Clarke v Secretary, Department of Education
[2023] NSWPICMP 52
•21 February 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Clarke v Secretary, Department of Education [2023] NSWPICMP 52 |
| APPELLANT: | Jacinta Clarke |
| RESPONDENT: | Secretary, Department of Education |
| Appeal Panel | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 21 February 2023 |
CATCHWORDS: | wORKERS cOMPENSATION - Psychological Injury; appellant alleged error in the assessment in four of the categories under the Permanent Impairment Rating Scale (PIRS); social and recreational activities, travel, social functioning, concentration, persistence and pace; the ratings in all classes were open to the Medical Assessor and the Panel could discern no error; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 11 July 2022 Ms Jacinta Clarke (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 20 June 2022.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 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.
The appellant requested 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 although 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 MA 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 MA that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
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 MA for assessment as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
· the degree of permanent impairment of the worker as a result of an injury (s319(c))
· whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion (s319(d))
· whether impairment is permanent (s319(f))
· whether the degree of permanent impairment of the injured worker is fully ascertainable (s319(g))
· Date of injury: 23 May 2019
· Body parts/systems referred: Psychiatric/psychological
· Method of assessment: Whole Person Impairment”
The MA 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) |
| Psychiatric | 23 May 2019 | Chap 11, | n/a | 7% | 1/10th | 6% |
| Total % WPI (the Combined Table values of all sub-totals) | 6% | |||||
The assessment was based on his assessment under the Permanent Impairment Rating Scale (PIRS) as required by the Guides as follows:
“Table 11.8: PIRS Rating Form
Name
Jacinta Clarke
Claim reference number
W104/22
DOB
Age at time of injury
46 years
Date of Injury
23 May 2019
Occupation at time of injury
Teacher
Date of Assessment
15 June 2022
Marital Status before injury
Married
Psychiatric diagnoses
Persistent depressive disorder with anxious distress and an ongoing major depressive episode
Psychiatric treatment
Medication
Psychotherapy
Is impairment permanent?
Yes
PIRS Category
Class
Reason for Decision
Self-Care and personal hygiene
2
Ms Clarke continues to participate in household chores, including cleaning and cooking, although with less motivation than she did before her workplace injury. She attends to hygiene, showering and brushing her teeth daily.
Social and recreational activities
2
She is less socially active. However, she continues to attend her children's sporting events, interacting with other attendees. She enjoys her role as the team photographer. She has attended a professional sporting event in Melbourne this year.
Travel
1
She is independent in local travel and can travel further afield. She travels moderately long distances to her children's sporting events and, this year, took a 3 ½ hour trip to Melbourne with her daughter to attend a professional netball event. She takes regular breaks because she gets sore and sometimes her concentration lags. At most, this is a minor deficit attributable to the normal variation in the general population.
Social functioning
2
Her relationship with her husband is strained because of her irritability. However, they remain close, and he is supportive of her. She has continued good relationships with her children, mother, cousin and one friend. She has lost some friends because of her social disengagement.
Concentration, persistence and pace
2
She has subjective difficulties with concentration and attention. However, she can watch serial TV shows on Netflix and stay connected with the characters and plot. She sometimes struggles to follow a movie. She has stopped reading except for short tracts in the newspaper because she gets distracted. In 2021, she was the scorekeeper at her son's cricket games and managed another son's football team. Her only hobby is photography; she spends up to 2 hours a week editing photographs. I found no evidence of a significant deficit during my 80-minute assessment.
Employability
5
She has not worked in any capacity since 16 June 2020 and has lost confidence and trust in others. She avoids anything related to teaching, and her symptoms remain moderately severe. I consider her unfit to work.
Score
Median Class
1
2
2
2
2
5
= 2
Aggregate Score Impairment 14
Total
7 %
The worker appealed.
In summary the appellant submitted that the MA erred in his assessment under the following PIRS categories as follows:
(a) Social and Recreational activities when he assessed a Class 2 and a Class 3 should have been assessed;
(b) Travel where a Class 3 should have been assessed;
(c) Social Functioning when he assessed a Class 2 and a Class 3 should have been assessed, and
(d) Concentration, Persistence and Pace when he assessed a Class 2 and a Class 3 should have been assessed.
