Chhay Lim v Kaybron Pty Ltd

[2020] NSWSC 1447

Supreme Court

New South Wales

Medium Neutral Citation:

Chhay Lim v Kaybron Pty Ltd [2020] NSWSC 1447

Hearing dates:

16 June 2020

Date of orders:

22 October 2020

Decision date:

22 October 2020

Jurisdiction:

Common Law

Before:

Hamill J

Decision:

(1)   The decision of the Appeal Panel dated 19 August 2019 is quashed.

(2)   The Appeal Panel’s Medical Assessment Certificate bearing the date 16 August 2019 is quashed.

(3)   The matter is to be remitted to the Workers Compensation Commission to be dealt with according to law.

(4)   The defendant has until 29 October 2020 to file written submissions of no longer than 3 pages if it seeks to be heard against an order that “the defendant is to pay the plaintiff’s costs”.

(5)   The plaintiff has until 5 November 2020 to make written submissions in reply to the defendant’s costs submissions.

Catchwords:

CIVIL LAW – judicial review - diagnostic conundrum - perplexing factual landscape - Bloomsday hearing – jurisdictional ping pong - workers compensation - somatic symptom disorder - severe depressive disorder - secondary psychological injury - whether Appeal Panel bound by agreement between the parties - procedural fairness - where Appeal Panel examines injured worker for itself - whether Panel required to provide report to parties - no general obligation to provide report - turns on circumstances of the case - circumstances required disclosure - limited nature of appeal process - where report raised matters outside grounds advanced by the parties - where worker had no memory of incident - whether lack of memory means any psychological injury is a secondary one

Legislation Cited:

Supreme Court Act 1970 (NSW)

Workers Compensation Act 1987 (NSW)

Workplace Injury and Management Act 1998 (NSW)

Cases Cited:

Bindah v Carter Holt Harvey Woodproducts Australia Pty Limited [2014] NSWCA 264

Campbelltown City Council v Vegan & Ors (2006) 67 NSWLR 372; [2006] NSWCA 284

Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; [2010] NSWCA 190

Estate of Heinrich Christian Joseph Brockmann v Brockmann Metal Roofing Pty Limited and Ors [2006] NSWSC 235

Haroun v Rail Corporation of New South Wales & Ors [2008] NSWCA 192

Maricic v The Registrar, Workers Compensation Commission [2011] NSWCA 42

Mercy Centre Lavington Ltd v Kiely & Ors [2017] NSWSC 1234

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6

Minster for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40

NSW Police Force v the Registrar of the Workers Compensation Commission of NSW [2013] NSWSC 1792

Siddik v WorkCover Authority of NSW [2008] NSWCA 116

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC 346

Texts Cited:

American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed

Second Reading Speech, Workers Compensation Legislation Amendment Bill 2018 (NSW), 19 September 2018

SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016

Category:

Principal judgment

Parties:

Chhay Lim (Plaintiff)
Kaybron Pty Ltd (First Defendant)
Registrar of the Workers Compensation Commission of NSW (Second Defendant)
The Appeal Panel constituted under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (Third Defendant)

Representation:

Counsel:
B McManamey (Plaintiff)
M Best (First Defendant)

Solicitors:
Law Partners Personal Injury Lawyers (Plaintiff)
Rankin Ellison Lawyers (First Defendant)
Crown Solicitor’s Office (Second Defendant)
Crown Solicitor’s Office (Third Defendant)

File Number(s):

2019/362010

Publication restriction:

Nil

Judgment

1. On 30 November 2008, Chhay Lim (the plaintiff) was injured at work. He worked as a factory worker for Kaybron Pty Ltd (the defendant). He slipped on an icy floor, fell heavily onto the ground and sustained a number of fractures to his face and skull. He was taken to hospital and remained there for about three weeks. Over the years he has been examined by a number of doctors and mental health professionals. There has been significant controversy and disagreement as to the precise nature, categorisation and diagnosis of his condition or conditions. His physical injuries, whilst very serious, resolved over time and with treatment. However he continued to suffer significant pain and developed a major depressive disorder.

2. In March 2015, the plaintiff applied for lump sum compensation under the Workers Compensation Act 1987 (NSW) (“the Act”) for a physical injury to his central or peripheral nervous systems and ear, nose and throat injury. An Approved Medical Specialist (AMS), Dr Davies, assessed him to have a Whole Person Impairment (WPI) of 17%. However, there was an appeal in 2016 and a different AMS, A/Prof Geoffrey Boyce, neurologist, found no evidence of injury to the central or peripheral nervous systems and assessed his WPI at 0%.

