Finnegan v Komatsu Forklift Australia Pty Limited

[2022] NSWPICMP 8

DETERMINATION OF APPEAL PANEL
CITATION:	Finnegan v Komatsu Forklift Australia Pty Limited [2022] NSWPICMP 8
APPELLANT:	John Finnegan
RESPONDENT:	Komatsu Forklift Australia Pty Limited
APPEAL PANEL:	Richard Perrignon Dr Douglas Andrews Professor Nicholas Glozier
DATE OF DECISION:	14 January 2022
CATCHWORDS:	WORKERS COMPENSATION- Appeal from assessment of whole person impairment; psychological injury; whether assessor erred in assessing a class 2 impairment in respect of Self-care and personal hygiene; whether assessor erred in assessing a class 2 impairment in respect of Social Functioning; whether assessor erred in assessing a class 2 impairment in respect of Concentration, persistence and pace; Held- MAC confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

1. The appellant worker, Mr Finnegan, appeals from the Medical Assessment Certificate of Medical Assessor Dr Morris dated 23 August 2021.

2. The appellant suffered psychological injury in the course of his employment as a forklift technician and sales representative. The date of injury was deemed to be 12 March 2016.

3. By a Medical Assessment Certificate dated 23 August 2021, Dr Morris diagnosed Chronic Adjustment Disorder with anxiety, and assessed an 8% whole person impairment (psychological). In doing so, he assessed a class 2 impairment (mild impairment) in respect of the Psychiatric Impairment Rating Scales (PIRS) Self care and personal hygiene, Social functioning, and Concentration, persistence and pace.

4. The appellant alleges error and the application of incorrect criteria in respect of each of these rating scales, saying that the evidence did not support a class 2 impairment, but rather a class 3 impairment. He also alleges other errors which are summarised below.

5. The Appeal Panel conducted a preliminary review of Dr Morris’ medical assessment in the absence of the parties and in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th edition) (the Guidelines).

Submissions

1. The written submissions of the parties have been considered. It is unnecessary to reproduce them in full. The appellant’s submissions are not clearly divided into discrete grounds of appeal. Doing our best to understand them, in brief summary, the appellant worker submits as follows:

   (a)    The assessment was conducted by video. The assessor noted the face of the appellant was in shadow, but did not warn the applicant so that this could be remedied. This adversely affected his ability to perform a comprehensive assessment, because he could not observe the appellant’s facial expression and demeanour.

   (b)    The assessor failed properly to take into account Dr Bertucen’s report of 13 June 2019 by misconstruing it. He said he could not find a diagnosis in the report. In fact, Dr Bertucen had diagnosed chronic adjustment disorder with severe social phobic anxiety. There was no basis for rejecting it, as the assessor did.

   (c)    He failed to have regard to the notes of interview conducted by Ms Morgan, psychologist, at page 193 of the Application to Resolve a Dispute.

   (d)    The assessor failed to take account of medical evidence, and the appellant’s reports (presumably, to the assessor), to the effect that he could not manage his own finances and that he relied upon his spouse to pay bills and purchase clothes for him.

   (e)    The assessor’s conclusion that the appellant was not presently seeing a psychiatrist or psychologist was in error, because he could not afford to continue with his previous psychologist and was unwilling to engage another because he was reluctant to re-live previous trauma with a new psychologist.

   (f)    The assessor failed to explain why the appellant’s condition had improved since examination by Dr Bertucen and Dr George. This contradicted his finding that impairment had remained stable for five years, and his observation that the appellant had lost 5kg to 6 kg in weight in that time, with diminished interest in daily activities of living.

   (g)    In respect of Self care and personal hygiene:

   (i)The evidence supported a class 3 impairment.

   (ii)There was no basis for the finding that the appellant can live independently. He reported that his wife manages his finances and pays most bills, and that he only carries out 30% of chores, and that he wears the same pants and shirts for days until his wife complains.

   (h)    In respect of Social functioning:

   (i)The evidence supported a class 3 impairment, because his previous relationships are severely strained.

   (ii)The worker’s evidence was that he had lost contact with most friends and associates with only one or two remaining to whom he speaks monthly or on the odd occasion, and that he has difficulty trusting people. The assessor misunderstood the history provided to him.

   (i)    In respect of Concentration, persistence and pace:

   (i)A class 2 impairment was not open on the evidence. A class 3 impairment was justified because the appellant is unable to make significant repairs to motor vehicles. He is so unable, because Dr Morris found that he could only work two days per week, less than 2 hours per fortnight.

   (ii)A class 2 impairment was inconsistent with the assessment of Employability as class 4.

