Baumgartner v State of New South Wales (NSW Police Force)
[2022] NSWPICMP 36
•4 March 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Baumgartner v State of New South Wales (NSW Police Force) [2022] NSWPICMP 36 |
| APPELLANT: | Linda Jane Baumgartner |
| RESPONDENT: | State of New South Wales (NSW Police Force) |
| APPEAL PANEL: | Member Deborah Moore Dr Michael Hong Dr Patrick Morris |
| DATE OF DECISION: | 4 March 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Appellant challenged the Medical Assessor’s (MA) assessment in respect of the social and recreational activities; fresh evidence accepted; change in appellant’s circumstances shortly after assessment; however, that evidence did not alter the MA’s assessment because of other activities carried out by the appellant; Held- Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 24 November 2021 Linda Jane Baumgartner (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr Douglas Andrews, a Medical Assessor (MA) who issued a Medical Assessment Certificate (MAC) on 26 October 2021.The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria;
· the MAC contains a demonstrable error, and
· the availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against).
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.
The WorkCover Medical Assessment Guidelines 2006 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 the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
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 WorkCover Medical Assessment Guidelines 2006.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because none was requested, and we consider that we have sufficient evidence before us to enable us to determine the appeal.
Fresh evidence
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appeal was filed on 24 November 2021.
Included in the submissions attached to the appeal was a Statutory Declaration sworn by the appellant on 23 November 2021.
The appellant submits:
“Here, three or four days after the applicant was interviewed by Dr Andrews, information became available which had a direct impact on the matters relevant to Dr Andrews assessment, and thus sec 327 (3)(b) is engaged. The additional relevant information is set out in the applicant's statutory declaration of 23 November 2021, attached to be submissions. Application is made under section 328(3) for the statutory declaration to be held fresh evidence and admitted pursuant to that section…
Partly because Dr Andrews was unaware of the additional relevant information, and partly for other reasons, the MAC was made on the basis of incorrect criteria, and so sec 327(3)( c) is engaged.”
The respondent submits:
“The Appellant’s statutory declaration is not ‘additional relevant information’. It is not information of a medical kind as required by Petrovic v BC Serv No 14 Pty Ltd t/asBroadlex Cleaning Services [2007] NSWSC 1156 (Petrovic). Further, additional relevant information ‘does not include matters going to the process whereby the AMS makes his or her assessment’ (Petrovic at paragraph 31).”
The Statutory Declaration asserts that there was an error in the reporting by the MA in the category of “social and recreational activities” as regards the appellant’s participation in netball games.
We accept that the evidence is not of a medical kind, but in cases such as this requiring psychiatric impairment assessment by reference to a number of specific categories of human activity, it seems to us that the principles in Petrovic are not necessarily applicable.
The Statutory Declaration does not address the “process” by which the MA made his assessment, rather a claimed change in circumstances shortly after the assessment.
For all these reasons, the “fresh evidence” sought to be admitted by the appellant is accepted.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
The appellant submits that the MA erred in his assessment of the category of “social and recreational activities” in the Psychiatric Impairment Rating Scale (PIRS).
In reply, the respondent submits that no errors were made.
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 appellant was referred to the MA for assessment of whole person impairment (WPI) in respect of a primary psychiatric/psychological injury resulting from a deemed date of injury of 4 September 2018.
The MA obtained the following history:
“Ms Baumgartner joined the NSWPF in 1997 when she was 19 years old. She found some incidents challenging from very early in her career.
Traumatic events involving children were especially disturbing. For example, in 1998, she attended the death by hanging of a man found by his three children. In that year, she also recalls removing children from their home to protect them from domestic violence.
In 1999, a fellow police officer and friend shot herself while on duty. In 2000, another fellow police officer and her former romantic partner hanged himself.
In 2002, a senior police officer whom she worked with was murdered.
She mentioned these things as indicative of the traumas that she faced as a police officer, events that were particularly salient for her.
She suffered a low back injury while restraining an offender in 2005. By 2013, she could no longer work operationally and was put on restricted duties, remaining so for the rest of her career. She was working part-time, about 25 hours a week.
She alleges that she was discriminated against because of her disability and was subject to abuse and bullying from senior officers.
She experienced some anxiety from early her career, worsening in the last few years. She feels that an incident of being yelled at by senior officers was ‘the final straw.’
She did not seek support for her mental health until 2018.
She has done no paid or voluntary work since 3 September 2018.”