In summary, the Secretary, Department of Education (the respondent) submitted that the MA did not err and the MAC should be confirmed.
The role of the MA is to conduct an independent assessment on the day of examination. The MA 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 MA. The MA 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 MA 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 MA recorded as follows:
“Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
Ms Clarke has been a teacher for 28 years and worked at Lavington Public School for the last ten years of her career.
Problems arose for her in the workplace after a new principal arrived. She felt undervalued, alienated and excluded. Despite having a permanent full-time position, it was insinuated that she would need to reapply for her job.
She had an emotional breakdown in May 2019 and was directed to leave the school premises for her ‘health and well-being.’ She returned after two days but was again sent home. She returned to full-time work in June 2019.
With the advent of Covid, she worked from home for three days a week and elected to take the other two days as leave.
The principal ignored her until about June 2020, when she was told that she was to be put on a 'Teacher Improvement Program', which she believes is only done when the school wants to have a teacher removed.
Her transfer request was declined because the principal considered her confrontational.
She attended the program for one week before seeking help from her general practitioner and leaving work.
She has not worked in any capacity since.
· Present treatment:
Treating clinicians:
o general practitioner Dr Grace Ukich
o psychologist Mr Luke Mercieca
Psychiatric medication:
o escitalopram 20 mg daily
Ms Clarke sees her GP and psychologist about once a month. Her psychologist has been teaching her coping strategies.
· Present symptoms:
Ms Clarke has frequent low moods without diurnal variation. She experiences positive emotions watching her children play sports.
She has subjective difficulties with concentration, attention and memory. She described being easily distracted and forgetful.
She is often anxious, especially fearing running into ex-colleagues.
She is bothered by intrusive worries about her situation and the future for herself and family.
She is triggered into a distressed state if she runs into an ex-colleagues.
She has diarrhoea which she attributes to her anxiety.
She has had thoughts of suicide and has contemplated death by overdose. She wonders if ‘the kids and James would be better off?’
She is in bed between 10 and 11 PM and will wake two or three times during the night, sometimes having distressing dreams.
She overeats and has gained weight.
Her libido is reduced compared to her pre-injury state.
· Details of any previous or subsequent accidents, injuries or conditions:
Ms Clarke was previously diagnosed with depression and treated with antidepressants and psychotherapy. This mood disorder occurred in the context of a family crisis; her oldest son had sexually abused two of his half-siblings. He went to live with his father, and Ms Clarke has not had contact with him since he was 13.
Dr Clayton Smith stated that Ms Clarke had been on antidepressants for five years and ceased them. Ms Clarke told me that she continued on them through to the workplace injury and her GP increased the dose in 2019.
· General health:
Ms Clarke has hypertension, for which she takes perindopril 10 mg daily.
She has headaches and neck and shoulder pain. She had been seeing an osteopath to assist with this.
Ms Clarke has been on the antidepressant escitalopram for more than a decade. It commenced when her eldest son left home to live with his father.
She has gained weight; she now weighs more than 90 kg; at 163 cm, her BMI is 33.9, in the obese range.
She does not smoke.
She has increased her alcohol intake so that she now has between four and eight standard drinks daily, favouring wine and occasional spirits.
· Work history, including previous work history if relevant:
Ms Clarke was a single child raised by her parents at Wodonga. The deceased father was an electrical contractor, and her mother a teacher. She recalls a safe and caring childhood.
After high school, she completed a Bachelor of Teaching and Bachelor of Education and has worked as a teacher for 17 years, mostly in special education.
· Social activities/ADL:
Ms Clarke lives on a 13-acre property with her husband, James, and their three children, aged 11, 14 and 15.
Her 20-year-old son from a previous marriage died earlier this year of cardiac failure. She did not see him before he died and could not attend the funeral, although she watched by video stream.
Her husband is a bricklayer who owns a mowing/slashing business. He is not working while he offers support to Ms Clarke.
After rising each day, she gets her children up and may help them prepare for school, such as preparing their lunch. Her husband drives them to school.
She spends much of her morning ‘flicking through my phone’ or watching videos on YouTube or Netflix.
She picks up her children from their schools and often takes them to their sports training.
