Botha v Secretary, Department of Finance, Services
[2023] NSWPICMP 526
•20 October 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Botha v Secretary, Department of Finance, Services [2023] NSWPICMP 526 |
| APPELLANT: | Elizabeth Botha |
| RESPONDENT: | Secretary, Department of Finance Services |
| APPEAL PANEL | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| MEDICAL ASSESSOR: | John Baker |
| DATE OF DECISION: | 20 October 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Appellant alleged error in the assessment under one of the categories under the psychiatric impairment rating scale (PIRS) namely, social and recreational activities; the rating in this class was open to the Medical Assessor and the Panel could discern no error; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 10 May 2023 Ms Elizabeth Botha (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Michael Hong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
12 April 2023.The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the 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 grounds of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the 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.
The appellant requested that she undergo a re-examination. As a result of its preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because the Appeal Panel could not find error. Absent error, the Appeal Panel has no power to require a re-examination. The Appeal Panel cannot examine the worker to determine whether a ground of appeal has been made out: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.
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.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
It is noted that the delegate’s decision refers to the respondent employer not having filed a notice of opposition. The Appeal Panel notes there is a notice of opposition included with the papers referred to the Appeal Panel.
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The matter was referred to the Medical Assessor for assessment as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
· Date of injury: 28/06/2019
· Body parts/systems referred: Psychiatric/Psychological disorder
· Method of assessment: Whole Person Impairment”
The Medical Assessor issued a MAC certifying as follows:
| Body Part or system | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) |
| 1. Psycho-logical | 28/06/2019 | 11, page 55-60 |
| 9 | 9 | |
| 2. | ||||||
| 3. | ||||||
| 4. | ||||||
| 5. | ||||||
| 6. | ||||||
| Total % WPI (the Combined Table values of all sub-totals) | 9% | |||||
The assessment was based on his assessment under the psychiatric impairment rating scale (PIRS) as required by the Guidelines as follows:
“Table 11.8: PIRS Rating Form
| Name | Elizabeth Botha | Claim reference number (if known) | W2786/21 |
| DOB | Xxxx | Age at time of injury | 49-year-old |
| Date of Injury | 28/06/2019 | Occupation at time of injury | NEW SOUTH WALES GOVERNMENT TELECOMMUNICATIONS AUTHORITY |
| Date of Assessment | 4/4/2023 | Marital Status before injury | Married |
| Psychiatric diagnoses | 1. Major depressive disorder with panic attacks | 2. | |||||||||
| 3. | 4. | ||||||||||
| Psychiatric treatment | Psychologists One antidepressant medication, at a medium dose Not psychiatrist No psychiatric admission | ||||||||||
| Is impairment permanent? | Yes | ||||||||||
| PIRS Category | Class | Reason for Decision | |||||||||
| Self-care and personal hygiene | 2 | Ms Botha said she showers daily as it is hot in Cairns. She has no appetite and skips meals, and her weight is stable recently. She attends to some household chores. She does not cook and reheats premade meals as needed. She is capable of independent living without regular support, and does not need prompting with self-care, although she stated her husband prompts her with showers. . | |||||||||
| Social and recreational activities | 2 | She attends regular social recreational activities with her family and friends. Overall, she has been attending less since her injury as she is socially anxious. | |||||||||
| Travel | 2 | Ms Botha is anxious and avoidant of crowded places. She is independent in travel around the familiar area. | |||||||||
| Social functioning | 2 | Ms Botha's relationship with her husband has deteriorated and remains intact. She is anxious and socially avoidant, and ceased contact with her friends. She is able to maintain a few long-term friendships and made friends in Cairns. The relationship with her general family is reasonable. | |||||||||
| Concentration, persistence and pace | 3 | Ms Botha described having poor concentration. She can focus on reading for only 10 or 15 minutes. | |||||||||
| Employability | 5 | Ms Botha is highly anxious and avoidant, and has no work capacity. | |||||||||
| Score | Median Class | ||||||||||
| 2 | 2 | 2 | 2 | 3 | 5 | =2 | |||||
| Aggregate Score Impairment | Total | % | |||||||||
| + | + | + | + | + | 16 | 9 | |||||
Pre-existing injury
0
Treatment effects
No substantial or total elimination of impairment with treatment, and therefore no treatment uplift. She remains highly avoidant.
