Bayes v Martin-Brower Australia Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Bayes v Martin-Brower Australia Pty Ltd [2024] NSWPICMP 736
APPELLANT:	Sheree Bayes
RESPONDENT:	Martin-Brower Australia Pty Ltd
APPEAL PANEL
MEMBER:	Deborah Moore
MEDICAL ASSESSOR:	Michael Hong
MEDICAL ASSESSOR:	Douglas Andrews
DATE OF DECISION:	23 October 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; fresh evidence by way of a further statement by the appellant was rejected; Petrovic v BC Serv No 14 Pty Limited applied; the appellant submits that the Medical Assessor erred in his assessments under two categories of the psychiatric impairment rating scale namely social functioning and social and recreational activities; Held – no error re social functioning; error re social and recreational activities; re-examination; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 8 April 2024 Sheree Bayes (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Alan Doris, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
29 February 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):
·        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 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, 4^th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th 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 Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that the worker should undergo a further medical examination because the Medical Assessor erred in failing to provide sufficient details to support the assessments he made.

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 appellant seeks to admit the following evidence:
(a) a further statement by the appellant dated 26 March 2024.
The appellant submits that the evidence is relevant to the grounds of appeal. The appellant submits that the evidence was not available and could not reasonably have been obtained because it was only after the issuing of the MAC that it was obtained to correct an alleged error by the Medical Assessor.
The respondent objects to the admission of this statement and refers to the Court of Appeal's decision in Lukacevic v Coates Hire Operations Pty Limited [2011] NSWCA 112 in which the following appears at [78]:
“A dispute by the worker as to the history set out in the certificate, or the observations made by the AMS, can readily be raised; and it could be raised honestly or dishonestly, on strong or flimsy grounds. Having regard to the matters I have set out, in my opinion it would be reasonable for an AP not to admit evidence raising such a dispute unless that evidence had substantial prima facie probative value, in terms of its particularity, plausibility and/or independent support. Otherwise, simply by raising such a dispute, going to a matter relevant to the correctness of the certificate, a worker could put the AP in a position where it had to have a further medical examination conducted by one of its members. I do not think this would be in accord with the policy of the WIM Act.”
The respondent adds:
“In addition, the appellant's statement merely highlights the interpretation of the appellant's information by the MA.
It is judicially unfair for an appellant to submit updated evidence solely for the purpose of clarifying inconsistencies or expressing disagreement with the decision of the MA.”
In addition, the respondent submits that the appellant has failed to satisfy the requirements of s 328(3) of the 1998 Act and Practice Direction No 16 and leave ought to be denied for the appeal to proceed under s 327(3)(a) of the 1998 Act.
The Panel also notes the comments made by Hoeben J in Petrovic BC Serv No 14 Pty Limited where if a statement going to the way in which a medical assessment was conducted was additional relevant information “it would be open to every dissatisfied party to challenge the assessment process of an AMS in the same way thereby gaining automatic access to an appeal”.
The Appeal Panel determines that the evidence should not be received on the appeal because it is of little probative value, and the appellant could and should have made the points now raised at the time of the assessment.

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

Medical Assessor Michael Hong of the Appeal Panel conducted an examination of the worker on 20 August 2024 and reported to the Appeal Panel.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the Medical Assessor erred in his assessments under two categories of the Psychiatric Impairment Rating Scale (PIRS), namely social functioning and social and recreational activities.
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 Medical Assessor for assessment of WPI in respect of a primary psychological injury on a deemed date of injury of 29 October 2020.
The Medical Assessor obtained the following history:
“Ms Bayes commenced work with Martin-Brower Australia Pty Ltd in 2016. She was working in a warehouse as a picker and felt that this job suited her very well. In December 2019 she injured a knee in a fall in the workplace. The management of this workplace injury by her employer caused considerable distress to Ms Bayes and her mental health began to deteriorate.
Ms Bayes describes the atmosphere at her place of work as becoming “really toxic” and feeling that her supervisor and managers were not understanding the nature of her health problems and the adjustments that ought to be made in the workplace to accommodate these. For a period, Ms Bayes was on light duties or doing office work, though she experienced harassment and unfair treatment during this time. She described the management as not adhering to the recommendations of her treating doctor.
