Finch v N. Moit & Sons (NSW) Pty Ltd
[2024] NSWPICMP 703
•9 October 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Finch v N. Moit & Sons (NSW) Pty Ltd [2024] NSWPICMP 703 |
| APPELLANT: | Shaun Finch |
| RESPONDENT: | N Moit & Sons (NSW) Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Michael Hong |
| MEDICAL ASSESSOR: | Graham Blom |
| DATE OF DECISION: | 9 October 2024 |
CATCHWORDS: | WORKERS COMPENSATION - Appeal by claimant who suffered a serious hand injury and was seeking a lump sum for the primary psychological consequences thereof; whether Medical Assessor gave adequate reasons for his assessment of 8% whole person impairment; Held – reasons inadequate regarding self-care and social and recreational activities; re-examination ordered; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 23 April 2024 Shaun Finch, the appellant lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Himanshu Singh, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 26 March 2024.
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):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
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 Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 9 February 2024 this matter was referred to the Medical Assessor for assessment of WPI caused by a psychiatric/psychological disorder dated 14 August 2019.
Mr Finch worked in the heavy machine business for almost 30 years. He was working for the respondent for about two years when he suffered a serious accident on 14 August 2019. He was working with heavy machinery, doing excavation 60 metres down when the hydraulic arm moved and wrapped his arm with a chain dragging him 20 feet across the open space. It pulled his left hand and he sustained injuries to his left ring finger and left little finger.
He was taken to St George Hospital and subsequently transferred to Royal North Shore.
Mr Finch thought he was going to be killed as he was dragged.
He underwent surgery which has not been successful and has had to be redone on several occasions.
He has lost all the bones and now has titanium in his hand and has been left with chronic pain and permanent disability.
The Medical Assessor assessed 8% WPI.
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 the worker should undergo a further medical examination because as explained below the Medical Assessor fell into error which could not be corrected without such a re-examination.
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.
Further medical examination
Dr Michael Hong of the Appeal Panel conducted an examination of the worker on
29 August 2024 and reported to the Appeal Panel.
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 which have been considered by the Appeal Panel.
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 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 MAC
In relating the history of the injury, the Medical Assessor noted:[1]
“Mr Finch is not able to do activities that he used to enjoy, including riding motorbikes, teaching drums, guitars, and playing tournament golf.”
[1] Appeal papers page 27.
The Medical Assessor noted Mr Finch’s present symptoms, relevantly as follows:
“Mr Finch told me that his mental health has gone down a spiral, he had 3-4 major operations, can’t go on with this, he is constantly in pain, and must rely on pain killers. He told me that the bones have been taken out of his finger and is all titanium now, and he is in horrific pain every day. He reported no motivation, no energy, nothing inspiring him, constant fight with his partner, no pleasure in anything, had thoughts that it was better if he was not here, and pain brings tears to his eyes.
Mr Finch showers when his partner comes home and struggles to shave. He eats with right hand, picks up things with right hand as has lost 60% strength in left hand. He showers every day and brushes teeth, and his wife gets things set for him. He used to cook but can’t cook now. He can use knife for chopping. He has lost 12-15 kilos since the accident, not going to gym, used to keep fit, can’t train, and may just walk in the park.[2]
……
[Mr Finch] feels his identity and existence has been taken away from him. He has been set back, and not getting any payments. His wife is a solicitor and feels lucky that she can look after finances and manage expenses. He told me that his 15,000 $ worth of license is of no use and he had to throw it in the bin. He feels heartbroken and is sick of being in pain all the time.
Mr Finch was on motorcycle club (sic), but now he can’t play golf, can’t go for rides, no one is assisting him, and feels devastated. Now he must find new industry to work in, has applied for few jobs but no one would hire him. He has applied for traffic control, warehouse operations, but no one would accept his application. He tried to get a forklift license but it was not issued to him.
…..
Mr Finch told me that around 6 months ago, he was in a dark place, kept thinking it was better if he was not here. Mr Finch thought of it and spoke to his wife and daughter helped him and talked him through. He wishes to see a psychologist to get help for his mental health. He has constant pain in the hand, and surgeons can’t do anymore for his hand.[3]”
[2] Appeal papers page 28.