3. The plaintiff continued to suffer pain and depression. He consulted and was assessed by many doctors, psychologists and psychiatrists. Many opinions have been proffered as to the nature of his psychological illness. It seems to be generally accepted that his pain symptoms and disabilities are "disproportionate" to the nature and extent of his physical injuries. However, there is no issue that they are genuine and no allegation that Mr Lim is malingering. There is a reasonably consistent body of evidence that he suffers from a somatic symptom disorder although different doctors use different expressions to identify or describe that condition. There is also a solid body of evidence supporting a diagnosis of a major depressive disorder.

4. In 2018, Mr Lim again applied for lump sum compensation under the Act. On this occasion his claim was based on his psychological illness(es). The case has, at times, been beset by missteps and complications as it passed through the hands of registrars, Approved Medical Specialists, arbitrators, doctors and lawyers. Ultimately, the matter was referred to an AMS, Dr Wayne Mason, psychiatrist. Dr Mason provided a Medical Assessment Certificate (MAC) dated 17 April 2019. It is a document with at least one patent flaw; it made contradictory and irreconcilable assessments of the plaintiff’s WPI. In the body of the report, the WPI is said to be 26% while the certificate itself and the more formal calculations place the WPI at 44%.

5. The defendant appealed against the MAC to a Medical Appeal Panel. The Appeal Panel, consisting of an arbitrator (Catherine McDonald) and two Approved Medical Specialists (Professor Nicholas Glazier and Dr Julian Parmegiani), quashed the MAC issued by Dr Mason. Based on all of the material and a further examination by Dr Parmegiani, the Appeal Panel assessed Mr Lim’s WPI at 0%. In a nutshell, the Appeal Panel held that the somatic symptom disorder was not assessable under the relevant guidelines, [1] and that no compensation was payable for the major depressive disorder because it was a secondary psychological injury as defined in s 65A of the Act.

   1. SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed.

6. Pursuant to s 69 of the Supreme Court Act 1970 (NSW), the plaintiff seeks judicial review of the Appeal Panel's decision. He submits that the Appeal Panel made a number of errors of law on the face of the record. The parties agree "the record" for the purpose of this application consists not only of the reasons of the Appeal Panel but also all of the material upon which it made its decision. [2] This consists of a large volume of medical reports and notes, most of which were not referred to in any detail, or at all, in the course of the parties’ submissions. Nevertheless, there was no objection to the plaintiff reading an affidavit of his solicitor annexing many hundreds of pages and the tendering into evidence of an agreed Court Book.

   2. Transcript (T), pp 1 – 2.

7. Both parties filed helpful written submissions and the matter was heard on Bloomsday, Tuesday, 16 June 2020.

8. At the heart of the case, although not necessarily a matter to be determined by this Court, is a dispute about the nature, aetiology and correct categorisation of the plaintiff’s psychological condition. There is no dispute that Mr Lim suffered both a somatic symptom disorder and a major depressive disorder but there is a significant dispute as to whether those conditions are “primary” or “secondary” conditions as those qualifiers are used in s 65A of the Act. If the defendant's submission is correct, and I believe it is, the somatic symptom disorder is to be excluded from an assessment of WPI pursuant to the relevant guidelines. If that disorder is the only "primary psychological injury” the plaintiff is not entitled to compensation. Similarly, if the major depressive illness is a “secondary psychological injury”, it is not compensable under the Act. At the risk of oversimplification, that was the position taken by Appeal Panel. On the other hand, if the major depressive disorder was a primary psychological injury, Mr Lim was entitled to compensation if the WPI was at least 15% in accordance with s 65A(3) of the Act. That was Dr Mason’s view as well as the view of a number of doctors who provided earlier reports. Similarly, a number of doctors assessed the WPI at 0% for reasons not dissimilar to those adopted by the Appeal Panel.

9. However, as I have said, these are not the issues before this Court. The legislation vests the responsibility of determining those issues in an AMS, the Appeal Panel, or (perhaps) an arbitrator. It is not for this Court to substitute its opinion in that regard and it is not qualified to do so in the absence of a hearing in which those issues are ventilated by experts. The limited role of a court reviewing the exercise of an administrative discretion must be respected; it is not for a court undertaking judicial review of an administrative decision to substitute its own opinion for that of the decision maker: see, for example, Minster for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40-41 (Mason J); [1986] HCA 40. The question for this Court is whether the Appeal Panel’s determination is affected by legal error on the face of the record. In coming to a conclusion one way or another on that issue this Court ought not examine the reasons of the Appeal Panel with an eye attuned to error or to parse the detail of the reasons provided by the Panel: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 (Brennan CJ, Toohey, McHugh and Gummow JJ); [1996] HCA 6.