Ms Bayes describes a progressive increase in her anxiety and a times she experienced panic attacks in the workplace. She described feeling ‘recurrently let down’ and ‘manipulated’ by management. She said that her level of anxiety progressively increased and she developed thoughts of ending her life, though she did not act on these due to feelings for her daughter. She describes feeling very uncomfortable in the work environment and at times ‘I felt everyone thought I was going crazy or they were looking at me’. As a result of this Ms Bayes took time away from work and eventually resigned in 2022.
Due to the changes in her work situation, health, and finances, the relationship between Ms Bayes and her partner deteriorated. Ms Bayes said that the relationship difficulties escalated when the Workcover claim was made and her income reduced. She feels that her partner did not fully understand her situation and this was a key factor in their relationship ending at the end of 2021. Ms Bayes experienced increasing financial pressures and as a result relocated from Western Sydney to live with her 5-year-old daughter, mother, sister, niece, and nephew on the Central Coast”
The Medical Assessor then set out details of her present treatment and said:
“Ms Bayes is prescribed the antidepressant/antianxiety duloxetine at a dose of 120 mg per day; the mood stabilising medication lamotrigine at a dose of 200 mg per day, and the stimulant medication lisdexamphetamine 40 mg per day. She met with her treating psychiatrist for the first time in January of this year and is expecting to meet with him again in May. She could not recall the psychiatrist’s name. Ms Bayes said that the lisdexamphetamine was introduced following the consultation in January of this year and she believes that it may be for binge eating disorder, though was unsure about this.
Ms Bayes meets with her psychologist, Angela Morrison-Johnson regularly, usually every or four weeks depending on need.”
Present symptoms were noted as follows:
“Ms Bayes describes strong enduring feelings that she has been wronged by her former employer and has a strong desire for someone to be “accountable” for the changes in her health and circumstances over the last few years. She describes her general mood state as “numb” most of the time though she will have brief periods of other emotions such as anger, happiness, or sadness. She experiences heightened levels of anxiety in a number of situations, including interactions with others in public and when she has any communications with respect to the Workcover claim or assessments for this. When her anxiety levels are increased, she experiences typical physiological indicators of this including tightness in her throat; she has psychological fears that something is going to go wrong, and a strong desire to avoid or leave the perceived threatening situation. She describes feeling that other people judge her negatively and that they ‘look at me like I’m crazy’.
Ms Bayes describes a variable sleep pattern, and that it generally is unrefreshing. She usually will sleep through the night, though the time that she goes to bed varies by several hours. She will sleep for a while through the day most days. She describes a general lack of energy and motivation to do activities.
Ms Bayes describes an erratic eating pattern. She said that ‘sometimes I don’t eat’, though other times she will overeat or eat food that she feels is not good for her. She described being concerned that she is overweight.
Ms Bayes spends most of her time at home, and often will isolate in her room. She spends time doing things such as watching YouTube videos on her phone, particularly on topics she is interested in such as history and Greek mythology. She describes a very close relationship with her daughter and she ensures that she is well cared for, and Ms Bayes takes her and picks her up from school. Ms Bayes will stay with her daughter at the school until the class starts. Ms Bayes describes important and close relationships with her mother and three siblings, as well as her six nieces and nephews. She maintains a co-operative relationship with her ex-partner in the shared custody of their daughter and has formed an amicable relationship with his new partner. Until a few months ago Ms Bayes’s daughter was staying with Ms Bayes’s ex-partner each weekend, though this is now fortnightly. Ms Bayes has developed a new intimate relationship with a young man in recent months and they meet two or three times per month.”
When asked to provide “Details of any previous or subsequent accidents, injuries or conditions” the Medical Assessor said:
“Ms Bayes confirmed that she had experienced considerable trauma within her family of origin for several years during her childhood. She described this as having a considerable adverse effect on her mental health. She was admitted to a hospital for a period at age 14 and said that this related to a difficulty between herself and her mother at that time. Ms Bayes feels that her mental health progressively improved during her latter teens and attributed this to moving out of her family home to live with her boyfriend and having some treatment for her mental health. Ms Bayes feels that becoming a mother to her daughter helped her mental health.