She is less motivated to do housework, which she also finds more difficult because of her shoulder and neck pain. Her husband may help with lifting. He also does most of the cooking, although Ms Clarke will ‘cook basic stuff.’
She goes to the supermarket with her husband.
She attends to hygiene, brushing her teeth and showering daily.
Before becoming unwell, she was active on committees and organising sporting events for her children. For example, she managed one of her boy's football teams and kept the cricket score. She enjoyed going away for the weekend with the family, camping or for various sports. She went out to coffee with friends and had a girlfriend with whom she regularly caught up.
She has given up some of these activities only this year. She still attends her children's sporting activities and may interact with people she meets there.
She likes to take photographs of children's sports, which she will edit and post on a Facebook page.
She no longer sees friends who were work colleagues but meets up with another girlfriend three or four times a year. She has been out to lunch with her once this year.
She is independent in local travel, although she is anxious near her old school or where she fears running into ex-colleagues. She drives about 30 minutes to visit her mother once a month. She took a 3 ½ hour trip to Melbourne with her daughter to attend a professional netball game. She travels for children's sports, accompanied by her mother. Recently, she has been to Wangaratta, a 45 to 60-minute drive, and Shepparton, a two-hour drive.
Her relationship with James is strained, but he remains supportive and caring. She said he stays home with her as much as possible because ‘he is afraid of what he might find [referring to her thoughts of suicide].’ She has continued good relationships with her children, mother, cousin and one friend. She has distanced herself from other friends.
She can follow TV serials such as Ozark and watch movies. She said she stays connected with the storyline watching serials but sometimes becomes distracted during movies.
She struggles to read books or newspapers.
She can spend a couple of hours a week editing photographs. She has no other projects or hobbies.”
The MA conducted a mental state examination and recorded his findings as follows:
“I assessed Ms Clarke in her home by video link. The connection quality was excellent, allowing me to do a comprehensive assessment. She presented as an overweight middle-aged woman, casually attired and well-groomed.
She said she was depressed and anxious; Her affect was restricted, consistent with her stated mood and coherent with the content of the interview.
There is no evidence of disorder of thought-form or perception.
She gave a coherent and detailed history during my 80-minute interview.
She acknowledged thoughts of suicide and has considered means.
At the end of the interview, when asked if she had anything else to add, she reiterated the difficulties she had at school and that she was sad about her lost career, saying, ‘I know I'm a good teacher; I haven't had any issues in 27 years.’ She emphasised that she had lost a lot because of what had happened.”
The MA made a diagnosis as follows:
“summary of injuries and diagnoses:
I make my diagnoses relying on the Diagnostic and Statistical Manual – Fifth Edition (DSM-5), published by the American Psychiatric Association.
o Persistent depressive disorder with anxious distress and an ongoing major depressive episode
Ms Clarke meets the criteria for a major depressive disorder. Because her symptoms have been present for more than two years, a persistent depression diagnosis is warranted.
· consistency of presentation
I found no inconsistencies in her presentation.”
The MA explained his reasons for assessment under each of the PIRS categories as set out in the table above.
The MA had regard to the other expert opinions that were before him and made brief comments as follows:
“IME psychiatrist Dr Ben Hooi-Beng Teoh, 20 August 2021, diagnosed a chronic adjustment disorder with mixed anxiety and depressed mood. He determined 22% WPI (classes 2, 3, 2, 3, 3, and 5) before deducting one-tenth for the pre-existing condition, arriving at a final 20% WPI.
IME psychiatrist Dr Clayton Smith, 16 November 2020, diagnosed a major depressive disorder, noting that this was ‘an aggravation of a pre-existing disorder.’ Dr Smith re-examined Ms Clarke on 8 November 2021 and reaffirmed this diagnosis, determining 7% WPI (classes 2, 2, 2, 2, 2, and 3) before deducting one-tenth for her pre-existing depression, arriving at a final 6% WPI.
I have determined a similar diagnosis to the IME psychiatrists. A mood disorder diagnosis supersedes that of an adjustment disorder. Because her condition has been more than two years, I have diagnosed a persistent depressive disorder.