10. The plaintiff asserts that the Appeal Panel fell into error in a number of respects. He says that the Appeal Panel failed to give effect to the agreed position of the parties reached when the matter was remitted to an AMS, Dr Mason, pursuant to orders made by an arbitrator on 14 March 2019. He submits that the AMS, Dr Parmegiani and the Appeal Panel were each bound by that agreement. This asserted error is the subject of the first two grounds of appeal raised in the summons commencing the proceedings. He also submits that the Appeal Panel erred in deciding there was no primary psychological condition and in failing to afford him the opportunity to address this issue when the defendant had not advanced the issue in its grounds of appeal. This is the subject of ground 3. Ground 4 asserts that the Appeal Panel failed to give reasons for adopting the conclusion of Dr Parmegiani. Finally, in ground 5, the plaintiff asserts the Appeal Panel erred in finding that the major depressive disorder was a secondary psychological condition because it resulted from the somatic symptom disorder. I will set out the precise terms of these grounds when I deal with them in turn.

11. The defendant denies that the Appeal Panel fell into any of these errors. It says the Appeal Panel was not bound by the parties’ earlier agreement and that the agreement was, in any event, ambiguous and not as prescriptive as the plaintiff contends. It relies on the fact that the plaintiff said the agreement was not binding in his submissions to the Appeal Panel. The defendant submitted the plaintiff had the opportunity to be heard and that the Appeal Panel articulated its reasons with sufficient clarity. It argues that the Appeal Panel was correct to decide that the plaintiff’s major depressive disorder was a secondary psychological injury, and that the somatic symptom disorder was excluded from the assessment of permanent impairment under the relevant guidelines. As I understood part of the submission, it argued that the major depressive disorder was a secondary condition on the basis that the plaintiff had no actual memory of the accident. Accordingly, the depression was caused by somatic symptom disorder which itself arose from the physical injuries.

Complications, missteps and ambiguities: A potted history of the litigation before the Workers Compensation Commission

12. To understand the plaintiff’s grounds of appeal, it is necessary to go back to an earlier stage of the proceedings and to understand the history of the case as it unfolded before the Workers Compensation Commission (“the Commission”).

An abundance of medical, neurological and psychological opinion

13. In their written submissions the parties (especially the defendant) summarised, in helpful detail, the plethora of opinions and medical reports that have been proffered or prepared since Mr Lim sustained his injuries. It is unnecessary to recount this material in any detail for the purpose of determining this application but a few details should be noted:

• The plaintiff’s physical injuries were very serious. However, apart from the obvious facial and other fractures, blurred vision in his right eye, loss of consciousness, and cognitive dysfunction, there was controversy from an early stage as to whether Mr Lim sustained an actual brain injury or suffered neurological harm.

• While, over time, the preponderance of medical opinion was that Mr Lim’s symptoms were disproportionate to the physical injuries he sustained, there is no suggestion that he was malingering at any stage. In other words, his memory loss, severe pain and major depressive illness are real.

• The opinions and diagnoses of the various medical practitioners who have examined him and provided reports are inconsistent and contradictory.

• Similarly, the many assessments of Mr Lim’s WPI, whether based on his physical injuries or his psychological injuries, were radically variable.

• In the early stages of his recovery, Mr Lim was diagnosed as suffering a traumatic brain injury and post-concussive syndrome although the nature and extent of these conditions was uncertain and some, perhaps most, experts said the symptoms were not consistent with the mechanism, location and severity of the physical injury.

• In 2010, a psychiatrist (Dr Tsang) described Mr Lim as a “diagnostic conundrum”.

• Neurological investigations were unable to uncover any physical (neurological) explanation for Mr Lim’s ongoing vertigo, dizziness, memory loss, pain and other symptoms. By the time of
  A/Prof Boyce’s MAC, the preponderance of opinion, although not the unanimous opinion, was that Mr Lim’s disability was of a “psychological and psychiatric type”. It was on that basis that A/Prof Boyce found there was 0% WPI and Mr Lim’s claim for lump sum compensation based on physical injury was rejected.

• The “somatic” aspect of Mr Lim’s condition was subject to a variety of descriptors in the reports and the relevant diagnostic tools (DSM IV and DSM V in particular) concerning such disorders changed over time.