[3] Appeal papers page 28.
In considering Mr Finch’s social activities/ADL. The Medical Assessor said:
“Mr Finch told me that he can’t play golf, nor guitar, he is not seeing his friends as well, feels stuck, and doesn’t feel right. He feels there is lack of support. He has seen careers advise person and was told that he doesn’t have a career, and has been told not to be capable of working in the heavy machine industry.[4]
Mr Finch told me that in his day he would water the garden, vacuums floor, picks kids from school, and monitors his kids at home. He does not feel right in his head, wife would come home by 5:30 pm and they have dinner.”
[4] Appeal papers page 29.
At [10c] the Medical Assessor surveyed the opinions that were before him from both medico-legal experts. The Medical Assessor noted the difference in the Psychiatric Impairment Rating Scale (PIRS) ratings by both Dr Teoh and Dr Anand.
SUBMISSIONS
The appellant
The appellant addressed his submissions under the headings “incorrect criteria and demonstrable error”. The details of the submissions were made under the heading of “incorrect criteria” but the errors identified by the appellant also constituted a demonstrable error as we understood the submission.
We propose to consider the appeal for the point of view of the categories from the PIRS that were challenged.
Social and recreational activities
The appellant’s substantive challenge began at [12] of the submissions, where it was submitted that the class 3 rating given in this category by the Medical Assessor was insufficient. The appellant submitted:[5]
“12…... This is because the history obtained by the Medical Assessor did not
permit an assessment of a moderate impairment because the Medical Assessor did not obtain the history of the Appellant undertaking the activities which are required to be assessed at class 3.”
[5] Appeal papers page 10.
We were referred to a Medical Appeal Panel decision, Marciano v State of New South Wales[6], which was authority for the proposition that “events that can be described as solitary or shared with a single trusted person only, could not be described as being social, with the subject category.”[7]
[6] [2022] NSWPIC MP 26.
[7] This authority is not binding, and appears to have been contradicted in Botha v Secretary, NSW Department of Customer Service [2024] NSWSC 781.
This, it was submitted, was a further reason demonstrating error by the Medical Assessor.
In addition to there being no basis to demonstrate that Mr Finch undertook the activities that permitted such a class 3 categorisation, Mr Finch argued that it would not be sufficient for the Medical Assessor to take into account limited participation in certain solitary or confined activities in any event.
“14. Accordingly, this is a further reason why the Medical Assessor erred in assessing the Appellant at class 3 because, in addition to there not being a basis to demonstrate the Appellant undertook the activities that permitted such a categorisation, it would not be sufficient for the Medical Assessor to take into account limited participation in certain solitary or confined activities in any event.”[8]
Self care and personal hygiene
[8] See footnote 7 above.
In this category the appellant submitted that a class 3 rating should have been given instead of the class 2 rating that the Medical Assessor assessed.
The appellant submitted that the Medical Assessor had found that Mr Finch:
(a) was not able to live independently without regular support;
(b) needed prompting to shower;
(c) relied on his wife to ‘get things done’;
(d) was unable to cook;
(e) had gained weight;
(f) was unable to exercise, and
(g) struggled to shave.
In light of these findings it was submitted that the Medical Assessor should have classified
Mr Finch’s rating as being “mild”.It was submitted that if the MAC was read “as a whole” Mr Finch could not live independently, did not look after himself adequately and his impairment was “far graver than simply sometimes missing a meal or sometimes relying on takeaway food.”
Social functioning
The appellant submitted that there should at least have been a class 3 rating given in this category, rather than the class 2 found by the Medical Assessor.
We were referred to the history of Mr Finch’s relationship as taken by the Medical Assessor, which demonstrated that relationships were “severely strained” and evidenced by periods of separation, as was noted by the Medical Assessor. Mr Finch referred to the fact that his spouse would take the children to her sister’s place.
The history that the Medical Assessor recorded was sufficient to establish a class 3 rating, it was submitted.