Dr Teoh found a moderate impairment for social and recreational activities, whereas Dr Smith and I thought it mild. Dr Teoh noted:
She reported significant loss of interest in her usual activities and social isolation. She has been lacking motivation and interest in her usual activities. She has avoided going to the school grounds; she has been anxious about leaving her house without her husband. She said that she had lived in a small community, and she has been worried about meeting staff in public and the supermarket.
Dr Teoh's argument as it relates to this category can be summarised as Ms Clarke losing motivation and interest in her usual activities. However, she continues to attend her children's sporting events and agrees that she interacts with others when she is there, although to a lesser extent than before. She also attended a professional netball event with her daughter this year.
Dr Teoh also found her moderately impaired in social functioning, while Dr Smith and I thought the impairment mild. Dr Teoh wrote:
She has a strained relationship due to irritability and lacking communication. She admitted she has been ‘snappy’ in her relationship.
She has lost some friends because of social disengagement, but her primary relationships remain intact. Dr Teoh's description does not support a Class 3 rating in this category.
Dr Teoh found a moderate impairment in concentration, persistence and pace, whereas Dr Smith and I thought it mild. Dr Teoh argued:
She has poor concentration and persistent preoccupation with negative thoughts. She has been worrying about her future and her physical condition. She reported significant depressive and anxiety symptoms. She has insomnia and irritability. She has become withdrawn and preoccupied with negative thoughts and she has lost her confidence. She has been worrying about her future and her employment.
Dr Teoh provides little evidence here that relates to this category. Instead, he restates her symptoms. I rely on my description in the PIRS table.”
The appellant complains that the MA has erred in respect of four of the categories assessed, namely Social and Recreational Activities, Travel, Social Functioning, and Concentration, Persistence and Pace.
The Panel cannot interfere with these ratings absent error by the MA. The Panel cannot interfere with the rating because opinions might differ as to the best fit in each category. There must be error or assessment on the basis of incorrect criteria. The Panel will deal with each category in turn.
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 MA assessed a mild impairment at Class 2 with the following reasoning:
“She is less socially active. However, she continues to attend her children's sporting events, interacting with other attendees. She enjoys her role as the team photographer. She has attended a professional sporting event in Melbourne this year.”
The appellant submitted that a Class 3 or moderate impairment should have been assessed.
This is submitted on the basis that the appellant does not socialise except with immediate family and whilst she does take photographs, this is a solitary activity.
The MA explained why his opinion differed from that of Dr Teoh who had assessed Class 3 in this category as follows:
“Dr Teoh found a moderate impairment for social and recreational activities, whereas Dr Smith and I thought it mild. Dr Teoh noted:
She reported significant loss of interest in her usual activities and social isolation. She has been lacking motivation and interest in her usual activities. She has avoided going to the school grounds; she has been anxious about leaving her house without her husband. She said that she had lived in a small community, and she has been worried about meeting staff in public and the supermarket.
Dr Teoh's argument as it relates to this category can be summarised as Ms Clarke losing motivation and interest in her usual activities. However, she continues to attend her children's sporting events and agrees that she interacts with others when she is there, although to a lesser extent than before. She also attended a professional netball event with her daughter this year.”
The Appeal Panel can discern no error in the rating of a mild impairment. The appellant is able to attend her children’s sporting events on a regular basis without the need for a support person. She is able to interact with other attendees at such events. Class 2 is the best fit and the MA has assessed in accordance with the correct criteria and the Appeal Panel can discern no error.
In respect of Travel, Table 11.3 of the Guides provides as follows:
Table 11.3: Psychiatric impairment rating scale – travel
Class 1
No deficit, or minor deficit attributable to the normal variation in the general population: Can travel to new environments without supervision.
Class 2
Mild impairment: can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.
Class 3
Moderate impairment: cannot travel away from own residence without support person. Problems may be due to excessive anxiety or cognitive impairment.
Class 4
Severe impairment: finds it extremely uncomfortable to leave own residence even with trusted person.
Class 5
Totally impaired: may require two or more persons to supervise when travelling.
The MA assessed no deficit or minor deficit at Class 1 with the following reasoning:
“She is independent in local travel and can travel further afield. She travels moderately long distances to her children's sporting events and, this year, took a 3 ½ hour trip to Melbourne with her daughter to attend a professional netball event. She takes regular breaks because she gets sore and sometimes her concentration lags. At most, this is a minor deficit attributable to the normal variation in the general population.”
