Schofield v Tafe NSW

[2024] NSWPICMP 704

DETERMINATION OF APPEAL PANEL
CITATION:	Schofield v TAFE NSW [2024] NSWPICMP 704
APPELLANT:	Theresa Schofield
RESPONDENT:	Tafe NSW
APPEAL PANEL
MEMBER:	Jane Peacock
MEDICAL ASSESSOR:	Michael Hong
MEDICAL ASSESSOR:	Graham Blom
DATE OF DECISION:	9 October 2024
CATCHWORDS:	WORKERS COMPENSATION - Psychological injury; appellant worker alleged assessment on the basis of incorrect criteria and demonstrable error in the making of assessments under two of the psychiatric impairment rating scale (PIRS) categories and error in failing to make an allowance for the effects of treatment; Held – assessments in PIRS categories upheld; Medical Appeal Panel found error in failing to make an allowance for the effects of treatment; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 17 June 2024 the worker Ms Theresa Schofield (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Surabhi Verma, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 22 May 2024.

2. The appellant relies on the following ground of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):

   ·        the assessment was made on the basis of incorrect criteria, and

   ·        the MAC contains a demonstrable error.

3. 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.

4. 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.

5. The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
   1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

PRELIMINARY REVIEW

1. 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.

2. The appellant did not request that she undergo a re-examination by a Medical Assessor who was also a member of the Appeal Panel. As a result of its preliminary review, the Appeal Panel determined that it was necessary for the worker to undergo a further medical examination because although the Appeal Panel found error, there was sufficient material before the Appeal Panel for it to make a determination.

EVIDENCE

Documentary evidence

1. 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

1. 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

1. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.

FINDINGS AND REASONS

1. 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.

2. 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.

3. 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: 28/09/2023

   ·Body parts/systems referred: Psychiatric/Psychological disorder

   ·Method of assessment: Whole Person Impairment”

4. 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. Psychological Injury	28/09/2023	Chapter 11 Guidelines 11.1-11.3 11.4-11.6	Guidelines 11.11,11.12 Table :11.1,11.2,11.3,11. 5,11.5,11.6	7	0	7
Total % WPI (the Combined Table values of all sub-totals)					7%

1. 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	Theresa Schofield	Claim reference number (if known)	W2933/24
DOB	xxxx	Age at time of injury	43
Date of Injury	28/09/2023	Occupation at time of injury	Commercial cookery teacher
Date of Assessment	20/05/2024	Marital Status before injury	Married

Psychiatric diagnoses	1. Adjustment Disorder with anxious mood.
Psychiatric treatment		Yes
Is impairment permanent?	Yes

PIRS Category			Class		Reason for Decision
Self Care and personal hygiene			2		Ms Schofield reported that she is able to shower ‘most days and maintains pretty good personal hygiene.’She added that she is however not as concerned about ‘getting dressed up’ and does not ‘worry too much about her appearance.’ She does not ‘get her eyebrows or hair done,’ as previously. She stated that she however makes sure that she showers on the days when she goes to work.
Social and recreational activities			2		Ms Schofield used to enjoy working with the fire brigade and did fundraising. She used to go there at least on a weekly basis and liked giving back to the community. She stated that after the psychological injury, she continues to go there but only once a month. She also enjoyed exercising and did that consistently before the injury, in fact, she was training for firefighting. She stated that she now only does it ‘once every couple of weeks.’ She added that she has 1-2 close friends whom she is in contact with and has known since they were kids. She stated that she feels safe with them and goes out for walks with them. She often visits her close friends, plays with her grandson, works in her yard and hangs out with them a lot.
Travel			2		She stated that she is able to drive to local distances. She stated that since she lives about 35 minutes away from town, she has to drive that distance, but finds that quite overwhelming. She took her kids to Sea World about 1-2 years back and found that extremely anxiety-provoking.
Social functioning			2		She stated that she has a ‘good relationship with her partner.’ She stated that she met him through work and the relationship started about 12 months back. She stated that her relationship is good and is well supported by him. She added that he ‘puts up with her anxiety and panic attacks.’ Her relationship with her kids is ‘starting to get better,’ she added that after injury, her mum took on a lot of roles and now she is restarting to take on those roles.
Concentration, persistence and pace			3		Ms Schofield added that her attention and concentration continue to be ‘poor.’ She stated that she forgets things quickly and gave examples like getting distracted easily and being unable to persist. She attributed the overwhelming feeling to impacting her memory. She stated that even at work, she does not feel confident and finds it hard to complete her tasks.  She has now developed strategies to put everything in her diary and cross them off so that she does not forget what she is doing.
Employability			3		She works casually and started working with a different employer two weeks back. She stated that her employment opportunities were limited as she faced discrimination because of being on WorkCover.
Score											Median Class
2		2	2		2		3	3		=2
Aggregate Score Impairment								Total			%
+2	+4	+6		+8		+11	14			7