2. In summary, the respondent employer submits as follows:

   (a)    There is no evidence that the examination was deficient. Despite the face of the appellant being in shadow, the assessor did not suggest that he could not see his face or expressions adequately. The respondent does not explain why this constituted demonstrable error or the application of incorrect criteria.

   (b)    The assessor did not misconstrue Dr Bertucen’s report of 13 June 2019, because Dr Bertucen did not make it clear whether he was providing a fresh diagnosis, or referring to his previous diagnosis of 15 November 2017, which was consistent with Dr Morris’ diagnosis.

   (c)    Dr Morris was in any event entitled to make his own diagnosis, as he did.

   (d)    In respect of Self care and personal hygiene:

   (i)A mere difference of opinion on the degree of impairment assessed upon which reasonable minds might differ does not establish error. Intervention is only justified if the characterisation was glaring improbable: Ferguson v NSW [2017] NSWSC 887.

   (ii)The submissions advanced by the appellant do not point to any such improbability. They represent mere differences of opinion on characterisation.

   (e)    In respect of Social functioning:

   (i)A class 2 impairment was reasonably open, because the Appellant conceded he had a good relationship with his adult children and a generally good relationship with his wife.

   (ii)The respondent otherwise repeats its submissions with respect to Self care and personal hygiene.

   (f)    In respect of Concentration, persistence and pace:

   (i)The appellant was able to make repairs to motor vehicles.

   (ii)The respondent otherwise repeats its submissions with respect to Self care and personal hygiene.

CONSIDERATION AND DISPOSITION

Lighting

1. There is no evidentiary basis for a finding that the conduct of the assessment was compromised by the fact that the appellant’s face was in shadow. The assessor does not suggest that he was unable to view the face or facial expressions. On the contrary, he confirms that despite the lighting, he was able to make a comprehensive assessment.
   Dr Morris considered whether the effects of the shadow on his assessment, and concluded that it did not compromise the assessment.

2. In any event, facial expression and demeanour go to diagnosis. It is not alleged that the diagnosis, which agreed with that of Dr Bertucen, was incorrect.

3. The assessment of the rating scales in respect of which the appeal is brought was made, not on the basis of demeanour, but on the basis of what the appellant told the assessor.

4. We can identify no error in respect of this ground.

Dr Bertucen’s diagnosis - failure to take into account

1. In his report of 13 June 2019, Dr Bertucen was asked whether the appellant’s Adjustment Disorder with depressed mood and anxiety (diagnosed in his previous report) resulted from the actions of the employer. He replied (emphasis added):

   “He claims that Mr Leontis' relentless criticism of him completely undermined this confidence leading to what could be described as a severe "narcissistic injury". Consequently, I am of the view that Mr Finnegan's chronic adjustment disorder with (current) severe social phobic anxiety has been the direct result of workplace conditions.”

2. The condition there described by the doctor differed from his previous diagnosis. The word ‘current’ in brackets suggests that it might be an updated diagnosis, having re-examined the worker the day before. Dr Morris appears to have misconstrued this passage.

3. Nevertheless, we are satisfied that he read the report, as he specifically refers to it, and took it into account, even if he missed this updated expression of diagnosis.

4. The appellant does not articulate how a misconstruction of this passage (by overlooking what appears to be an updated diagnosis) led to error. He does not criticise Dr Morris’ diagnosis, presumably because he and Dr Bertucen both diagnosed an Adjustment Disorder, albeit with different descriptors. It is not suggested that any difference in diagnosis decreased the assessment of impairment, and we are not persuaded that it has.

5. In our view, the misconstruction of this passage has had no practical effect on the assessment. It does not justify the setting aside the assessment.

Psychologist notes

1. The appellant is correct in stating that the assessor did not mention the handwritten notes of his psychologist at page 193 of the Application to Resolve a Dispute.

2. In this case, the Application to Resolve a Dispute alone was comprised of 387 folios of evidence. A further 157 pages of evidence was attached to the Reply. An assessor is not required to make reference to every folio of evidence before him. The mere failure to mention it is not evidence that he did not have regard to the notes on page 193. We are not satisfied that he failed to have regard to them.

3. In any event, the respondent does not explain the relevance of these notes to any finding made by the assessor, or how a failure to have regard to them (even if that occurred) could have made any difference to the result.

4. The task of the assessor was to assess permanent impairment as at interview on 13 August 2021. The appellant does not indicate the date on which the notes were taken. So far as we can tell from the documents, they appear to have been written in 2016. Th appellant does not indicate how they could rationally affect an assessment of whole person impairment on 13 August 2021. We cannot tell how they could do so, in the absence of any indication from the appellant.

