Kerney v Ross Hill Wine Group Pty Ltd

[2023] NSWPICMP 699

DETERMINATION OF APPEAL PANEL
CITATION:	Kerney v Ross Hill Wine Group Pty Ltd [2023] NSWPICMP 699
APPELLANT:	Phillip John Kerney
RESPONDENT:	Ross Hill Wine Group Pty Limited
APPEAL PANEL
MEMBER:	Richard Perrignon
MEDICAL ASSESSOR:	Graham Blom
MEDICAL ASSESSOR:	Nicholas Glozier
DATE OF DECISION:	22 December 2023
CATCHWORDS:	WORKERS COMPENSATION - Appeal from assessment of whole person impairment (psychological); whether the assessor erred in assessing the Psychiatric Impairment Rating Scale, social and recreational activities, travel, and social functioning; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

1. The worker, Mr Kerney, appeals from the Medical Assessment Certificate of Medical Assessor Hong dated 14 August 2023. He examined Mr Kerney on 4 August 2023 by video, and assessed a 7% whole person impairment (psychological) as a result of injury on
   22 February 2019.

2. He assessed three of the psychiatric impairment rating scales (PIRS) as follows:

   (a)    Social and recreational activities:             Class 3 impairment,

   (b)    Travel:  Class 1 impairment, and

   (c)    Social functioning:  Class 2 impairment.

3. Mr Kerney submits that the assessment of these three scales demonstrates error and the application of incorrect criteria. He says that:

   (a)    in respect of Social and recreational activities, the assessment of a class 3 impairment was against the evidence recorded by the Medical Assessor,

   (b)    in respect of Travel, the evidence supported a class 2 impairment, and

   (c)    in respect of Social functioning, it supported a class 3 impairment.

4. The Appeal Panel conducted a preliminary review of the Medical Assessor’s medical assessment in the absence of the parties and in accordance with the Guidelines.

Submissions

1. The parties made written submissions which have been taken into account. It is unnecessary to repeat them in full. The appellant’s submissions may be summarised briefly as follows:

   (a)    In respect of Social and recreational activities:

   (i)the Medical Assessor recorded that the appellant has ‘no social life at all’, compared with a ‘vibrant and active’ one before injury, and

   (ii)the Medical Assessor’s worksheet (which we interpret to mean his PIRS table) contained further details, but ‘it is entirely unclear from where this history or description has emerged because it is not apparent from any of the material reproduced by MA Hong from the other medical examiners [and] it is inconsistent with the Applicant’s Statement …’, and is inconsistent with what is recorded at page 5. The appellant does not specify which of the many things recorded at page 5 he relies on, but he does point out an explanation by the Medical Assessor as to why he differed from Dr Frukacz’s assessment, and we interpret the submission accordingly.

   (b)    In respect of Travel:

   (i)the Medical Assessor’s assessment of a class 1 impairment is inconsistent with his criticism of Dr Frukacz’s similar assessment;

   (ii)it is also inconsistent with the history taken at page 4, and

   (iii)at paragraph [12] of his statement the appellant refers to difficulties with travel.

   (c)    In respect of Social functioning:

   (i)the Medical Assessor’s assessment of a class 2 impairment is inconsistent with his description of social functioning at page 5, in which he discusses Dr Frukacz’s assessment, and

   (ii)the statement evidence given by the worker at [18] and [25] support a class 3 impairment assessed by Dr Frukacz.

2. The respondent submits in brief summary as follows:

   (a)    With respect to the assessment of Social and recreational activities:

   (i)the Medical Assessor was not required to discuss every piece of evidence; the fact that he did not refer to the worker’s statement does not demonstrate error;

   (ii)in any event, the Medical Assessor explained at page 5 that he had considered the evidence, and observed that the histories in the appellant’s statement and the reports of Dr Frukacz, Dr Teoh and Dr Allan were outdated;

   (iii)the information in the PIRS Table does not constitute the ‘sum total’ of his reasons. The Medical Assessor’s reasons must be read as a whole, and the history on which he based his assessment is ascertainable by doing so;

   (iv)the Medical Assessor is not bound to accept previous assessments of other clinicians;

   (v)mere differences of opinion on the degree of impairment do not establish error: Ferguson v State of NSW [2017] NSWSC 887; Parker v Select Civil Pty Limited [2018] NSWSC 140, and

   (vi)appellate intervention is only justified if a categorisation of behaviour was glaringly improbable, the Medical Assessor was unaware of significant factual maters, or there was a clear misunderstanding, or unsupportable reasoning process: Ferguson. None of these is established.

