Zahiri v Rainbow Painting & Decorating Services Pty Ltd
[2025] NSWPICMP 159
•12 March 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Zahiri v Rainbow Painting & Decorating Services Pty Ltd [2025] NSWPICMP 159 |
| APPELLANT: | Sadegh Zahiri |
| RESPONDENT: | Rainbow Painting & Decorating Services Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Parnel McAdam |
| MEDICAL ASSESSOR: | Todd Gothelf |
| MEDICAL ASSESSOR: | Tommasino Mastroianni |
| DATE OF DECISION: | 12 March 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Claim for deterioration; whether evidence shows basis for deterioration; consideration of assessments on which claim was based, the Medical Assessment Certificate (MAC), and fresh evidence; Riverina Wines v Workers Compensation Commission of New South Wales applied; appeal limited to body parts assessed by Certificate of Determination; O’Callaghan v Energy World Corporation Ltd discussed; Held – no evidence of deterioration; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 6 August 2024, Mr Zahiri, the appellant lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by David Crocker, an Approved Medical Specialist, who issued a Medical Assessment Certificate (MAC) on 14 November 2019.
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):
· 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.
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 Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The proceedings that led to this appeal coming before the Appeal Panel are somewhat complicated and are, at least in part, relevant to the determination of the dispute. This history is taken from the documents before the Appeal Panel, supplemented by the reasons provided by the delegate.
Mr Zahiri suffered an injury in the employ of the respondent on 17 September 2018. He was on his day of duties when he slipped and fell around 2m. Proceedings were commenced in the Workers Compensation Commission (the predecessor to the Personal Injury Commission (Commission)) following a claim being made for lump sum compensation.
Mr Zahiri was referred for an assessment of whole person impairment for the cervical spine, lumbar spine, left upper extremity (shoulder) and scarring. Dr Crocker, an Approved Medical Specialist (now known as a Medical Assessor) provided an assessment of impairment of those body parts respectively as 4%, 4%, 4%, and 1%, for a total whole person impairment of 13%.
The claim for lump sum compensation and dispute in the Commission was resolved via a certificate of determination dated 26 November 2019. Mr Zahiri was awarded lump sum compensation in respect of 13% whole person impairment.
In May 2023 the appellant brought an application seeking reconsideration of the certificate of determination.
On 4 July 2023, the application for reconsideration of the certificate of determination was determined by Member Beilby, with the certificate being set aside. It was also determined that “the applicant has an entitlement to file an application to appeal the MAC pursuant to s 327(3)(a) and (b) of the 1987 Act (limited to the cervical spine, lumbar spine and left upper extremity).”
The appellant then lodged an application for reconsideration of the MAC. This was opposed on the basis of the orders of Member Beilby, which dealt with an application to appeal only. The matter stood in abeyance for an extended period for reasons unclear to the Appeal Panel. It may have been granted to allow the respondent time to obtain further medical evidence in respect of the claimed deterioration. In the interim, the appellant obtained further radiological evidence.
Ultimately, on 6 August 2024, the appellant lodged the present application to appeal, claiming that his condition has deteriorated. That is the present application before the Appeal Panel. In support of that application, the appellant relies on the opinion of Dr Guirgis dated 2 March 2023, as well MRIs of the cervical and lumbar spine dated 21 March 2024. The respondent relies upon the opinion of Dr Courtenay in his reports dated 26 July 2024 and 21 August 2024.
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 because of the determination made about whether the appellant had proved his case in respect of s 327(3)(a) of the 1998 Act. In the absence of evidence of a deterioration (to be discussed below), it is unnecessary and inappropriate to conduct a further examination of the appellant.
Fresh evidence
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the 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) report of Dr Guirgis dated 2 March 2023, and
(b) MRI of the lumbar and cervical spine dated 21 March 2024.
The respondent seeks to admit the reports of Dr Courtenay dated 26 July 2024 and 21 August 2024.
The nature of the ground of appeal of deterioration, which is the substance of this appeal, necessitates the obtaining and admission of fresh evidence. It is appropriate that the material be admitted for consideration of the Appeal Panel in determining that ground of appeal.
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. They are not repeated in full, but have been considered by the Appeal Panel.
Given the issue on appeal, being deterioration, the appellant’s submissions are relatively brief. In summary, the appellant submits that he was assessed by Dr Crocker as suffering from 13% whole person impairment. In September and October 2023, Dr Guirgis provided an assessment of 18% whole person impairment, a material 5% increase in whole person impairment assessed. The applicant submits that the left shoulder, lumbar spine and cervical spine have deteriorated to such an extent that it is indicative of 18% whole person impairment, which comfortably fits within the definition of deterioration in Riverina Wines v Workers Compensation Commission of New South Wales [2007] NSWCA 149 (Riverina Wines).
