Klemencz v Australian Workplace Services Pty Ltd
[2023] NSWPICMP 419
•28 August 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Klemencz v Australian Workplace Services Pty Ltd [2023] NSWPICMP 419 |
| APPELLANT: | Debra May Klemencz |
| RESPONDENT: | Australian Workplace Services Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | Graham Blom |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| DATE OF DECISION: | 28 August 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Psychological injury; appellant alleged error in the assessment under one of the categories under the Permanent Impairment Rating Scale (PIRS) namely, social and recreational activities; Held – the ratings in this class was open to the Medical Assessor and the Panel could discern no error; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 28 April 2023 Debra Kemencz (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Douglass Andrews, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
28 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 did not request 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):
· 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: 7 July 2016 (deemed)
· Body parts/systems referred: Psychiatric/psychological
· 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) |
| Psychiatric | 7 July 2016 (deemed) | Chap 11, p 54-60 | n/a | 8% | 1/10 | 7% |
| 2. | ||||||
| 3. | ||||||
| 4. | ||||||
| 5. | ||||||
| 6. | ||||||
| Total % WPI (the Combined Table values of all sub-totals) | 7% | |||||
The assessment was based on his assessment under the permanent impairment rating scale (PIRS) as required by the Guidelines as follows:
“Table 11.8: PIRS Rating Form
| Name | Debra May Klemencz | Claim reference number | W314/23 |
| DOB | xxxx | Age at time of injury | 50 years |
| Date of Injury | 7 July 2016 (deemed) | Occupation at time of injury | Telephone sales operator |
| Date of Assessment | 30 March 2023 | Marital Status before injury | Long-standing separation |
| Psychiatric diagnoses | Persistent depressive disorder with an ongoing major depressive episode and anxious distress | ||
| Psychiatric treatment | Medication | Psychotherapy | |
| Is impairment permanent? | Yes | ||
| PIRS Category | Class | Reason for Decision | |||||||||
| Self-Care and personal hygiene | 2 | Ms Klemencz lives alone, managing housework, including shopping and meal preparation. She eats a poor-quality diet, tending toward high-calorie foods, and is morbidly obese. Her obesity predates her work with AWS, but she had achieved a healthy weight due to her severe depression and regained that. She attends to hygiene, showering daily. | |||||||||
| Social and recreational activities | 2 | She has reduced her social activities but will go out to dinners when her sons visit and has been to trivia nights with friends at a local club several times during 2023. | |||||||||
| Travel | 2 | She is independent with local travel but reluctant to travel further afield. She is anxious when driving and her safety concerns because of her inattention. | |||||||||
| Social functioning | 2 | She has good relationships with her sons and two close friends. She has maintained friendships through contact on social media but has lost touch with some friends and ex-work colleagues because of her disengagement. She severed her relationship with her boyfriend in 2016, but they had never lived together, and she made the decision when she had severe depression, from which she has improved. | |||||||||
| Concentration, persistence and pace | 3 | She has subjective difficulties with concentration, attention and memory. When she watches serial shows on television, she does so with engagement. She has no hobbies or projects. She had difficulty recalling some details and event sequences during my interview. | |||||||||
| Employability | 4 | She works four hours a fortnight as a disability support worker while on a disability support pension. She finds this fatiguing. Her symptoms are moderately severe, and she has lost confidence. She continues to exhibit avoidant behaviours. The work she does is less demanding than that at AWS. | |||||||||
| Score | Median Class | ||||||||||
| 2 | 2 | 2 | 2 | 3 | 4 | = 2 | |||||
| Aggregate Score Impairment 15 | Total | 8 % | |||||||||
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;
(b) both independent medical experts (IME) qualified on behalf of the appellant
(Dr Smith) and the respondent (Dr Cassimatis) assessed Class 3 for social and recreational activities, and(c) he placed too much emphasis on the attendance at trivia nights which in any event were not regular.
