BMY v Mullungeen Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	BMY v Mullungeen Pty Ltd [2024] NSWPICMP 489
APPELLANT:	BMY
RESPONDENT:	Mullungeen Pty Ltd
APPEAL PANEL
MEMBER:	Parnel McAdam
MEDICAL ASSESSOR:	Graham Blom
MEDICAL ASSESSOR:	Doug Andrews
DATE OF DECISION:	24 July 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; primary and secondary psychological injury; application of section 65A; how impairment is to be calculated where there is a secondary psychological injury; Mercy Centre Lavington Ltd v Kiely & Ors and Mercy Connect Limited v Kiely considered; consideration of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines).; whether adequate reasons had been provided; Held – no requirement in the Guidelines or section 65A to conduct separate psychiatric impairment rating scale (PIRS) assessments; open to Medical Assessor to indicate a percentage contribution from primary and secondary injuries; adequate reasons provided; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 6 May 2024 BMY (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Alan Doris, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 8 April 2024.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
1 March 2021 (the Guidelines).

RELEVANT FACTUAL BACKGROUND

BMY was employed as a waiter with Mullungeen Pty Ltd (the respondent). At the time of his injury he was working at the Orchard Hotel in Chatswood. He fell on some stairs, injuring his back, on 4 April 2019. At the time of his injury he experienced, pain, anxiety and difficulty walking, and was advised to go to hospital via ambulance. He underwent treatment for his physical injuries including with a pain clinic. His physical health deteriorated significantly following the injury and he is in chronic pain because of it.
BMY brought a claim for lump sum compensation to the Personal Injury Commission (Commission). That claim proceeded through the dispute resolution pathway, ultimately resulting in a determination made by a Member concerning the liability question of whether BMY suffered from a primary psychological injury. It was agreed that BMY suffered from a secondary psychological injury, being a somatic symptom disorder.
In a Certificate of Determination dated 12 February 2024, the Member determined that BMY suffered a primary psychological injury, being a major depressive disorder. The Member also determined that BMY suffered from a secondary psychological injury, being a somatic symptom disorder. In the course of reasons, the Member also made the following finding:
“I find that the applicant’s major depressive disorder was caused both by his reaction to the incident and by his reaction to his physical injuries. Thus, the major depressive disorder is a manifestation of both a primary and secondary psychological injury.” (At [61].)
Thus, it is apparent that the Member was of the view BMY suffers from the following injury pathologies:
(a)    a primary psychological injury, being a major depressive disorder;
(b)    a secondary psychological injury, being a major depressive disorder, and
(c)    a secondary psychological injury, being a somatic symptom disorder.
As a result of the determination of the Member, the matter was referred for assessment by a Medical Assessor. A MAC was issued on 8 April 2024, providing an assessment under the Psychiatric Impairment Rating Scale (PIRS) which converted to 26% whole person impairment. The Medical Assessor acknowledged that the appellant sustained both a primary and a secondary psychological injury in the workplace incident, and that no permanent impairment assessment is to be made of secondary psychiatric injury. He determined that the portion of impairment due to the primary psychological condition was 30% of the total impairment, for a total assessment of 8% whole person impairment. The appellant appeals against that assessment.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because there was sufficient information contained in the MAC and the material before the Appeal Panel to properly determine the issued raised in the appeal.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.