Ms Bayes told me that she had met with a psychiatrist on two or three occasions during her late teens or early 20s and had been diagnosed as suffering from borderline personality disorder, complex post-traumatic stress disorder, depression, and anxiety. She was treated with medication and found that the combination of duloxetine and lamotrigine was most effective for her and so has continued this. She met with a psychologist for several months during her late teens or early 20s and found this helpful.
According to the general practitioner notes, Ms Bayes was having difficulties with her mental health during 2017 and 2018 and continued treatment for this. The notes describe problems with mood regulation, self-harm, relationships, and anxiety.
Ms Bayes recalls her mental health as being very good in the period before the knee injury of December 2019.”
The Medical Assessor then turned to consider the impact of Ms Bayes’ injury on her social activities and activities of daily living (ADL’s) and said:
“Most days, Ms Bayes will waken with an alarm around 6 AM. She gets out of bed sometime over the next hour or so and will makes breakfast for her five-year-old daughter, assist her to get ready for school and then drive her 10 minutes to the school. Ms Bayes will remain with her daughter until the class starts. Ms Bayes said that she may go on to do any necessary chores such as an appointment, though often will return home and go back to sleep. Ms Bayes said that she usually goes to the supermarket once per week, and that this is next to her daughter’s school.
During the day Ms Bayes spends most of her time at home, often in her room. She is interested in history and Greek mythology and may watch videos about this on her phone. She picks her daughter up after school and when they return home may spend time with her watching cartoons, reading to her, or looking at a picture book, or doing a craft activity. Ms Bayes prepares a meal for her daughter, though often not for herself. She sometimes eats with her sister and mother, though sometimes on her own.
Ms Bayes has a variable time of going to bed. She usually sleeps through the night though wakes feeling unrefreshed.
At the weekend Ms Bayes may drive to North Sydney to meet with her ex-partner and transfer care of their daughter for the weekend. Ms Bayes has developed a new relationship with a young man and they meet a few times per month, usually at his home.”
Findings on mental state examination were reported as follows:
“The assessment today was by telehealth and so mental state examination necessarily limited. Ms Bayes had neat, straightened hair, dark polished acrylic nails, and eyelashes extensions. She was using a vape during our meeting. She acknowledged being anxious at the start of the interview and this was apparent objectively. She spoke spontaneously and gave a comprehensive account of her history and current situation with no abnormality of speech. Ms Bayles’ affect generally conveyed a high level of anxiety and was reactive. She expressed anger towards her former employer and this was apparent in her affect. Ms Bayes’ mood was objectively and subjectively one of high anxiety which decreased as the interview progressed. She described her general mood state as “numb”. Her thought form was normal. Her thought content revealed beliefs that she had been unfairly treated by her former employer and a desire for this to be acknowledged and for the employer to be accountable for the harm she had suffered. There were no delusions and no abnormal perceptions. Ms Bayes was fully alert and orientated at interview. She attended adequately for the purpose of the interview though described a subjective chronic poor concentration and memory. I did not carry out a formal cognitive assessment.”
In summarising the injuries and diagnoses, the Medical Assessor said:
“Ms Bayes experienced an exacerbation of her pre-existing mental health problems in the months following a knee injury in December 2019. Persistence of this exacerbation, worsening of her financial and social circumstances, plus the stress associated with the Workcover process led to the development of co-morbid major depressive episode which has persisted.
Ms Bayes is appropriately categorically diagnosed as suffering from a major depressive episode, moderate; generalised anxiety disorder; post-traumatic stress disorder and borderline personality disorder.”
The Medical Assessor assessed 9% WPI from which he deducted one-tenth in respect of the pre-existing condition, leaving a total WPI of 8%.
He then turned to consider the other medical opinions and material before him and said:
“Medicolegal Report, Dr A Khan, 27th January 2023.