In reply, the respondent provides a comparison of the assessments of Dr Crocker (as provided in the MAC under appeal), Dr Guirgis (in both his 2019 and 2023 reports), and Dr Courtenay. The respondent notes that the appeal is confined to the cervical spine, lumbar spine and left upper extremity and excludes the right upper extremity and scarring. The respondent submits that the evidence does not establish that there has been a deterioration in the appellant’s condition resulting in an increase in whole person impairment.
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 the present case, the appeal is on the basis of deterioration with a supporting ground of additional relevant evidence. The parties also rely on fresh evidence, which has been admitted into the proceedings. These grounds are described as “remedial grounds” in contrast with the “error-based grounds” in s 327(3)(c) and (d) (see Sleiman v Gadalla Pty Ltd [2021] NSWCA 236 at [61]).
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 starting point for consideration in this matter is the text of the legislation. The ground for appeal in s 327(3)(a) is “deterioration of the worker’s condition that results in an increase in the degree of permanent impairment”. The appellant referred to Riverina Wines, which represents the leading authority on the construction of that section. Campbell JA described it as:
“’Deterioration’ of a person’s condition is an inherently relational concept. It involves the condition in question having become worse than it previously was, at some particular point in time. In my view, the ‘deterioration’ that section 327(3)(a) talks of is a deterioration from the degree of impairment that has been certified by the MAC, over the time since the examination or examinations on the basis of which the MAC was issued took place. That conclusion follows from the fact that the appeal in question is, as section 327(2) requires, against a matter as to which the assessment of an AMS certified in a MAC is conclusively presumed to be correct.”
Handley JA agreed with that construction, providing a temporal element:
“As Campbell JA says (para [89]) deterioration of a person’s condition ‘is an inherently relational concept’. It requires a comparison between the worker’s condition at an earlier date and his or her condition at a later date. In this context, as Campbell JA holds, the earlier date is the date of the certificate of Dr Cummine. The later date is when the Registrar or his of her delegate came to consider (s327(4)) whether this ground of appeal ‘exists’.”
Hodgson JA agreed with the orders proposed by Campbell JA and with his reasons, but added the following relevant comment (acknowledging that his honour was discussing the role of the Registrar (equivalent to the President’s determination under s 327(4)), as opposed to the role of an Appeal Panel)):
“Although the existence of a MAC certifying nil impairment and a later medical report evidencing some impairment is some evidence of deterioration resulting in an increase in the degree of impairment, this does not mean that a Registrar faced with such material would necessarily be satisfied that the ground in s.327(3)(a) existed. If the later medical report is from a doctor who gave an earlier report to similar effect, with which the MAC conflicted, the Registrar could well take the view that there was merely an attempt being made to avoid the conclusive effect of the MAC, and that there was no sufficiently realistic prospect of the ground (deterioration) being made out to warrant the appeal proceeding.”
The “inherently relational concept” as articulated in Riverina requires close consideration of the evidence to determine whether there is case for deterioration. Ordinarily the procedure would then be for a Medical Assessor on the Appeal Panel to re-examine the worker to determine the current degree of permanent impairment. The conclusion reached by the delegate in this case, and the Member setting aside the Certificate of Determination to allow the present appeal, has no effect on the role of the Appeal Panel in determining this ground.
Consistent with Riverina Wines it is appropriate to examine the basis for the claim of deterioration in a comparative way. The following table provides the relevant assessments of impairment:
Assessor
Cervical
Lumbar
Left Upper extremity (shoulder)
Scarring
Total
Dr Guirgis
22 May 20195%
7%
1%
2%
15%
Dr Crocker (MAC)
14 November 20194%
4%
4%
1%
13%
Dr Guirgis
2 March 20235%
7%
1%
2%
15% (not including the right upper extremity)
A/Prof Courtenay
4 July 2024 and 21 August 20245%
3%
5%
1%
14%
In terms of the total whole person impairment assessment, Dr Guirgis assessed 0% for the right upper extremity in 2019 (2% based on loss of range of motion, with a 100% deduction due to “Cordina related”). This was not included in the referral to the AMS in 2019 and was not assessed by him. Dr Guirgis now assesses 3% for the right upper extremity (base of 5% with a deduction of 2% for “Cordina related”).