• Once the focus shifted from the physical or neurological to the psychiatric or psychological, the assessments and diagnoses continued to reflect wild variations in opinion as to the extent of Mr Lim’s (relevant) WPI. I parenthesise the word “relevant” because the experts generally accepted that, insofar as the symptoms were somatic, they were not assessable under the relevant guidelines. The difference in opinions stemmed from a disagreement as to whether the major depressive disorder was a primary psychological injury (in which case it was assessable) or a secondary psychological injury (in which case it was not).

14. All of this presented both the AMS and the Appeal Panel with a perplexing factual landscape when the matter came to them in the latter half of 2019.

Jurisdictional ping pong: A vexing agreement and the referral of Mr Lim’s claim to an Arbitrator and two Approved Medical Specialists

15. The factual and medical complexity of the case was not assisted by the course of Mr Lim’s claim for compensation for psychological injury after it was brought in the Commission in December 2018 pursuant to s 66 of the Act.

16. On 18 January 2019, the parties participated in a scheduled teleconference before Senior Arbitrator Glenn Carpel (the Arbitrator). The Arbitrator referred the matter to Dr Ng to provide an MAC addressing the question of “whether the Applicant has a primary psychological injury or secondary psychological injury or both” and whether such injury or injuries were “due to the injury sustained on 30 November 2008”. The parties now appear to agree that it was “[undoubtedly] in the power of the Arbitrator to determine whether [the] injury [was] primary or secondary”. [3] The defendant submitted, in relation to the subsequent referral to Dr Mason:

    3. Transcript (T), p 11 (Plaintiff’s oral submissions).

“… the argument could have been had and frankly probably should have been had before the arbitrator, so that the fact finding in respect of the diagnosed condition as a primary psychiatric injury could have been made and a fact finding as to a secondary psychiatric condition could have been made. But that's the very point of what I am trying to draw to your Honour, there was a failure to do that.

The failure to do that, I am not criticising anyone for doing it, but that failure to remove that area of dispute means that the void had to be filled by the approved medical specialist and then the medical appeal panel, otherwise the matter just simply goes off into the ether because there is no certainty.” [4]

4. T, pp 27-28 (Defendant’s oral submissions).

17. These submissions were based on the decision of Campbell J in State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC 346. One impact of the referral of the matter to the AMS, rather than the determination of the matter by the Arbitrator, was that there was no oral hearing.

18. Dr Ng’s somewhat guarded conclusion was as follows:

“In summary, the Somatic Symptom Disorder could be considered to be predominantly, but not exclusively, a primary psychiatric condition. The permanent impairment has a strong primary component and a weak secondary component.

I now turn to the co-morbid diagnosis of a Major Depressive Disorder, according to DSM V criteria. According to Mr Lim, one of the major barriers to being unable to work are his physical symptoms. He cannot work because of these symptoms and this […] has led him to become depressed. Therefore, it can be argued that his Major Depressive Disorder is a secondary psychiatric condition. It rests on another factor, namely the physical symptoms of the Somatic Symptom Disorder. These would be considered secondary depressive symptoms. This is analogous to depressive symptoms after a back injury. On the other hand, Mr Lim does report being upset about the accident, despite having no memory of it. He also ruminates about the accident. This makes him feel depressed. It therefore could be argued that there is a primary component as well, contributing to the Major Depressive Disorder.

In summary, the Major Depressive Disorder could be considered to be predominantly, but not exclusively, a secondary psychiatric condition. The permanent impairment has a strong secondary component and a weak primary component.

I note that Mr Lim himself reports depression as the major symptoms or barrier to work. However, he has disengaged with psychiatrists and psychologists and is not on any antidepressant medication currently. Conversely, the physical symptoms are still significant and Mr Lim remains on medications, as needed, for them. One disorder could not be considered larger than the other. They both appear to contribute equal burden. If one was to divide his total psychopathology, one could only allocate it as follows:

•   Somatic Symptom Disorder - 50%

•   Major Depressive Disorder - 50%

As I have noted above, each one of those psychiatric disorders has a primary component and a secondary component. It is not straightforward to say that one disorder is a secondary psychiatric condition and the other disorder is a primary psychiatric condition.

In my opinion, Somatic Symptom Disorder has the following components:

•   Primary psychiatric impairment - 80%

•   Secondary psychiatric impairment - 20%

In my opinion, the Major Depressive Disorder has the following components:

•   Primary psychiatric impairment - 20%

•   Secondary psychiatric impairment - 80%

Taking the psychopathology as a whole, irrespective of the diagnosis, the primary psychiatric impairment component is 50% and the secondary psychiatric component is 50%.”