Deduction for any pre-existing impairment = 0%.

Final WPI = 7 - 0 = 7%”

1. The worker appealed. There was no appeal from either party or in respect of the nil deduction under s 323. The appeal concerned two of the PIRS categories namely self-care and personal hygiene and social and recreational activities as well as the failure to make any allowance for treatment effects.

2. In summary, the appellant submitted that the Medical Assessor made assessments on the basis of incorrect criteria and/or made demonstrable errors in the assessments she made under two of the PIRS categories, namely self-care and personal hygiene, and social and recreation activities as follows:

   (a)    in assessing a class 2 for self care and personal hygiene when she should have assessed a class 3, and

   (b)    in assessing a class 2 for social and recreational activities she should have assessed a class 3.

3. In addition, the appellant alleged error because the Medical Assessor failed to consider the effects of treatment and submitted 1% whole person impairment (WPI) should have been assessed as allowance for the effects of treatment.

4. In summary, the respondent employer Tafe NSW (the respondent) submitted that the Medical Assessor did not err or make an assessment on the basis of incorrect criteria and the MAC should be confirmed.

5. 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. The Medical Assessor must bring his clinical expertise to bear and exercise his clinical judgement when making an independent 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.

6. The path of reasoning disclosed by the Medical Assessor must be adequate. This is also dependent on the extent of the history taken and a thorough examination of the worker so that self- report can be properly evaluated in the context of other evidence before the Medical Assessor.

7. The Medical Assessor recorded an adequate history as follows (emphasis in original):

   “● Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:

   Ms Theresa is a 43-year-old female, who lives with her three children, aged 16, 14 and 7 years old, her boyfriend too lives with her the majority of the time. She commenced working with her employers, New South Wales, TAFE, as a TAFE teacher in 2018. She last worked with them in June 2021 and July 2021.

   She returned to work with different employers in July 2022 as an admin at a local pub. She has recently started working as an administrative nurse at Coffs Harbour and works 15 hours a week.  She stated that earlier, she was not able to get employment based on her current restrictions. She was happy that she has started working with her current employers as she previously only worked casually and the work hours were also not fixed. She is also hoping to increase her working hours to 20 hours per week.

   Ms Schofield reported that when she was working with TAFE, initially things were great, however, in 2020, when she started working with a head teacher, things started changing. She reported that the head teacher would ‘quite often put her down.’ She added that he would try to ‘blame her for all the mistakes he did,’ he would ‘belittle her in front of other staff members and was derogatory, he would take her ideas and would take these ideas to the meeting and would portray that the ideas were his own.’ She stated that she was often singled out for whatever mistakes were made even when the head teacher was at fault.

   She reflected that he was quite ‘nasty’ and in fact, the next year he did not roster
   Ms Schofield for any of the classes and then went on leave. When another head teacher joined at the same post and noticed that Ms Schofield had not been given any classes, which was quite contrary to the TAFE rules, wherein all the casual teachers should be given an equal number of classes, she then arranged for a training session, so that she could go to Clarence Correctional teacher as a paid teacher to teach the inmates to cook.