0
Final WPI
9
The worker appealed. The appeal concerned only the assessments made under one of the PIRS categories, namely social and recreational activities.
In summary the appellant submitted that the Medical Assessor erred in his assessment under one of the PIRS categories, namely social and recreational activities for failures that included the following:
(a) when he assessed a Class 2 and a Class 3 should have been assessed, and
(b) his conclusion that a Class 2 should be rated that is not supported by the evidence or his reasoning.
In summary, the respondent employer, Secretary, Department of Finance Services (the respondent), submitted that the Medical Assessor did not err and the MAC should be confirmed.
The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a mental state examination, make a psychiatric diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. He is however not bound to follow the opinions of the IMEs whose reports are in evidence including the IME opinion upon which the worker relies to bring the claim for permanent impairment. Rather, the Medical Assessor must bring his clinical expertise to bear and exercise his clinical judgement when making an assessment of impairment under the PIRS categories. The assessment is not to be based upon self-report alone. An appeal panel cannot disturb ratings under the PIRS scale for mere difference of opinion but must be satisfied as to error.
The Medical Assessor took a history which was broadly consistent with the other evidence before him. He recorded in detail the appellant’s reporting of present symptoms and impact on activities of daily living (ADLs). The Medical Assessor recorded as follows:
“Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
I confirmed the history:
Ms Botha recalled that she developed depression and anxiety when the new managing director commenced, and described that she was subjected to bullying and harassment almost immediately from about May 2019. Similar bullying behaviour persisted for about four to five months and often on a daily basis. She said she was subjected to verbal abuse. There was also bullying behaviour through other communication methods such as e-mail or text messages. Ms Botha reported that there was bullying behaviour in meetings, either individually or with her peers present, and with external stakeholders. She recalled that because of the continual flow of abuse, manipulation and attack, she became severely depressed. She does not know why she has been treated this way and said that would be the ‘one billion dollar question’.
Ms Botha recalled she started consulting her GP in June 2019 and that treatment with the psychologist started in October 2019 after she stopped work. She had consultations with Dianne Clark, a psychologist for 15 to 20 sessions and there was a gap due to the COVID-19 and then Ms Clark took time away from practice. She then started treatment with Sonia Zadros in October 2020.
Ms Botha was feeling better in mid-2020; however, she described an incident where she was walking to the shops on the way to see her GP and then she saw a woman she thought was the director who bullied her, and suffered a major decline. She could not sleep, she could not eat, and all the memories of bullying came back to her. After that, her GP suggested she see a different psychologist, Sonia, who specialised in PTSD treatment.
Ms Botha's depression and anxiety persisted, and although she has been taking an antidepressant medication, Sertraline, she only took a small dose of 50 mg, and had not taken other regular psychiatric medications or antidepressants.
She reported that in the six months before my previous assessment, there have been a number of changes. She moved to Cairns and this has not been particularly stressful. Her step-mum has cancer and the cancer progressed and she had to have chemotherapy, and she suffered a severe reaction almost dying from it. Ms Botha's mother who is in South Africa lives on her own and has been hospitalised a number of times in the last six months and then became COVID-19 positive. She is 84 but Ms Botha cannot go back to see her. Ms Botha became quite tearful as she described these problems and said that her psychological health deteriorated in this setting, and that her GP had increased her antidepressant medication following this. About six weeks ago Sertraline was doubled to 100 mg. She thought it may be helpful but is not sure because it is still early stage after the increase and this is the first time the dose has been increased. I previously asked her whether she would agree to take 200 mg if prescribed and she was agreeable.
Update history:
Ms Botha presented for reassessment. I previously saw her on 20 August 2021. She has seen my previous MAC and there was no inaccuracy identified. I also noted that her GP and Dr Khan have also reviewed my certificate.
At my last assessment, I noted that her antidepressant was increased to 100 mg and she had no side-effects. Since my last assessment, she has not consulted other clinicians and her medication remained at the same dose. Overall, there is some fluctuation but no real change in her psychological injury.
· Present treatment:
Ms Botha has been taking Sertraline, 100 mg and this has not changed after my last assessment.
She takes Diazepam as needed for anxiety, 3 or 4 times in the past 2 weeks.
Hormonal replacement.
She takes melatonin for sleep.
Seroquel was used for insomnia but caused nightmares.