5. In all the circumstances above, we can identify neither error nor the application of incorrect criteria.

Management of finances

1. The task of the medical assessor was to assess permanent impairment as at the date of examination.

2. There is no evidence that the appellant described to the assessor any inability to manage his finances.

3. The report of Dr Bertucen dated 15 November 2017 includes a note that the appellant said he was then unable to manage his finances adequately, and left the management of them to his wife. There can be no doubt that the assessor took into account the reports of
   Dr Bertucen, because he gave reasons for the differences between his assessment and that of Dr Bertucen.

4. He was not obliged to assume that any inability with respect to finances which was present in 2017 remained as at examination on 13 August 2021, in the absence of evidence to that effect.

5. The allegation that he misunderstood the history given by the appellant would require evidence of what history was given. There is no evidence as to what was said by the appellant at examination, save for that which is contained in the Medical Assessment Certificate itself.

6. We are not satisfied that the appellant told the assessor that he was unable to manage his finances. To the extent that he told Dr Bertucen in 2017 that was so unable, that was taken into account by the assessor.

7. We can identify no error.

Not seeing a psychologist or psychiatrist

1. Dr Morris took the following history at [4]:

   “He said his GP referred him to a psychologist in Windsor on a mental health plan and whom he saw in 2015-2016. After stopping work Mr Finnegan said his GP referred him to a new psychologist but he found the therapy too expensive and stopped seeing him. He saw another psychologist on two occasions but did not believe the sessions were helping him and he subsequently stopped. He has not seen a psychologist for more than 12 months.”

2. At [4], Dr Morris also noted the following under the heading, ‘Present treatment’:

   “He is presently not seeing a psychiatrist or psychologist. He is not keen to see a psychologist and to have to go through his history again.”

3. There is no allegation that this history was incorrect, though it is more detailed than that which is now advanced in submissions. Dr Morris took into account the fact that the worker could not afford sessions, and that he did not wish to relive the trauma by going through his history again.

4. The fact that there were reasons for not consulting a psychologist or psychiatrist does not disprove the fact that he was not doing so.

5. We can identify no error, or the application of incorrect criteria.

Improvement in condition - failure to explain

1. Dr Morris gave the following reasons for the differences between his assessment and those of Dr George and Dr Bertucen:

   “I note a report on Mr Finnegan by Dr Graham George, psychiatrist dated 23 June 2016. Dr George made the diagnosis of Major Depression with anxiety, whereas I have made the diagnosis of chronic Adjustment Disorder with anxiety. I do not believe there was significant depressive symptoms in Mr Finnegan’s current presentation. I note that there has been over five years since he was assessed by Dr George.

   I note a report on Mr Finnegan by Dr Jeff Bertucen, psychiatrist dated 15 November 2017. Dr Bertucen noted then that Mr Finnegan was taking the antidepressant medication Lexapro 20mg in the morning. Dr Bertucen gave Mr George a whole person impairment rating of 19%.

   I note a further report on Mr Finnegan by Dr Jeff Bertucen, psychiatrist dated 13 June 2019. I could not find a specific diagnosis in this report but Dr Bertucen gave Mr Finnegan a whole person impairment rating of 17%. The only difference in our ratings was for the category of Concentration Persistence and Pace where Dr Bertucen rated Mr Finnegan a Class 3, whereas I rated him a Class 2. I rated Mr Finnegan a Class 2 as he reported being able to concentrate for an hour to work on repairs to his car and to other machinery on the property and also when driving an excavator working on his property.”

2. He explained the difference between his assessment and that of Dr George as being one of diagnosis. Unlike Dr George, Dr Morris did not consider there were symptoms of depression. Noting a passage of five years since Dr George’s report, he was implying that, if there were depressive symptoms five years earlier, they were no longer present at the level of severity required to meet the diagnostic criteria for Major Depression. That was a view he was entitled to take in the exercise of his clinical judgment, on the basis of his assessment at examination.

3. This was not necessarily inconsistent with the presence of symptoms of psychiatric disorder since, such as weight loss and diminished interest in the activities of daily living or with the observation that impairment had remained stable over that time.

4. With respect to Dr Bertucen’s assessment of impairment, Dr Morris noted that he differed in only one respect, assessing class 2 in respect of Concentration, persistence and pace, whereas Dr Bertucen had assessed a class 3 impairment. He noted this was because the applicant told him he was able to concentrate for an hour on fixing his car and other machinery, and on working with an excavator. Dr Bertucen had not taken that history.

5. The reasoning of the assessor was patent and, in our view, sufficient to explain the difference in the assessment of the two doctors. We identify neither error nor the application of incorrect criteria.

Self care and personal hygiene

1. The descriptors for class 2 and 3 impairment are as follows:

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.