Concentration persistence and pace
Mr Finch submitted that the history recorded by the Medical Assessor was “mischaracterised” and that if “the MAC was read as a whole” there was no history of how
Mr Finch “could read something if required” and “could manage” to read instruction manuals.The appellant did not give such a history and neither did the Medical Assessor actually obtain the same, it was submitted. We note that no application was made to introduce additional or fresh evidence to the appeal.
We were referred to the descriptors for a class 2 rating. To the “complete contrary,” Mr Finch argued, the history obtained by the Medical Assessor actually satisfied a class 3 rating. This was alleged to be because:
· Mr Finch could only read if required and otherwise was unable to read and
· while he said he could manage to read instruction manuals “this actually demonstrated as required by class 3, that he finds it difficult to follow complex instructions (eg operating manuals, building plans) etc.”.
Employability
Mr Finch submitted that he should have been rated as a class 5 rather than a class 4. It was submitted that there was no evidence to support the finding that he could perform less than 20 hours per fortnight in a different position. There was no evidence upon which to base this finding, it was alleged.
Mr Finch submitted that he had given the Medical Assessor the history that he was not able to work heavy machinery, but he was forced to retrain for another occupation, without being able to find anything he could do. Mr Finch’s work experience had been limited to working with heavy machinery, including as a heavy plant mechanic and welder.
There was accordingly no evidence which permitted the finding as to capacity made by the Medical Assessor and neither, it was argued, did the Medical Assessor point to any such evidence.
As to demonstrable error we were referred to the well-known passage in Wingfoot Australia Partners Pty Limited v Kocak[9] that a Medical Assessor must expose his actual path of reasoning to enable the court to see whether there was any error or not.
[9] [2013] HCA 43.
The Medical Assessor, it was submitted, “made various findings which were not open to him based on the history he obtained”. He did not attempt to reconcile this discrepancy by any explanation in his reasons, it was argued.
It was submitted that more than one conclusion “was open with respect to his conclusions” and he was therefore required to provide greater reasons that he actually provided.
The respondent
Social and recreational activities
The respondent submitted it was open for the Medical Assessor to make a class 3 rating.
We were referred to the descriptors for classes 2 and 3 in this category.
The respondent noted that a history was recorded that Mr Finch picked up his children from school and monitored them at home. Further, he went out to his brother’s place for Christmas and that he goes to soccer with his son on Saturday mornings and took him for training on Tuesdays and Thursdays.
We were referred also to the history taken by Dr Anand that Mr Finch has two friends that he would keep in touch with and occasionally go to a BBQ with every few months. Dr Anand noted also that Mr Finch enjoyed spending time with his “grandkids” and that his brother was in touch with him regularly.
The respondent noted that the class 3 classification was also found by the medico-legal experts on each side of the record.
Self care and personal hygiene
The class 2 rating was open to the Medical Assessor, the respondent submitted.
We were taken to the findings by the Medical Assessor which included that Mr Finch was able to water the garden and vacuum. When he did live on his own at Baulkham Hills for a period, his wife would bring food for him.
The class 2 rating, it was submitted, was available on both the medical and factual evidence that was remitted to the Medical Assessor, as it was with the history taken by him on the day of assessment.
Again, it was noted that the class 2 rating had also been found by both medico-legal experts.
The reasoning by the Medical Assessor was adequate to explain his rating, it was submitted.
Social functioning
Again, the respondent submitted that on the facts before him and the history as taken by the Medical Assessor, the class 2 rating was appropriate.
The respondent submitted that the existing relationships for Mr Finch had only been strained, and that had been over a year prior to the assessment. There was no evidence that the relationship continued to be strained.
The submission that one or other parent took the children out represented a strain in
Mr Finch’s relationship was rejected by the respondent. It submitted that on any view one parent could take a child out independently without that being an indication that there is a strain in the relationship.The appellant’s taking his son to soccer on Saturdays, Tuesdays and Thursday reflected a standard procedure in households which was unremarkable and certainly not evidence of separation or a severe strain in the relationship.