   (b)    With respect to the assessment of Travel:

   (i)the Medical Assessor did not support the assessment of Dr Frukacz on the basis that his reasons were inadequate. A Medical Assessor may make such a criticism of another’s assessment and still assess the worker similarly, as Medical Assessor Hong;

   (ii)the history recorded by Medical Assessor Hong was consistent with the criteria for a class 1 impairment, and provides sufficient reasons for it;

   (iii)an 8-hour return trip Orange to either Canberra or Sydney is not excessive, particularly if one drives with care, as is appropriate, and

   (iv)the alleged errors amount to a mere difference of opinion as to the appropriate class of impairment.

   (c)    With respect to the assessment of Social functioning:

   (i)the Medical Assessor commented that the histories given in the appellant’s statement, and recorded by Dr Frukacz, Dr Teoh and Dr Allan were outdated. Medical Assessor Hong considered that the worker’s relationship difficulties with his wife did not exclusively result from psychological injury;

   (ii)though there was a history of strained relationship, there was no history of domestic violence. The history of some social withdrawal with respect to a few long term friendships, but this is consistent with a class 2 impairment as assessed, and

   (iii)the allegations of error likewise amount to a mere difference of opinion as to the level of impairment.

Social and recreational activities

1. As indicated, the Medical Assessor assessed a class 3 impairment in respect of this scale. The criteria for rating class 3 and 4 impairment in Social and recreational activities are as follows:

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.

1. It was the task of the Medical Assessor to determine into which category the behavioural consequences of psychological injury best fit, by applying the descriptors and examples in Table 11.1: Guidelines at [11.12].

2. In his PIRS form attached to the Medical Assessment Certificate, the Medical Assessor gave the following reasons for assessing a class 3 impairment:

   “He used to have an active social life and went out with his friends regularly.

   He does not eat out or attend parties now.

   He still enjoys visiting friends and occasionally has visitors.”

3. The latter sentence (third sentence) is inconsistent with [24] of the applicant’s supplementary statement, to the extent the statement (summarised by the Medical Assessor at [10c]) alleged the applicant had ‘no social life at all’. It is also inconsistent with the descriptors for a class 4 impairment. It is consistent, so far it goes, with a class 3 impairment.

4. The task of the Medical Assessor was to assess the applicant as he presented at examination. There is no error in taking an up to date history. That is what he did. He explained at [7]:

   “I further noted that some of the histories in Mr Kerney's statement and reports from
   Dr Frukacz, Dr Teoh and Dr Allan are outdated.”

5. Based on the updated information, it was reasonably open to the Medical Assessor to find, as he did, that the behavioural consequences of psychological injury best fit the descriptors for a class 3. We agree with the rating assessed. Even if reasonable minds might differ, it would not demonstrate error or the application of incorrect criteria: Ferguson.

6. The appellant submits that it is not clear where this information came from. The Medical Assessment Certificate has to be read as a whole. It is reasonable to infer that the information in the PIRS table was part of the information elicited from the appellant at examination, even if it was not reproduced earlier in his reasons. We draw that inference.

7. We can identify neither demonstrable error, nor the application of incorrect criteria. This ground fails.

Travel

1. The criteria for rating class 1 and 2 impairment in Travel are as follows:

Class 1	No deficit, or minor deficit attributable to the normal variation in the general population: Can travel to new environments without supervision.
Class 2	Mild impairment: can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.

1. In his PIRS form, the Medical Assessor gave the following reasons for assessing a class 1 impairment:

   “Mr Kerney is anxious when out and he go[es] everywhere, and drives long distances.”

2. The reference to driving ‘long distances’ is explained by the following history recorded under the heading, ‘Social activities/ADL’:

   “He reported he drives very carefully. Sometimes he has to drive to Canberra or Sydney and this can take seven or eight hours in one day, for example, to visit family or when his wife needs to see a doctor. He says he has been driving all his life without a major incident.”