Medical Assessment Certificate

The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the Medical Assessor erred in concluding that 30% of the impairment assessed was due to the primary psychological injury. The appellant submits that the MAC contains a demonstrable error in the application of causation, and there has been a failure to disclose the path of reasons that led the Medical Assessor to his conclusion, leading to a “guesstimate”.
The appellant refers to the Appeal Panel decision of Ausgrid Management Pty Ltd v Fisk [2023] NSWCPICMP 237 (Fisk), a case concerning the application of s 65A(2) of the Workers Compensation Act 1987 (the 1987 Act), submitting that the impairment from the primary and secondary psychological injuries could not be “disentangled”.
The appellant goes on to submit that the approach adopted in Fisk is consistent with the principles outlined in State Government Insurance Commission v Oakley (1990) 10 MVR 570 (Oakley), and that the Medical Assessor should have found that the total impairment of 26% was due to the primary psychological injury.
In reply, the respondent refers to a series of unchallenged findings made by the Medical Assessor that are consistent with the findings made by the Member in the Certification of Determination.
The respondent refers to Mercy Connect Limited v Kiely [2018] NSWSC 1421 (Kiely No 2) and submits that it is consistent with Fisk. The process is to first determine the extent of the entire psychological injury using the PIRS, and then the assess the secondary psychological injury in accordance with s 65A of the 1987 Act, but that the method of assessment of the secondary injury is not prescribed. The respondent disputes that the second step requires a separate PIRS assessment, and that Kiely No 2 is not authority for that position.
The respondent submits that the process undertaken by the Medical Assessor was the correct one and his reasons are adequate. The respondent submits that the impairment arising from the secondary psychological injuries is able to be assessed and then must be deducted from the overall impairment.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made. The appeal concerns the application of s 323 of the 1998 Act and accordingly the Appeal Panel’s consideration of the matter is limited to that issue (per Basten JA in Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304 at [26]):
“Secondly, s 328(2) requires that the review ‘is limited to the grounds of appeal on which the appeal is made.’ Because the gateway function of the Registrar is satisfied if ‘at least one of the grounds’ has been made out, it appears that the Appeal Panel is not limited to the ground held by the Registrar to have been made out, but may consider all grounds of appeal raised in the appellant’s application. On the other hand, it is clear that the Appeal Panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made.”
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
There are two fundamental issues raised on appeal by the appellant. The first is the correct application of s 65A of the 1987 Act. The second is whether the Medical Assessor provided adequate reasons for the conclusion he reached in relation to that section.