   She stated that the training which was supposed to be for 13 hours was only held for ‘one hour, which meant that Ms Schofield was of course, inadequately trained to work in a different setup’. She stated that working in corrections was quite anxiety-provoking.

   She added that there was no proper system setup, neither was any training given to her, which meant she was often left to work with ‘serious crime offenders with knives in the kitchen.’ She remembered feeling very anxious and would often approach the head teacher to remind her that they were not being provided with the resources that should have been ideally provided.

   She stated that the ‘whole thing was a mess.’ She added that her male colleague, who was working in the male maximum prison also encountered similar difficulties at his workplace. She stated that when she was working with the male inmates, she was often ‘threatened in the classes, which of course heightened her anxiety levels.’

   She stated that there was ‘no support or no training to deal with such a situation.’ She however still continued to reach out to his seniors, who often brushed her concerns aside. She remembers that there were neither enough resources nor enough equipment, books, which meant that she was not able to deliver her course up to the proper standards. She felt that she was being set up to fail.

   She remembers that on the last day of her work, she was driving to work and had driven halfway to work when she started experiencing breathlessness, felt that her brain had switched off, could not think properly and was not able to process anything.  She stated that she then called her friend to come and pick her up.  When she came home, she rang her GP clinic and was prescribed Valium.

   She later called her GP, who identified that it was probably a bit too much and that she should lodge a workers' compensation claim. Ms Schofield stated that she started experiencing mental health symptoms at least two weeks before she started working. She stated that she did have symptoms even before that, but did not recognise them as she had no experience of having such symptoms before.

   She stated that she felt ‘something was wrong and felt fearful.’ She was always panicky, scared and was unable to plan and organise her day-to-day functioning as she used to do previously’” She reported experiencing panic attacks, where she would feel breathless, would have a sense of impending doom, tingling and numbness, etc.

   She stated that her sleep was okay; however, her appetite was ‘very bad.’ She stated that she was probably ‘too heightened and stressed to be able to eat anything.’ She stated that when she stopped working, she ‘shut down and found it very difficult to manage her children,’ she was immensely helped by her mother.

   She stated that she stopped participating in the community events and fire brigade, which she previously enjoyed and was withdrawn from that.  She stated that at that time, she was even scared for her safety due to the environment.  She started seeing a Psychologist soon after and reflected the first one was ‘quite incompetent’ so she later found another one who was based in Tasmania, when she missed her session as she was admitted to the hospital for 2 weeks for septic shock.

   She then had to restart seeing her current Psychologist, Grant. She stated that she saw him on a weekly to fortnightly basis. She has worked on ‘practical stuff, breathing exercises and on cognitive behavioural therapy.’ She has seen a Psychiatrist once but was not sure if it was for IME or for treatment purposes.

   ·    Personal History: Ms Schofield was born and grew up in Coffs Harbour. Her parents separated when she was 6 years old. She reported that she had a good relationship with both her parents. Her father remarried and she was close to her stepmother as well. She went to a private school and had a ‘lovely upbringing.’  She stated that she saw her father once a month and was the youngest of four children. She denied having any childhood trauma or witnessing any adverse events.

   She stated that she met her first husband when she was 21 years old and married him at 23 years of age. She said that she separated in 2-3 years.  She later remarried her second husband and has three children, aged 16, 14 and 7 years from the marriage. She separated from her second husband about 5-6 years back. She currently lives with her kids and boyfriend, who lives with her ‘majority of the time.’ She stated that she has been a volunteer fighter with New South Wales Rural Fire Services since 2019.

   ·    Forensic History: She denied having any criminal convictions.

   ·    Family History: She denied having any family history of mental health issues.