We were referred also to the history taken by the Medical Assessor that Mr Finch’s wife and his daughter helped him at the time he was in a dark place.
Concentration persistence and pace
The respondent referred to the evidence that showed Mr Finch had indeed retrained for other occupations and applied for jobs including traffic control, warehouse operations and that he attempted to get a forklift license.
We were referred to the history taken by Dr Anand that Mr Finch was dyslexic and therefore preferred to watch television and did not do much reading.
It was submitted that the rating was appropriate.
Employability
The respondent noted that Mr Finch had applied for jobs including traffic control and warehouse operations but his applications had not been accepted. That was evidence, it was submitted, that the medical finding of capacity for work to the limited hours that the Medical Assessor found he was capable of doing.
DISCUSSION
The Psychiatric Impairment Rating Scale (PIRS)
The PIRS is established as the rating criteria for assessing psychiatric/psychological impairment, by virtue of Chapter 11 of the Guides. Chapter 11 sets out six categories of behaviour to be considered, each being divided into five classes, ranging in seriousness from 1 to 5. Class 1 relates to a situation where there is no psychological deficit, or a minor deficit attributable to the normal variation in the general population. Class 5 pertains to a person who is totally impaired.
Chapter 11.12[10] provides:
“Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the person’s age, sex and cultural norms.”
[10] Guides page 55.
The assessor is required to classify each category, and to apply the resulting scores as set out in Chapter 11[11].
[11] See 11.15-11.21 at Guides page 65 and Table 11.7 at Guides page 66.
The assessment of psychiatric disorder has been considered in a number of cases. In Ferguson v State of New South Wales[12] Campbell J was concerned the case where the Medical Appeal Panel had revoked the MAC on the basis that the finding by the Approved Medical Specialist (AMS) had been glaringly improbable. His Honour found that the Appeal Panel had fallen into jurisdictional error. He said at [23]:
“By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS:
‘… the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face’.
24. The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.
25. The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides ‘The assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment’: Appeal Panel reasons at [37]. The descriptors, or examples, describing each class of impairment in the various categories are ‘examples only’: see Jenkins v Ambulance Service of New South Wales[13]. The Appeal Panel said ‘they provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected’: Appeal Panel reasons at [37].”
[12] [2017] NSWSC 887.
[13] [2015] NSWSC 633.
In Glenn William Parker v Select Civil Pty Ltd,[14] another case regarding assessment of psychiatric disorder, Harrison AsJ cited [23] of Ferguson with approval at [65]. Her Honour said at [66]:
“In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense. (Ferguson [24])…..”
[14] [2018] NSWSC 140.
In Jenkins Garling J said at [73]:
“It was a matter for the clinical judgment of the AMS to determine whether the impairment with respect to employability was at the moderate level, as he did, or at some other level. But, in seeking judicial review, a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review.”
It is accordingly necessary for the Appeal Panel to be satisfied that the assessment by the AMS in this category was erroneous in one of the following ways (to use the reference by Campbell J in Ferguson):
(a) if the categorisation was glaringly improbable;
(b) if it could be demonstrated that the AMS was unaware of significant factual matters;
(c) if a clear misunderstanding could be demonstrated, or
(d) if an unsupportable reasoning process could be made out.
In Lancaster v Foxtel Management[15] Basten AJ noted at [88]-[89] that these four considerations, although not inaccurate, were not a statement of legal principles, and that care should be taken in applying the explanation in place of s 327(3) and s 328(2).
[15] [2022] NSWSC 929.
The tension between these descriptors, which we apprehend the authors of the Guides foresaw in the many different possible scenarios within the six categories of the PIRS, is the basis for the reservation in Chapter 11.12 that the descriptors are intended to be non-binding examples. They give a general guide to the level of the behavioural consequences of the particular psychiatric disorder, and thus allow a wider discretion to be applied than if the descriptors were intended to be strict criteria.
Mr Finch’s submissions were primarily concerned in the final analysis with whether the class ratings in the impugned categories of the PIRS were more than mere differences of opinion. We shall consider the categories in the order they are described in Chapter 11 of the Guides.