She has had Eye Movement Desensitization and Reprocessing therapy. The last time was 1 year ago.
She started treatment in October 2019 with Dianne Clark, then Sonia Zadros, recently every 2 weeks via Zoom. She said her psychologist had worked on reaffirmation and described having imaginal exposure therapy related to the meetings she had with her abuser, who she stated inferred that she had no prospect in her career anymore. She said that gradually the relationship with the psychologist had changed to one of support, and keeping her on the same level.
No psychiatric admission.
She stated psychiatrist consultation was recommended by Dr Clayton Smith, and her GP said this was not urgent. She is on a waiting list to see a psychiatrist in Melbourne and is not sure how long she has been on the waiting list, or when an appointment would be offered.
· Present symptoms:
On specific enquiry, Ms Botha reported experiencing the following symptoms:
· Depressed mood - this remains the same after my last assessment
· She no longer enjoys some activities she normally enjoys.
· Major problems with her memory and concentration.
· Fleeting suicidal thoughts. No self-harm behaviour after my last assessment.
· Weight problems. She was normally 63 or 64kg. As a result of work stress, she initially lost weight and then gained weight. She said menopause made weight management more difficult. She is now stable at 66kg.
· Disrupted sleep and nightmares daily.
· Panic attacks, ‘every couple of days’.
· Ms Botha is socially anxious, she is triggered when she goes out, or if someone related to the Authority tried to contact her on Linked-In.
· Details of any previous or subsequent accidents, injuries or condition:
She reported that her mother and mother-in-law’s health problems remain the same and are not improving. Three or four family members have had terminal cancer in the last year. She talks to them or texts them. There is a friend who passed away in December 2022. In terms of the psychological impact of this, she said it is hard to say and said it contributed to her pre-existing sense of hopelessness from her work injury.
She has no past psychiatric history and does not have recreational drug or alcohol problems.
She does not have a family history of psychiatric illness.
Ms Botha was born in the UK and then went to South Africa. Her stepmother is Australian and she spent some time in Australia in her childhood. She recalled her parents divorced when she was 4 and she grew up with her mother and she has no siblings. Aside from her parents' divorce there had been no other disruption in her early life. She recalled being happy growing up and was not exposed to any abuse or trauma.
Ms Botha has been married for 27 years and described her husband as supportive.
· general health:
No new medical conditions after my last assessment.
· Work history including previous work history if relevant:
After Year 12, Ms Botha went to university and had a Higher Diploma in Credit and Risk Management. She worked in credit and finance and for credit insurance in South Africa, in Hong Kong and also in Australia. She worked in a brokerage firm until she received redundancy and started her consultancy firm, and then decided to join the Australian public service in 2016.
Ms Botha worked as a senior executive in the New South Wales Telecommunication Authority between September 2018 and 13 September 2019. She worked full-time with no secondary employment.
She has not worked or studied after my last assessment.
· Social activities/ADL:
Ms Botha is living with her husband and they have no dependants.
Most of her friends are in Sydney. She has not been to Sydney for about a year and the last time she had a trip, was maybe a year ago to see a psychologist and also she stayed with a friend in Sydney. She talks to her friends in Sydney maybe every month or two, and with one particularly close friend on a weekly basis. She has family in the UK and South Africa and talks to them sometimes but has not been overseas for a couple of years now.
Her husband is a tradesman and works every day locally. She stated he has been concerned about her and her mental health has affected his mental health as well.
She spends four or five hours in the garden on most days, and explained she has a very big garden and she does weeding. Her husband asked her to do different chores. She does some vacuuming, dusting, washing up, and sometimes she goes to the shops with her husband, but she generally does not like to go out.
Ms Botha heats up pre-made meals and uses the microwave, but avoids the gas stove as she had an accident with it due to concentration problems. Her husband does most of the household chores and cooking. She spends time with her dog and also in the pool at home.
She has made a couple of friends since she moved to Cairns, including a close friend she has known for about two years now, who is a retired nurse. She walks her dog to the nurse's house for a catch-up, or the nurse will come over and visit her every couple of days. The nurse’s sister has also moved up to Cairns and Ms Botha sees her too. There is a married couple who lives just around the corner, and they visit each other twice a month. She has known them for many years.