   ·    Past History: Ms Schofield reported that she first saw a Psychologist at the age of 18 and 19, which was in the context of her drug use. She stated that she was ‘using and experimenting with speed and THC.’  She again saw the Psychologist about eight times after her breakup with her first husband.

   She denied being diagnosed with any mental health issues or being prescribed any antidepressants.  She saw a Psychologist again in 2019 after bushfire season through EAP and talked to the Psychologist about once or twice.

   ·    Drug and Alcohol History:  Ms Schofield reported that in her early 20s, she experimented with speed and THC. She then received counselling and psychological interventions for the same. She stated that she has not used any drugs since then. She stated that she now imbibes alcohol and stated that drinking wine ‘was a part of the culture of being a chef.’

   She enjoys ‘a couple of glasses every night.’ She stated that she does not drink to ‘get drunk.’ She denied getting any withdrawal or tolerance symptoms. She denied having any psychological or physical impact.  She did not identify it to be a problem. She, in fact, said that she was able to stop drinking when she wanted to like when she was working on her overall health.

   ·    Present Treatment:  She currently sees Grant, Psychologist every three weeks. She is on Escitalopram 10 mg. She stated that she has been on this for more than 12 months now. She has tried to taper the medication up, but experienced significant anxiety and depressive symptoms and hence, re-continued to take the medication.

   ·    Present Symptoms:  Ms Schofield reported that overall she experiences ‘nervous energy.’ She feels that she is quite ‘robotic,’ which she attributed to being on Lexapro. She stated that however her mental health has ‘improved’ and her mood is ‘more labile.’  She stated that she still continues to have some tough days.

   She added that the panic attacks now come ‘less frequently, but are as severe as before.’ She stated that she feels the panic attacks are intense to the extent that when she has a panic attack, she just sleeps for the next 12 hours.

   Her appetite ‘fluctuates from forgetting to eat to binge eating at times,’ she stated that she has gained about 10 kg as compared to her pre-injury weight. She still feels anxious at times.  Her energy levels are now ‘good’ and her motivation to do things has also improved. She stated that starting her job has definitely impacted her motivation and energy levels to do things.

   She stated that she is now working to improve her relationship with her children and has been engaging with them more frequently.  She stated that she denied having thoughts of harming herself or others.  She has also started engaging in some physical activities albeit infrequently.

   She has returned to work and identified that working at TAFE or prison would not be ideal for her mental health.

   ·    General Health:  Ms Schofield underwent a hysterectomy in November 2022, after which she developed a hematoma and an abscess. She suffered septic shock and was hospitalised for about two weeks. She has fully recovered from that.

   ·    Work History: She denied having any workers compensation claims in the past.

   ·    Details of any previous or subsequent accidents, injuries or condition: Nil.

   ·    Social activities/ADL: Ms Schofield reported that she can shower ‘most days and maintains pretty good personal hygiene’ She added that she is, however, not as concerned about ‘getting dressed up’ and does not ‘worry too much about her appearance.’ She does not ‘get her eyebrows or hair done,’ as previously. She stated that she, however, makes sure that she showers on the days when she goes to work.

   Ms Schofield used to enjoy working with the fire brigade and fundraising. She used to go there at least weekly and liked giving back to the community. She stated that after the psychological injury, she continued to go there but only once a month. She also enjoyed exercising and did that consistently before the injury; in fact, she was training for firefighting.

   She stated that she only does it ‘once every couple of weeks.’ She added that she has 1-2 close friends whom she is in contact with and has known since they were kids. She stated that she feels safe with them and goes out for walks with them. She often visits her close friends, plays with her grandson, works in her yard and hangs out with them a lot.

   She stated that she is able to drive to local distances. She stated that since she lives about 35 minutes away from town, she has to drive that distance, but finds that quite overwhelming. She took her kids to Sea World about 1-2 years back and found that extremely anxiety-provoking.

