Bustos v State of New South Wales (Concord Repatriation General Hospital)
[2024] NSWPICMP 411
•25 June 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Bustos v State of New South Wales (Concord Repatriation General Hospital) [2024] NSWPICMP 411 |
| APPELLANT: | Delqui Fabian Bustos |
| RESPONDENT: | State of New South Wales (Concord Repatriation General Hospital) |
| APPEAL PANEL | |
| MEMBER: | Michael McGrowdie |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 25 June 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Compensation Act 1987; psychological injury with a deemed date of 7 July 2022; appeal against assessment of Medical Assessor (MA) with regard to the Psychiatric Impairment Rating Scale categories; the Medical Appeal Panel concluded that the MA had fallen into error in the assessment of those categories and had not provided sufficient reasons; the appellant was examined by panel doctors; Held – the appellant’s condition had significantly deteriorated and that the appellant required urgent medical intervention; the appellant had not reached maximum medical improvement and the whole person impairment was not fully ascertainable at the time. |
BACKGROUND TO THE APPLICATION TO APPEAL
The appellant worker, Mr Bustos, appeals from the Medical Assessment Certificate of Medical Assessor Dr Gerald Chew dated 6 November 2023.
Mr Bustos worked for the respondent as a specialised registered nurse. In the course of his work, he was subjected on numerous occasions to aggressive and sometimes violent acts from elderly patients. In February 2022, he was spat upon in the face by an elderly patient who, according to the appellant, had a high viral load of HIV. There was another incident on 7 February 2020 when the appellant was assaulted by an aggressive patient. Following this, the appellant worked on selected duties for a period, with some time off, until he ceased work in July 2022 when confronted by the same aggressive patient. The nominated date of injury is 7 July 2022.
Medical Assessor Dr Chew in his Medical Assessment Certificate, assessed a 7% whole person impairment - Psychological (8% less 10% for pre-existing condition – the appellant had previously been diagnosed with a bipolar condition). In doing so, he assessed: a class 2 impairment in respect of the rating scales for Self-care and personal hygiene, and, Social and recreational activities; a class 3 in respect of Concentration, persistence and pace; and, a class 4 in respect of Employability.
Mr Bustos says that the assessment of these four rating scales demonstrated error and/or applied incorrect criteria (section 327 (3)(c) and (d) of the Workplace Injury Management and Workers Compensation Act 1998).
The appellant submits that the Medical Assessor should have applied: a class 4 impairment (rather than a class 2) in respect of Self-care and personal hygiene: a class 3 or 4 (rather than a class 2) in respect of Social and recreational activities; a higher class (rather than a class 3) in respect of Concentration, persistence and pace; and, a class 5 (rather than a class 4) in respect of Employability.’
The appellant also appeals on the ground that there is additional relevant evidence that was not available at the time of the Assessment (section 327(3)(b)).
The delegate was satisfied that, on the face of the application and submissions made, that there was at least one ground of appeal a ground of appeal was capable of being made out - section 327(3)(b).
Section 327(3)(b) provides a ground of appeal if that there is additional relevant information which was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against.
The Appeal Panel has conducted a review of the original medical assessment.
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).
ADDITIONAL EVIDENCE SOUGHT TO BE RELIED UPLON BY THE APPELLANT
Since the Medical Assessment, the appellant was referred by his General Practitioner, Dr Wright, to Dr Samuels, Psychiatrist, at Northside Consulting Rooms, for acute worsening of chronic depression. The appellant seeks to have this referral admitted as fresh evidence on appeal.
The appellant presented to Royal Prince Alfred Hospital on 18 November 2023 as a result of a dog bite to his left thumb and was voluntarily admitted under the Plastics Team. During his admission the appellant reported psychotic thoughts such as hearing multiple voices telling him to commit suicide and believed that his parents were spying on him. As a result, the appellant was admitted on 23 November 2023 as an involuntary patient to the Psychiatric Ward where he remained until 27 November 2023. A diagnosis of dissociative identity disorder was made.
The appellant seeks to have the hospital records admitted as fresh evidence in the appeal.
