Supreme Court New South Wales Medium Neutral Citation: Ibrahim v Sellers Fabrics Pty Ltd [2023] NSWSC 1320 Hearing dates: 20 September 2023 Date of orders: 3 November 2023 Decision date: 03 November 2023 Jurisdiction: Common Law - Administrative Law Before: Harrison AsJ Decision: (1) The decision of the Appeal Panel is set aside. (2) The matter is referred to the President, Personal Injury Commission to be dealt with according to law. (3) The first defendant is to pay the plaintiff's costs. Catchwords: JUDICAL REVIEW – whole person impairment – Type 2 diabetes – pre-existing abnormality or condition – genetic predisposition or susceptibility – deduction – ground of review constituting an error of law – referral to the President, Personal Injury Commission. Legislation Cited: Disability Discrimination Act 1992 (Cth) ss 15 and 24 Workplace Injury Management and Workers Compensation Act 1998 (NSW) s 328 Cases Cited: Booth v Fourmeninapub Pty Ltd [2020] NSWCA 57 Cole v Wenaline Pty Limited [2010] NSWSC 78 Cullen v Woodbrae Holdings Pty Ltd [2015] NSWSC 1416 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 214 CLR 496 Ryder v Sundance Bakehouse [2015] NSWSC 526 State of New South Wales v Rattenbury [2015] NSWWCCPD 46 Category: Procedural rulings Parties: Ahmed Ali Ibrahim (Plaintiff) Sellers Fabric Pty Ltd (First defendant) 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) (Second defendant) President, Personal Injury Commission (Third defendant) Kathryn Camp (Fourth defendant) Representation: Counsel: Ian Davidson SC and Philippa Clingan (Plaintiff) Rankin Ellison Lawyers (First defendant) Solicitors: Buttar, Caldwell & Co (Plaintiff). Rankin Ellison Lawyers (First defendant) File Number(s): 2023/63482 JUDGMENT 1. This is a review of a decision of the medical appeal panel of the personal injury commission, a delegate. 2. 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. 3. 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. 4. 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. Background 1. On 15 January 2009, the plaintiff, Mr Ahmed Ali Ibrahim, suffered a workplace injury while lifting cotton rolls onto a conveyor belt at work when a roll fell backwards. 2. In 2020, 11 years later, the plaintiff was first diagnosed with type 2 diabetes mellitus. 3. On 29 November 2021 by consent the PIC remitted the matter to the president for referral to a medical assessor for a whole person impairment ('WPI'). On 16 February 2022, the referral was made to include the "Endocrine system". 4. On 3 August 2022, the medical assessor, Dr Burns ('the Medical Assessor'), a specialist in occupational medicine, issued a medical certificate ('MAC') which certified 7% whole person impairment WPI in respect of the plaintiff's lumbar spine, 2% WPI in respect of his right knee and 4% WPI for his diabetic condition (his Type 2 diabetes only became manifest in 2020). The 4% WPI in respect of his diabetic condition was made after a 30% deduction purportedly pursuant to s 323 of the Act. 5. It is only the 30% deduction in respect of his diabetic condition that is in issue in this judicial review. The decision of the medical Assessor dated 3 August 2022 1. 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. 2. 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). 1. 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. 2. On 24 August 2022, the plaintiff lodged an application to appeal against the decision of a medical assessor ('the application'). 3. 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). 4. 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. 5. 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. 6. 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. 7. 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. 8. On 16 February 2022, a medical dispute arising out of that dispute was referred to a medical assessor. 9. 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). 10. 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'). The decision of the Appeal Panel 1. Paragraphs [42], [44] and [45] of the Appeal Panel's Decision read as follows: "[42] The appellant's submissions regarding the "genetic" issue are misconceived to the extent that the terms of the referral to the MA made it abundantly clear that Mr Ibrahim (a) had diabetes and (b) it was related to his injuries hence the terms of the referral. … [43] It was clear from all the medical evidence that Mr Ibrahim's diabetes had a genetic origin which Dr Thornley, Dr Carter and the MA [Medical Assessor] all considered warranted a deduction. [45] As the respondent correctly pointed out: All three Doctors, the MA, Dr Thornley and Professor Carter were all in agreement that was a contributing factor to the early onset of the condition. All three Doctors referred to the genetic component of the condition. On this basis, the Respondent submits that all three Doctors correctly made a deduction for a pre-existing condition or abnormality. In this respect, the Respondent refers to the Court of Appeal decision of Vitaz v Westform (NSW) Pty Ltd 34 NSWCA 254 where it was held that if a pre-existing condition was a contributing factor to the impairment caused by the subject injury, even if it had been asymptomatic, a Medical Assessor would be entitled to make a deduction without giving an explanation. A deduction of less than 30% for the pre-existing condition or abnormality with respect to the assessment for Diabetes would be at odds with the evidence, noting the deductions made by the three Doctors who assessed the Appellant." The law 1. 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) 1. 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." Applying a deduction 1. In respect of s 323, the medical assessor was required to ask and answer whether any proportion of the impairment assessed, as resulting from the work injury, was due to any pre-existing abnormality or condition. 