Formosa v Hunter Valley Buses Pty Limited
[2022] NSWPICMP 252
•21 May 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Formosa v Hunter Valley Buses Pty Limited [2022] NSWPICMP 252 |
| APPELLANT: | Anthony Formosa |
| RESPONDENT: | Hunter Valley Buses Pty Limited |
| APPEAL PANEL | |
MEMBER: | R J Perrignon |
MEDICAL ASSESSOR: | Nicholas Glozier |
| MEDICAL ASSESSOR: | Patrick Morris |
| DATE OF DECISION: | 21 May 2022 |
| CATCHWORDS: | WORKERS COMPENSATION – Appeal from assessment of 8% whole person impairment (psychological); whether Medical Assessor erred in the assessment of Psychiatric Impairment Rating Scale (PIRS) scales; self-care and personal hygiene, social and recreational activities, or social functioning; Held– Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
The appellant worker, Mr Formosa, appeals from the Medical Assessment Certificate of Medical Assessor Dr Hong dated 17 January 2022.
On 6 August 2021, the applicant suffered psychological injury in the course of his employment as a bus driver.
By a Medical Assessment Certificate dated 17 January 2022, Dr Hong diagnosed chronic adjustment disorder with anxiety, and assessed an 8% whole person impairment (psychological). In doing so, he assessed a class 2 impairment (mild impairment) in respect of the Psychiatric Impairment Rating Scales (PIRS) Self care and personal hygiene, Social and recreational activities, and Social functioning.
The appellant alleges error and the application of incorrect criteria in respect of each of these rating scales, saying that the evidence did not support a class 2 impairment, but rather a class 3 impairment.
The Appeal Panel conducted a preliminary review of Dr Hong’s assessment in the absence of the parties and in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th edition) (the Guidelines).
Submissions
The written submissions of the parties have been considered. It is unnecessary to reproduce them in full.
The appellant submits that the assessment of a class 2 impairment in respect of the three rating scales mentioned above was ‘not sustainable’ (which we take to mean, not reasonably open to the assessor) on the material before him.
In respect of Self care and personal hygiene, he submits that the evidence supports a class 3 impairment for the following reasons:
(a) the assessor took a history that the appellant was normally clean shaven, but now has a large beard, and that he showers two or three times per week, sometimes with prompting, but generally does not need prompting with self care and personal hygiene;
(b) paragraphs 29-32 of his statement signed on 1 September 2021, indicate more than a mild impairment, particularly as his wife prompts him to eat and assist with household duties;
(c) Dr Takyar in his report of 10 August 2020 recorded impairments supporting a class 3 assessment, and
(d) treating doctors have noted impaired sleep with nightmares or flashbacks.
In respect of Social and recreational activities, he submits that the evidence supports a class 3 impairment for the following reasons:
(a) Dr Takyar on 10 August 2020 recorded that he sees friends once a month or less, but they have to come to him, and that he can attend a larger social function by himself, but has to leave after 60 to 90 minutes due to his mental state;
(b) in his statement, the applicant says that he has lost motivation for his former hobbies of boating, fishing, gardening and tomato growing, consistently with the history given to Dr Vickery on 13 July 2021;
(c) on 28 January 2021, the applicant became anxious at an ‘unintended’ (presumably meaning unexpected) visit from a Water Board representative, and
(d) he goes out with the assistance of support persons. For instance, he says that once a month his bus mates take him out for an hour or so. He also avoids social settings with which he is unfamiliar, leaving his wife to do the shopping.
In respect of Social functioning, he submits that the evidence supports a class 3 impairment for the following reasons:
(a) Dr Takyar recorded a strain in marital relations, due to withdrawal and being argumentative and irritable. He adverted to a strain in his relationship in his statement of 1 September 2021, paragraph 44 [sic, 45];
(b) between 29 April 2020 and 25 June 2020, the applicant complained of family stress to his treating psychologist;
(c) on 9 and 23 September 2019, he complained to his general practitioner (GP) of ongoing strain in his marital relationship;
(d) in a letter of 19 January 2022, he said that his relationship with his wife was ‘not what it used to be’, due to his changed persona, and
(e) a strained relationship, as distinct from a loss of relationship, is sufficient to support a class 3 impairment, which is the more appropriate assessment given the severity of the strain.
In summary, the respondent employer submits as follows:
(a) the appellant’s letter of 19 January 2022 is inadmissible, because it is not additional evidence that was not available to the appellant prior to assessment or could not reasonably have been obtained by him;
(b) no basis is given for the allegation that the assessor has taken an incorrect history or failed to consider evidence;
(c) with respect to Self care and personal hygiene, the assessor gave adequate reasons for assessing a class 2 impairment;
(d) the assessor was obliged to assess the worker as he presented on the day of assessment. Observations made by Dr Takyar 16 months earlier did not compel the assessor to arrive at a similar assessment;
(e) with respect to Social and recreational activities, the assessor correctly assessed a class 2 impairment, and gave adequate reasons for doing so, and
(f) with respect to Social functioning, the assessor correctly assessed a class 2 impairment, and gave adequate reasons. The matters relied on by the appellant either predated the assessment by eighteen months or are consistent with a class 2 impairment.