The appellant also seeks to have admitted the records relating to an Apprehended Violence Order treated as fresh evidence on appeal.
The AVO to protect the appellant’s brother, was made on 17 August 2023 well before the referral to the Medical Assessor. Accordingly, it could not be said that this information was not available at the time of the Medical Assessment and accordingly, does not fall within that ground of appeal.
The respondent rightly concedes that the hospital records fall within the section and can be relied upon by the appellant. They were not previously available and are probative (see: Ross v Zurich Workers Compensation Insurance [2002] NSWWCCPD 7, Deputy President Fleming). That is not the case with the AVO where it came into existence before the Assessment.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties in accordance with the Procedural Direction PIC 7.
As a result of that preliminary review, the Appeal Panel determined that it was necessary for the worker to undergo a further medical examination to obtain a fuller history and a clearer picture of the effect of the injury on the appellant.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment as well as well as the referral of Dr Wright and the records of RPA Hospital, and has taken them into account in making this determination.
SUBMISSIONS
Both parties made succinct written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
The appellant submits that the Medical Assessor fell into error in respect of the PIRS categories, the subject of the Appeal.
The Panel has reviewed the Assessment of Medical Assessor Dr Chew and concludes that the Assessor fell into error in his assessment in relation to the PIRS categories the subject of the Appeal in that there is a lack of information and an error to give adequate and sufficient reasons for the Assessor’s Decision to place the appellant into the classes selected. In addition, the Medical Assessor placed reliance on the appellant having formed a new relationship when the evidence did not support that this was a relationship that the appellant was likely to continue or that the appellant was capable of sustaining such a relationship. Further, the appellant, separated from his wife, has relied heavily on his mother for care and support. He lives with his mother, who is a nurse.
Given what is referred to above, the Panel considered that it was appropriate and desirable to re-examine the appellant.
RE-EXAMINATION BY DR ANDREWS ON 3 April 2024
Set out hereunder is that re-examination report of Appeal Panel Member, Dr Andrews:
The workers medical history, where it differs from previous records
Medical assessor Dr Gerald Chew examined Mr Bustos on 2 November 2023; a certificate was issued on 6 November 2023. Dr Chew diagnosed a persistent depressive disorder and found an 8% WPI before deducting one-tenth for the pre-existing condition, arriving at a final 7% WPI. Mr Bustos appealed the PIRS category class ratings for self-care and personal hygiene, social and recreational activities, concentration persistence and pace, and employability.
Neither party has appealed the diagnosis, the question of maximum medical improvement or the one-tenth deduction for the pre-existing condition.
Regarding treatment, Dr Chew recorded:
“He is seeing his GP and psychologist. His previous psychiatrist moved practice and he has an appointment with a new psychiatrist in May 2024. His current medication includes venlafaxine 225mg daily, epilim 500mg twice daily, minipress 5mg, quetiapine 400mg and Lemborexant 5mg. he is also prescribed Cialis and Viagra for sexual side effects.”
Mr Bustos continues to live with his mother at Bondi Beach, who works full-time as a shift nurse. Mr Bustos was vague about a recent intimate relationship and could not clarify when it ended. His father, who is separated from his mother, visits 3 to 4 times a week to spend the day supporting Mr Bustos.
Additional history since the original Medical Assessment Certificate was performed
Mr Bustos was admitted to the Royal Prince Alfred Hospital between 18 November 2023 and 27 November 2023. He was diagnosed with “dissociative identity disorder”, and they recorded this history:
“On subsequent assessments, Fabian described hearing initially 3 and later 4 voices, with the names of Cain, Lazarus, Angel and Uche. Each of the voices were perceived to have distinct characters – in particular, Cain was a "neat, tidy and confident" person that was the complete opposite of Fabian (describing Fabian in a third person narrative), who was "hopeless, can’t work, can’t look after his kids" and would gamble and drink alcohol excessively. All four identities were described to dislike Fabian. Fabian’s identity would change between Cain and Lazarus every several days and believed that "Fabian is dead". He enjoyed assimilating the identity of Cain, however was confused about the different identities and reported that his family rejected to accept him as Cain.