Recently, they had a small party because the nurse’s sister celebrated her 70th birthday. The party was at Ms Botha's home last week. She explained her husband is good with South African cuisine and did a barbecue, and a friend brought over a cake. She felt the party was okay because it was not big, only about five people, comprising of the friends she has in the neighbourhood, she could engage with them well and enjoyed it.
Her step-mother tends to pop in for a coffee weekly. Her father talks to her regularly but only sees her once a month.
Normally, Ms Botha likes to travel but she does not do this anymore. She also enjoyed art and reading books about art or visiting art galleries, and this has stopped as well. She is not painting anymore.
She had read some books on self-help and said that she can read, and probably can focus for about ten minutes but her memory and retention is not good. She has not been reading recently. She watches television with her husband.”
The Medical Assessor conducted a mental state examination and recorded his findings as follows:
“Ms Botha was assessed by video. Ms Botha was assessed by herself and was at home. I assessed Ms Botha from my Sydney office. I have completed a full psychiatric assessment with consent. I have taken handwritten notes, and there was no audio-visual recording of the assessment.
Ms Botha was bespectacled and was restricted in her affect range and had a bland expression. She only smiled briefly. She spoke spontaneously in a soft tone.
At the end of the assessment, I asked Ms Botha for additional information that she thought may be relevant and she stated she knows there is no magical cure, and that she is just existing.”
The Medical Assessor made a diagnosis as follows:
“summary of injuries and diagnoses:
Ms Botha had no prior psychiatric difficulty. She developed anxiety shortly after the new managing director started and described being bullied over four to five months and the problem happened on a daily basis. Around mid to late 2020 there was an aggravation when she saw somebody in the shops that she thought was the director. After that she started consultations with a new psychologist.
I previously recommended a review in six months after Ms Botha has had further treatment. She has not gained further improvement and her treatment has not changed after my last assessment and I concluded her psychological injury has stabilized.
· consistency of presentation
I have found no inconsistency in Ms Botha's presentation.”
The Medical Assessor explained his reasons for assessment under each of the PIRS categories as set out in the table above. The assessment in the category of social and recreational activities is the subject of complaint on appeal.
The Medical Assessor had regard to the other evidence that was before him and made brief comments as follows:
“Dr Khan’s updated report, 29 July 2022, advised she had stabilised in her condition and MMI reached and made some further treatment recommendations. He provided a WPI at 19%.
In terms of Ms Botha's impairment assessment, Dr Khan rated social and recreation activities as 3 and noted that she engaged in some solitary activities She walks her dog regularly or walks with her husband for therapeutic purposes and remains socially withdrawn. He did not record any social or recreational activities in his report. I noted when Dr Smith assessed her, she was still engaged in some social and recreational activities including a birthday party recently. She enjoys visiting each other and having small celebrations at home, including a party in the previous week. She struggles in a large party or with strangers, and given her current living circumstances with only a few friends locally, she is managing and can enjoy regular social and recreational activities with people that she trusts and knows well, and therefore I rated 2.
Ms Botha's supplementary statement noted Dr Smith's report and discussed his portrayal of obsessive online shopping.
Sonia Zadro psychologist report, 26 June 2021 had diagnosed PTSD and addressed the criteria and advised that she was exposed to a direct serious injury of a psychiatric nature.
Comment: I have diagnosed Major depressive disorder as I do not believe her psychological symptoms fulfilled the DSM-5 diagnostic criteria for PTSD. I accept she has trauma symptoms.
Report from Dr Suyin Yeong, GP, 20 November 2021, advised that he had reviewed Dr Hong’s assessment certificate and whilst the medication can be increased further or new medication be trialled, he feels that her condition remains stagnate despite several months on a new antidepressant and MMI will have been reached. He continued to observe that Ms Botha's self-esteem, identity and confidence are completely eroded by her employment and that it is unlikely that simply increasing medication or changing medication will provide much in the way of improvement.
Comment: Dr Yeong's opinion does not accord with the treatment guideline for her psychological diagnosis or with Dr Abdal Khan or Dr Clayton Smith's recommendation, overall, my view is that her condition has become entrenched and therefore is unlikely to further improve.