1. In the PIRS Rating form, the medical assessor gave the following reasons for assessing a class 2 impairment in respect of Self care and personal hygiene:

   “Mr Finnegan shares the household chores including the cooking with his wife. He skips meals and only eats one meal per day. He is less interested in his personal grooming than previously but showers and changes his clothes regularly. In my opinion he is able to live independently.”

2. He also took a history at [4] that the appellant ‘shares the cooking, house cleaning, and clothes washing with his wife. He showers and changes his clothes regularly’.

3. The appellant does not reveal the source of his submissions to the effect that he reports.

4. The task of the Medical Assessor was to compare the history and his findings on examination with the descriptors for class 2 and 3 and to determine into which class the appellant’s symptoms and impairment best fit as at the date of examination. Having considered the material before him, including the applicant’s evidence and what he told the assessor, the assessor concluded that he was able to live independently, rather than unable to live independently without regular support. In circumstances where he shared the cooking with his wife, and showered and changed daily, that conclusion was reasonably open to him, notwithstanding the evidence that he skipped meals.

5. The appellant submits that the assessor failed to take into account his report that ‘his wife manages his finances and pays most bills, and that he only carries out 30% of chores, and that he wears the same pants and shirts for days until his wife complains’. He does not say where or when he reported those matters, or to whom.

6. He did not report those things to the medical assessor. His report that he wears the same pants and shirts for days is inconsistent with what he told the assessor. On 14 November 2017, he did report to Dr Bertucen that he leaves his finances in his wife’s hands due to his inability to handle them adequately. However, that was not communicated to the assessor. Even with this information Dr Bertucen also rated the appellant as mildly impaired in his self-care and personal hygiene.

7. The medical assessor was entitled to prefer the account given to him at examination to reports made in previous years to other clinicians, and to make his assessment on basis of that account, coming to the same conclusion as Dr Bertucen.

8. We can identify no error.

Social functioning

1. The descriptors for class 2 and 3 impairment are as follows:

Class 2	Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.
Class 3	Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.

1. In the PIRS Rating form, the medical assessor gave the following reasons for assessing a class 2 impairment in respect of Social functioning:

   “Mr Finnegan reports a generally good relationship with his wife but said she is more concerned for his well-being now. He reports a good relationship with his adult children. He said he has lost some friendships through his social withdrawal but has kept up with some good friends who he keeps in contact with by telephone calls.”

1. As we understand it, the appellant says that the assessor misunderstood his representations to the assessor, which were to the effect that he had lost contact with most friends and associates with only one or two remaining to whom he speaks monthly or on the odd occasion, and that he has difficulty trusting people.

2. There is no evidence before us as to what he told the assessor, save for the Medical Assessment Certificate itself. That contains the summary quoted above in the PIRS rating form. We accept it as an accurate reflection of the what the assessor was told. The appellant does not suggest that the summary itself is inconsistent with a class 2 impairment, and we do not consider that it is.

3. In our view the evidence that the appellant continues to live with his wife and son, and the absence of any description to the assessor of any separation or domestic violence, do not support a class 3 impairment.

4. The assessment of a class 2 impairment was reasonably open to the assessor. We can identify no error.

Concentration, persistence and pace

1. The descriptors for class 2 and 3 impairment are as follows:

Class 2	Mild impairment: can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache.
Class 3	Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.

1. In the PIRS rating form, the medical assessor gave the following reasons for assessing a class 2 impairment in respect of Concentration, persistence and pace:

   “Mr Finnegan reports reduced concentration but is still able to work for an hour doing repairs on his cars or machinery on his property. He also is able to use an excavator to work on the property for the same period of time. He was able to focus in the interview which was about 55 minutes in duration.”

2. As we understand his submissions, the appellant says that, in assessing a class 4 impairment with respect to employability, the assessor found that the appellant could not work more than one or two days per week, for less than two hours a fortnight, which meant that he could not undertake substantial repairs on his vehicles, and that this was inconsistent with a class 2 impairment.

3. The assessor did not find that the appellant was capable of less than two hours work per fortnight. In assessing a class 4 impairment with respect to employability, he noted in the PIRS form,

   “He would likely be only able to work one or two days at a time, less than 20 hours per fortnight …”

4. In our view, neither the work capacity of the appellant, nor the fact that he was able only to work on his vehicles for an hour at a time, compelled a finding that the appellant was unable to make significant repairs to a motor vehicle. The assessor neither made nor implied any such finding. He was not obliged to do so.

5. The assessment of a class 2 impairment was reasonably open in the circumstances. We can identify no error.

Conclusion

1. For the reasons given, we can identify neither error nor the application of incorrect criteria. The Medical Assessment Certificate of Dr Morris is confirmed.