Fabian reported that these voices first emerged around 2.5 years ago, after his suicide attempt at the gap. These became worse over the past week and the more he talked about the voices, the louder they seem to become. He reported being distracted by the voices while talking or doing daily tasks, however this was not objectively observed during assessment. Fabian found listening to music to be helpful to distract himself from the voices.
Fabian also described disturbance to his other senses including smelling things differently, once seeing a toilet full of faeces which disappeared after he closed and reopened the toilet seat, the floor moving, and shiny diamonds on the ground. Furthermore, Fabian reported paranoid ideations involving his parents and brother monitoring him by hacking into his phone. He felt that being sexually assaulted during his childhood and being assaulted at work were forms of punishments. On the other hand, Fabian described some difficulty with sleeping and increased spending. He also reported having difficulty recalling events that would have occurred in past days.
Fabian was initially switched from quetiapine to regular olanzapine for first episode psychosis. FEP screening (serum) was negative except UDS returning positive for cannabinoids and benzodiazepines (Valium prescribed from the community). Throughout the admission, Fabian remained neat and well kempt, calm, polite and euthymic with no formal thought disorder or disturbance to speech. There was no evidence of grandiosity, pressured speech, distractibility or pervasive mood disturbance suggestive of an affective picture. Fabian’s affect had also been appropriate, had no evidence of disorganisation or negative symptoms of schizophrenia. Towards the end of Fabian’s admission, he reported significant relief in his distress and voices after being able to talk about his identities and voices.
Fabian’s diagnosis was reformulated to be of a dissociative identity disorder. The role of long- term intensive psychotherapy was discussed, as well as the importance of abstinence from substances. Fabian was able to guarantee his safety and was motivated to engage in ongoing community-based treatment.”
Mr Bustos’s care is now provided entirely by his general practitioner, Dr Shane Woods of Woollahra. After his discharge from RPA, he was briefly followed by a community mental health team. His GP has tried to access private psychiatric care without success.
Mr Bustos presented today with psychosis with prominent paranoia and delusional thoughts, making it difficult to determine some aspects of his history.
He left work on 7 July 2020 and has not worked in any capacity since. At the time of his work injury, he was married to Nina, and they have two children, six-year-old Leonardo and three-year-old Stella. They are now divorced, and his wife is seeking sole custody on the basis that Mr Bustos is a risk to his children. He last saw them for two hours in a park two months ago.
There is a file note that Mr Bustos was studying law. He had been a student at UNSW but dropped out in 2023.
Current symptoms:
Mr Bustos presented as paranoid and delusional. He asked not to be called Fabian because Fabian was dead. He was now ‘Uche’, a personification of one of the voices. He said seven voices spoke constantly, sometimes screaming, criticising him and at times suggesting that Mr Bustos kill himself.
He has delusional guilt, believing that everything that happened is his (Fabian’s) fault and that, consequently, Fabian needed to die.
He believes his mother, brother and ex-girlfriend are working with the insurance company and police against his interest. He said he is under constant surveillance, with people following him and filming him when he leaves home. He worries that people are trying to read his mind.
He believes that his medication contains microchips to aid surveillance.
He avoids watching television and using the radio because of delusions of reference that the broadcaster is speaking directly to him.
His nihilistic delusions include his belief in the death of Fabian and that his limbs are no longer real or part of himself.
He told me that he was HIV positive because of the assault. However, he believes he has cured everybody else in the world of HIV infection. His general practitioner confirms that Mr Bustos is not HIV-positive.
Mr Bustos has a pervasively low mood with anhedonia.
He feels “cold and distant” from other people.
He feels confused and misunderstood by others.
He has a constant low mood and fear-based anxiety that makes it hard to leave home.
His appetite is reduced, and he has lost weight, perhaps 8 or 9 kg.
He has continuing and significant thoughts of self-harm and suicide. Recently, he has started hitting himself on the head.
He sleeps heavily with medication but sometimes wakes during the night screaming.
Treatment:
His general practitioner manages Mr Bustos’s medication regimen that includes:
·venlafaxine 150 mg mane
·sodium valproate 500 mg BD
·olanzapine 5 g mane and 15 mg nocte
He does not have a psychiatrist or psychologist.
