
[19] Appeal papers pages 68-69.
In explaining his assessment the Medical Assessor said:[20]
“Mr Qeshta’s symptoms of hypersomnolence and all over body pain are entirely inconsistent with the degree of injury and the degree of sleep apnea evidenced on his sleep study. As stated above, any sleep apnoea that Mr Qeshta has almost certainly predates his injury, and did not cause him symptoms; many people have mild obstructive sleep apnoea without any dayime somnulence. As such, any symtpoms of hypersomnulence present now are not due to his mild obstructive sleep apnoea.
…… I do not believe that his symptoms can be laid at the door of obstructive sleep apnea in any sensible manner.”
Appellant’s submissions
[20] Appeal papers page 69.
The appellant submitted that the comment by the Medical Assessor that Mr Qeshta’s appearance and behaviour was “not in keeping with such a degree of hypersomnolence” connoted that the medical assessment was conducted “disbelievingly”.
We were advised again that the failure by the Medical Assessor to warn the “seriously injured worker” of the doubt or suspicion he held was a “failure to oblige the law with respect to procedure fairness”.
It was further submitted that the “rib fractures and lung crush” that the appellant had allegedly sustained warranted a consideration “for instance of whether diagnosis of idiopathic hypersomnolence might have been obtained”. We were referred to a page in AMA 5 in that regard and it was submitted that finding of 10% to 29% might have been warranted having regard to the “Epworth” sleepiness scale.
Respondent’s submissions
The respondent noted that there was no substantial submission made with regard to this assessment. Again, we agree on the whole with the respondent’s submissions, and accordingly incorporate them in our reasons.
DISCUSSION
We agree with the respondent’s submissions that Medical Assessor Grainge’s Medical Assessment Certificate was extremely detailed and well reasoned.
We were not referred to any authority that suggests that the opinion as to the presentation of a given worker offends the principle of procedural fairness, and our above comments apply.[21]
[21] See [55]-[58] above.
It is also not sufficient for an appellant to suggest a diagnosis such as “idiopathic hypersomnolence” when it has not been suggested by any of the evidence before the Medical Assessor and appears to have been picked by a random search through p 318 of AMA 5, where such a diagnosis was given as an example.
Mr Qeshta’s submission that the Medical Assessor did not properly apply the Epworth sleepiness scale did not attempt to engage with the Medical Assessor’s findings as to consistency of presentation in which he said an Epworth sleepiness score of 21/24 would indicate someone who is almost completely suffering from incapacitating hypersomnolence.
Moreover, the opinion of Dr David Freiberg that the Epworth sleepiness score indicated obstructive sleep apnoea and sleep fragmentation secondary to pain was specifically considered at [10c] by the Medical Assessor and discounted. Both Medical Assessors suggested that the inconsistent presentation was probably related to his psychiatric state.
The Medical Assessor found that the opinions of two other specialist, Professor Thomas and Professor Bryant, concurred with his opinion that there was no organic disease but rather a marked symptomatology that was not related to any underlying mild pre-existing obstructive sleep apnoea. It was rather a severe adjustment of post-traumatic stress disorder which was best addressed by psychiatric review.
For these reasons, the Appeal Panel has determined that the MACs issued on
18 September 2023 by Medical Assessor Timothy Anderson as Lead Assessor, and Medical Assessor Christopher Grainge as Non lead Medical Assessor should be confirmed.
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