I noted previous files:
Ms Botha’s statement had been noted which outlined her usual interests and the problems at work. She felt blamed by the new managing director who took over in May 2019. Her comments were peppered with profanity. She felt intimidated and shocked by the aggressive and dismissive attitude. She made allegations that were unsubstantiated and fabricated. Ms Botha became anxious, frightened, disheartened and depressed and could not cope by September 2019 and then received a formal letter, stating that she had been placed on special leave citing Ms Botha's behaviour as a reason with no further comments. Ms Botha has been having treatment with a GP, Dr Yeong, and a psychologist. She described being humiliated and developed thoughts of self-harm and thinking about stepping in front of the train in September 2019.
Ms Botha's supplementary report had also been noted. She suffered a decline in August 2020 after visiting her GP and thought she saw her ex-manager. She described problems with her functioning according to the PIRS category.
GP record had been noted. Initially an adjustment disorder was diagnosed as a result of workplace problems.
Dr Abdul Khan, IME psychiatrist reported on 1 March 2021, noted similar workplace history and that Ms Botha has been having weekly psychology treatment and not been referred to a psychiatrist. She took sertraline 50 mg and melatonin 2 mg. There were no other psychosocial stressors reported. He diagnosed major depressive disorder and advised that she had reached MMI. He advised Ms Botha's future treatment needs likely include referral to a psychiatrist, inpatient treatment, day patient treatment and psychology treatment.
Dr Khan provided WPI 19% with the ratings of 2, 3, 2, 2, 3, 5. I note Ms Botha was taking a small dose of antidepressant medication and had been on the same dose since the work injury started. Since Dr Khan’s assessment, Ms Botha advised that her medication had been doubled and there is a plan to refer to a psychiatrist. She also reported that she suffered deterioration due to stress related to her mother and stepmother.
Ms Sonia Zadro, treating psychologist 2 June 2021, noted Ms Botha's workplace problems and advised that she suffered PTSD. Whilst she advised that this is consistent with DSM-5 criterion A and explained that she was subjected prolonged verbal abuse from the manager with serious injury of a psychological nature from her manager, I note that this does not fulfil the actual requirement of DSM-5. My view is that major depressive disorder is the more appropriate diagnosis. She advised that Ms Botha remained highly symptomatic and highly aroused and it is unclear when, if ever, she will be able to return to work.
Ms Zadro’s report, 26 June 2021, noted Ms Botha attended 18 sessions. She suffered PTSD. Her improvement had been slow and her symptoms are severe but she does think there is room for improvement but recovery would take some time, i.e. several years and she doubted that it would be anywhere near the level she is reasonably qualified by education, training or experience.
GP record had been noted:
Ms Botha suffered depression and anxiety. She was taking Zoloft/Sertraline. There had been some positive improvement and feedback from her husband. She was attending yoga. In July 2020 there was discussion about now is not the best time to come off Zoloft but wait until things in her life are more secure.
On 22 September 2020, feeling a bit better, booking in with new psychologist, doing courses, started painting again, going walking, doing yoga, keeping busy, husband has been away a little and then moved house.
Dr Clayton Smith, IME psychiatrist provided a report dated 28 April 2021, noted prior to relocating to Cairns two weeks ago, Ms Botha had been living as a hermit. She now sees her parents living in Cairns. She suffered persistent agoraphobia and has been working on desensitisation. She goes to the shops with her husband and has been to the beach but not on her own. She never drives a car and only recently got an Australian learner’s licence and wanted to drive but said she would have trouble concentrating. Ms Botha has friends in Cairns around the corner and most of the social contacts are in Sydney. They have not had visitors yet. They generally talk via messenger with the overseas friends. Ms Botha went to a restaurant for the 50th birthday in May 2020 but not been to movie, shows or concert. Her marriage has been stable. They have been married 25 years. Dr Smith diagnosed major depressive disorder and advised that in the last six months the improvement had been minimal. She has not had assertive pharmacotherapy and not been referred to a psychiatrist. Sertraline should be optimised and can be augmented and she has not been recommended treatment with neurostimulation. He advised Ms Botha has not reached MMI as she has not progressed through accepted treatment algorithm for treatment-resistant major depressive disorder. Her antidepressant is suboptimal. With appropriate treatment there is a high likelihood her symptoms would improve by more than 3% WPI over the next 12 months. He advised Dr Khan has not commented on her medication treatment to date and her psychologist and Dr Khan have offered different opinions about her return-to-work prospects.
Ms Zadro, 2 April 2021, advised Ms Botha is having EMDR for PTSD. She is not fit to work and she estimated it may be a year before she has some capacity and there are no other stresses or barriers.