Section 65A of the 1987 Act

Section 65A relevantly provides:
“(1)    No compensation is payable under this Division in respect of permanent impairment that results from a secondary psychological injury.
(2)    In assessing the degree of permanent impairment that results from a physical injury or primary psychological injury, no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury.
…
(5)    In this section—
primary psychological injury means a psychological injury that is not a secondary psychological injury.
psychological injury includes psychiatric injury.
secondary psychological injury means a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury.”
There are two aspects of s 65A that go to the different jurisdictional pathways adopted by the processes of the Commission, informed by the Personal Injury Commission Act 2020, the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), and the 1987 Act. Matters of liability for injury, including whether an injury has been suffered, whether an injured person is a “worker” as defined by the legislation, and the like, are determined by a Member of the Commission. The degree of permanent impairment suffered by an injured worker is determined by a Medical Assessor.
Within s 65A this divided jurisdictional pathway is apparent. Sub-section (1) provides a disentitlement to compensation for a secondary psychological injury. Sub-section (2) provides what a Medical Assessor must do in the presence of a secondary psychological injury. Sub-section (5) provides specific definitions of primary and secondary psychological injuries.
His Honour Campbell J provided some learned obiter on the jurisdictional question in State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC 346 (Kaur) at [22]:
“I should point out that in my judgment, the question of whether an injury is a secondary or primary psychological injury is one for the Commission to determine and not one that arises as part of a medical dispute as defined by s 319 of the 1998 Act.”
The Member in, in determining the liability dispute that was before him, was clearly aware of this. He states at [62]:
“However, as the claim before the Commission is solely for permanent impairment, the function of the Commission is to determine liability issues. They include the issue of injury and the nature of the injury, although it is not always incumbent on the Commission to precisely identify the injury. Whether or not the applicant has permanent impairment, whether the impairment results from a secondary psychological injury or from a primary psychological injury, and what adjustments should be made for a pre-existing condition or supervening events are matters solely within the jurisdiction of a Medical Assessor.”
The question for the Medical Assessor, and the Appeal Panel on appeal, is the mechanism for how a secondary psychological injury is to be accounted for in an assessment of impairment. Section 65A(2) provides that “no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury”.
Impairment is assessed in accordance with the Guidelines (s 322(1) of the 1998 Act), issued under s 376 of the 1998 Act and developed in accordance with s 377 of the 1998 Act. Clauses 1.21, 1.22 and 11.3 refer to the existence of primary and secondary psychological injuries:
“1.21 Psychiatric and psychological injuries in the NSW workers compensation system are defined as primary psychological and psychiatric injuries in which work was found to be a substantial contributing factor.
1.22 A primary psychiatric condition is distinguished from a secondary psychiatric or psychological condition, which arises as a consequence of, or secondary to, another work related condition (eg depression associated with a back injury). No permanent impairment assessment is to be made of secondary psychiatric and psychological impairments. As referenced in section Multiple impairments, impairments arising from primary psychological and psychiatric injuries are to be assessed separately from the degree of impairment that results from physical injuries arising out of the same incident. The results of the two assessments cannot be combined.
…
11.3 Permanent impairment assessments for psychiatric and psychological disorders are only required where the primary injury is a psychological one. The psychiatrist needs to confirm that the psychiatric diagnosis is the injured worker’s primary diagnosis.”
Unlike with many other assessment methodologies set out in the Guidelines, including the PIRS, there is no prescribed method for determining how a Medical Assessor is to have “no regard” for any “impairment or symptoms” arising from a secondary psychological injury.
There has been some judicial consideration of the section. In Mercy Centre Lavington Ltd v Kiely & Ors [2017] NSWSC 1234 (Kiely), the Appeal Panel had acknowledged the difficulty in separating the impairment arising from the primary and secondary conditions from which the respondent worker suffered. The Appeal Panel used s 323 as a basis, in an analogous way, to attribute one tenth of the impairment to the secondary psychological injury. His Honour Wilson J observed:
“Whilst arguably a convenient means of resolving the difficulty of apportionment of impairment, a process which, it must be noted, is extraordinarily artificial, it was not open to the MAP to utilise s 323 as the methodology adopted by which to determine secondary psychological impairment pursuant to s 65A of the 1987 Act.” (at [57])
He acknowledges the process of assessing impairment in the circumstances as “extraordinarily artificial”.
The matter was remitted to the Workers Compensation Commission (precursor to the Personal Injury Commission) to be determined by a new Appeal Panel according to law. The second Appeal Panel’s decision was also the subject of judicial review. Again, the appropriate application of s 65A was in issue. In Kiely No 2, Her Honour Harrison AsJ described a “two-step approach” to the question:
“The statutory scheme comprising of the WIM Act and the Workers Compensation Act creates a two-step approach in assessing the degree of WPI for a psychological injury. The assessor must first calculate the entire degree of psychological injury in line with the PIRS categories. The secondary psychological injury must then be assessed and deducted in accordance with s 65A of the Workers Compensation Act, leaving the primary psychological injury remaining.” (at [96])
This “two-step approach” provides high-level guidance for the application of s 65A. It does not specify a precise mechanism for the calculation of contribution, but based on Kiely it is clear that an analogy with s 323 is inappropriate. The appellant refers to the decision of an Appeal Panel in Fisk. In that decision, the Appeal Panel considered Kiely No 2 and stated:
“The requirement of s 65A(2) is that a Medical Assessor have no regard to the impairment or symptoms resulting from a secondary psychological injury when assessing the degree of permanent impairment from a primary psychological injury. Her Honour Harrison AsJ in obiter dicta propounded in Keily no 2 a two-step process by which a Medical Assessor could abide the mandate of s 65A(2) to have no regard to impairment or symptoms from a secondary psychological injury. The first step is to assess the overall degree of permanent impairment of a worker in accordance with clauses 11.11 and 11.12 of the Guidelines. The second step is to assess separately the worker’s permanent impairment due to the secondary psychological injury by reference to the same clauses and then deduct the latter from the former. The Appeal Panel considers that such a process is apt for the circumstance where there can be a disentanglement of the impairment and symptoms a worker suffers due to a secondary psychological injury from the impairment and symptoms a worker suffers due to the primary psychological injury.” (At [41].)
The appellant goes on to submit that in the present circumstances the impairment arising out of the primary and secondary injuries could not be disentangled, which is why the Medical Assessor proceeded not to separately assess the permanent impairment arising from the secondary psychological injury under cl 11.11 and 11.12 of the Guidelines (i.e. under the PIRS).
For a number of reasons, the Appeal Panel does not accept the appellant’s submissions in relation to the appropriate approach that the Medical Assessor should have taken.
Firstly, the Appeal Panel does not accept that Fisk is binding authority. It is a decision that can be distinguished on a factual basis. The consideration of the impact of permanent impairment arising from a secondary psychological injury is necessarily a factual question, and facts do not create binding legal authority.
The Appeal Panel would secondly observe that the construction asserted in Fisk is not precisely what was set out in Kiely No 2. In Fisk, the Appeal Panel stated that the second step requires assessment “by reference to the same clauses” (that is cl 11.11 and 11.12 of the Guidelines). A close reading of Kiely No 2 makes it clear that that was not what was decided. Harrison AsJ states that “[t]he secondary psychological injury must then be assessed and deducted in accordance with s 65A of the Workers Compensation Act”. Nowhere does Her Honour state that the PIRS must be used to assess and deduct the secondary psychological injury. The judgment only refers to s 65A, which requires that “no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury”. Section 65A does not provide a mechanism for that exercise. It should also be acknowledged that s 65A requires consideration of “impairment or symptoms”.