Additional evidence
In his submissions, the appellant relies on a letter written by him on 19 January 2022, well after examination by Dr Hong, filed with his notice of appeal.
In the letter, with reference to Dr Hong’s assessment of Social and recreational activities, he explains that his friends who are bus drivers take him out once a month. With reference to the assessment of Social functioning, he explains that his relationship with his wife is not what it used to be, due to his changed persona.
His submissions do not address the requirements of section 328(3) of the Workplace Injury Management and Workers Compensation Act 1998, which provides that such evidence may not be given on appeal unless it is evidence which ‘was not available to the party before [the] medical assessment and could not reasonably have been obtained by the party before that medical assessment’. The evidence appears to us to be evidence that was available to him, and could reasonably have been obtained by him, before assessment. It follows that it does not satisfy the requirements of section 328(3), and may not be given on appeal.
Self care and personal hygiene
The descriptors for class 2 and 3 impairment are as follows:
| “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.” |
In the PIRS Rating form, the Medical Assessor gave the following reasons for assessing a class 2 impairment in respect of Self care and personal hygiene:
“Mr Formosa reported neglecting his self-care and does not shower regularly. He has prompting sometimes with his showering. He eats regularly without prompting and maintains good blood sugar level control. He described sufficient self-management overall and is capable of independent living without regular support or prompting.”
At paragraph 10c, noting that Dr Takyar and Dr Vickery had assessed impairment in this category as class 3 and 1 respectively, he explained:
“In my assessment, I noted Mr Formosa eats regularly, attends to all of his diabetes management without prompting, and has a good blood sugar control. He showers two or three times a week only, sometimes with prompting but generally does not need prompting with his self-care or personal hygiene, and therefore I rated 2.”
The finding that, notwithstanding occasional prompting to take a shower, he is capable of independent living without regular support or prompting is consistent with a class 2 impairment and inconsistent with the criteria for class 3. These reasons, in our view, support a class 2 impairment.
The Medical Assessor noted at paragraph 4 that the appellant was formerly clean shaven, but was now embarrassed by the fact he had a beard. The fact that the appellant has a beard is not inconsistent with a class 2 impairment, and does not compel an assessment of class 3, even if he was formerly clean shaven.
In his statement of 1 September 2021, the appellant said relevantly that his self care diminished after his psychological injury, but that it started to improve over time. He said he was not showering or grooming regularly enough, and that his wife urged him to care for himself. His wife prompts him to eat, and he eats smaller meals at her request.
Dr Hong took a history that the appellant had gastric bypass surgery in 2010 which caused his weight to reduce from 208kg to 125kg, which had stabilised for many years. In that context, he recorded that:
“… he only eats small meals and eats regularly and watches his carbohydrates. He has insulin in the morning and mainly short-acting insulin with lunch or with dinner. He said his HbA1c is quite good, usually 6 to 8 and his endocrinologist reviews him twice a year.”
This suggests that the appellant had been consuming smaller meals for reasons of his physical health well before the injury, and continued to so do after. On the basis of this history, the consumption of smaller meals does not result from injury but rather is part of the applicant’s self-management of his physical health and diabetes. The HbA1c results demonstrate that this aspect of his self-care is unimpaired by injury. The appellant told
Dr Hong that he eats regularly. The history taken by Dr Takyar and Dr Hong that the appellant showers two or three times a week is consistent with the finding, made by Dr Hong, that he does not shower regularly and sometimes needs prompting. Viewed in the context of Dr Hong’s findings as a whole, this is not inconsistent with a class 2 impairment, and does not compel an assessment of a class 3 impairment.The Medical Assessor was not bound to accept the opinion or assessment of Dr Takyar expressed in his report of 10 August 2020. Dr Takyar’s assessment was based on his examination of 7 August 2020. The task of the Medical Assessor was to assess permanent impairment as the appellant presented to him on 17 December 2021. The fact that the appellant presented with less impairment than observed by Dr Takyar 15 months earlier does not demonstrate error.
The applicant’s submissions do not indicate how impaired sleep with nightmares or flashbacks, noted by treating doctors in the past, are relevant to Self care and personal hygiene. In any event, Dr Hong took a history of these under the heading, ‘Present symptoms’. He does not appear to have considered that these symptoms contributed to impairment under the heading Self care and personal hygiene. No submissions have been made as to why he should have reached a different conclusion.
We can identify neither error nor the application of incorrect criteria in assessing Self care and personal hygiene.
Social and recreational activities
The descriptors for class 2 and 3 impairment are as follows.
| “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.” |
In the PIRS form, Dr Hong gave the following reasons for assessing a class 2 impairment:
“Mr Formosa regularly goes out to social and recreational activities, he does not need a support person, and can be actively involved, but leaves after 60-90 minutes.”