   She stated that she has a ‘good relationship with her partner.’ She stated that she met him through work and the relationship started about 12 months back. She stated that her relationship is good and is well supported by him. She added that he ‘puts up with her anxiety and panic attacks.’ Her relationship with her kids is ‘starting to get better,’ she added that after injury, her mom took on a lot of roles and now she is restarting to take on those roles.

   Ms Schofield added that her attention and concentration continue to be ‘poor.’ She stated that she forgets things quickly and gave examples like getting distracted easily and being unable to persist. She attributed the overwhelming feeling to impacting her memory. She stated that even at work, she does not feel confident and finds it hard to complete her tasks. She has now developed strategies to put everything in her diary and cross them off so that she does not forget what she is doing.

   She works casually and started working with a different employer two weeks back. She stated that her employment opportunities were limited as she faced discrimination because of being on WorkCover.”

1. The Medical Assessor conducted a mental state examination and recorded her findings as follows:

   “I reviewed Ms Schofield via video. She engaged well during the assessment and was cooperative.  She presented as a 43-year-old Caucasian female, who looked the stated age. There was no evidence of any psychomotor agitation or retardation.  No abnormal movements like tics or mannerisms were noted. She was casually dressed in a sweatshirt.

   She meant she was quite forthcoming with all the information and gave a clear account of her symptoms and difficulties. She reported her mood to be better than before but felt anxious occasionally.  Her affect was reactive. Her speech was spontaneous and normal in volume and tone.  Her thoughts were logical and goal-directed.

   She currently reports ongoing symptoms of anxiety and reduced interest in her hobbies and physical exercise. There was no evidence of any manic, psychotic or any perceptual abnormality.  She had insight into her condition and her judgment was intact.  She has been engaging well with her Psychologist and has been working on coping strategies.”

2. The Medical Assessor summarised the injury and diagnosis as follows:

   ·    Summary of injuries and diagnoses:

   Ms Schofield is a 43-year-old female, who lives with her three children and her partner. She worked for TAFE New South Wales as a commercial cookery and hospitality teacher. She reported that she was bullied, targeted, harassed and was not given enough classes in 2020.  In 2021, she was moved to Clarence Correctional Centre for a new programme to teach cooking to inmates.

   She was however not offered any support nor were there enough resources to execute the programme.  She was often threatened by the inmates whilst working there as well.  Because of the above, she went off work in June 2021. Since then, she has been engaging in regular psychological interventions and has been on antidepressants as prescribed by her general practitioner.

   At the time of assessment, she presented with symptoms consistent with the diagnosis of Adjustment Disorder with anxious mood. The diagnosis is based on the DSM-5 criteria, which I have highlighted in bold.

   A. The development of emotional or behavioural symptoms in response to an identifiable stressor(s) occurring within 3 months of the onset of the stressor(s).

   B. These symptoms or behaviours are clinically significant, as evidenced by one or both of the following:

   1. Marked distress that is out of proportion to the severity or intensity of the stressor, taking into account the external context and the cultural factors that might influence symptom severity and presentation.

   2. Significant impairment in social, occupational, or other important areas of functioning.

   C. The stress-related disturbance does not meet the criteria for another mental disorder and is not merely an exacerbation of a preexisting mental disorder.

   D. The symptoms do not represent normal bereavement.

   E. Once the stressor or its consequences have terminated, the symptoms do not persist for more than an additional 6 months.

   I have also noticed daily alcohol use of a couple of glasses every day.  I believe that her alcohol use although daily does not fulfil the DSM-5 criteria for the diagnosis of Alcohol Use Disorder.  Ms Schofield, in her assessment, had clearly denied experiencing any tolerance, withdrawal symptoms, craving, suffering any consequences at home or work, or having a relationship problem due to alcohol use. She denied using alcohol when it was physically dangerous or using it when knowing that it was causing her physical or psychological harm.

   She has received optimal and evidence-based treatment for her current symptoms and has since experienced partial amelioration of her symptoms. I believe that she has now reached maximum medical improvement.