Dr Khan describes the development of psychological symptoms in the context of difficulties in the workplace. Dr Khan notes the history of mental health problems before the workplace injury and treatment provided. Dr Khan makes a diagnosis of major depressive disorder with anxious distress, and pre-existing conditions of borderline personality disorder, post-traumatic stress disorder and major depressive disorder. He carries out a whole person impairment assessment using the psychiatric impairment rating scale (PIRS) and calculates a score of 22%. From this he deducts 1/10 due to the pre-existing conditions. I generally agree with the clinical assessment and diagnosis of Dr Khan. The points at which we differ with respect to impairment assessment are detailed below.
General Practice Notes, Dr M F Rabbi, various.
These notes describe long standing difficulties with mood, anxiety, and emotional regulation, and these being present since adolescence. A history of childhood trauma is noted. There is treatment with pharmacological and psychological therapy. Ms Bayes was having difficulties with her mental health during 2017 and 2018 and continued treatment for this. The notes describe problems with mood regulation, self-harm, relationships, and anxiety. In early 2019 there are problems in the relationship between Ms Bayes and her partner and she has had suicidal ideas. Later in 2019 Ms Bayes has changed medication for her mood having been assessed by psychiatrist
Dr Bhavanishankar, and her mood is reported as improved.
In September 2020 Ms Bayes is experiencing an exacerbation of her depression in the context of pain and lack of resolution of her workplace injury of December 2019.
Ms Bayes continues to work, though in October 2020 her mental health has worsened. Dr Rabbi believes that Ms Bayes is experiencing an exacerbation of her previously diagnosed complex PTSD, generalised anxiety disorder and borderline personality disorder. Later notes describe continuing difficulties in the workplace, ongoing pain and mental health problems.
Medicolegal Report, Dr Y Bisht, 2nd September 2021.
Dr Bisht summarises the history and details current symptoms and impairments. At this time Ms Bayes is residing with her partner and daughter. Dr Bisht notes previous diagnoses of PTSD and borderline personality disorder. Dr Bisht gives a diagnosis of adjustment disorder with mixed anxiety and depressed mood. He believes that the workplace incidents are the main contributory factor to the development of this disorder with pre-existing conditions being minor contributors.
In my opinion, Ms Bayes difficulties are best thought of as an exacerbation of her pre-existing mental health problems and the subsequent development of major depressive disorder.
Medicolegal Report, Dr Y Bisht, 24th April 2023.
Ms Bayes reports no improvement since the first assessment by Dr Bisht. Dr Bisht describes current symptoms and impairments. Dr Bisht makes a diagnosis of major depressive disorder. Ms Bayes has no capacity to resume her pre-injury duties, though could work up to 20 hours per week with an alternative employer. Dr Bisht carries out a whole person impairment assessment using the psychiatric impairment rating scale (PIRS) and calculates a score of 7%. From this he deducts 1/10 due to the pre-existing conditions.
I have identified where I differ from Dr Bisht in terms of impairment assessment below.”

The Medical Assessor added:
“Comparison of PIRS Assessments.
Social and recreational activities.
Dr Khan 3
Dr Bisht 2
My Assessment 2
Dr Khan finds that Ms Bayes is socially withdrawn and no longer engages in any social and recreational activities. At my assessment, Ms Bayes socialises within her family group, and generally this is socialising at the home of a family member. She said that she does this more than once per month. She enjoys time with her siblings, her nieces, and nephews, and particularly her daughter. She meets with one friend every two or three weeks and this is usually at his home. She denied socialising in public areas with him or others. Ms Bayes can go unaccompanied to local supermarkets for groceries and other essentials. Ms Bayes meets socially with a young man monthly, usually at his home.
I believe that this indicates a mild rather than moderate impairment in social and recreational activities.
Social Functioning
Dr Khan 3
Dr Bisht 3
My Assessment 2
Both Dr Khan and Dr Bisht note the ending of Ms Bayes relationship with her partner in late 2021. While this is an important consequence of the workplace injury, Ms Bayes describes positive relationships with her siblings, nieces and nephews and mother. She can co-operate with her ex-partner with respect to shared custody of their daughter and meets with him weekly for this purpose. She reports having successfully tried to develop a good relationship with her ex-partner’s new partner, and gave gifts to her and her child at Christmas. Ms Bayes reports developing a new intimate relationship with a young man and meeting with him regularly. In my assessment, these relationships indicate a mild rather than moderate impairment.”