2. Section 323 requires the need for evidence of an actual pre-existing condition. It does not permit a deduction to be made on the basis of a predisposition or susceptibility. In support of this submission, the plaintiff relies on the following authorities: 3. In this Court, the plaintiff referred to Cole v Wenaline Pty Limited [2010] NSWSC 78 ('Cole') (Schmidt J) and Cullen v Woodbrae Holdings Pty Ltd [2015] NSWSC 1416 ('Cullen') (Beech-Jones J), Cole and Cullen identify the requirement that, before a "pre-existing condition or abnormality" gives rise to a deduction pursuant to s 323(1) of the Act, it must "be an actual condition although it may be asymptomatic [and a] mere predisposition or even a susceptibility is not sufficient to constitute a condition": Cullen at [46]. 4. In Cole, Schmidt J noted that s 323 requires that a conclusion be reached as to whether or not any proportion of permanent impairment assessed resulted from an earlier injury, pre-existing condition or abnormality. In a case such as this, that conclusion must be reached on the evidence led as to the actual consequences of the earlier and later injuries, unless the assumption provided in s 323(2) applies. The plaintiff's submissions 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 1. 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. 2. No s 323 deduction could have been made given the proper construction of s 323. Constructive failure to engage meaningfully with the plaintiff's submissions 1. The failure to respond to a substantial, clearly articulated argument relying upon established facts may not only be a constructive failure to exercise jurisdiction, but also a denial of procedural fairness. A constructive failure to exercise jurisdiction arises where the decision-maker purports to exercise the jurisdiction but in substance has not undertaken or completed the task of doing so because of a failure to address some essential matter. 2. Consideration of a submission involves an active intellectual process directed at that representation or submission. An adequate response involves explaining why one conclusion is preferred where more than one conclusion is open. The reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement. 3. The appeal panel failed to engage meaningfully with the plaintiff's submissions. This failure was critical to the plaintiff's initial appeal in the Personal Injury Commission since s 323 does not permit deductions to be made on predispositions, susceptibilities, probabilities or likelihoods. 4. Reading the appeal submissions in support of the Application as a whole, the plaintiff had submitted: 5. Type 2 diabetes is a multifactorial disorder which means a person is susceptible or predisposed to develop that condition. Put differently, type 2 diabetes is a genetic predisposition. Indeed, the plaintiff quoted the first defendant's expert that type 2 diabetes is a genetic condition, and the person must have an "underlying genetic predisposition" for the condition to develop. Numerous other statements to the effect that type 2 diabetes is a genetic predisposition were also quoted. 6. The concept of a 'genetic condition' is intimately connected with the ideas of 'probability' and 'likelihood' as to whether any disease will emerge. Errors of law on the face of the record 1. While not dispositive, a beneficial construction of the WIM Act given its remedial character to assist workers recover compensation from workplace injuries is appropriate. 2. The three errors of law are: 1. Section 323 does not permit a deduction based on predispositions or susceptibilities. 2. There is a failure to distinguish between genetics causing an increased susceptibility to type 2 diabetes and genetics causing a discernable level of impairment. Susceptibility is not impairment. This distinction makes it incorrect to make a s 323 deduction of 30% or at all. 3. By asserting the work injury did not cause diabetes but contributed to the early onset of the plaintiff's diabetic condition, the Appeal Panel reversed the test required by s 323. The Appeal Panel and the Medical Assessor were not permitted to delve into questions of causation of his diabetes since the worker and employer by consent (as embodied in the referral to the MA), had already accepted the injury caused the plaintiff's diabetic condition. Conclusion 1. After a careful reading of the plaintiff's submissions and the relevant law, I agree with the plaintiff's submissions. The plaintiff expressed the error in a number of ways. The error is that the Appeal Panel made a 30% deduction pursuant to s 323(2) due to a pre-existing condition or abnormality, it failed to distinguish between genetics causing an increased susceptibility to type 2 diabetes and genetics causing a discernible level of impairment. Susceptibility is not impairment. This distinction makes it incorrect to make a s 323 deduction of 30% or at all. 2. It is up to the President, Personal Injury Commission to determine the composition of the Appeal Panel. The result 1. This constitutes an error of law and a constructive failure to exercise jurisdiction. The application for judicial review is successful. The decision of the Appeal Panel is set aside. The matter is referred to the President, Personal Injury Commission to be dealt with according to law. Costs 1. The first defendant is to pay the plaintiff's costs. THE COURT ORDERS THAT: 1. The decision of the Appeal Panel is set aside. 2. The matter is referred to the President, Personal Injury Commission to be dealt with according to law. 3. The first defendant is to pay the plaintiff's costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 November 2023