Diagnosis:
Dr Chew diagnosed a persistent depressive disorder and described Mr Bustos’s symptoms:
“He said that in the context of this he developed anxiety, low mood, poor sleep, irritability, social avoidance, poor concentration. He developed low self esteem and self worth. He has occasional suicidal ideation.”
In November 2022, IME psychiatrist Dr Jeff Bertucen diagnosed post-traumatic stress disorder and major depressive disorder without noting psychotic features.
In May 2023, IME psychiatrist Dr Nabil Malik diagnosed post-traumatic stress disorder and major depressive disorder. Dr Malik did not describe any psychotic features of the illness.
I contacted Mr Bustos’s general practitioner, Dr Shane Woods, of Woollahra. Dr Woods confirmed that Mr Bustos does not have HIV and that the presentation today was consistent with how he had seen Mr Bustos in recent months. Specifically, he expressed concern about Mr Bustos’s ongoing psychotic symptoms. Dr Woods had tried, without success, to obtain more assertive care for his patient. Following my conversation, I emailed Dr Woods to document our discussion and support his efforts to get more assertive care for Mr Bustos. The email:
“Dear Dr Woods,
Thank you for taking the time today to discuss Fabian Bustos, whom I assessed today as part of an appeals process for the PIC. You confirmed my impression that he is psychotic and that his contention that he is HIV-positive is delusional.
Fabian presented as paranoid and delusional, with nihilistic delusions, ideas of reference and concerns that his body parts were not genuine. He has distressing, derogatory auditory hallucinations of multiple voices, which he has named. Some of these are command hallucinations and have told him to kill himself. Today, he told me that Fabian is dead and asked to be called Uche. He had a diagnosis of dissociative identity disorder from the Royal Prince Alfred Hospital, but his presentation today is of a psychotic illness.
I understand that you are providing excellent care and that he is being treated with antipsychotic and mood-stabilising medication. However, it appears that his condition has worsened since he was last reviewed by a medical assessor at the Personal Injury Commission, Dr Gerald Chew, and his last admission to the hospital. His parents are providing compassionate support, but this is beyond their capabilities.
Mr Bustos told me of his difficulties getting access to psychiatric care, which you confirmed.
Mr Bustos needs urgent psychiatric assessment and ongoing care for his deteriorating condition. His presentation is atypical, but he has a psychotic illness, possibly a major depression with melancholic features and psychosis, but perhaps a schizoaffective disorder, and is at continuing risk to himself. I understand that his brother has taken out an AVO, suggesting he also might be a risk to others.
Kind regards,
Dr Doug AndrewsPsychiatrist
FRACGP, FRANZCP”
Mr Bustos has significant mood symptoms with anhedonia and weight loss. He has a sleep disturbance, but this is difficult to investigate because of his sedating medication. His nihilistic delusions and delusional guilt are consistent with psychosis associated with a major depression with melancholic features.
He has a complex psychotic illness that may represent schizoaffective disorder or schizophrenia.
The diagnosis is challenging, but this is not the presentation of someone with a persistent depressive disorder or PTSD, although both might have been present before. Neither is it typical of an uncomplicated dissociative identity disorder.
Mr Bustos has deteriorated significantly since his assessment by MA Chew, and his condition is now unstable.
Activities of daily living:
Mr Bustos generally sleeps in until between 9:30 and 10:30 AM. His mother leaves prepared meals for him, and he usually eats breakfast and lunch.
He takes his dog for a 10–15 minute walk, avoiding areas where he might meet his brother. On his walks, he is anxious about the possibility of others' surveillance activity.
He does not do housework.
His mother prompts him to shower, brush his teeth, and take medication. She is usually successful regarding the medication but less so with showering. His father visits three or four times weekly to sit with Mr Bustos and ensure his safety.
He spends four or five hours each day drawing or painting. He does this somewhat obsessively, and the theme of his artwork is ways that he might commit suicide.
Before becoming unwell, he had an active social life. He now has no friends. He said he had met a girl a couple of years ago while walking his dog but denied forming an intimate relationship with her because he realised she was working with the police and the insurance company. When he met her, she wore a T-shirt that said, “This Is It”, which he now believes referred to him. He never visits the beach, cafés, or restaurants.