   ·    Consistency of Presentation: Her presentation was consistent with the history given during the clinical interview, documentation and mental status examination.”

3. The Medical Assessor made brief comments on the other evidence before her as follows:

   “I have noted IME by Dr Frank Chow, dated 27 September 2023. I have noted that
   Dr Chow concluded that Ms Schofield's presentation was consistent with the diagnosis of Chronic Adjustment Disorder. Dr Chow also calculated the WPI as 19%. Kindly note that my calculation differs in the areas of self and personal hygiene, social and recreational activities and employability.

   I believe that the basis for this difference being as Ms Schofield reported improvement in her mental health, especially in the last one year. This would explain the difference in the classes as noted by Dr Frank Chow. I have noted that Dr Chow did not make any deductions for the pre-existing illness as ‘she has recovered from her previous psychiatric episodes.’ I agree that since she had recovered from her previous episodes, this does not warrant any deductions.

   I have noted a letter by Kim Malone, Clinical Psychologist, dated 30 July 2021 mentioning ‘Upon further assessment, Ms Schofield reported full Diagnostic Statistics Manual -

   Version Five (DSM-5) criteria for Adjustment Disorder with Mixed Anxiety and Depressed Mood, and Panic Attacks. Upon administration of the Depression Anxiety and Stress Scale (DASS) her scores fell in the Severe Range for Depression, and the Extremely Severe Range for Anxiety and Stress. Further, upon timing Ms Schofield's breathing her breathing rate was 38 breaths per minute.’

   I have noted a letter by Dr Alan Doris, dated 23/05/2022 mentioning ‘We were able to discuss Theresa's health and useful interventions. I explained that the usual key to progress for this type of disorder is psychological treatment. Though Therese described a good personal relationship with her current therapist, she feels that the relationship has not been useful therapeutically to her and was considering changing to another therapist.

   We agreed that I would explore the possibility of group therapy either as an adjunct to her current therapist, or an alternative therapist. I have explored this and unfortunately, the group programme at Ramsay Clinic will not be available until next year. I suggested to Teresa to think further on psychological treatment though it may be appropriate for her to start with an alternative therapist if she feels progress with her current therapist is limited.’

   I have noted a letter by Dr Jenni Boon, Psychologist, dated 6 June 2023 mentioning ‘Diagnosis at that time was Adjustment Disorder with Mixed Anxiety and Depressed

   Mood - DSM-5 309.28 (F43.23) with moderate levels of depression and moderate to severe anxiety including panic attacks.

   (Please note, this was a tentative diagnosis based on one assessment session as the insurer only approved one session initially. I was able to confirm this diagnosis once I had completed a thorough assessment over the next session or two). Reported some suicidal ideation but denied plan or intent. The reported mood was good until workplace incident.’

   I have noted a letter by Grant Spencer dated 7 April 2024 mentioning ‘I have made it clear in my notes of which you have received copies that not long after her drinking was addressed as a poor coping mechanism on the 29th of May, 2023 by the next session we were directly addressing her emotional management without any alcohol use.

   While she has not remained sober, we have regularly discussed her alcohol use and it has not risen to the extent where it could be considered abuse (i.e. impacting in a significant way on aspects of her function or causing marked distress). The client is always coherent during sessions and has never demonstrated any symptoms of intoxication.

   The client would regularly schedule sessions in the morning, which would be very difficult to sustain if suffering an alcohol use disorder. During our sessions and on regular discussions about alcohol use with the client she has not reported the consistency and volume of alcohol use that is quoted in the IME by Dr Barrett.’

   I agree that Ms Schofield at the time of assessment did not have significant symptoms to be diagnosed with Alcohol Use Disorder.

   I have noted medical file copies from rooms of Dr Grant Spencer, various dates.

   I have noted clinical notes from Northside Health, various dates.