19. The matter was then returned to the Arbitrator but, in turn and with the consent of the parties, remitted to the Registrar for referral to another AMS (Dr Mason) to determine the degree of permanent impairment. As I have noted, on the basis of the decision in Kaur, the parties agreed that the issue that was referred to Dr Ng was one capable of being resolved by the Arbitrator. However, the matter was referred to Dr Ng to provide an assessment on the confined question of “whether the applicant has a primary psychological injury or secondary psychological injury”. Once it was agreed by the parties that Mr Lim was in fact suffering from a primary psychological injury the matter was referred to Dr Mason to actually assess the WPI based on that conclusion. It was at this time that the parties came to the agreement which has vexed the proceedings since. The Determination (Consent Orders) made on 14 March 2019 were as follows:

“1. The Certificate of Determination dated 11 March 2019 is revoked.

2. Remit the matter to the Registrar for referral to an Approved Medical Specialist for assessment of the whole person impairment due to a primary psychological injury sustained on 30 November 2008.

3. The documents to be reviewed by the Approved Medical Specialist are:

a.   Application to Resolve a Dispute and attachments;

b.   Reply and attachments;

c.   Application to Admit Late Documents received on 30 January 2019, and

d.   Medical Assessment Certificate of Dr B Ng dated 19 February 2019.

4. Note: The parties agree that the applicant is suffering from a primary psychological injury and a secondary psychological condition.”

(Emphasis added.)

20. I have emboldened the relevant terms of the agreement and the nature of the remitter. One of the issues that arose before the Appeal Panel, and on the present application, was the extent to which this agreement was binding and exactly what it meant. It is arguable that there was an assumption in the remitter (at [2]) that the plaintiff had a primary psychological condition. The note (at [4]) seems to confirm this.

Dr Mason’s Medical Assessment Certificate

21. In accordance with the Determination of 14 March 2019, Dr Mason prepared an MAC. He set out the medical and psychiatric history and identified Mr Lim’s present treatment and symptoms as well as his disabilities and the findings made on an examination of his mental state. Dr Mason’s summary of the plaintiff’s injuries and diagnoses at [7] was as follows:

“Mr Lim suffered a head injury in the workplace when he slept (sic) on ice just prior to bundying off. He was briefly unconscious and then experienced an unexpectedly long period of post traumatic amnesia. He was hospitalised for three weeks and on discharge has not managed a return to work over the last 10 years. Physical injuries consisted of fractures of his right orbit, zygoma and maxilla.

Mr Lim went on to develop symptoms immediately after discharge from hospital and these have persisted since then. His psychiatric condition is a severe major depressive disorder with psychomotor retardation and significant associated anxiety caused by his work accident in November 2008. This condition has not responded to evidence based treatment and should be regarded as treatment-resistant.

He has been assessed regarding a traumatic brain injury and two eminent neurologists (Professors Fearnside and Lance) have concluded that his condition is not consistent with this diagnosis. AMS Boyce concluded in his MAC dated 9 August 2016 that whole person impairment using the clinical dementia rating scale was 0%. All agreed that his condition was better explained by the psychiatric diagnosis.

In addition, Mr Lim suffers from regular headaches, dizziness and blackouts which have proved resistant to medical intervention. These are best conceptualised as representing a non-assessable Somatic Symptom Disorder. There has been some discussion in the documentation that these conditions are culturally mediated manifestations of depression. While this is entirely possible I do not believe a definitive statement can be made about this formulation.

I am in agreement with associate professor Michael Robertson that Mr Lim suffers from a primary major depressive disorder as a consequence of his work injury. I do not believe his condition is mediated by his brain injury or his somatic symptoms of headache, dizziness and blackouts. I am in agreement with clinical neuropsychologist Dr Robin Murray who described his psychological difficulties as a psychiatric condition rather than a brain injury and who was at pains to point out that the claimant was not malingering. I am not in agreement with the conclusions reached by psychiatrist Dr Graham George who regarded his psychiatric symptoms as secondary to a mild neurocognitive disorder.

In summary, Mr Lim suffers from a primary severe treatment resistant major depressive disorder with psychomotor retardation cause by the subject work accident. The associated symptoms of headache, dizziness and blackouts represent a non-accessible(sic) somatic symptom disorder.

Consistency of presentation

Mr Lim's presentation was internally consistent and consistent with the documentation provided.

It was also consistent with the mental state examination conducted.”

(Emphasis added.)

