Homebody or impaired? The impact of Botha when assessing psychiatric impairment for ‘social and recreational activities’

The recent judicial review decision of Justice Stern in Botha v Secretary, NSW Department of Customer Service [2024] NSWSC 781 has provided important clarification on the proper interpretation of Table 11.2 of the SIRA Guidelines for the evaluation of permanent impairment (“SIRA Guidelines”). This decision emphasises it is the character of the social and recreational activity, rather than where the activity occurred, which is relevant when assessing psychiatric impairment under this table.

Brief Facts

The plaintiff suffered psychiatric injury by reason of interpersonal conflicts during her employment. She sought permanent impairment lump sum compensation in respect of that injury, and a dispute arose as to the extent of that impairment in proceedings before the Personal Injury Commission.

On 12 April 2023, the Medical Assessment Certificate of Medical Assessor Dr Michael Hong was issued, in which he assessed the plaintiff as having 9% WPI resulting from the psychiatric injury (and below the required threshold to receive lump sum compensation under section 65A(3) of the Workers Compensation Act 1987). In assessing impairment under the psychiatric impairment ratings (“PIRS”) category of ‘social and recreational activities’, the Medical Assessor found the plaintiff had a class 2 impairment.  

The plaintiff appealed to the Appeal Panel of the Personal Injury Commission, asserting a singular ground of appeal: the Medical Assessor had demonstrably erred in assessing a class 2 impairment (and not a class 3 impairment) under the PIRS category of ‘social and recreational activities’ in Table 11.2 of the SIRA Guidelines.  

In doing so, the plaintiff submitted that the conclusion of the Medical Assessor that the plaintiff “attends social recreational activities”, and particularly the use of the word ‘attends’ should be construed as a conclusion the plaintiff left her home to attend such activities. 

The plaintiff argued the examples provided in Table 11.2 of the SIRA Guidelines for a class 2 impairment under this category specifically referred to the worker “going out” to social activities and so, to be relevant for assessing psychiatric impairment, social and recreational activities must involve a worker taking part on activities outside of their home. 

The Appeal Panel found the Medical Assessor exercised his clinical judgement when assessing impairment under the PIRS ratings form, and concluded the assessment of class 2 was “clearly in accordance with the criteria in the Guidelines”. The Appeal Panel Confirmed the Medical Assessment Certificate.

Application for judicial review in the Supreme Court

The plaintiff commenced judicial review proceedings in the Supreme Court on two grounds of appeal, described by Justice Stern as constituting “one substantive complaint”;[1] being that the Appeal Pannel did not give substantive consideration to the plaintiff’s sole ground of appeal.

The substance of the plaintiff’s submissions were, in effect, to again assert the language used in the examples for a class 2 impairment under the category of ‘social and recreational activities’ in Table 11.2 of the SIRA Guidelines contained an essential component: being that they involved the person leaving their own home for such activities, without a support person, and at a frequency or repetition to amount to ‘regular’ attendance. 

Following consideration of the plaintiff’s submissions, Justice Stern determined both of the grounds of review should be rejected as it was apparent the Appeal Panel engaged with the issues raised by the plaintiff and were nevertheless satisfied that the findings of the Medical Assessor were appropriate.

In doing so, Justice Stern considered the construction of the PIRS category of ‘social and recreational activities’, and determined the intention was to assess a higher standard of participation in “such events” (as provided in the examples in Table 11.2), as opposed to a higher standard of engaging in activities outside of a worker’s house. Specifically, he said [at 68-69]:

“It is unlikely… that the Guidelines were intended to be proscriptive as to whether activities within or outside a worker’s home could be taken into account when making such assessments.  Further, there are separate PIRS in the Guidelines for assessing impairment in relation to travel and social functioning.  This suggests that the intention in table 11.2 is not to provide a tool for assessing a worker’s ability to travel outside the home… Rather, the intention in table 11.2 is to provide a tool for assessing the worker’s ability to engage in activities that are properly characterised as social or recreational.  There is no good reason why such activities would have to occur outside of a worker’s home.

There is no sound reason why a distinction should be drawn between activities within or outside of the home.  It is the social and recreational character of the activities that is relevant.” [emphasis added]

The plaintiff’s appeal was dismissed.

Learnings

There is no doubt social and recreational activities vary from person to person, and for some – may take place inside the home. 

The decision in Botha has provided important clarification that when assessing impairment under ‘social and recreational activities’; it is the character of that activity – and not its base characteristics (i.e., its location) which is determinative of its relevance to the assessment.

This decision is a good reminder that the examples in table 11.2 are not proscriptive criteria which must be satisfied in each case, and assessors are to exercise their clinical judgement having regard to the worker’s precise circumstances, as well as to the usual activities for the worker’s age, sex, and cultural background.