   I have noted the IMC file review request by Dr Ian Smith, dated 28 June 2021. I have noted that Dr Smith reported “In relation to the causative factors, she felt that she could not comment as she had only seen Ms Schofield on one occasion with the next appointment scheduled for 6 July 2021. She acknowledged that she does have domestic issues which have caused a measure of stress and for which she has had counselling.

   She has seen Ms Schofield previously although other doctors in the practice have - she did not feel that she knew Ms Schofield well enough to be able to make a judgement. When she saw her for the initial consultation, Ms Schofield had reported not getting the support that she required despite asking for it. Because of the symptomatology, she started her on antidepressant medication

   She felt that the suitable duties on offer would be reasonable and Ms Schofield would be able to undertake these, subject to her review on 6 July 2021. At this stage, she was not able to comment on Ms Schofield's ultimate ability to return to the gaol, but did note that the practice had seen three or four other people with psychological claims who worked at the gaol (but this is probably unrelated to TAFE).’

   I have noted the injury management consultation report by Dr Ian Smith, dated 12 October 2021 concluding ‘She will be certified with capacity in two weeks' time for two to three half days. She will be fit to participate in a vocational assessment. She should be able to upgrade to full hours relatively quickly, notionally over an eight-week period.

   She was not aware of her deemed hours of work (Ella advised that it was 16.75 hours per week). She will not be able to return to T AFE while the teacher at Grafton is still present and the Head Teacher is still there due to it being too triggering. While she will continue to have some anxiety in relation to finding a new job, I would expect her symptoms to completely abate once she is well settled in a new position, and therefore return to work as soon as possible is essential.’

   ·    I have noted the initial psychological rehabilitation assessment report, dated
   1 July 2021.

   ·    Psychological workplace assessment report, dated 19 August 2022.

   ·    I have noted IME by Dr Melissa Barrett, dated 06 September 2021. I have noted that Dr Barrett reported that Ms Schofield had work and non-work-related stressors including ‘temperamental style associated with high-grade anxiety, experiencing post-trauma symptoms in 2019 after exposure to the trauma of bushfires, experiencing big breakup of her long-term marriage in 2019.

   There were ‘also some concerns about one of her children, who was seeing the School Psychologist after the marriage breakup.’

   ·    I have noted IME by Dr Melissa Barrett, dated 27 December 2023. I have noted that Dr Barrett concluded that Ms Schofield’s presentation was consistent with the diagnosis of Persistent Depressive Disorder with anxious distress, Panic Disorder and Alcohol Use Disorder.

   I have noted that Dr Barrett concluded that Ms Schofield has not reached maximal medical improvement as she had not received any treatment for her Comorbid Alcohol Use Disorder. At the time of assessment, Ms Schofield did not have enough symptoms for Alcohol Use Disorder. Moreover, she has received evidence-based treatment including cognitive behavioural therapy for her anxiety and mood symptoms. I therefore believe that she has reached maximal medical improvement.

   ·    I have noted WorkCover certificate of capacity, various dates.”

4. Impairment was evaluated according to the PIRS table set out above and assessments in  two of the categories are the subject of complaint on appeal namely self care and personal hygiene and social and recreational activities.

5. In respect of self care and personal hygiene, Table 11.1 of the Guides provides as follows:

   “Table 11.1: Psychiatric impairment rating scale – self care and personal hygiene

Class 1	No deficit, or minor deficit attributable to the normal variation in the general population
Class 2	Mild impairment: able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.
Class 3	Moderate impairment: Can’t live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2–3 times per week to ensure minimum level of hygiene and nutrition.
Class 4	Severe impairment: Needs supervised residential care. If unsupervised, may accidentally or purposefully hurt self.
Class 5	Totally impaired: Needs assistance with basic functions, such as feeding and toileting.”