After setting out details of Ms Baumgartner’s current treatment, the MA then noted present symptoms as follows:
“Ms Baumgartner described her mood as ‘flat’, tending to be worse in the morning. She can experience positive emotions, saying that she takes pleasure in following her rugby team.
She has constant anxiety with autonomic arousal, but this has improved since she left work. She experiences dissociation, describing this as having her ‘brain switch off.’ when she tries to sit still, her leg shakes.
She has been bothered by distressing, intrusive thoughts, but these are less prominent than earlier. She actively tries to avoid reminders of her police career. For example, she no longer follows the Penrith Police Facebook account.
She is irritable and prone to angry outbursts, describing ‘yelling, swearing and screaming’at her family. She lacks patience with her 14-year-old son.
She is hypervigilant away from home, tending to be alert to potential threats.
She is triggered into emotional flashbacks by things such as news stories that remind her of past incidents.
She has had thoughts of suicide but no plans or intent. She said, ‘I don’t think so much of suicide, but I’m not as afraid of death.’
She goes to bed by about 10 PM and will lie awake for several hours. She tries to calm herself using de-arousal strategies, including music and essential oils. She frequently wakes through the night. She has nightmares on two or three nights each week.
Since leaving work, she has put on between 10 and 14 kg.
Her libido is impaired, causing stress in her relationship.
Overall, she feels that she has improved somewhat with treatment.”
The MA then turned to consider the impact of Ms Baumgartner’s injury on her social activities and activities of daily living (ADL’s) and said:
“Ms Baumgartner moved to Perth with her family in January 2019 for her husband’s work. Her husband has been the general manager for safety for Network Aviation (Qantas) until recently. He has successfully applied for a similar job with BAE, also in Perth. They have 11-year-old and 14-year-old sons.
Ms Baumgartner rises each morning around 6:30 AM. Her sons get dressed and prepare their breakfast. She drives them to school (they attend different campuses of the same school), a round trip of about one hour. She picks them up in the afternoon.
Recently, she has started attending the gym with a friend, often going for coffee afterwards.
At home, she may do some housework, such as washing up or cleaning.
She prepares an egg sandwich every day for lunch. Her husband cooks all the family dinners because she lacks the motivation and persistence to do so. They order groceries online, which are delivered.
She showers every couple of days without prompting and washes her hair once a week.
She spends the rest of the day watching television, favouring shows such as Days of Our Lives or reality television.
She has joined a social netball team, hoping to meet people. The competition started last week and meets each Wednesday.
She takes her boys to their sporting activities; they play football, touch football and softball. Until recently, they were involved in athletics. Often she sits in the car while they train, although she may attend their games. She is inclined to sit with her husband and not interact with others.
They used to go out as a family on Sunday for lunch, but her boys have reached an age where they are disinclined.
She feels comfortable driving in familiar places but becomes anxious if travelling to an unfamiliar place. She drives her children regularly to school and sporting activities. She travelled with her family back to Sydney in April 2021. She had a previous trip to Sydney in 2019 without her husband but coped less well.
There is some strain in her family relationships because of her irritability.
She feels that her lack of libido also causes problems in her relationship with her husband. Nonetheless, they remain close, without violence or talk of separation. Her relationships with her family in Sydney remain intact.
She has made one close girlfriend in Perth and is hoping to make more through netball. She has maintained three friendships with ex-work colleagues, keeping in touch mainly through Messenger. She has lost some friends because she has ‘pulled away.’
She has no hobbies or projects. She has lost interest in reading. She watches television shows which require little in the way of concentration or intellectual engagement.”
Findings on examination were reported as follows:
“I assessed Ms Baumgartner in her home by video link. We lost the initial Zoom link but reconnected by FaceTime. The connection quality was good, allowing me to do a comprehensive assessment of over 80 minutes.
She presented casually attired, with her hair pulled back, and appeared well-groomed.
She was friendly and cooperative throughout the interview.
She described her mood as flat and acknowledged her anxiety. Her affect was reactive and congruent with the content of the interview. She lost her composure several times during the interview while discussing incidents during her time as a police officer.
There was no evidence of any disorder of thought-form or perception.
She acknowledged passive thoughts of suicide without plans or intent.
She gave a good account of her history without evidence of any gross cognitive dysfunction.”
In summarising the injuries and diagnoses, the MA said:
“I make my diagnoses relying on criteria outlined in the Diagnostic and Statistical Manual – Fifth Edition (DSM-5), published by the American Psychiatric Association.
o post-traumatic stress disorder
o persistent depressive disorder with an ongoing major depressive episode.