Self care and personal hygiene
Table 11.1 of the Guides provides relevantly:
“Class 1 No deficit, or minor deficit attributable to the normal variation in the general population
Class 2 Mild impairment: able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.
Class 3 Moderate impairment: Can’t live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2–3 times per week to ensure minimum level of hygiene and nutrition.”
The Medical Assessor’s class 2 rating was explained in his Table 11.8 PIRS Rating Form:[16]
“Mr Finch showers when his partner comes home, and struggles to shave. He eats with right hand, picks up things with right hand as has lost 60% strength in left hand. He showers every day and brushes teeth, and his wife gets things set for him. He used to cook but can’t cook now. He can use knife for chopping. He has lost 12-15 kilos since the accident, not going to gym, used to keep fit, can’t train, may just walk in the park.”
[16] Appeal papers page 36.
We note that both experts also certified a class 2 rating for this category.
If a party wishes to argue that a Medical Assessor has erred in his function where its own expert opinion coincides with the Medical Assessor’s conclusion, it must overcome the difficulty expressed by the above authorities, namely, that a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review. If the Medical Assessor agrees with its own expert witness, that party bears an onus to demonstrate not only that the Medical Assessor was in error, but that so also was its own expert.
Notwithstanding, the Panel was not persuaded that Dr Teoh’s class 2 rating was necessarily appropriate, and the facts set out by the Medical Assessor also raised a doubt as to whether or not a moderate class 3 was not more apt.
For the appellant, on 27 July 2023 Dr Ben Teoh took a consistent history that Mr Finch sustained a serious injury when the hydraulic arm on a crane wrapped Mr Finch’s arm in chain and dragged him across a yard 60 metres down in an excavation pit.[17] Mr Finch’s left hand underwent several unsuccessful surgical procedures, and he now has lost all the bones in his dominant left hand, and has titanium in his hand. Dr Teoh did not comment on this category in the body of his report, but gave as his reasons:[18]
“He has been lacking motivation to care for himself. He requires help from his family and friends.”
[17] Appeal papers page 64.
[18] Appeal papers page 70.
Bearing in mind that the emphasis in this case is not on the physical limitations of Mr Finch’s serious injury, but on the behavioural consequences his psychiatric disorder, the Panel was nonetheless not persuaded that the description given by either Mr Finch’s medico-legal expert or the Medical Assessor himself was consonant with a class 2 rating. Many of the limitations described by the Medical Assessor may well have been caused by Mr Finch’s physical limitations, but because of that fact, some further explanation was required regarding the psychological consequences in this category.
Social and recreational activities
Table 11.2 of the Guides provide the relevant descriptors in this category:
“Class 1 No deficit, or minor deficit attributable to the normal variation in the general population: regularly participates in social activities that are age, sex and culturally appropriate. May belong to clubs or associations and is actively involved with these.
Class 2 Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).
Class 3 Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.
Class 4 Severe impairment: never leaves place of residence. Tolerates the company of family member or close friend, but will go to a different room or garden when others come to visit family or flat mate.
Class 5 Totally impaired: Cannot tolerate living with anybody, extremely uncomfortable when visited by close family member.”
The Medical Assessor’s reasons for his class 3 rating were:
“Mr Finch can’t play with his kids and grandkids, can’t pick his grandkids up, due to the injury in his hand. He doesn’t have money to go out for dinner or to Luna Park and feels inadequate to support his family. He is not into hobbies as he is struggling with finances. He hasn’t been on holidays, last time he went out was to his brother’s place for Christmas. He didn’t buy Christmas gift for his daughter and grandkids, didn’t buy gift for son’s birthday, and that breaks his heart as he is struggling financially.”
We had some difficulty deciphering the appellant’s submissions regarding this category, with respect. It appears that the gravamen of Mr Finch’s complaint was that the Medical Assessor’s findings of fact to justify a class 3 rating, ignored more relevant facts. The Medical Assessor, although acknowledging Mr Finch’s extensive recreational activities in the body of his report, mentioning his hobbies of belonging to a motorcycle club, teaching drums, playing guitar and playing ‘tournament’ golf, failed to mention those activities in his explanation.