1. The Medical Assessor assessed a Class 2 with the following reasoning:

   “Ms Schofield reported that she is able to shower ‘most days and maintains pretty good personal hygiene.’ She added that she is however not as concerned about ‘getting dressed up’ and does not ‘worry too much about her appearance.’ She does not “get her eyebrows or hair done,’ as previously. She stated that she however makes sure that she showers on the days when she goes to work.”

2. The appellant submitted that a Class 3 or moderate impairment should have been assessed.

3. The MAC must read as whole.

4. The Medical Assessor was cognisant that Dr Chow the independent medical examiner (IME) qualified on behalf of the appellant had assessed a moderate impairment in this class.

5. She explained that she considered the difference in their rating could be explained by the fact that there had been an improvement in the appellant mental health post Dr Chow’s assessment. She explained as follows:

   “I believe that the basis for this difference being as Ms Schofield reported improvement in her mental health, especially in the last one year. This would explain the difference in the classes as noted by Dr Frank Chow.”

6. The Medical Assessor is entitled to rely on her own history taking and clinical findings on the day of assessment. She has taken an adequate history and explained why her opinion differs from Dr Chow, and made an assessment in accordance the correct criteria applying her clinical judgment. She is able to look after herself adequately for example always making sure she showers on the days she works and would be able to live independently.  The appeal Panel can discern no error in the assessment of Class 2 for self care and personal hygiene.

7. 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.

1. The Medical Assessor assigned a Class 2 or mild impairment with the following reasoning:

   “Ms Schofield used to enjoy working with the fire brigade and did fundraising. She used to go there at least on a weekly basis and liked giving back to the community. She stated that after the psychological injury, she continues to go there but only once a month. She also enjoyed exercising and did that consistently before the injury, in fact, she was training for firefighting. She stated that she now only does it ‘once every couple of weeks.’ She added that she has 1-2 close friends whom she is in contact with and has known since they were kids. She stated that she feels safe with them and goes out for walks with them. She often visits her close friends, plays with her grandson, works in her yard and hangs out with them a lot.”

2. The appellant submitted a Class 3 or moderate impairment should have been assessed.

3. The Medical Assessor attributed the difference in her rating with that of Dr Chow to the improvement in the appellant’s mental health.

4. Again, the Medical Assessor is entitled to rely on her own clinical findings on the day of assessment. She has taken an adequate history and explained why her opinion differs from Dr Chow, and made an assessment in accordance the correct criteria applying her clinical judgment. There was no history given to the Medical Assessor or any other expert whose opinions are in evidence that a support person was needed for the appellant to leave the house. The appellant’s social and recreational activities are not rarely undertaken but are regularly undertaken. The appeal Panel can discern no error in the assessment of class 2 for self care and personal hygiene.

5. Where the Medical Assessor has erred is failing to consider the effects of treatment. On her own assessment the appellant has been able to improve with treatment for example since the assessment by Dr Chow and yet the Medical Assessor did not even consider the effects of treatment.  Moreover, as the Medical Assessor commented in her description of ‘Present Treatment’ her condition deteriorated with an attempt to reduce her antidepressant.  Given that she has received effective medical treatment which has resulted in a substantial improvement in her impairment and there is evidence that removal of that treatment resulted in deterioration, a 1% WPI uplift for treatment effect should have been allowed. This means the MAC will be revoked and a new MAC issued for 8% WPI to take account of the effects of treatment.

6. For these reasons, the Appeal Panel has determined that the MAC issued on
   22 May 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W2933/24
Applicant:	Theresa Schofield
Respondent:	Tafe NSW

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Surabhi Verma and issues this new Medical Assessment Certificate as to the matters set out in the table below:

Table - whole person impairment (WPI)

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. Psychological Injury	28/09/2023	Chapter 11 Guidelines 11.1-11.3 11.4-11.6	Guidelines 11.11,11.12 Table :11.1,11.2,11.3,11. 5,11.5,11.6	7	0	7
Total % WPI (the Combined Table values of all sub-totals)					7% + 1% for effects of treatment = 8%

The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.