Samaan v The Star Entertainment Group Ltd - [2022] NSWPIC 471

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Samaan v The Star Entertainment Group Ltd [2022] NSWPIC 471
APPLICANT:	Mamdoh Monir Sabet Samaan
RESPONDENT:	The Star Entertainment Group Ltd
Member:	John Wynyard
DATE OF DECISION:	23 August 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for lump sum compensation; whether allegation of the resolution of an aggravation was a bar to the matter being referred to a Medical Assessor; whether the Commission has power to determine a claim for lump sum compensation; effect of Workers Compensation Legislative Amendment Act 2018 amendments; applicant injured in 2014; liability accepted but respondent’s subsequent medical advice was that aggravation had ceased prior to operative treatment in 2020; whether pathology related to the operative treatment was a consequential condition; Held — the 2020 surgery was no more than operative treatment for the subject 2014 injury; Shanka v Ceva Logistics applied; Jaffarie v Quality Castings Pty Ltd considered; observations on medical opinion that injury no longer the main contributing factor; whether aggravation had ceased was a matter for the Medical Assessor; matter remitted for assessment.
determinations made:	The Commission determines: 1. I remit this matter to the President for referral to a Medical Assessor for an assessment of whole person impairment on the following bases: a. Date of injury: 9 July 2014 b. Matter for assessment: Lumbar spine c. Evidence: (i) application to Resolve a Dispute and attached documents; (ii) Reply and attached documents, and (iii) respondent ALD and attached documents dated 19 April 2022.

STATEMENT OF REASONS

BACKGROUND

Mamdoh Monir Sabet Samaan, the applicant, brings an action against the Star Entertainment Group Ltd for lump sum compensation.
Dispute notices were duly lodged.
The Application to Resolve a Dispute (ARD) and Replies on behalf of both respondents were issued.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether there is any impediment to the claim for lump sum compensation with regard to the lumbar spine being referred to a Medical Assessor, and
(b) is there any impediment to the matter being assessed by a Medical Assessor as to the surgery on Mr Saaman’s lumbar spine on 13 May 2020 and resultant scarring.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)

At teleconference on 20 June 2022, I issued directions for written submissions as set out below. The applicant was represented by Mr Jim Jobson of counsel instructed by Ms Heidi Gergis of Gergis Solicitors. The respondent was represented by Ms Belinda Walsh from Messrs Hall and Wilcox, lawyers.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWPIC 471
Decision Date: 23 August 2022

CaseChat Overview and Summary

The case of Samaan v The Star Entertainment Group Ltd was heard in the Workers Compensation Commission of Queensland. The dispute arose from a claim for lump sum compensation by Mr. Samaan, who had sustained an injury in 2014. The respondent accepted liability for the injury but argued that any aggravation had ceased prior to operative treatment in 2020, thereby negating the need for further compensation. The court had to determine whether the allegation of the resolution of an aggravation was a bar to the matter being referred to a Medical Assessor and whether the Commission had the power to determine a claim for lump sum compensation. Additionally, the impact of the Workers Compensation Legislative Amendment Act 2018 amendments on the claim needed to be assessed.

The legal issues involved interpreting the Workers Compensation Legislative Amendment Act 2018 and determining whether the 2020 surgery was more than just operative treatment for the 2014 injury. The court needed to consider if the aggravation had ceased, which was a matter for the Medical Assessor, and whether pathology related to the operative treatment was a consequential condition. The court referred to the cases of Shanka v Ceva Logistics and Jaffarie v Quality Castings Pty Ltd to understand the implications of the legislative amendments and the nature of the injury.

The court found that the 2020 surgery was no more than operative treatment for the 2014 injury. It applied the reasoning in Shanka v Ceva Logistics and observed that the medical opinion suggested the injury was no longer the main contributing factor. The court concluded that the matter needed to be remitted for assessment by a Medical Assessor to determine whether the aggravation had indeed ceased. This decision highlighted the importance of the Medical Assessor's role in such cases.

The court's final orders were to remit the matter to a Medical Assessor to determine whether the aggravation had ceased and to assess the claim for lump sum compensation in light of the Medical Assessor's findings. This decision underscored the need for a thorough assessment by a qualified Medical Assessor to resolve the dispute.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

A claim for weekly benefits and s 60 expenses was made to which a s 74 notice issued on 29 June 2015.[1] This stated:[1] Respondent ALD p 1.“Reasons for decisionWe rely on the following evidence in support of our decision on liability:• You initially made a claim for workers' compensation on 10 July 2014 for an injury to your Lower Back sustained on 09/07/2014 as a result or bending and vacuuming.• Dr John Lose provided the diagnosis of Lower back muscle strain on 09/07/2014.• Dr Vote (Independent Medical Examiner) reported on 14/08/2014 that ‘I would consider that his employment is a substantial or main contributing factor to his present acute symptoms’.• Dr Balsam Darwish your Nominated Treating Specialist reported on 02/10/2014, ‘Mamdoh suffers from L4/L5 and L5/S1 discogenic pain’ and ‘His left leg symptoms can't be explained by the findings of the MRI scan of the lumbosacral spine. He has no verifiable radiculopathy’ He also stated ‘The radiologically demonstrated changes in his lumbar spine are most likely degenerative in nature aggravated by the nature of his employment.’• Dr Vote again reported on 18/12/2014, ‘Overall, I would consider that his employment is a substantial contributing factor to his present condition which necessitates treatment.’• Dr Vote reported on 10/03/2015, ‘Overall, I would not consider that the work-related aggravation has ceased.’• Dr Vote reported on 18/05/2015, ‘Overall, I would consider that the most substantial contributing factor to Mr Samaan's present symptomatology is underlying disc degenerative change. He also stated ‘Reviewing his MRI in July 2014 he has chronic disc degenerative changes at L4/L5 and L5/S1 with central bulges at both, and desiccation and narrowing. These finding, [sic] could not have been produced by the single act of vacuuming.’ Furthermore, he stated, ‘I would consider at this point in time, nine months after his incident at work, Mr Samaan's problems at this point relate mainly to underlying degenerative change with a minimal input if any from the incident involving vacuuming.’Based on the above, we say that you are no longer suffering from a work related injury; your employment with The Star is not a substantial contributing factor to any injury/symptoms you currently suffer and that you do not require any further treatment as a result of a work-related injury.” As can be seen, the respondent relied on the opinion of Dr James Vote, orthopaedic surgeon, to dispute this claim. Dr Vote issued a number of reports to the respondent. He advised that the employment had been the main contributing factor to the subject injury, which was the aggravation of pre-existing asymptomatic degenerative change. Dr Vote gave that opinion on 14 August 2014, 18 December 2014, and 10 March 2015.[2] On 18 May 2015 Dr Vote said:[3]“I would consider at this point in time, nine months after his incident at work, Mr Samaan's problems at this point relate mainly to underlying degenerative change with a minimal input if any from the incident involving vacuuming.”[2] Respondent ALD pp 8 (at p 12), 14 (at p 17) and 19 (at p 20) respectively.[3] Respondent ALD p 25.

Ratio Decidendi

Legal Principle Established

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