Ms Baumgartner has been exposed to various traumatic incidents over the course of her police career. She has intrusion symptoms of unwanted memories, dissociative reactions, and intense distress at exposure to external cues that remind her of past trauma. She is actively avoidant of things that remind her of her police work.
She has a persistent negative emotional state and has lost interest in participating in some significant activities. She feels detached from others. She has a reduced ability to experience positive emotions.
She is irritable and prone to angry outbursts. She is hypervigilant when away from home, has problems with concentration and marked sleep disturbance.
In addition to the traumatic incidents in the police, she experienced bullying from senior police, and believes she was discriminated against because of her disability.
She has also developed symptoms consistent with MDD, which have remained present for several years.”
The MA assessed 9% WPI to which he added 2% for the effects of treatment. He explained his reasons as follows:
“I have determined a 9% WPI. I adjust 2% WPI for treatment effects.
Ms Baumgartner says that she has improved, and there is evidence that she has been more socially active recently, suggesting a reduction in her impairment.
In determining her WPI, I have excluded any impairment associated with her back injury and chronic pain.”
The MA then turned to consider the other medical opinions, stating:
“Treating general practitioner Dr Watts, 5 September 2018, diagnosed an ‘anxiety and depression with a post-traumatic stress disorder component consequent upon persistent and evolving bullying by superiors in her workplace.’
On 29 November 2020, treating psychiatrist Dr Murray did a comprehensive review and stated, ‘Linda suffers PTSD, anxiety including panic attacks, and depression, because of her work with the NSWPF.’ He attributes the PTSD to various incidents that occurred across her police career and not solely due to bullying.
IME psychiatrist Dr Christopher Canaris, 11 March 2021, diagnosed PTSD and determined 19% WPI (Classes 2, 3, 2, 2, 3, and 5).
IME psychiatrist Dr Aman Suman assessed Ms Baumgartner 28 November 2018 and 14 June 2021. At the latter assessment, he diagnosed PTSD with comorbid panic attacks and social anxiety. He determined 8% WPI (Classes 2, 2, 2, 2, 2, and 5) before adding 2% for treatment effect. I discuss where I differ from the IME psychiatrists below.
Regarding social and recreational activities, Dr Canaris determined a Class 3 impairment and wrote: ‘She goes out little preferring to stay at home but would ‘go out to when I have to – like taking my kids to school and picking them up or if they have activities – I sit in the car and watch them.’ She does not enjoy being around people preferring to ‘keep to myself – be in my bubble.’ She does not go out to clubs, pubs, movies, sporting events and the like and has ‘taken the kids to the movies to about three times since we got here.’
Ms Baumgartner has started going to the gym with a friend, after which they go out for coffee. She has also joined a netball team that meets weekly, hoping the meet other people. She has restricted her social activities but can do these activities without a support person. She can attend her children’s sporting activities, although she is likely to keep to herself and to her husband. I consider her impairment to be mild.
Regarding concentration, persistence and pace, Dr Suman determined a Class 2 impairment and wrote: ‘Ms Baumgartner told me that she does struggle with any tasks requiring sustained concentration. She is able to complete tasks although at a much slower pace. She does feel fatigued having concentrated on any such task for around 30 min.’
She is doing no tasks which require sustained concentration or intellectual engagement. She no longer reads, and she watches daytime television shows that require little attention. She has no projects or hobbies. It is unlikely that she could cope with even a basic training course. She doesn’t prepare the evening meals for her family because she struggles to organise these. I consider her impairment to be moderate.”
The MA assessed a Class 2 for social and recreational activities, stating:
“She attends her children’s sporting activities but often keeps to herself. At their sports training, she will sit in the car but will get out to watch the games. She has started attending the gym with a friend, and they go for coffee afterwards. She has also joined a netball competition, meeting weekly, hoping to expand her circle of friends.”
In her Statutory Declaration the appellant said:
“Shortly before the interview with Dr Andrews, Maria Hibbs, who is my only friend outside my family, had suggested that I join a social netball group. Having been advised by others, including my counsellor JulieAnne Davies, that I should attempt to engage socially, I agreed with Maria 's suggestion and attended the game on Wednesday, 20 October 2021. I went in company with Maria.
I informed Dr Andrews of this. At that time, I continued to have some hope that this outlet might help me lift out of the flatness, the anxiety, the irritability, the anger and the other emotional issues I had described to Dr Andrews.
The next game with the netball group was scheduled for Wednesday, 27 October. At the time I was interviewed by Dr Andrews I still had the intention to attend the following Wednesday.