In summary, the respondent employer, Australian Workplace Services Pty Ltd (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:
Ms Klemencz started work with AWS in 2012 but left after 18 months to relocate to the Sunshine Coast, where she worked as a cleaner. She returned to work with them in 2015 as a telemarketer, selling first aid kits. She worked five days weekly, typically from 9 AM to 3 PM.
She felt that there was always pressure to get sales, which was sometimes overwhelming, reducing her to tears. Her employer’s manner could be intimidating and aggressive, so she felt victimised and harassed. She first consulted a GP in May 2016, was referred to a psychiatrist and her medication was changed from venlafaxine to duloxetine.
After about one month, she started to feel better, but on 7 July 2016, during a morning of successful sales, her supervisor aggressively addressed her, yelling and accusing her of ‘not reading the [sales] script.’ She also said, in a loud voice, ‘Deb’s cracked the shits again.’
Ms Klemencz left work and never returned to her employment at AWS.
· Present treatment:
Treating clinicians:
o general practitioners Dr Karen Miller and Dr Joelle Guerton
o mental health social worker Ms Kate Davis
o psychiatrist Dr Haritha Devineni
Psychiatric medications:
o venlafaxine XR 150 mg daily
Ms Klemencz had previously seen Dr Victor Shawpan, but her care was transferred when he left the practice just before Christmas last year.
She had been seeing her social worker every two weeks but hadn’t consulted her since late last year. She hopes to recommence soon.
She said it had been a ‘long time’ since seeing Dr Devineni.
· Present symptoms:
Ms Klemencz describes symptoms of severe depression in the six months after July 2016. She rarely left home, spent most of her time in bed and lost significant weight. She has improved considerably since that time.
Her mood is up and down without diurnal variation. Although her capacity to experience positive emotions is reduced, she enjoys her sons’ visits.
She is ‘easily triggered’ and described being anxious about making mistakes or confrontations. She told of having an emotional outburst when a young man was aggressive toward another woman in a supermarket. She does not experience panic attacks.
She has subjective difficulties with concentration, attention and memory. She describes losing focus while driving her car, causing potential risk.
She said she has thoughts of suicide ‘all the time’, but she denied that she would act out of concern for her sons.
Her sleep patterns are disturbed with long latency and waking through the night. She often sleeps in the afternoon.
She is prone to emotional eating, with a craving for high-calorie foods.
· Details of any previous or subsequent accidents, injuries or conditions:
Ms Klemencz has a history of long-standing mood and anxiety difficulties, first occurring with postnatal depression 32 years ago. She has had recurrent problems since. Initially, she was commenced on sertraline and then changed to venlafaxine. She has been on antidepressants almost continuously since that time. She has also seen psychologists.
She states that she was stable and emotionally well when she commenced work with AWS, but depressive disorders are chronic and prone to relapse at times of stress.
· General health:
Ms Klemencz has fibromyalgia, osteoarthritis, lichen sclerosis and several allergies.
She takes a daily antihistamine for her allergies and occasional oxycodone/naloxone for pain.
She lost considerable weight when she became unwell in 2016 but has regained it. Her current weight is 149 kg; at 170 cm, her BMI is 51.6, in the morbidly obese range. This weight is similar to when she started working for the second time with AWS.
She had been smoking 20 cigarettes a day until December 2022.
She rarely drinks alcohol.
· Work history, including previous work history if relevant:
Ms Klemencz was raised by her builder father and stay-at-home mother with three older siblings in northern coastal New South Wales. Both her parents are now deceased, as is one brother. She said she had a ‘beautiful childhood; we grew up in nature, swimming and fishing.’
This narrative contrasts with the prejudicial childhood – her GP mentioned sexual abuse – and poor maternal attachment described by Ms Jones’s treating psychiatrist. Ms Klemencz felt she had “over-analysed” her upbringing when she first met Dr Devineni.