Under the heading, ‘Social activities/ADL’ he took the following history:
“Mr Formosa used to like boating, fishing, gardening, growing tomatoes but lost motivation to do these activities.
He said he is too anxious to go near a bus. In October 2020, Mr Formosa's wife booked tickets to see Military Tattoo in Sydney but he was stressed and sweated heavily on the coach, because of his anxiety riding the coach. Since then, he had not gone near buses.
Normally Mr Formosa likes to go on a bus day trip with his wife. He stopped this because buses make him anxious. He no longer has a commercial driver licence and reported there is no problem driving on his own.
…
He has contact with his friends regularly. Two friends are too far away. There is one friend that he will see every couple of weeks, and they go out for lunch.
He attends a social event with other bus drivers every four weeks. They will have lunch together and talk. About eight people would attend. He likes to go there and talk to other people, and find out what is happening with them and obtain some enjoyment from it.”
At paragraph 10b, Dr Hong noted the following history taken by Dr Takyar:
“Mr Formosa previously saw friends once a fortnight and now sees them once a month or less and they have to come to him. … He probably could attend larger social functions by himself around 60 to 90 minutes but then would leave.”
Dr Hong’s findings in the PIRS form reflect both the history taken by him, and the history taken by Dr Takyar that the appellant would leave larger social functions after around 60 to 90 minutes. Dr Hong’s assessment of a class 2 impairment is consistent with the history taken by him that once a fortnight the appellant lunches with a particular friend for lunch, and once a month with about eight other bus drivers. That history is inconsistent, in our view, with a class 3 impairment, which requires that a person ‘rarely goes out’ to social events, and mostly when prompted.
The fact that he has lost interest in certain former hobbies is relevant to the assessment of Social and recreational activities but, as indicated, Dr Hong expressly took a history of this. That history did not compel an assessment of class 3 impairment, and we are satisfied that Dr Hong has taken it into account.
In his submissions, the appellant does not explain why feeling anxious when a Water Board representative visited him unexpectedly in January 2021 is relevant to Social and recreational activities. Even if it were relevant, a single experience of anxiety almost 12 months prior to examination did not compel the assessor to assume that the anxiety state continued, or to assess a class 3 impairment, having regard to the social activities that the appellant was then undertaking.
Contrary to the appellant’s submission, a finding that the appellant lunches with a friend fortnightly and with work friends monthly does not establish that he requires the assistance of support persons to go out.
At paragraph 22 of his submissions, the appellant asserts that he ‘avoids social settings involving people that he is unfamiliar with, such as shopping, which is performed by his wife’. He does not indicate where evidence of this is to be found in the material before the Medical Assessor, or suggest that any such history was given to Dr Hong. In any event, it does not contradict the essential findings of Dr Hong as to his social activities with friends on a fortnightly and monthly basis, on the basis of which the assessment of a class 2 impairment was made. In our view, the evidence supported a class 2 impairment, and such an assessment was reasonably open to Dr Hong.
We can identify neither error nor the application of incorrect criteria in assessing Social and recreational activities.
Social functioning
The descriptors for class 2 and 3 impairment are as follows:
| “Class 2 | Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships. |
| Class 3 | Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.” |
In the PIRS Rating form, the Medical Assessor gave the following reasons for assessing a class 2 impairment in respect of Social functioning:
“Mr Formosa's relationship with his wife has been good overall. He has a good relationship with his children. He is anxious and has ceased contact with some of his friends.”
Under the heading, ‘Background history’, he noted that the appellant had been married for almost 47 years and was still living with his wife. Under the heading, ‘Present symptoms’, he noted the appellant denied being irritable.
This history differed from that taken by Dr Takyar, who 15 months earlier recorded irritability and argumentativeness, causing strain in marital relations. It also differed from the version given at paragraph 45 of his statement. As indicated above, the task of the assessor was to assess the appellant as he presented on the day of assessment. The history taken suggests that he presented differently to Dr Hong than he did to Dr Takyar.
Similarly, the fact that he reported a strained marital relationship to his GP in September 2019, and family stress to his treating psychologist between April and June 2020, does not prove that those stressors persisted to the day of assessment by Dr Hong in December 2021. Dr Hong was not obliged to assume the contrary. He made his findings based on the history he took, and the presentation of the appellant, on the day of assessment.
It is not correct for the appellant to say that a mere strain in a relationship is sufficient to support a class 3 impairment. The descriptors required a severe strain, ‘evidenced by periods of separation or domestic violence’. That is quite different from the history taken by Dr Hong.
For all these reasons, the assessment of a class 2 impairment was reasonably open to the assessor. We can identify neither error nor the application of incorrect criteria in the assessment of Social functioning.
Conclusion
For the reasons given, we can identify neither error nor the application of incorrect criteria. The Medical Assessment Certificate of Dr Hong is confirmed.
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