Ibrahim v Sellers Fabrics Pty Ltd - [2023] NSWSC 1320 - NSWSC 2023 case summary — Zoe

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Ibrahim v Sellers Fabrics Pty Ltd

[2023] NSWSC 1320

Supreme Court of NSW|2023-09-20

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2023-09-20

Source

Original judgment source is linked above.

Judgment (15 paragraphs)

[1]

Solicitors: Buttar, Caldwell & Co (Plaintiff). Rankin Ellison Lawyers (First defendant) File Number(s): 2023/63482

[2]

JUDGMENT

This is a review of a decision of the medical appeal panel of the personal injury commission, a delegate.
The plaintiff is Ahmed Ali Ibrahim. The first defendant is Sellers Fabric Pty Ltd ('the employer'). The second defendant is Deborah Moore, David Gorman and Margaret Gibson as a medical appeal panel constituted under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ('the Act'). The third defendant is the President of the Personal Injury Commission ('PIC'). The fourth defendant is Kathryn Camp.
The employer has consented to the orders sought. The second defendant ('the Appeal Panel') and the third defendant have filed submitting appearances. That means there is no contradictor. Nevertheless, this Court has an obligation to satisfy itself as to whether these grounds of review constitute errors of law or jurisdictional errors on the face of the record and if so whether the matter should be remitted to the personal injury commission to be determined according to law.
The consent orders between the plaintiff and the employer are: 1. The plaintiff's application to appeal against a decision of a medical assessor, dated 24 August 2022, is remitted to the third defendant for referral to an appeal panel, differently constituted, to hear the appeal according to law. 2. The first defendant [the employed] is to pay the plaintiff's costs of these proceedings as agreed or assessed.

[4]

The decision of the medical Assessor dated 3 August 2022

So far as the plaintiff's diabetes is concerned, the medical assessor noted that his lack of exercise over a number of years would be seen as a contributing factor to the early development of type 2 diabetes. However, he stated that the largest contributor to the development of diabetes is in fact genetic factors and from Table 10-8 from AMA 5 he would fall into Class 2 as he has diabetes with no end organ damage and only requires a very low dose of medication. He would be at the lower end of this class, which is 6% whole person impairment. Considering the genetic component, the medical assessor determined that a 3 tenths deduction would be appropriate, and the plaintiff therefore would have 4% (rounded) whole person impairment for diabetes.
On 3 August 2022, the medical assessor, issued a medical assessment certificate in respect of that medical dispute. The MAC included: 1. an assessment of degree of permanent impairment attributable to diabetes; and 2. a deduction of 30% in respect of the proportion of permanent impairment due to the plaintiff's genetic predisposition to diabetes (which was the same proportion deducted by the plaintiff's own independent medical examiner).
A combination of 7% for the lumbar spine with 2% for the right shoulder and 4% for the endocrine system would give the plaintiff a 13% whole person impairment.
On 24 August 2022, the plaintiff lodged an application to appeal against the decision of a medical assessor ('the application').
On 24 August 2022, the plaintiff requested a reconsideration of the MAC (which was rejected given the application but was again requested on 7 October 2022).
On 18 November 2022, the appeal panel issued a decision ('the decision') to confirm the medical assessor's certificate. It is the main subject of the amended summons for judicial review.
On 7 February 2023 the fourth defendant ('a delegate') issued a refusal to refer the MAC for reconsideration on the basis that there was no power to do that given the decision.
The amended summons in this Court added a constitutional matter (whether s 323 is inconsistent with s 24 and/or s 15 of the Disability Discrimination act 1992 (Cth) was filed by consent of the workers insurer. As requested by the employer, notices of a constitutional matter each dated 11 May 2023 have been provided to the Attorney-General for each state, territory and the Commonwealth. However, due to the consent orders referred to earlier in this judgment, it is unnecessary to deal with this constitutional matter.
On 25 October 2021, the plaintiff filed an application to resolve a dispute in the Personal Injury Commission of NSW in relation to a dispute between the plaintiff and the employer.
On 16 February 2022, a medical dispute arising out of that dispute was referred to a medical assessor.
The plaintiff lodged with the President of the PIC, the third defendant, an application to appeal against a decision of medical assessor (Ex PAB1 pp 1066-1082).
The third defendant allowed the plaintiff's appeal to proceed and constituted an appeal panel to hear it. On 18 November 2022, the Appeal Panel dismissed the plaintiff's appeal and provided reasons ('Decision').