She attended Catholic primary and secondary schools, completing year 10. She recalled that school was ‘tough; there were cliques’, but she had a good friendship circle.
After school, she trained as an enrolled nurse at St Vincent’s Hospital in Sydney.
When she was 18, she met Daryl, whom she married when she was 24, staying together for 15 years. They had three sons, now 32, 28 and 22. She said, ‘the marriage was quite good; I never thought we would separate,’ but Daryl had an ‘obsessive hobby collecting antique bottles’, and they ‘grew apart.’ Her psychiatrist had referred to ‘severe [domestic violence] in her … marriage.’ Asked about this, Ms Klemencz minimised the conflict.
In 2015, she had a relationship with Rob that ended when she became depressed. They had never lived together, and she felt too unwell to continue the relationship, saying, ‘I didn’t want him around.’
After leaving AWS and improving from her severe depression, she worked as a cleaner with a friend, Rita, but stopped when her friend was diagnosed with cancer. She has also worked as a disability support worker. Currently, she works three shifts, totalling four hours a fortnight as a disability support worker, assisting a man who has cerebral palsy. Although she said the work was easy, it often left her exhausted.
She is now on a disability support pension.
· Social activities/ADL:
Ms Klemencz lives alone in a demountable home in a caravan park at Chinderah in northern New South Wales. She was affected by the floods in February 2022 when she had knee-deep water through her house. She feels fortunate that she didn’t lose any ‘important stuff’ and was able to move back into her home within two weeks.
She often wakes at 6 AM but may lie in bed for two or three hours. On rising, she has coffee and breakfast (usually cereal) before doing some housework in the morning. She also checks Facebook on her phone but doesn’t post. She has a simple sandwich or salad lunch and often sleeps in the afternoon. She may have a takeaway such as KFC for dinner or prepare something like toast. She buys fresh ingredients with plans to cook meals but often fails to do so, wasting the food.
She may go to a local supermarket in the evening or will shop by ‘click and collect’.
She showers herself daily because she gets itchy if she doesn’t.
She said she was ‘very social’ before July 2016, enjoying activities such as barbecues, shopping, and going to clubs to see bands. She had a small friendship group and also socialised with co-workers.
She has curtailed many of these activities and now keeps in touch with several friends by text or Facebook but rarely sees them. She will go out to dinner with encouragement when her sons visit. Since Christmas 2022, she has started going to the local bowling club with two friends for their trivia nights on Thursday nights, although she doesn’t attend every week.
Ms Klemencz remains close to her sons and a couple of old friends. She maintains contact with other friends through social media but sees them infrequently.
She has never been interested in reading novels but recently purchased some books. She reads about her medical conditions online and follows a Facebook marketplace without making purchases.
She doesn’t watch much television but may see ABC news or a series on Netflix. She enjoys European serials, especially those from Norway or Spain. Currently, she is watching a show about security in the White House. She said, ‘I like to watch intense things; it gets my attention and keeps my mind off everything else.’
She has no hobbies or current projects.”
The Medical Assessor conducted a mental state examination and recorded his findings as follows:
“I assessed Ms Klemencz by video link using Microsoft Teams with her in her home. The connection quality was adequate for a comprehensive assessment which lasted 90 minutes.
She presented as an overweight woman, casually attired in a blue T-shirt with hair pulled back.
She was anxious about the interview and described her ongoing depression; her affect was restricted, consistent with her stated mood and congruent with the interview’s contents.
There was no evidence of any disorder of thought-form or perception.
Although she gave a detailed history, she struggled to recall some details and event sequences. At times, she needed redirection.
At the end of the interview, when asked if she had anything else to add, she said, ‘I would love to be working, earning a proper income; I just can’t do it’.”
The Medical Assessor made a diagnosis as follows:
“summary of injuries and diagnoses:
My diagnoses rely on the Diagnostic and Statistical Manual – Fifth Edition (DSM-5), published by the American Psychiatric Association.