22. I have emboldened the first sentence of the second paragraph because the finding that the symptoms developed “immediately after discharge from hospital” is important in view of the reasoning adopted by the Appeal Panel. That reasoning seemed to imply that the symptoms developed some time later and that this “suggests a secondary condition”. [5]

    5. Appeal Panel Reasons dated 19 August 2019 at [57].

23. Dr Mason said at [10(a)]:

“I have diagnosed a major depressive disorder caused by the subject work accident which has stabilised. I have assessed the whole person impairment at 26%.”

24. Dr Mason went on to explain the reasons for his assessment. This included an analysis of earlier reports and opinions. He explained when and why he disagreed with some of the previous expert opinions and recounted Mr Lim’s treatment since his fall 11 years earlier and the conditions that had been ruled out in the course of the extensive medical examination and investigations. He said:

“Mr Lim has suffered from a well-documented major depressive disorder since his subject work accident. His condition has been shown not to have arisen from a traumatic brain injury. He satisfies all of the DSM-5 criteria for diagnosis of major depressive disorder.”

25. Dr Mason explained at [10(c)] why he disagreed with an opinion offered by Dr Graham George, who said in a report dated 7 January 2019:

“His psychological symptoms have not been as a direct result of the accident in itself, but, in my opinion, they have been secondary in nature to a mild neurocognitive disorder and its consequences.”

26. Dr Mason discounted this opinion because “Dr George had not been able to conduct a full Mini Mental State and Examination”. More importantly “a number of eminent neurologists have concluded there was no traumatic brain injury so it was not possible to diagnose any ongoing neurocognitive disorder”.

27. Dr Mason recorded the WPI as 44% in ‘Table 2 - Assessment in accordance with AMA5 and NSW workers compensation guidelines for the evaluation of permanent impairment for injuries received after 1 January 2002’ and in ‘Table 11.8 – PIRS Rating Form’ of the MAC. Dr Mason did not explain why the WPI was assessed at 26% in the body of the report and 44% in Table 2 and Table 11.8. Although, it is arguable that the assessment of 26% in the body of the report is a typographical error, noting that the assessment of 44% in Table 11.8 is the result of a calculation of the plaintiff’s scores in the ‘Psychiatric Impairment Rating Scale’ and is repeated in Table 2. This was, as the Appeal Panel subsequently found, “the most significant” error in the MAC. [6] Another difficulty with Dr Mason’s report was that it did not engage with the role that any somatic condition may have played. Reference was made to the opinions of other experts but Dr Mason did not provide an opinion as to how the two conditions affected each other, the extent to which they were “co-morbid” (as expressed in some of the earlier reports) or whether one was secondary to the other.

    6. Appeal Panel Reasons at [28].

Appeal and submissions to the Appeal Panel

28. The defendant (employer) appealed against Dr Mason’s MAC by application filed with the Commission on 13 May 2019. The grounds of appeal were identified in written submissions as follows:

“a. The failure by the AMS to apportion the total assessment of impairment between the Major Depressive Disorder (MDD) and Somatic Symptom Disorder (SSD) is a demonstrable error. Paragraph 11.4 of the SIRA Guides to the Evaluation of Permanent Impairment provide that somatoform disorders are to be excluded from any assessment of impairment.

b.   That the failure by the AMS to apportion the impairment resulting from the MDD between a secondary and primary injury represents a demonstrable error.

c.   That the assessments of the PIRS category for 'self care and personal hygiene' (class 4) is excessive, and inconsistent with the clinical evidence, and is a demonstrable error. The assessment should be reduced to class 3.

d.   That the AMS expresses an assessment of 26% WPI at part 10(a) of the MAC, but his assessment at Table 2 (page 11) of the MAC is 44% WPI. The inconsistency is not explained in the MAC and is a demonstrable error.”

29. It is worth noting the limit of the review to be undertaken by the Appeal Panel. Section 328(2) of the Workplace Injury and Management Act 1998 (NSW) (“WIM Act”) provides that:

“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.”

(Emphasis added.)