He visits his GP in Woollahra by taking a single bus, a 25-minute trip. He finds the journey anxiety-provoking but values his GP. He has stopped going to the gym because "there were too many people taking photos and trying to read my mind.”
His only remaining relationships are with his mother and father.
He doesn’t listen to the radio or watch television. He has no hobbies or projects other than his artwork.
Findings on clinical examination
I assessed Mr Bustos in his home using a video link. He appeared to be lying down and was casually attired. His hair was cut short, and he was shaved.
He joined the assessment 20 minutes late without explanation. The 60-minute examination was done by video link; the connection quality was adequate for a comprehensive assessment.
Mr Bustos was anxious during the interview and expressed concern that previous examiners, including MA Chew, were police agents. He told me that Fabian was dead and that I would need to call him Uche, a personification of one of his hallucinatory voices. We established a superficial report, and I believe Mr Bustos was trying to answer my questions openly.
He was easily distracted by any noise or activity outside of his ground-floor apartment. His thought processes were disorganised, and he frequently muddled timelines and details. Because of his delusions (for example, his HIV status and the extensive surveillance), his history was unreliable. However, I considered his history regarding the activities of daily living more reliable than his interpretation of his environment or other’s intentions. At times, he needed questions restated or redirection.
He described derogatory auditory hallucinations with frequent commands that he kill himself. He has grandiose ideas (he has rid the world of HIV), delusional guilt, delusions of reference, and paranoia.
He acknowledged deliberate self-harm and ideas of suicide. His command hallucinations put him at significant risk of attempted or completed suicide.
Concluding Remarks:
Mr Bustos’s condition has significantly deteriorated and is unstable. He has a severe mental illness that requires further comprehensive clinical assessment, including corroborative history from his family. He needs assertive treatment. This management is beyond what can be expected of his general practitioner.
Mr Bustos needs urgent referral to psychiatric services and, likely, inpatient care. It may be necessary to use the involuntary patient provision of the Mental Health Act, given his lack of insight into his condition and the apparent significant risks.
His unstable and deteriorated condition has not reached maximum medical improvement, given the markedly different presentation to that recorded by MA Chew.
The imperative here is that Mr Bustos receive urgent, appropriate treatment. Assessment of Whole Person Impairment is unlikely to be possible in less than six to twelve months, assuming Mr Bustos receives the necessary care.
Following the re-examination by Dr Andrews, the parties were Directed to provide submissions given the matters raised in the report of Appeal Member Dr Andrews.
The submissions of the appellant following the Examination Report were essentially to the effect that it would be in appellant’s interests to have the matter concluded as early as possible and that he has had multiple hospital admissions in the past.
The submissions of the respondent were that the appellant’s deterioration is a new presentation and unrelated to the injury. The respondent referred to earlier medical reports. Alternatively, the respondent submitted that it should be confirmed that the appellant has not reached maximum medical improvement.
Although a firm diagnosis of the appellant’s current condition has not been fully identified, it is the Panel’s view that the appellant’s condition is a progression of the injury he suffered.
The Panel considers that the Appellant requires immediate and sustained intervention and a properly formulated treatment plan so as to obtain maximum improvement in the appellant’s condition.
The Panel also considers that MMI may be reached after 6 months even if there has been no change in treatment, as it is possible that his significant condition might have by then have become entrenched.
In conclusion, the Appeal Panel has determined that the Medical Assessment Certificate issued on 6 November 2023 should be revoked, and a new Medical Assessment Certificate should be issued.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
The Medical Appeal Panel Certifies that the appellant has not reached Maximum Medical Improvement.
Matter number: | M1-W5540/23 |
Applicant: | Delqui Fabian Bustos |
Respondent: | State of New South Wales (Concord Repatriation General Hospital) |
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 Dr Gerald Chew and issues this new Medical Assessment Certificate as set out below:
-The Medical Appeal Panel certifies that the appellant has not reached maximum medical improvement and the impairment is not fully ascertainable at this time.
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