3. Despite the appellant’s report that he was anxious when driving, the Medical Assessor found that it did not prevent him from driving long distances, including return trips from the vicinity of Orange to Sydney or Canberra. The fact that he was a careful driver was not attributed by the Medical Assessor to any pathology or the effects of injury. He did not, for instance, find that the worker was more careful after injury than before. We note in passing that being anxious while driving, and being a careful driver, are not necessarily impairments with respect to Travel where they do not have the effect of restricting the ability to travel.

4. At [7], he commented as follows on the assessment of Dr Frukacz:

   “In terms of travel, Dr Andrew Frukacz is the only one to rate 1, however, he gave no explanation at all, and therefore it is not possible to support his rating.”

5. As this passage indicates, he found it impossible to support Dr Frukacz’s conclusion because it was not supported by reasons. We do not interpret this passage to mean that Medical Assessor Hong did not agree with a class 1 assessment. His own PIRS form indicates the contrary.

6. At [12] of his supplementary statement, the worker indicated:

   “I thought I might be able to work as a bus driver. I did two shifts sitting in a bus observing the driver and this would all [sic] was all I could handle. I could not cope with the interaction with members of the public. I became very anxious while sitting in the bus.”

7. This suggests that the appellant is not suited to a bus driving career, because he cannot cope with interaction with members of the public, rather than being impaired in his capacity to travel. It does not negate the history taken by Medical Assessor Hong that he is capable of travelling by car for long distances and for long periods of time. The Medical Assessor did not find that he required a support person.

8. In the factual circumstances of this case, that is consistent with a class 1 impairment and inconsistent with a class 2 impairment. The assessment of a class 1 impairment was reasonably open on the evidence. We agree with it.

9. We can identify neither demonstrable error nor the application of incorrect criteria. This ground fails.

Social functioning

1. The criteria for rating class 2 and 3 impairment in Social functioning 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 his PIRS form attached to the Medical Assessment Certificate, the Medical Assessor gave the following reasons for assessing a class 2 impairment:

   “Mr Kerney's relationship with his partner has been strained as they argue. The marriage is not strained to the level of domestic violence.

   He is anxious and socially avoidant, and ceased contact with most of his friends.

   He is able to maintain a few long-term friendships.

   The relationship with his general family has not been close for many years.”

2. The first sentence reflected the following history recorded at [4]:

   “He has been with his wife for about 16 years and said that they are a strong couple, but they have been under tremendous pressure in the last 15 years. …. He said that they have arguments and they are still amicable. They both have outbursts maybe every two weeks, and then they try to get over the argument after that.”

3. He commented on Dr Frukacz’s assessment at [7]:

   “In terms of social functioning, Dr Andrew Frukacz rated 3, partner has left for periods. Mr Kerney tells me they have never separated, in any case the relationship is overall strong now, and similar to the other assessors, I rated 2.”

4. This indicates that the worker contradicted the history taken by Dr Frukacz in at least one respect, and told Medical Assessor Hong that the relationship is ‘overall strong now’. That suggests the history taken by Dr Frukacz was, to some extent at least, out of date.

5. It was the task of the Medical Assessor to assess the worker as he presented at examination, and to take an up to date history. That is what he did. He was not bound by the previous assessment of Dr Frukacz.

6. At [18] of his supplementary statement, the appellant described his relationship with his wife as ‘extremely poor and beyond strained’, explaining that they do not have the means to separate. At [25], he said:

   “My relationship with my wife is under severe strain. I would describe our relationship as dysfunctional. We do not communicate. My wife geos for days without talking to me. We live together but this is only for financial reasons because we cannot afford to separate ….”

7. Medical Assessor Hong summarised the supplementary statement at page 7 of his reasons. We are comfortably satisfied that he had regard to its contents, even if he did not quote those particular passages.

8. As indicated, he took an updated history that the marriage was ‘overall strong now’. He noted that the spouses remained amicable despite arguments, and that they try to get over outbursts occurring about every two weeks. That differed from the description in the supplementary statement.

9. Medical Assessor Hong was both obliged and entitled to base his assessment of the updated history, which is what he did. The history he took was consistent with a class 2 impairment and inconsistent with a class 3 impairment in the absence of current evidence of domestic violence or periods of separation.

10. We can identify neither demonstrable error nor the application of incorrect criteria. This ground also fails.

Conclusion

1. For the reasons given, the Medical Assessment Certificate of Medical Assessor Hong is confirmed.