We acknowledge the respondent’s submission that the two medico-legal experts also agreed that a class 3 rating was appropriate, and our comments about the added onus on an appellant to demonstrate error by the expert as part of the challenge to the MAC. However, the function of a Medical Assessor is to primarily form his own opinion. A Medical Assessor has the same functions of a Medical Panel,[19] which were described in Wingfoot Australia Pty Ltd v Kocak,[20] where the High Court (French CJ, Crennan, Bell, Gageler and Keane JJ agreeing) held from [47]:
“The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
[19] Western Sydney Local Health District v Chan [2015] NSWSC 1968 at [13].
[20] [2013] HCA 43; (2013) 252 CLR 480.
Where, as in this case, the Medical Assessor has failed to refer to relevant facts in forming his own opinion, the opinions of other experts are neither here nor there.
Accordingly, the Panel determined that Mr Finch should be re-examined, as the Medical Assessor has made a demonstrable error.
We have above noted the submissions made by both parties as to the remaining categories of social functioning; concentration, persistence and pace; and employability, but as a re-examination is now required there is no point in analysing the remaining submissions in any detail. The nature of a re-examination in this discipline requires a fresh look at all the categories.
Dr Hong’s re-examination report follows:
1. HISTORY RELATING TO THE INJURY
· Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
Mr Finch reported that he had worked in heavy machinery since he was 18 and had not done any other work. Following the accident on 14 August 2019 at work, he has been unable to return to any work. He is left-handed and said that he had four surgeries on his dominant hand since the accident, with the last one 18 months ago. However, even after the last surgery, he is in constant excruciating pain, and he always needs to take painkillers. He said the surgeon told him the only other option is to amputate the two fingers affected, if the pain cannot be tolerated.
He developed anxiety and depressive symptoms since the accident and is distressed by chronic pain.
Previously, Mr Finch said he went to the gym twice a week, but he does not go now as exercise causes more pain. He wants to ride his motorcycle, which is at home, and said he used to belong to a motorcycle club but cannot ride a motorcycle due to his hand injury operating the handle. He used to play the guitar and drums and also taught musical instruments, but again cannot do this due to his hand disability. He said he used to play golf and socialise with friends afterwards, but cannot play anymore due to the hand injury. He said that he is worried about doing anything physical, because whenever there is a bump or knock to the hand, he suffers severe pain. He has been told he can lift less than 5 kg with the two functional fingers on his left hand.
He discussed the deformity in his fingers and said that they separate, and he is embarrassed by their appearance.
Mr Finch normally writes with his left hand but cannot hold a pen now. He can write with his right hand with difficulty, with poor legibility. He is dyslexic and has poor spelling.
He cannot drive a manual car. He can drive using two fingers in an automatic car and has an RMS disability permit for parking. However, after driving 30 minutes, he has to stop due to severe hand pain.
Mr Finch said he has lost about 60-70% of the activity he used to do since the hand injury.
He said his heavy machinery tickets have expired because he has not been able to work and cannot renew them. He has been terrified of heavy machinery since the accident. He said he needs direction and help to find work in another industry but does not know what he can do because he has never done other work.· Present treatment:
Mr Finch takes Panadeine forte 4-6 tablets daily. He took an antidepressant, the last time was 10 months ago. He consulted Philip Castleman, psychologist but ceased it as he cannot afford treatment, around a year ago.
· Present symptoms:
Mr Finch reported that he has poor sleep as he bumps his hand at night, or his wife bumps his hand in bed, causing severe pain. He sleeps only a couple of hours at night. He has bad dreams and wakes up thinking he has fallen off a crane.
He has intrusive memories related to the accident and thought he could have died from the accident.
He was 90 kg before the accident and is now 76 kg; he said this is because he cannot lift weights or go to the gym. He has no appetite and has maintained the same weight for around 18 months.
He experiences anxiety and panic symptoms, which are triggered by heavy machinery and television programmes about accidents.