However, as the scheduled game grew closer, I experienced severely heightened emotions when I contemplated attending that game. My thoughts about it were dark. I had an apprehension, which I could not shake, that I was not accepted as a friend by other members of the team. I started feeling acutely embarrassed about the way I had played.
Overwhelmingly, I did not want to go on with it.
I became more anxious, more nervous, and more full of negative thoughts concerning what I had committed myself to. Ultimately, on or about Monday, 25 October I called Maria to tell her that I could not go on with it.
Maria attempted to encourage me, but when she did so it only had the effect of making me more certain that I could not do it.
My thought was: it's easier to stay at home. By contrast, the thought of spending time on or off the field with the netball players was that it was something that I could not do. Or perhaps it was something that I did not want to do so strongly that there was no way I would do it.
I realised that I had been foolish to expect or even hope that an attempt to socialise might have been successful.
This realisation came to me increasingly sharply over the weekend leading up to my call to Maria.
After the call, knowing I had disappointed Maria, I was miserable and felt a lack of self-worth significantly more severe than had been my experience in the previous week. The emotional issues I described to Dr Andrews plagued me and continue to plague me more than before.
As a result of this, I have not been back to the gym. I have cut any ties with the netballers. I have stayed in touch with Maria. I have not either before or after my interview with Dr Andrews felt capable of going to any type of social activity unless someone goes with me.”
The appellant makes the following submissions:
“Dr Canaris, on 11 March 2021, assessed the whole person impairment resulting from the applicant's injury at 17%.
Crucially, from the point of view of this appeal, Dr Canaris allocated class 3 for the PIRS category social and recreational activities, observing the following history to support his assessment: ‘She goes out a little, preferring to stay at home but '’go out when I have to - like taking my kids to school and picking them up or if they have activities - I sit in the car and watch them’ she does not enjoy being around people preferring to ‘keep to myself - be in my bubble’. She does not go out to clubs, pubs, movies, sporting events and the like and has ‘taken the kids to the movies to or three times since we got here… (Perth, to which city the applicant had moved with her husband in January 2019)’.
In the allocation of classes to all other PIRS categories, the MA agreed with Dr Canaris.
However, in the category social and recreational activities, the MA allocated class 2, finding the impairment in this category to be mild, rather than moderate…
Had Dr Andrews concurred with Dr Canaris that the appropriate allocation was class 3 (moderate impairment), the result would have been that WPI would have been assessed at 17%, a matter of major significance in terms of the applicant's entitlement to compensation…
Dr Andrews made his assessment on the basis of an interview with the applicant, conducted by video link on Thursday, 21 October 2021… Some information, here submitted to be very relevant to the assessment of impairment was not available and could not have been available at the time of the interview. That information became available subsequently. Had Dr Andrews had this information at the time of his issuing the MAC, it is submitted that there is a high likelihood of the allocation of the class reflecting greater severity of impairment.
The words in Dr Andrew's citation, meeting weekly, clearly indicate that he had obtained from the applicant the impression that at the time of the consultation, the applicant had established a routine of weekly netball games. This was not the case, and accordingly, there is an important incorrect criterion on which the doctor had acted…
Had the interview with Dr Andrews taken place a week later than it did, that it could not have been said of the applicant: She has also joined a netball competition, meeting weekly, hoping to expand her circle of friends…
It is quite clear that the MA had erroneously concluded that, at the time of his interview with the applicant, the applicant had established a routine of playing social netball…
If the applicant had in fact established a routine of meetings with team members for practice or for games of netball, this would represent a step forward from the position recounted to Dr Canaris in March, 2021, when Dr Canaris considered the impairment to be moderate…
the MA's adoption of the applicant's hope that she might make friends as an indicator that her impairment was mild rather than moderate is a demonstrable error. Clearly, before permitting the aspiration of a patient to colour a prognosis, the expert should conclude that there is a basis for that aspiration. Unless this were so, an expression of hope by a quadriplegic that he or she might recover the ability to walk would be a basis before concluding that the patient was less impaired. Dr Andrews did not, on the information provided in the MAC, make inquiry of the applicant as to her success to date in making friends, or as to the basis upon which she might have the aspiration that she had disclosed…”
It is perhaps timely at this point to set out the task of an Appeal panel as stated in Ferguson v Stateof New South Wales [2017] NSWSC 887 where Campbell J said:
“[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’ (our emphasis).
[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’…
[37] The descriptors, or examples, describing each class of impairment in the various categories are ‘examples only’…”
No doubt the appellant would argue that the MA was unaware of “significant factual matters.” However, a number of other significant points arise from this decision relevant to this particular claim.