30. Written submissions filed with the Application to Appeal explained the arguments in support of those grounds. Ground (d) is self-explanatory and is referred to above; it was inevitable that this ground would be upheld. Ground (c) is not relevant to the present dispute. Ground (a) addressed Dr Mason’s failure to deal with the somatic symptom disorder and to apportion the WPI by reference to both conditions. Ground (b) was concerned with the failure to address the “differentiation of the primary and secondary nature of the Major Depressive Disorder”. Under ground (b), the defendant relied on the agreement between the parties that “the applicant is suffering a primary psychological disorder and a secondary psychological condition”. It relied on the opinions expressed by Dr Ng and a decision of this Court (Wilson J) in Mercy Centre Lavington Ltd v Kiely & Ors [2017] NSWSC 1234. In that regard, it was submitted that Dr Mason ought to have applied a “two-step process” by which the impairment caused by the “secondary psychological injury” was deducted from the total WPI. The defendant submitted:

“The [then] appellant submits that it is a demonstrable error that the AMS failed to follow the authority in Mercy Centre Lavington Ltd v Kiely, given that the parties agreed that a secondary psychological condition was present.”

31. Assuming Mercy Centre Lavington Ltd v Kiely is authority for the proposition there advanced, it might be noted that Wilson J also addressed s 328(2) of the WIM Act. Her Honour confirmed that the “grounds of appeal” include the submissions filed in support of the ground citing NSW Police Force v the Registrar of the Workers Compensation Commission of NSW [2013] NSWSC 1792 at [49] (Davies J). Her Honour went on to observe at [52]:

“It is tolerably clear from the wording of s 328(2) and from the authorities that there are restrictions upon the appellate function of the [Medical Appeal Panel]. It does not conduct an inquiry at large, but is confined to determining ‘the grounds of appeal on which the appeal is made’.”

32. Her Honour held in that case that the Appeal Panel acted contrary to the restriction in s 328(2) of the WIM Act. The plaintiff in the present case makes a similar submission as to the way in which the Appeal Panel conducted its review of Dr Mason’s report. In particular, it was submitted that there was nothing in the grounds of appeal that asserted that Dr Mason fell into “demonstrable error” in finding that the major depressive disorder was a primary psychological condition. Accordingly, on the plaintiff’s submission, it was not open to the Appeal Panel to find that the illness was a secondary condition and therefore not compensable.

33. The plaintiff (in this Court) filed written submissions to the Appeal Panel in which it contended “the AMS was not required to accept that agreement and was entitled to reach its own conclusions about the precise nature of the condition suffered by the respondent worker and more importantly, the impairment that resulted from any injury as found”. It expanded on this submission later:

“The AMS was not bound by the parties’ agreement to conclude that there were any continuing effects of any secondary psychological injury (see Haroun [7] ). In fact the agreement was only to the existence of an injury in the first instance. There was no agreement about any continuing effect of any injury. Any such agreement would not, in any event, be binding on the AMS or even persuasive.”

7. Haroun v Rail Corporation of New South Wales & Ors [2008] NSWCA 192.

34. Before the Appeal Panel, the plaintiff defended the MAC and contended the 44% WPI in Table 2 and Table 11.8 should be confirmed. He submitted that the reference to 26% WPI in the body of the report was a “typographical error”. He relied on the clear finding that he suffered from a major depressive disorder and that this was not caused by a traumatic brain injury and, thus (implicitly), it was not a secondary condition. It was contended that the somatic symptom disorder was a co-existent condition and that none of its symptoms (headache, vertigo and motion sickness, for example) were taken into account in making the assessment. In those circumstances, the AMS was not required to make any apportionment of the impairment between a major depressive disorder and a somatic symptom disorder.

The proceedings before the Appeal Panel

The process adopted by the Appeal Panel and the re-examination of the plaintiff

35. Neither party asked that the plaintiff be examined again for the purpose of the appeal.

36. Part 4 of the Application is entitled “Supporting Documentation” and addresses a series of questions to the “appellant” (that is, the defendant in this Court). Part 4.3 asks: “Do you request that the Worker be re-examined by an AMS who is a member of the Appeal Panel”. The “no” box is marked on the application. Even so, at the hearing in this Court the parties agreed that the Appeal Panel was entitled to arrange for another examination by one of its members. However, there was a dispute about whether, and the extent to which, this gave rise to issues of procedural fairness and a requirement that the parties be permitted to address the findings made on such an examination. In this regard, the defendant was granted leave to put on additional submissions after the hearing. I will return to that issue but, in any event, all that needs to be said is that the Appeal Panel decided to re-examine the plaintiff and the plaintiff does not dispute its power to do so. The plaintiff was notified by email dated 24 July 2019 that a medical examination was to be undertaken by Dr Julian Parmegiani on 8 August 2019. By that time, both parties had filed their documentation and submissions. The Application to Appeal and submissions were filed by the defendant on 13 May 2019. The plaintiff’s Notice of Opposition to Appeal and submissions were dated 27 May 2019.