The appellant complains that the Medical Assessor has erred in respect of his assessment of social and recreational activities as Class 2. The appellant says a Class 3 should have been assessed for social and recreational activities.
The Panel cannot interfere with the ratings ascribed by the Medical Assessor absent error by the Medical Assessor. The Panel cannot interfere with the rating because opinions might differ as to the best fit in this category. There must be a demonstrable error or assessment on the basis of incorrect criteria.
In respect of Social and Recreational Activities, Table 11.2 of the Guides provides as follows:
Table 11.2: Psychiatric impairment rating scale – social and recreational activities
Class 1
No deficit, or minor deficit attributable to the normal variation in the general population: regularly participates in social activities that are age, sex and culturally appropriate. May belong to clubs or associations and is actively involved with these.
Class 2
Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).
Class 3
Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.
Class 4
Severe impairment: never leaves place of residence. Tolerates the company of family member or close friend, but will go to a different room or garden when others come to visit family or flat mate.
Class 5
Totally impaired: Cannot tolerate living with anybody, extremely uncomfortable when visited by close family member.
The Medical Assessor assessed a mild impairment at Class 2 with the following reasoning:
“She attends regular social recreational activities with her family and friends. Overall, she has been attending less since her injury as she is socially anxious.”
The Medical Assessor had recorded a history that included the following:
“She has made a couple of friends since she moved to Cairns, including a close friend she has known for about two years now, who is a retired nurse. She walks her dog to the nurse's house for a catch-up, or the nurse will come over and visit her every couple of days. The nurse’s sister has also moved up to Cairns and Ms Botha sees her too. There is a married couple who lives just around the corner, and they visit each other twice a month. She has known them for many years.
Recently, they had a small party because the nurse’s sister celebrated her 70th birthday. The party was at Ms Botha's home last week. She explained her husband is good with South African cuisine and did a barbecue, and a friend brought over a cake. She felt the party was okay because it was not big, only about five people, comprising of the friends she has in the neighbourhood, she could engage with them well and enjoyed it.
Her step-mother tends to pop in for a coffee weekly. Her father talks to her regularly but only sees her once a month.”
The appellant submitted that a Class 3 or moderate impairment should have been assessed.
In summary, the appellant submitted:
“In short, Dr Hong does not record any information or findings about Ms Botha’s ability to leave the house for social activities, the frequency at which she may be able to do so, nor whether she has the capacity to leave the house independently or with a support person. Dr Hong’s Class 2 decision is, with reference to what is recorded in the body of the report illogical. It cannot support the conclusion.”
The IME qualified on behalf on behalf of the appellant, Dr Khan, assessed Class 3 in
March 2021 and Dr Smith, the IME qualified on behalf of the respondent in April 2021 did not regard the appellant as having reached MMI. Both of these IMEs took place in 2021. Medical Assessor Hong assessed the appellant in 2023 and was required to make an independent assessment using his clinical judgment on the day of assessment. He specifically commented on why his rating of impairment for social and recreational activities differed from Dr Khan as follows:“In terms of Ms Botha's impairment assessment, Dr Khan rated social and recreation activities as 3 and noted that she engaged in some solitary activities She walks her dog regularly or walks with her husband for therapeutic purposes and remains socially withdrawn. He did not record any social or recreational activities in his report. I noted when Dr Smith assessed her, she was still engaged in some social and recreational activities including a birthday party recently. She enjoys visiting each other and having small celebrations at home, including a party in the previous week. She struggles in a large party or with strangers, and given her current living circumstances with only a few friends locally, she is managing and can enjoy regular social and recreational activities with people that she trusts and knows well, and therefore I rated 2.”
The Appeal Panel can discern no error in the rating of a mild impairment. The Medical Assessor is entitled to form his own clinical judgment on the day of assessment and having had due regard to the other medical opinions before him. The assessment of Class 2 is clearly in accordance with the criteria in the Guidelines. Class 2 is the best fit and the Medical Assessor has assessed in accordance with the correct criteria, provided reasons for why he did so, specifically why he was of the view that the appellant was less impaired than when assessed two years previously, and the Appeal Panel can discern no error.
For these reasons, the Appeal Panel has determined that the MAC issued on
12 April 2023 should be confirmed.
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