ISS Property Services Pty Ltd v Ayoubi (NSWPICMP 2022)

Link to Decision

Key Takeaways

In this matter, a Medical Appeal Panel (MAP) reduced an assessment of WPI from 35% to 0%. This was on the basis that the Medical Assessor (MA) had made a demonstrable error in failing to consider and explain the inconsistencies between his assessment and surveillance material available to him.

Brief Facts

The worker was referred to a MA for assessment of WPI caused by injury to the right upper extremity (right hand, fingers and thumb, right wrist, right elbow and right shoulder). The MA assessed 35% WPI. The appellant employer appealed the MA’s assessment and sought that the worker be re-examined, relying on the grounds of appeal under s327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), namely:

• the assessment was made on the basis of incorrect criteria; and
• the MAC contains a demonstrable error.

The following three grounds of appeal were raised:

• the MA had fallen into error in failing to make a deduction pursuant to s323 of the 1998 Act;
• the MA had failed to consider the surveillance material, and
• the MA had failed to properly consider evidence of inconsistency and accordingly test for consistency in his examination of the worker.

In respect of the first ground of appeal, the employer submitted that the MA simply said that there was no deductible proportion and in doing so, failed to adequately consider the evidence before him which revealed the presence of relevant pre-existing conditions. The Appeal Panel rejected this argument stating it required more than a simple reference to evidence that may have indicated a pre-existing condition or prior injury to find a s323 deduction.

In support of the second and third grounds, the employer relied on three surveillance reports which contained clear colour photographs and unchallenged significant observations that raised doubt about the veracity of the worker’s presentation to the MA. In the reports, the worker was shown, amongst other things, to use his right hand to smoke a cigarette, grasp various items and manoeuvre a trolley. The employer submitted that:

• the MA did not refer to those reports, and that under the circumstances his failure to consider and refer to them constituted a demonstrable error;
• the surveillance reports revealed a range of motion that was significantly less restricted than that noted by the MA; and
• the 72% impairment assessed by the MA of the four digits of the right hand were shown to be inconsistent with the worker’s use of his fingers as depicted in the relevant photographs.

Determination

The MAP stated it was necessary for an MA to ‘set out the actual path of reasoning by which he arrived at his opinion, and where more than one conclusion is open to an MA in view of the evidence, he is obliged to give some reasons to explain why he preferred the conclusion he reached’.

The MAP was satisfied that the evidence contained in the photographs within the surveillance reports showed a range of motion in the digits under examination that was significantly at odds with the much more restricted range of motion accepted by the MA.

The MAP was satisfied that the MA had made a demonstrable error in both failing to consider the surveillance material, and therefore failing to give any explanation as to why the use of the worker’s fingers, hand, arm and elbow reported in the surveillance evidence was not inconsistent with the worker’s presentation to the MA.

Accordingly, the worker was re-examined by a member of the MAP who confirmed that there was no obvious organic problem and that the worker’s problems were at best psychologically based, and beyond the expertise of the MAP. The MAP determined that the MAC should be revoked and issued a new MAC reducing the WPI rating to 0%.

Implications

This case highlights the probative value of non-medical evidence in assessments of WPI and reiterates the requirements of MAs in setting out the reasoning behind their assessments in circumstances where more than one conclusion is open to them.