The appellant’s submissions:
(a)    When all of the evidence is considered, the appellant's most appropriate impairment for “Social and Recreational Activities” is Class 3 or 4.
(b)    We refer to the appellant’s statement dated 26 March 2024 which further clarifies that she does not socialise with family for leisure and interacts with them purely because she lives with them.
(c)    The appellant instructs that her relationship with her family is quite strained. The appellant also notes that she attends supermarkets because she is required to do so however it causes her anxiety, and she often suffers from panic attacks. The appellant notes that she does not have any friends and has lost her personal relationships due to her workplace injury.
(d)    We refer to the appellant’s statement dated 19 October 2023 at page 5 of the ARD which also makes notes that she actively avoids attending family functions. The appellant notes that her ability to communicate has been severely impacted.
(e)    These comments are further supported by witness statements of Ms Tracey Johnson and Ms Cloey Bayes found at page 10 and page 14 of the ARD.
(f)    It is submitted that the medical assessor should have therefore found a “class 3” with respect to the appellant’s social and recreational activities.
(g)    The Medical Assessor found a “class 2” rating for the PIRS category “Social Functioning”. The Medical Assessor did so on the basis that “Ms Bayes describes a positive relationship with her siblings, nieces and nephews and mother”. The Medical Assessor also notes that “Ms Bayes reports developing a good relationship with her ex-partner’s new partner and gave gifts to her and her child at Christmas”.
(h)    The Medical Assessor has chosen the 2 rating primarily on the basis of a finding that Ms Bayes has been able to develop and maintain positive relationships with her family, ex-partner and new partner.
(i)    It is critical to highlight that at the time our client’s statements were last obtained, she was not engaging in interactions with other males. This aspect of her social life was not previously commented on simply because it was not existent; hence, no relevant information could have been provided to her solicitors or mentioned in her application. When she disclosed her recent interactions with a male individual to the Medical Assessor, it marked the first instance of her discussing this matter, primarily because she did not perceive these interactions as forming a relationship. Consequently, this information was not previously brought to the attention of her legal representatives.
(j)    Unfortunately, it appears that the Medical Assessor has misunderstood the context and nature of these interactions. Our client’s explanation during the assessment was intended to provide a complete and truthful account of her current social engagements, not to suggest a relationship of any significant emotional or psychological relevance. This misunderstanding requires immediate clarification to ensure that her condition and its impacts are accurately represented and understood.
(k)    We refer to the appellant’s statement dated 26 March 2024 which notes that the appellant has not formed an intimate and close relationship with a young man. The appellant confirms that this young man is not her partner and they do not have any relationship with each other. The appellant instructs that she is not capable of maintaining a relationship with anyone due to her psychological condition.
(l)    Further there were certain comments made by the Medical Assessor which the appellant does not agree with and wishes to clarify. The appellant notes that her relationship with her family is unstable and volatile and that she often has arguments with her mother and sister due to her emotional outbursts and further explains reasons as to why she maintains some level of communication with her ex which is due to them sharing custody of their daughter and not due to them remaining friends with each other.
(m)     The points outlined above, specifically concerning the newly mentioned social interactions, could not have been disclosed in earlier statements or discussions because they were developments that occurred after the last statements were obtained. The appellant’s understanding and categorisation of these interactions lead to an unintentional omission of these details until the most recent assessment with the Medical Assessor.
(n)    In any event, regardless as to whether these interactions are considered to form a “relationship” of some sort or not, having on and off interactions with a male would not be considered to be a “long term relationship”. The appellant has been required to live with her family following this, who also provide significant care and assistance to the appellant and her daughter further supported by the witness statements of Chloe Bayes and Tracey Johnson.
(o)    The appellant should have been assessed as “class 3” if not “class 4” with respect to her social functioning.
As stated earlier, the respondent contends that no errors were made, adding:
(a)    It is evident that the appellant is attempting to introduce in her submissions a different narrative than what she previously provided to the Medical Assessor, potentially seeking to challenge matters of clinical judgment.