Likewise, the Guidelines do not provide a mechanism, as set out above. The Guidelines acknowledge the existence of primary and secondary psychological injuries on a number of occasions, but no steps are provided as to how to calculate the contribution from a secondary psychological injury.
Thirdly, the Appeal Panel does not agree with the “disentanglement” construction set out in Fisk. Again, this is not provided for in the Guidelines. The construction ignores the existence of the word “symptoms” in s 65A. It is difficult to envision circumstances where the impairments arising from a primary and secondary psychological injury could be sufficiently disentangled to allow a process whereby two separate and distinct PIRS assessments are undertaken, although that will depend on the factual circumstances. An Appeal Panel was able to conduct such an exercise in ETM Projects Pty Limited (In liquidation) v Gregorgiou [2024] NSWPICMP 45.
In circumstances where there is no test specified in s 65A, nor do the Guidelines provide for a mechanism to calculate the contribution of a secondary psychological injury, a Medical Assessor must rely on clinical judgement. The Appeal Panel’s view is that the appropriate methodology to apply that clinical judgement is the use of a percentage-based contribution, as adopted by the Medical Assessor. Accordingly, the Medical Assessor has not erred, or asked himself the wrong question, in approaching the issue which was squarely raised as part of the medical dispute referred to him for assessment.
In the specific circumstances of the present case, the Appeal Panel is of the view that the symptoms and impairment arising out of the primary and secondary psychological injuries are reasonably distinguishable. That did not require the Medical Assessor at first instance and the Appeal Panel presently to conduct separate assessments under the PIRS, but requires there to be “no regard” to be had for those secondary symptoms and impairments.
The Appeal Panel is also of the view whilst the workers compensation scheme is beneficial as a whole, the provision in question is a disentitling provision. Per French CJ, Crennan, Kiefel and Keane JJ in ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18 not every provision in a piece of legislation, even if beneficial as a whole, is to be construed beneficially. Regardless of whether a construction requiring the “disentanglement” of impairment and symptoms is available (which, on the Appeal Panel’s view, is doubtful), in present circumstances it is clear that the Medical Assessor was able to adequately disentangle the various issues suffered by the appellant.
The appellant has also referred to Secretary, New South Wales Department of Education v Johnson [2019] NSWCA 321 (Johnson) and Oakley, submitting that the approach adopted by the Appeal Panel in Fisk is consistent with Oakley. The Appeal Panel is of the view that those cases provide no assistance. They concerned different factual circumstances involving further or subsequent injury. In the present case, the secondary psychological injury which the appellant suffered is not a further or subsequent injury, it is as a consequence of the physical injury suffered by the applicant. It occurred as a result of the pain experienced by the appellant due to the physical symptoms of the fall-related injury he suffered in the employ of the respondent. There has been no “subsequent accident” as set out in the three categories in Oakley, applied in Johnson.
The submissions by the appellant relying on those common law principles also ignores the statutory basis for the issue in question, being s 65A of the 1987 Act. The section requires a Medical Assessor to have no regard to secondary psychological injury. The question of whether a primary psychological injury has been made worse by a secondary psychological injury is not an appropriate consideration and would ignore the effect of s 65A. The construction asserted by the appellant, relying on the “disentanglement” principle set out in Fisk and expanded on by reference to Oakley and Johnson would leave s 65A with no work to do. This is not an appropriate exercise in statutory construction and cannot be accepted.
In summary, the Appeal Panel is satisfied that the Medical Assessor approached the application of s 65A correctly and was entitled to reach the conclusion he did, i.e. to reach a conclusion that a percentage of the impairment was due to a primary psychological injury, and the remaining percentage was due to a secondary psychological injury.