He said he does not like going out now and has chronically low moods. He has had suicidal ideation and said that with repeated operations, he felt he had had enough. He has not had a suicidal attempt.
He said his concentration is ‘not focused.’
He described arguments with his wife and being irritable; they also argued about money. He described intimacy issues and explained that, due to pain, he struggles with it.
He is upset because the doctors said nothing more can be done, and at 55, he does not know what else he can do.· Social activities/ADL:
Mr Finch is living with his wife. He has four children. The older two are 30 and 19, and the youngest two, 14 and 12, live at home.
He said he wants to do things he enjoyed in the past, play sports, or play with his children, and when he tries to do it, his children are very careful not to bump into him. He said he cannot even pick up his children or help his son with his bike.
Mr Finch said that he is dyslexic and that he completed a traffic control certificate in early 2023, which was a five-day course, and he learnt through diagrams and did not have to read much, and he is mechanically minded. He applied for a security course but did not receive funding approval for it. He has maintained a forklift licence for several years, as well as a driver's licence, but has no other machinery tickets because he could not renew them, as he has not worked since the accident and cannot afford to pay for it.
Day-to-day, Mr Finch spends time with his children and watches over them when his wife is at work, but he cannot do anything physical. He eats lunch at home and sometimes skip a meal. He walks to school in the morning with the children, and afternoon for school pick-up. He said he organises things for the children before his wife returns, helping them get their school uniforms and things needed for school. He cannot cook due to his hand injury, so his children make food for themselves, and his wife cooks dinner. Mr Finch said he can make a sandwich for himself. He occasionally orders takeaway food, but not often, due to financial reasons.
He goes shopping one to two times per week with his wife and children. In the past 6 months, he attended a funeral and his grandson's fifth birthday, which was a barbeque party, but he has not been to any other social events.
He goes to barbeques in summer with his friends - he said maybe every one to two months - and goes to family gatherings and said this does not happen in winter as it is a summer activity. He goes to birthday parties in summer and winter.
Mr Finch talks to his friends and has three to four friends and said they had worked together or played golf previously. He wants to play sports and go to the city for drinks with them, but he cannot due to financial constraints, and because of his physical injuries and pain. He said he does not have any recreational activities that would not cause pain.
He said he does not use a computer due to poor spelling and does not read anything normally.
He can drive locally on his own but only for a maximum of 30 minutes, after which his hand hurts.
Mr Finch cannot do housework due to his hand injury and said he does a small amount of gardening, such as hosing and pulling weeds, but not much more.
He showers daily but has pain if he bumps his hand. He finds it difficult to move in the shower and he calls his wife if he needs a towel. He said he has had to learn to shave with his right hand, and usually shaves every two days. He remembers to shower daily without prompting.
He has been with his wife for around 12 years and they separated for one year, he said due to changed circumstances, arguments, and his depression. They have been back together for two years now; but said their relationship is fifty-fifty, not as good as it was previously, but without further separation. There has been no domestic violence.
He takes the children to their sporting activities at the weekend, such as soccer and kung fu, and walks the dog with them, and goes to the park. He takes walks with the family.2. FINDINGS ON PHYSICAL EXAMINATION
Mr Finch was assessed by video. He was alone at home during the assessment. He had short hair and was clean-shaven, and neatly attired. He engaged well with the assessment process. There was no psychomotor slowing or abnormal movements. He was moderately restricted in his affect range and reactivity. He spoke spontaneously and spoke loudly. He was not thought disordered and the provided history was easy to follow. Mr Finch was attentive throughout the assessment.
At the end of the assessment, he was invited to give more information, he thought may be relevant and he said he went to work as a healthy man, but everything crumbled because of the work injury. His employer and the insurance company then disowned him and this upsets him.3. SUMMARY
· summary of injuries and diagnoses:
Mr Finch has no past psychiatric history and described significant physical injuries and pain, and chronic anxiety and depressive symptoms since the accident. After Dr Singh’s assessment, he has not had further psychological/psychiatric treatment and his psychological injury has remained the same.