(b)    As previously mentioned, there is no conclusive evidence to suggest that the Medical Assessor is insinuating that the appellant is engaged in a romantic relationship with the male individual. Instead, it appears that the Medical Assessor's assessment focuses on the appellant's capacity to engage in communication with a new individual, someone whom she had not previously interacted with.
(c)    Furthermore, we find it contradictory that the appellant suggests her current relationships with family are forced, particularly when the Medical Assessor specifically mentions the appellant referring to her nieces and nephews as her 'pride and joy'. This contradiction raises questions about the consistency and accuracy of the appellant's portrayal of her familial interactions, especially considering the Medical Assessor's observation highlighting a positive sentiment toward her extended family members.
(d)    The appellant’s appeal must fail as her submissions are, in effect, a complaint that relates to merely a difference of opinion which is not a ground of appeal (see Ferguson v State of NSW & Ors [2017] NSWSC887 among others).
(e)    The respondent submits that the assessment of permanent impairment is a matter for each doctor based on their clinical experience and assessment of the evidence before them.

Discussion

Many of the appellant’s submissions relate to her statement dated 26 March 2024 which, for reasons outlined above, we have rejected.
Having said that, the Panel concluded that the Medical Assessor had erred in failing to provide sufficient details in the category of social and recreational activities to support the assessments he made such that a re-examination of the appellant was appropriate.
In respect of the category of social functioning, the Medical Assessor assessed a Class 2 rating and said:
“Ms Bayes’s relationship with her partner of 11 years ended in 2021. She describes this as being a direct consequence of her workplace injury, the changes in her mental health and the financial pressures on them which ensued. Ms Bayes has been able to maintain the relationship to the degree that there is co-operation between herself and her ex-partner in their shared custody of their daughter. Ms Bayes describes being able to establish a positive relationship with her ex-partner’s new partner including giving gifts to her and her child at Christmas. Ms Bayes has lost several friendships during this illness. Ms Bayes has established another intimate relationship over the last year, and she meets with her new partner every two or three weeks at his home. She said that other than physical intimacy, the relationship had not developed further. Ms Bayes has been able to sustain close and positive relationships with her siblings and mother and moved to live with her mother and sister when her long-term partnership ended in 2021. She describes a close relationship with several members of her family of origin. She described her nieces and nephews as her ‘pride and joy’, Ms Bayes prioritises providing care to her 5-year-old daughter.”
The descriptor for a Class 2 reads: “Mild impairment: Previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.”
In our view, a Class 2 rating in this category is consistent with the evidence to which we have referred.
This assessment was thorough and detailed, and consistent with all the evidence before the Medical Assessor in particular, the history obtained at the time of the assessment.
Clause 1.6 of the Guidelines notes that the task of a Medical Assessor is to assess a claimant as they present on the day of the assessment. (our emphasis).
For these reasons, we see no error in the Medical Assessor’s assessment in this category.
As regards the category of social and recreational activities, Medical Assessor Hong reported to the Panel as follows:
“Identification:
Ms Bayes is 29 and living with her sister, her sister's husband and two children. She said her mother was living with them, but the relationship declined and a month ago her mother moved out. Her daughter, who is six, lives with her full time, and her ex-husband takes her for one weekend or for two nights, once every fortnight.
She says this is working well, she does not fight the custody arrangement and lets him pick the time he wants and avoids unnecessary arguments. She said her daughter is above everything else. She said the marital relationship ended because they had a lot of disagreements and personal differences and there have been problems since the workplace injury, but she chose to not let the marital issue affect the parenting. She said she's more susceptible to not to speak to him about parenting concerns. She said she does a reasonable job at parenting overall.
Ms Bayes said they were together for 11 years, and that after the workplace problem started, he could not fathom what she was going through and didn't have the capacity to understand why she was struggling. He wanted her to return to work and she couldn't and he told her that the issues are not that bad. Eventually, she left him with her daughter.
She was living in Sydney with her husband and daughter, and either in 2022 or 2023, they moved up to the Central Coast to live with her sister and explained all her family are there.