Persistent depressive disorder with an ongoing major depressive episode and anxious distress.
Ms Klemencz continues to meet the criteria for a major depressive episode. Because she has had long-standing and enduring depressive symptoms, a diagnosis of persistent depression is warranted.
· consistency of presentation
Ms Klemencz minimised problems that may have occurred in her childhood or during her marriage. In stating that she had been well, although on medication when she started work with AWS, she has likely misrepresented her mental health challenges. There were no inconsistencies in other aspects of her history.”
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:
“In her statement of 5 September 2016, Ms Klemencz wrote:
‘15. I had previously had a stress related condition before. When my middle son got very sick with asthma when he was two years old. He was very sick and stopped reading and I nearly lost him. This happened in about 1996.
16. As a result of the stress I was feeling I was placed on an anti depressant, as my anxiety was so severe. I have pretty much been on an anti depressant since. The antidepressant worked in I have lived a normal life. I have work and everything has been okay.”
Treating psychiatrist Dr Haritha Devineni, 20 May 2016, diagnosed a “major depression” on the background of a ‘Prejudicial childhood with abandonment by her mother, lack of emotional attachments toward any other family members and severe [domestic violence] in her own marriage’. In later reports, Dr Devin diagnosed – ‘Major depression of moderate to severe [,] Generalised Anxiety Disorder, Underlying personality vulnerabilities’.
Treating mental health social worker Kate Davis, 10 February 2022, had diagnosed a ‘Complex PTSD – Post Traumatic Stress Disorder’.
General practitioner Dr Victor Shawpan, 18 April 2017, in a letter to Michael Kreveld Legal, noted:
‘Debra has suffered from recurrent anxiety and depression prior to the claimed injuries above. She stated being treated with Efexor or two years prior to her first presentation here, as well as counselling with psychologists. She states a multiple history of traumas and stressors in the past – sexual abuse in her teens; separated from her husband ~2008 – 2009 leading to homelessness at that time. This would make her especially vulnerable and sensitive to new trauma such as workplace incidents such as bullying.’
The medical records provide compelling evidence that Ms Klemencz has long-standing problems with anxiety and depression. It is true that she had a “normal life”, but her condition relapsed when her work circumstances at AWS stressed her.
IME psychiatrist Dr Glen Smith, 24 August 2022, diagnosed a “Persistent depressive disorder, with intermittent major depressive episodes, with current major depressive episode, with anxious distress”. He determined a 19% WPI (classes 2, 3, 2, 3, 3, and 4) before deducting one-tenth for a pre-existing condition, arriving at a final 17% WPI.
IME psychiatrist Dr Nicholas Cassimatis, 15 November 2022, noted:
‘Up until two days ago Ms Klemencz was working ten hours per fortnight in disability support and three hours per week as a cleaner. She said that she had also recently commenced on the disability pension.’
He referred to her pre-existing psychiatric illness:“
‘Ms Klemencz had a psychiatric history, which commenced when she was pregnant with her first son. She had Postnatal Depression, and anxiety when her second son was seriously ill with asthma. Her GP commenced her on the antidepressant Zoloft and then switched her to Efexor, and has remained on this ever since.” He diagnosed a “severe Major Depressive Disorder” and determined a 13% WPI (classes 2, 2, 1, 2, 3, and 3) before deducting one-tenth for the pre-existing condition, arriving at a final 12% WPI.’
IME psychiatrists Drs Smith and Cassimatis found a moderate impairment in social and recreational activities, whereas I considered her impairment mild. Dr Smith wrote:
‘Ms Klemencz described restriction in social and recreational activities with marked social isolation. She stated that sometimes she sees acquaintances when she walks her dog alone. She is not a member of any clubs or associations. She previously enjoyed gardening and drawing but she no longer has any interest in engaging in those activities.’
And Dr Cassimatis:
‘She rarely goes to any events mostly when prompted by her friends. Her support remains her immediate family. She will only shop late at night.’