Whether the Medical Assessor provided adequate reasons

Whilst there is, at the centre of this dispute on appeal a question as to the correct application of s 65A of the 1987 Act, the appellant has also alleged that the Medical Assessor has provided inadequate or insufficient reasons for the conclusion he has reached.
The appellant relies on the decision of Wingfoot Partners Pty Ltd v Kocak [2013] HCA 43 (Kocak). His Honour Campbell J also considered an argument concerning reasons in Kaur, discussing the applicability of Kocak to the NSW legislation. He provides:
“In Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480, the High Court of Australia dealt with the nature of the jurisdiction exercised by a medical panel under cognate Victorian legislation. The legislation is not entirely the same but it is broadly similar in purpose. Allowing for some differences, the High Court said at page 498 [47]:
‘The material supplied to a medical panel may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on the medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the functions of the panel as being either to decide a dispute or to make up its mind by reference to completing contentions or competing medical opinions. The function of a medical panel is neither arbitral or adjudicative: It is neither to choose between competing arguments nor to opine on the correctness of other opinions on that medical question. The function is in every case to perform and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.’
Not all of this, as I have said, is apposite in the context of the New South Wales legislation. In particular it is obvious that approved medical specialists are required to decide disputes referred to them by the process of medical assessment. Even so, it is not necessary that approved medical specialists should sit as decision makers choosing between the competing medical opinions put forward by the parties. Essentially, the function is the same as that described by the High Court in Wingfoot Australia. That is to say, their function is in every case to form and give his or her own opinion on the medical question referred by applying his or her own medical experience and his or her own medical expertise. It is sufficient, as their Honours pointed out at [55], that:
‘The statement of reasons… explain the actual path of reasoning in sufficient detail to enable the Court to see whether the opinion does or does not involve any error of law.’” (At [25]-[26].)
Like the legislation in consideration in Kocak, a Medical Assessor has a statutory obligation to provide reasons, set out in s 325(2) of the 1998 Act. Per Campbell J in Kaur, relying on Kocak, the requirement is that the Medical Assessor explains the path of reasons in sufficient detail to enable the Court (or Appeal Panel) to see whether the opinion involves an error of law.
When considering whether sufficient reasons have been provided, it must be remembered that the MAC must be read as a whole. The Medical Assessor’s conclusion on the contribution from each of the primary and secondary psychological injuries is expressed in a number of places overtly and the history and background of the evolution of the worker’s injury and symptomatology he experienced are also relevant. The appellant submits that no path of reasoning is given for the finding of 30%, and it is not known why 30% was chosen. The appellant describes the finding as “some form of guesstimate”.
The Medical Assessor’s ultimate conclusion on the contribution is expressed on page 11 of the MAC:
“BMY sustained both a primary psychological injury and a secondary psychological injury in the workplace incident which occurred on 4th April 2019.
No permanent impairment assessment is to be made of secondary psychiatric impairments.
As detailed at ‘10’ above, taking all evidence into consideration, in my opinion the proportion of impairment due to the primary psychiatric/psychological condition is 30% of the total impairment found at assessment. This leads to a whole person impairment rating due to BMY’s primary psychiatric/psychological condition of 8%.” (Emphasis in original.)
It is noted here that the Medical Assessor was clearly aware of the statutory requirement of s 65A(2) in assessing permanent impairment. He expresses the test as required by the legislation. Other parts of the MAC set out the history on which the Medical Assessor based his conclusion, which is expressed at part 10 of the MAC (which the above reasons refer to).
The Medical Assessor takes a history of a fall on the stairs at work. In relation to the initial psychological problems, he relevantly records:
“On April 8th BMY consulted with his usual GP, Dr Artinian, who completed a Workcover certificate. BMY continued to experience high levels of anxiety, and at times panic attacks. His sleep was disturbed by nightmares relating to the fall and injury.”
The Medical Assessor describes the ongoing effects of the injury: “Despite treatment BMY has continued with a high level of symptoms and disability and has not returned to employment or study”.