Thus it is immediately apparent that excluding the assessment of the right upper extremity, Dr Guirgis has provided the same assessment of impairment in 2023 that he provided in 2019.
The procedural background to this matter, including the Certificate of Determination issued by Member Beilby, placed a limitation on the basis of the appeal the appellant could bring. Order 2 of the certificate limits the basis of the appeal to the cervical spine, lumbar spine and left upper extremity. The respondent points this out in their submissions; suggesting that the appellant is estopped from relying on any assessment of the right upper extremity and scarring.
The appellant does not acknowledge this restriction, placed in the certificate, but his submissions only address the left shoulder, lumbar spine and cervical spine. He submits that “It is clear that the left shoulder, lumbar spine and cervical spine have deteriorated to such an extent that it is indicative of a 18% whole person impairment”. This submission is mistaken or disingenuous – as set out in the table above, the left shoulder, lumbar spine and cervical spine assessment is not currently assessed at 18% whole person impairment. The above table includes scarring by way of example only, as it is not the subject of submissions. Excluding scarring from each assessment, both of Dr Guigis’ reports would show 13% whole person impairment.
It is not clear on what basis the appeal was said to be limited to the three body parts listed in the certificate. It is not clear that a Member can place limitations on the Appeal Panel’s consideration of the issue raised in such a way, although that is probably the case.
Regardless, there are justifiable and legally apparent reasons why the deterioration appeal would be so limited. The first, in relation to scarring, is the nature of the scarring itself. It is post-surgical scarring, the nature of which is unlikely to deteriorate within the meaning provided for in s 327(3)(a). The medical nature of scarring is that over time it is likely to improve. Any deterioration would be necessitated by some other cause.
In terms of the right upper extremity, the appellant is precluded from pursuing an appeal on the basis of deterioration because the condition precedent to such a claim has not been established. That is, there was no assessment of impairment of the right upper extremity in the MAC subject of the appeal. This was established in O’Callaghan v Energy World Corporation Ltd [2016] NSWWCCPD 1, per AP Roche:
“Contrary to Mr McManamey’s submissions, s 327(3)(a) does not allow an appeal in respect of all of the consequences of the work injury. It is confined to its terms and has been the subject of binding judicial scrutiny in Aircons and Riverina Wines. Those decisions make Mr McManamey’s submissions untenable.”
The above is because an appeal is limited to the matters certified in a medical assessment to be “conclusively presumed to be correct” (s 327(2)). The matters that are “conclusively presumed to be correct” are set out in s 326(1), and are “with which the certificate is concerned”. In the present case, the certificate was not concerned with an assessment of impairment of the right upper extremity and accordingly did not form part of the matters that are conclusively presumed to be correct. It is thus unappealable, whether on the basis of the remedial grounds of the error grounds.
Further, and addition to the above, the figures for each of the body parts subject to the claim for deterioration do not demonstrate such a deterioration for a number of reasons. The first is that the figures provided by Dr Guirgis that can be considered on this appeal (limited to the left shoulder, lumbar spine and cervical spine), when combined is identical to the figure provided in the MAC (i.e. a total of 13% whole person impairment).
If one breaks the figures down to their constituent parts, those figures do not, on the construction of s 327(3)(a) outlined in Riverina Wines, provide evidence of a deterioration. They are greater than the figures assessed by Dr Crocker in his MAC, but are identical to the figures previously assessed by Dr Guirgis, on which the claim was made. In the Appeal Panel’s view, this is precisely the issued considered by Hodgson JA at [3] of the reasons in Riverina Wines. Although addressed to the task of the Registrar (President) it provides equal guidance to the Appeal Panel.
In present circumstances, there is an opinion of Dr Guirgis certifying a degree of impairment, on which the original claim for lump sum compensation was based. There is a MAC certifying a lower degree of impairment. There is a later report of Dr Guirgis certifying the same degree of impairment he had previous certified. It is the view of the Appeal Panel that this is an attempt to avoid the conclusive effect of the MAC.
The appellant also relies on radiological investigations taken on 21 March 2024. This evidence does not demonstrate a change in whole person impairment, which is the basis for the Appeal Panel’s consideration under s 327(3)(a). There has been no change in whole person impairment, as set out above. Further, putting aside the lack of evidentiary basis for such a claim, it is the medical opinion of the Appeal Panel there is no evidence contained in that material would support an increase in the degree of permanent impairment (even on a hypothetical basis).
The appellant has failed to demonstrate that there has been a deterioration of the worker’s condition that results in an increase in the degree of permanent impairment. Accordingly, the MAC will be confirmed.
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