Firstly,” 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.”
Secondly, “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.”
Thirdly, the descriptors describing each class of impairment in the various categories are “examples only.”
The appellant’s submissions focus entirely on one aspect of the MA’s assessment, namely her participation in netball games.
However, those submissions overlook not only the appellant’s participation in other features of the category of “social and recreational activities” but also the appellant’s participation in netball games prior to October 2021.
As the respondent correctly points out:
“In her statement of 9 October 2018 the appellant described her social activities at paragraph 23 by saying ‘I enjoy netball and my children’s athletics’.
On 28 November 2018 Dr Suman recorded that the appellant’s social activities had previously included netball and athletics but that she had lost motivation to continue with those activities over the last year. He also noted that her back injury had limited her participation in those activities…
Dr Suman noted that by November 2018, the appellant had started exercising and joined a gym programme. She had been enjoying watching her children participate in athletics/sports. He recorded that she had travelled interstate at the end of October 2018 as the Police Netball team co-ordinator, though the appellant thought in hindsight that she should have refused to go.
The appellant moved to Western Australia in early 2019.
Dr Murray, treating psychiatrist, noted on 29 November 2020 ‘she joined Netball to meet people when they moved to Western Australia. She has one friend, from Netball’.
Dr Canaris prepared a report months after Dr Murray’s report was prepared, but did not record a history of joining the netball club or making a new friend once moving to Western Australia…
In June 2021 Dr Suman noted that the Appellant had tried returning to the gym and netball in 2020 but said she had struggled with energy and motivation. Having regard to those factors, he assessed Class 2 for social and recreational activities. He noted ‘she does avoid social interaction if possible. She has been able to go out to gym and playing netball as suggested by her close friend’.
On the basis of the above, it is clear that the appellant played netball in 2020 and had attended the gym since moving to Western Australia…
The reports from Dr Murray and Dr Suman indicate that she did not commence netball the week before the MA appointment. The 2021 season may well have commenced a week before the appointment, but Dr Murray and Dr Suman’s reports indicate that the appellant participated in the 2020 season. While there is evidence of her struggling with energy and motivation, her participation in the game the week before the MA assessment suggests that she had once again signed up to play despite her lack of motivation.
The respondent says that it is misleading to suggest that the Appellant played only one game of netball when the evidence discloses that she also played during the previous season.
Further, the respondent says that even if the appellant did stop playing netball the week after the MA appointment, that fact alone would not cause the MA to change his assessment.
In addition to those comments identified by the appellant in her submissions, the MA made the following comments regarding social and recreational activities:- ‘She takes her boys to their sporting activities; they play football, touch football and softball. Until recently, they were involved in athletics. Often she sits in the car while they train, although she may attend their games. She is inclined to sit with her husband and not interact with others. They used to go out as a family on Sunday for lunch, but her boys have reached an age where they are disinclined.’
The above comments demonstrate that the appellant’s social activities have returned to a similar level to what they were prior to her injury: She plays netball and is attends sport with her children. That is the same level that she described in her 2018 statement and to Dr Suman in 2018.
In addition, she has gone out for Sunday lunches with her family until that ceased due to her children getting older and not because of any symptoms relating to her injury.
The respondent submits that the evidence of additional activities (aside from netball) is sufficient to justify an assessment of Class 2 impairment for social and recreational activities. Having regard to the whole of the evidence, and not just to that which relates to the appellant’s participation in netball, the assessment of Class 2 for social and recreational activities was reasonable and open to the MA.
It should be noted that the additional 2% loading which was added for treatment effects was added on the basis of an improvement and the MA specifically noted in that regard ‘there is evidence that she has been more socially active recently’…”
We fully concur with the respondent’s submissions.
Given the nature and extent of the appellant’s various social and recreational activities described above, it was entirely open to the MA to assess a Class 2 rating, the descriptor for which reads: “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).”
Finally, we note that Dr Canaris assessed a Class 3 rating adding:
“She goes out little preferring to stay at home but would ‘go out to when I have to - like taking my kids to school and picking them up or if they have activities - I sit in the car and watch them.’ She does not enjoy being around people preferring to ‘keep to myself- be in my bubble.’ She does not go out to clubs, pubs, movies, sporting events and the like and has ‘taken the kids to the movies two out three times since we got here.”
The appellant has clearly been out to sporting events and on occasions to the movies. Dr Canaris made no mention of Ms Baumgartner’s participation in netball and gym activities such that her reliance on this report in support of her appeal is tainted.
For these reasons, the MAC issued on 26 October 2021 should be confirmed.
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