He struggles with anxiety related to the accident and has poor sleep and chronic low moods due to his hand injury, which causes constant pain and limits all daily activities. He wants to do some activities, but financial constraints and pain prevent him from engaging in social and recreational activities, such as sports or going out. His relationship with his wife is strained due to arguments and they had separated and are back together now, but the relationship remains strained. He wishes to find alternative employment and regain some normalcy in his life but feels uncertain about his options.
Consideration
The Panel adopts Dr Hong’s report. After consideration, we find that in terms of self-care and personal hygiene, as noted, Dr Ashwinder Anand, Dr Ben Teoh and the Medical Assessor all rated class 2. This is consistent with the Panel's assessment, as Mr Finch can maintain basic nutrition and hygiene, his weight is stable but he can only prepare simple foods, skip a meal at times and showers daily without prompting now. He previously lived on his own when he separated from his wife. It is apparent that the restrictions Mr Finch suffers are predominantly caused by his physical limitations, and his psychological disorder is of a mild, class 2 rating.
In terms of social and recreational activities, Dr Ashwinder Anand, Dr Ben Teoh and the Medical Assessor all rated class 3. The Panel noted Mr Finch has occasional social and recreational activities with his family and friends, including barbeque and birthday parties. He remains engaged during those activities. He wants to do more but he cannot engage with recreational activities due to his physical injuries and pain, which are not assessable in the PIRS. Again, Mr Finch’s inability to partake in the activities discussed above is due mainly to his physical limitations. The Panel rated class 2.
In terms of social functioning, the Medical Assessor rated 2. The Panel noted Mr Finch separated from his wife and they are back together, but the relationship remains strained. He has lost friends and maintains a few friendships, and has a distant relationship with his general family. He can look after his children, and this is consistent with a class 3 rating.
In terms of concentration, persistence and pace, Dr Teoh is the only IME to rate 3, but he was not aware of some information relevant to this category, including the traffic control course. The Panel noted he completed a 5 day course within the normal time. However he has some ongoing concentration difficulties, which is consistent with a class 2 rating.
In terms of employability, the Medical Assessor rated class 4, Dr Ashwinder Anand class 3 and Dr Ben Teoh class 5. The Panel noted that Mr Finch’s only employment had been in heavy machinery, but he is frightened around machines and concluded he is not employable – a class 5 rating.
Finally, Mr Finch developed chronic Major depressive disorder as a result of the subject accident and has some physical trauma features. His psychological symptoms are well stabilised and not likely to alter to a substantial degree in the next 12 months.
For these reasons, the Appeal Panel has determined that the MAC issued on 26 March 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | M1-W94/24 |
Applicant: | Shaun Finch |
Respondent: | N Moit & Sons (NSW) Pty Ltd |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Dr Himanshu Singh and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| Psychological | 14.8.2019 deemed | Chapter 11 | N/A | 9 | nil | 9 |
| Total % WPI (the Combined Table values of all sub-totals) | 9% | |||||
PIRS Rating Form
| PIRS Category | Class | Reason for Decision | |||||||||
| Self-care and personal hygiene | 2 | Mr Finch's self-care has declined. He showers daily without prompting and prepares simple foods, and is independent in activities of daily living. | |||||||||
| Social and recreational activities | 2 | He attends occasional social recreational activities with his family and friends and engages in recreational activities within his physical capacity, but this is less since the accident. | |||||||||
| Travel | 2 | From the MAC | |||||||||
| Social functioning | 3 | Mr Finch's relationship with his partner has deteriorated and they have separated and are back together now. He has lost friends since the accident. He has maintained a few long-term friendships. The relationship with his general family has become distant. He can look after his children. | |||||||||
| Concentration, persistence and pace | 2 | Mr Finch reported having reduced concentration and was able to complete a standard 5 day course. | |||||||||
| Employability | 5 | Mr Finch has no work capacity. | |||||||||
| Score | Median Class | ||||||||||
| 2 | 2 | 2 | 2 | 3 | 5 | = 2 | |||||
| Aggregate Score Impairment | Total | % | |||||||||
| + | + | + | + | + | 16 | 9 | |||||
0
9
0