The appellant submitted that a Class 2 impairment was assessed and that a Class 3 or moderate impairment should have been assessed. In fact it was a Class 1 that was assessed.
The appellant submitted that a Class 3 should have been assessed on the basis that she does not travel alone except taking her children to and from school. She can also travel with her children to sporting events. Other travel is with her husband.
The Panel notes that the independent medical expert (IME) qualified on behalf of the appellant Dr Teoh did not assess a Class 3 for travel but assessed a Class 2.
The best fit is no or minor deficit at Class 1 as the appellant’s ability to travel is consistent with the normal variation in the population. The appellant takes her children to and from school and to sporting events. This travel occurs regularly and without the assistance of a support person. Breaking long interstate journeys as the applicant does is recommended as part of normal long distance driving. This is consistent with Class 1. The Appeal Panel can discern no error.
In respect of Social Functioning, Table 11.4 of the Guides provides as follows:
Table 11.4: Psychiatric impairment rating scale – social functioning
Class 1
No deficit, or minor deficit attributable to the normal variation in the general population: No difficulty in forming and sustaining relationships (eg a partner, close friendships lasting years).
Class 2
Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.
Class 3
Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.
Class 4
Severe impairment: unable to form or sustain long term relationships. Pre-existing relationships ended (eg lost partner, close friends). Unable to care for dependants (eg own children, elderly parent).
Class 5
Totally impaired: unable to function within society. Living away from populated areas, actively avoiding social contact.
The MA assessed Class 2 with the following reasoning:
“Her relationship with her husband is strained because of her irritability. However, they remain close, and he is supportive of her. She has continued good relationships with her children, mother, cousin and one friend. She has lost some friends because of her social disengagement.”
The appellant submitted that the MA should have assessed a moderate impairment at Class 3.
This is submitted on the basis that she has lost almost all her friends and only has a relationship with her husband and children, and the relationship with her husband is strained.
The assessment by the MA accords clearly with Class 2. A mild impairment is the best fit as the appellant has maintained a strong friendship as well as relationships with family members. While there has been some loss of friendships, the MA has pointed out that the appellants’ primary relationships remain intact. This is consistent with the criteria for Class 2. The appeal panel can discern no error in the Class 2 rating.
| Class 1 | No deficit, or minor deficit attributable to the normal variation in the general population. Able to pass a TAFE or university course within normal time frame. |
| Class 2 | Mild impairment: can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache. |
| Class 3 | Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting. |
| Class 4 | Severe impairment: can only read a few lines before losing concentration. Difficulties following simple instructions. Concentration deficits obvious even during brief conversation. Unable to live alone, or needs regular assistance from relatives or community services. |
| Class 5 | Totally impaired: needs constant supervision and assistance within institutional setting. |
In respect of Concentration, Persistence and Pace, Table 11.5 of the Guides provides as follows:
The MA assessed Class 2 or mild impairment with the following reasoning:
“She has subjective difficulties with concentration and attention. However, she can watch serial TV shows on Netflix and stay connected with the characters and plot. She sometimes struggles to follow a movie. She has stopped reading except for short tracts in the newspaper because she gets distracted. In 2021, she was the scorekeeper at her son's cricket games and managed another son's football team. Her only hobby is photography; she spends up to 2 hours a week editing photographs. I found no evidence of a significant deficit during my 80-minute assessment.”
The appellant submitted that a moderate impairment or Class 3 should have been assessed.
This is submitted on the basis that she has difficulty concentrating and with attention. She can’t read a book. She even has difficulty with the newspaper. Her memory is affected and she is easily distracted.
The MA had the benefit of assessing the appellant over the course of an 80 minute examination. This category is one where any objective impairment in the worker’s ability to concentrate on, persist with and follow the pace of a long cognitively demanding assessment can be made. The Guides mandate that a MA cannot rely on self report alone and the MA found no such objective impairment. The MA has to make an independent assessment on the day of examination using his clinical expertise. The MA Class 2 rating is consistent with his findings on the day of examination and the Panel can discern no error.
For these reasons, the Appeal Panel has determined that the MAC issued on 20 June 2022 should be confirmed.
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