History:
Ms Bayes recounted her history when she worked as a full time picker packer and started in 2016 and said there was no problem with work at all, until she had a knee injury in 2019. Subsequently, she was subjected to bullying, harassment and mistreatment, causing her psychiatric injury.
She said she tried to return to work, but her employer made it difficult. She became suicidal and fell into a dark pit. Consequently, she ceased working and moved to the Central Coast.
She described similar psychological symptoms in the past few months, including chronic mood swings, depressive symptoms, interpersonal sensitivity, concentration and memory problems, sleep disturbances and dissociative symptoms. She does not have active suicidal ideation. Her weight fluctuated throughout 2024, as she alternated between skipping meals and overeating.
Treatment:
After her work injury, her Lamotrigine was increased to 200 mg stress and Vyvanse was added in December 2023, she said due to motivation problems and binge eating and she takes 50 mg. She continues to see her psychologist every four weeks and see her psychiatrist. The only admission she had was when she was 13 years old.
Other history:
In terms of past history, Ms Bayes said that doesn't define anything or define her as a person because she's always worked and maintained her parenting. She reported that after giving birth, she returned to work after four months and was on medication. She said that she saw a few clinicians and was eventually diagnosed with PTSD and borderline personality disorder. She took many medications, eventually settling on Cymbalta 120 mg and Lamotrigine 100 mg. she confirmed some psychological instability and struggles in 2018 and 2019.
In terms of her pre-existing functioning and her Borderline personality disorder / Complex Post-traumatic stress disorder, especially in 2018 and 2019, she said she went to family functions and Christmas parties and had a good relationship with her mother after having repaired the relationship, and a good relationship with her sister. She said she ‘obviously struggled communicating with people’ and struggled with relationships, and recalled that she couldn't eat in front of people at work. She had one or two friends at employment and she got along with two of the supervisors, but generally kept to herself at work. She said there were some problems with her husband but it was not a problem per se, it was just that there were underlying issues for being together for so long that were never resolved and on the surface, they were okay.
Ms Bayes said that over the years, he struggled with her lack of motivation some days and couldn't understand about her up and down and good and bad days.
She consumed several energy drinks a day, for years.
In terms of friendship before the subject injury, Ms Bayes said she really only had one close friend and initially they were co-workers and then became personal friends. However, she said after her second return to work trial, she became more depressed. She struggled to respond to text messages and the friendship eventually ended.
She said that she had got along with two supervisors and apart from the one or two friends at work, she didn't let her social circle get any bigger than that.
In terms of recreation previously, Ms Bayes said that with the one friend, they went shopping, went to Starbucks, visited each other at home. Her friend also organized a baby shower for her. She said the family tradition was to have camping once a year involving her mother, all the siblings and children and the partners. She used to go.
Lifestyle:
Since her work injury, Ms Bayes missed out the last three camps. One time, her daughter went with her mother to camping and she did not go.
Ms Bayes said that she keeps to herself, experiences lapses of time, and dissociates. She picks at her skin and finds it difficult to explain this behaviour. She said that she cannot cry, does not experience anger, and punishes herself by picking at her skin. She stated that it is a form of self-harm, although she is not suicidal.
She takes good care of her daughter, who is her priority in life. Her daughter attends kindergarten five days a week, but she said she does not engage with her daughter as much as she should. She said that she does nothing with her daughter at home, though occasionally she reads with her. When specifically asked, she said she does not engage in arts and crafts with her daughter, despite purchasing supplies.
On good days, Ms Bayes helps her sister at home by tidying up, doing one load of washing, and making her bed, although she forgets to take down the washing. Her sister does most of the washing and cooking. She does not engage in activities with her nieces and nephews living at home, who are 10 and 13 years old, apart from speaking to them and asking about their school day.
She said that she does nothing for hours.
When specifically asked, she said that she occasionally watches YouTube videos on mythology and ‘conspiracy theories,’ though not as often now. Recently, she has watched videos at 1.5 times the normal speed (faster than normal), because she loses interest if the information is not presented quickly. She watches for about 10 minutes on good days, when she feels like it or she finds a video that is interesting.