[6]

The law

Section 323 of the Act reads: 323 Deduction for previous injury or pre-existing condition or abnormality (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. Note - So if the degree of permanent impairment is assessed as 30% and subsection (2) operates to require a 10% reduction in that impairment to be assumed, the degree of permanent impairment is reduced from 30% to 27% (a reduction of 10%). (3) The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the medical assessor in connection with the medical assessment of the matter. (4) The Workers Compensation Guidelines may make provision for or with respect to the determination of the deduction required by this section. (5) (Repealed)
Central to this ground of judicial review is the decision in Ryder v Sundance Bakehouse [2015] NSWSC 526 ('Ryder'). In Ryder, Campbell J explained what is required under s 323 at [45]: "[45] What s 323 requires is an inquiry into whether there are other causes, (previous injury, or pre-existing abnormality), of an impairment caused by a work injury. A proportion of the impairment would be due to the pre-existing abnormality (even if that proportion cannot be precisely identified without difficulty or expense) only if it can be said that the pre-existing abnormality made a difference to the outcome in terms of the degree of impairment resulting from the work injury. If there is no difference in outcome, that is to say, if the degree of impairment is not greater than it would otherwise have been as a result of the injury, it is impossible to say that a proportion of it is due to the pre-existing abnormality. To put it another way, the Panel must be satisfied that but for the pre-existing abnormality, the degree of impairment resulting from the work injury would not have been as great."

[8]

The plaintiff's submissions

All of the medical evidence before the Appeal Panel supported a deduction. However, when that evidence is considered with the construction and application of "pre-existing condition or abnormality" by Beech-Jones J in Cullen stated that it is apparent that there was no evidence that the plaintiff had anything other than "[a] mere predisposition" or "a susceptibility" towards Type 2 diabetes before his injury - that is, there was no evidence that he had "an actual condition" of Type II diabetes before his injury.
By reason of the inclusion in the Medical Assessor's Certificate of a deduction for a proportion of the impairment that is due to a pre-existing condition or abnormality, the employer concedes that the Appeal Panel's decision confirming the MAC is infected by jurisdictional error.
In State of New South Wales v Rattenbury [2015] NSWWCCPD 46 at [39], it was noted that being predisposed to a disease means no more than 'a tendency in a person to react in a certain way' and 'a physical condition which makes a person susceptible to a disease.' Section 323 was enacted to capture the contribution of pre-existing injuries or conditions to the level of impairment of the worker. A mere genetic predisposition to the development of a disease will not on its own establish the existence of a disease.
In Booth v Fourmeninapub Pty Ltd [2020] NSWCA 57, the NSW Court of Appeal at [51]-[55] again confirmed there is a distinction between a genetic predisposition and a disease with attributable impairment. A predisposition means merely that there is potential for future morbidity and the fact that a person is more likely eventually to suffer from a disease does not mean that the person has the disease. A genetic predisposition is not an abnormal physical or mental condition such as to constitute a disease.
While the plaintiff submitted that the Court should take judicial notice of observations made in the ALRC Report and by the first defendant's expert about type 2 diabetes. I do not refer to this to this to reach my decision. The plaintiff's submissions continue: 1. A 'genetic predisposition' or 'genetic susceptibility'; 2. Intimately connected with the ideas of 'probability' and 'likelihood' as to whether any disease will emerge.
The Appeal Panel did not meaningfully engage with the worker's submissions which led to a constructive failure to exercise jurisdiction in the sense identified in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 214 CLR 496.
No s 323 deduction could have been made given the proper construction of s 323.

Ibrahim v Sellers Fabrics Pty Ltd

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Judgment (15 paragraphs)

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