A lengthy history of present symptoms is recorded on pages 3 and 4 of the MAC. The history taken is mainly focused on the present psychological symptoms experienced by the appellant (as is appropriate) with some reference to the issues experienced due to the pain features arising out of the physical effects of injury. The Medical Assessor provides a diagnosis of “persistent depressive disorder with anxious distress with persistent major depressive episode”, comorbid with a “somatic symptom disorder with predominant pain”. Diagnosis is a critical component of an assessment of impairment (see relevantly cl 11.3-11.6 of the Guidelines) and no challenge has been made to the diagnoses provided. The Appeal Panel accepts them as appropriate.
The critical part of the reasoning process for the assessment of primary and secondary psychological injury is, as the Medical Assessor observes, in part 10 of the MAC. This commences of page 5.
The Medical Assessor observes the Certificate of Determination dated 12 February 2024. He also refers to the relevant clause of the Guidelines (cl 1.22), and goes on to explain his reasons:
“A large part of BMY’s impairment is due to his physical injury causing pain and immobility, and his somatic symptom disorder with predominant pain. These disorders impact all areas of function. Neither of these disorders are a primary psychological condition and so impairment caused by these disorders is excluded from the calculation of whole person impairment.
BMY’s persistent depressive disorder with anxious distress is both a primary and secondary psychological condition. This has developed in part due to the persistent pain and mobility problems, and part due to the primary psychological injury at the time of the workplace incident. Symptoms of this disorder also cause impairment in all areas of function.
Taking all evidence into consideration, in my opinion the proportion of impairment due to the primary psychological condition is 30% of the total impairment found at assessment. This leads to a whole person impairment rating due to primary psychiatric condition of 8%.”
The Medical Assessor goes on to discuss the other relevant evidence, including the independent medical experts who provided reports for both parties. Relevant to the issue raised on appeal, the Medical Assessor states in relation to the opinion of Dr Hong:
“The cause of the major depressive disorder with mixed anxiety and depressed mood is both the immediate psychological injury at the time of the incident (primary injury), and the pain and disability arising from the physical injury (secondary injury).”
He also describes how his opinion differs from Dr Dayalan:
“I agree with the diagnoses made by Dr Dayalan. I do not agree that they are both entirely secondary psychological conditions.
The somatic symptom disorder with predominant pain is a secondary condition. The major depressive disorder, now persistent depressive disorder, is both a primary psychiatric condition and a secondary psychiatric condition. The psychological symptoms at the time of the workplace incident were initially identified by Dr Dayalan as indicating an adjustment disorder. These progressed to being a major depressive disorder, and as this disorder has become chronic, a persistent depressive disorder. The persistent depressive disorder is also a secondary psychiatric condition caused by the persistent pain and disability arising from the physical injury.”
These reasons, contrary to the appellant’s submissions, are extensive. It is the Appeal Panel’s view that the path of reasoning is sufficient to determine whether or not the opinion contains an error of law (per Kocak and Kaur).
It must also be remembered that context of the decision made is a relevant consideration as to the extent of reasons provided: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56 at [64] per Kirby J. In circumstances where the legislation requires no regard to be had for impairment and symptoms arising from secondary psychological injuries, and the Guidelines do not provide a mechanism for calculating the relevant contributions, clinical judgment plays an important part in the decision-making process. The importance of clinical judgment does not obviate the requirement for adequate reasons, but does provide some context as to the length that reasons must go to be considered adequate.
The Appeal Panel is satisfied, when read as a whole, that the Medical Assessor has provided adequate reasons for his conclusion. The Medical Assessor opines that a “large part” of the impairment is due to the physical injury and the somatic symptom disorder, which impacts on all areas of function. The Medical Assessor also provides that the persistent depressive disorder with anxious distress causes impairment in all areas of function. In other words, the secondary psychological injuries suffered by the appellant affect all areas of his functioning, contributing a “large part” to the impairment assessed. This “large part” was determined to be 70% (i.e. the remainder of the 30% found to be contributing from the primary psychological injury). The question for consideration on appeal is not whether that finding was open, which was the first ground raised. The question here is whether the explanation provided for that conclusion constitutes adequate reasons. The Appeal Panel is of the view that they do.
For these reasons, the Appeal Panel has determined that the MAC issued on 8 April 2024 should be confirmed.

[2024] NSWPICMP 489

24 July 2024