She said she does not engage in any other activities except picking her skin. She consumes energy drinks daily, one to two cans a day, 500ml each, and said she used to drink much more. She does this even though she knows it can be harmful. She discussed similar feelings towards vaping and skin picking. She stated that without stimulant medication or drinks, she lacks the energy to complete tasks throughout the day. We discussed she does not do anything despite having energy drinks. Upon further enquiry, she said that even the school drop-off requires effort and energy and she consumes energy drinks before it.
When asked specifically about a male with whom she has intimacy, she said it is not a relationship or friendship, just a sexual connection. She met him online, perhaps one to two years ago. He lives about 30 minutes away from her on the central coast, but she has not seen him in a few months, since Dr Doris' assessment. He never visits her home; instead, she goes to his house once a month, sometimes twice, she said depending on her level of interest. She initiated and he would respond if he was available. Her visits last about two hours. Apart from intimacy, they share jokes but do not go out. She said on her online profile, she made it clear that she was not seeking a partnership.
Ms Bayes is reasonably close with one sister, who lives at home. Her other two siblings visit once every two to three months to see her and her sister. She talks to her siblings and their children when they visit but feels overwhelmed. She said that she always tries to behave normally around the children in the family. She said her relationship with them was better in the past, particularly when she was still in a relationship with her daughter's father.
Mental state examination:
Ms Bayes was assessed by video and was at home on her own. She was talkative and gave long answers, and gestured regularly. She had brown or maroon colour nails, and overall reasonably well-groomed. Her hair was tied back and she had a piercing and wore earrings. She spoke spontaneously and gave a clear history.
At the end of the assessment, I invited her to discuss additional information that she thought might be relevant and she said:
·        She avoids travel, she shops online, and avoids going to shops.
·        Most of her appointments are conducted by phone. She said she feels worse after an appointment and often forgets appointments, even though she sets a timer on her phone and uses post-it notes, especially for her daughter's school needs. Her sister also reminds her.
·        Her daughter was invited to three parties, but she forgot to RSVP or forgot to take her another time. The last weekend, she took her daughter to a party but left early because she struggled to talk to the other parents. She said she was having more conversations with the children than with the adults at the party.
·        She showers four times a week, sometimes forgetting to shower, but occasionally showers twice a day, sometimes for one to two hours. She said she dissociates.
·        She said her mother moved out because she struggled to deal with her. She said they do not have bouts of anger. She said their relationship was strained during her childhood and they had rebuilt it, but it has now deteriorated again. They become narky with each other, they still talk, but are not close now.
·        Her daughter tries to help her, as she can see that she is stressed. Her daughter has anxiety as well.
·        She said she is not a bad parent but considers herself below average. She ensures that her daughter is fed and clean, and she talks to her, being patient with her daughter's feelings, but does not engage in activities outside.
·        Her sister does everything at home, including cooking, and asks how she is, but she shuts down and feels guilty about it.
Summary:
In summary, Ms Bayes described chronic fluctuating psychopathology but overall, she maintained a similar level of functioning and her condition is stabilized, as the pattern is typical for her long-standing psychiatric disorder.
She described after her work injury, she suffered a decline with increased social avoidance and interpersonal difficulties. She also described continuing a level of self-initiated recreation activity which is restricted to one regular activity with the same person, and does not involve deep personal connection.
She initiates and goes without a support person and is active in planning and being actively engaged.
An unusual aspect of the history is her chronic need for high-level stimulation, both with energy drinks (above recommended amount) and combined with a stimulant meditation, but at the same time, Ms Bayes said she does not do anything that requires energy day-to-day as she does not do anything throughout the day.”

The Panel noted the available information in our material and in previous assessments, and Medical Assessor Hong’s additional history. Overall, the evidence is consistent with a Class 2 rating for social and recreational activities, as she initiates recreational activities with another person, she goes and is actively engaged and enjoys such activity. She does not need a support person but an intimate recreational activity does involve two people. She also enjoys solitary recreational activities.
For these reasons, the Appeal Panel has determined that the MAC issued on
29 February 2024 should be confirmed.

[2024] NSWPICMP 736

23 October 2024