This year, Ms Klemencz started attending trivia nights at the local bowling club with friends. Although she said she isn’t very good at trivia, she participates in this group activity.
Dr Cassimatis found no impairment in travel, whereas Dr Smith and I thought it mild. Ms Klemencz is anxious when she travels and doesn’t leave the local area. She said Dr Cassimatis had erred in stating that she had driven to Forster Tuncurry to see her sons. She recalled that she explained to him that they drove to see her for five and a half hours.
Dr Smith found a moderate impairment in social functioning, whereas Dr Cassimatis and I thought it mild. Dr Smith argued:
‘Ms Klemencz described strain in the relationships with her sons and she is generally isolated. She was in a relationship in around 2016/2017 but the relationship broke down in the context of her anxiety and depressive symptoms at that time and she has not been able to consider developing a new relationship since then.’
Ms Klemencz told me that her relationship with her sons was good and described how they had recently been helping her renovate her home to repair flood damage. She contacts some friends through social media and sees others regularly. Although her relationship with Rob ended in 2016, they had been friends for only a year and had never lived together. The relationship ended when Ms Klemencz had severe depression because she didn’t want to continue it; there had never been violence or serious discord. I do not consider this to be the same as a breakdown in a marriage or de facto relationship, and it is not unusual for adults in late middle-aged to choose to be on their own.
Dr Cassimatis found a moderate impairment in employability, whereas Dr Smith and I thought it severe. He wrote:
‘She can perform less than 20 hours per week in a different position that is less skilled and less stressful.’
Ms Klemencz only works four hours a fortnight in a less demanding job than at AWS and feels unable to increase her hours. She is currently on a disability support pension.”
The appellant complains that the Medical Assessor has erred in respect of his assessment of social and recreational activities as Class 2 without due regard to the other evidence before him, including the opinion of the IMEs qualified on behalf of both the appellant and respondent who assessed Class 3 for social and recreational activities. The appellant says a Class 3 should have been assessed for social and recreational activities and that the Medical Assessor has placed too much emphasis on the appellant’s attendance at trivia nights.
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 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 has reduced her social activities but will go out to dinners when her sons visit and has been to trivia nights with friends at a local club several times during 2023.”
The appellant submitted that a Class 3 or moderate impairment should have been assessed.
The IME qualified on behalf on behalf of the appellant, Dr Smith, assessed Class 3 and
Dr Cassamatis the IME qualified on behalf of the respondent also assessed Class 3. Both of these IMEs took place in 2022. The Medical Assessor was required to make an independent assessment using his clinical judgment on the day of assessment. He explained why his opinion differed as follows:“IME psychiatrists Drs Smith and Cassimatis found a moderate impairment in social and recreational activities, whereas I considered her impairment mild. Dr Smith wrote:
‘Ms Klemencz described restriction in social and recreational activities with marked social isolation. She stated that sometimes she sees acquaintances when she walks her dog alone. She is not a member of any clubs or associations. She previously enjoyed gardening and drawing but she no longer has any interest in engaging in these activities.’
And Dr Cassimatis:
‘She rarely goes to any events mostly when prompted by her friends. Her support remains her immediate family. She will only shop late at night.’
This year, Ms Klemencz started attending trivia nights at the local bowling club with friends. Although she said she isn’t very good at trivia, she participates in this group activity.”
The Appeal Panel can discern no error in the rating of a mild impairment. The appellant is undertaking social activity without the need for a support person. Accordingly to the criteria for Class “mild impairment” it does not need to be regular social activity but only occasional. The Medical Assessor noted that the worker did not attend every week, a frequency which does not constitute a ‘rare’ attendance. 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, about which he has specifically commented upon and explained why he differs. He notes there has been an improvement over time in this Class. The assessment of Class 2 is very 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 and the Appeal Panel can discern no error.
For these reasons, the Appeal Panel has determined that the MAC issued on
31 March 2023 should be confirmed.
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