37. Neither party sought an oral hearing and consented to the appeal being determined on the documents. However, at the time of those consents the plaintiff had not been examined by Dr Parmegiani. The parties did not receive a copy of Dr Parmegiani’s report before the publication of the Appeal Panel’s reasons on 19 August 2019.

38. After judgment was reserved in this matter, the defendant sought leave to make further submissions on the source of the power of the Appeal Panel to conduct a further examination of the plaintiff. This was unnecessary because there was no issue at the hearing that the Appeal Panel had the power to have one of its members conduct a further examination. Based on the submissions of experienced counsel who practise in the area, I was prepared to accept that this procedure was open to the Appeal Panel and is adopted in many cases. It is unnecessary to consider the matter further other than to note that in the exchange of written submissions that followed the hearing, it remained common ground between the parties that the Appeal Panel had this power.

39. However, the process created a problem in Mr Lim’s case because Dr Parmegiani concluded that the major depressive disorder was a secondary psychological injury on the basis that it arose from the somatic symptom disorder. This conclusion was adopted by the Appeal Panel. The plaintiff was not afforded the opportunity to address this conclusion or the anterior issues that arose from it. Those anterior issues included (at least):

1. An examination of the definition of “secondary psychological injury” in s 65A of the Act;

2. The limitation on the appeal created by s 328 of the WIM Act; and

3. The basis upon which the Appeal Panel departed from the opinion of the AMS, Dr Mason.

40. Whether these issues vitiated the decision of the Appeal Panel in the context of the grounds of appeal raised on this application for judicial review will be considered in the context of those grounds below. The issue was squarely raised and addressed at the hearing in this Court. However, the defendant also sought to file further submissions on the issue of procedural fairness. The plaintiff did not oppose the grant of leave provided he had the opportunity to respond. Accordingly leave was granted and further submissions were filed. I will return to those submissions in the context of addressing ground 3.

The decision and reasons of the Appeal Panel

41. The Appeal Panel noted its obligation to give reasons and attempted to comply with that obligation: see, for example, Campbelltown City Council v Vegan & Ors (2006) 67 NSWLR 372; [2006] NSWCA 284 at [117]. It acknowledged the limitation of its review power under s 328 of the WIM Act. It provided a helpful and compendious history of the matter including a careful analysis of the most significant reports being those of A/Prof Robertson, Dr Ng and Dr Mason.

41. The Appeal Panel was critical of the MAC, describing it as “replete with typographical and other errors” at [28]. The first of those criticisms was unfair and somewhat gratuitous. The MAC did have a few typos but it was comprehensible and reasonably well written. On the other hand, the Appeal Panel was correct to identify that it contained a significant error in the inconsistent assessment of the WPI (26% versus 44%) and in its failure to explain the approach taken to the somatic symptom disorder. The Appeal Panel held at [32]:

“The AMS agreed with A/Prof M Robertson that the major depressive disorder suffered by Mr Lim was a primary disorder but he failed to give any other reason explaining that decision. His reasoning was limited to the adoption of A/Prof Robertson’s opinion. The failure to expose the extent of his reasoning process was an error.”

43. This was not an error contended for by the defendant and not an issue that arose on the grounds and submissions advanced before the Appeal Panel: cf s 328(2) of the WIM Act. Further, it did not engage with Dr Mason’s explanation in preferring A/Prof Robertson’s opinion over that of Dr Watson and Dr George. The MAC stated at [10(c)]:

“It appears treating neurologist Dr Shaun Watson regards these conditions as physical sequelae of his head injury, despite the fact that there is no assessable neurocognitive deficit using the clinical dementia rating scale. This is in accordance with extensive neurophysiological testing conducted by neuropsychologist Dr Robin Murray.”

44. It continued:

“AMS Boyce found no impairment arising from a brain injury suffered in the workplace accident, in keeping with other neurological and psychiatric evidence.”

45. I have already alluded (at [25]-[26]) to Dr Mason’s clearly stated reason for rejecting the opinion of Dr George, namely that there was no diagnosed traumatic brain injury or neurocognitive disorder. In dealing with the opinion of neurologist Professor Fearnside, Dr Mason said “…it cannot be concluded that the claimant suffered a neurocognitive disorder as a consequence of his traumatic brain injury”.

46. Contrary to the opinion of the Appeal Panel, Dr Mason articulated his reasons for finding that the major depressive disorder was not a secondary psychological injury under s 65A(5) of the Act, that is, that it did not arise “as a consequence of, or secondary to, a physical injury”. Those reasons are extracted at [21] above and were, in essence, that there was no physical injury in the form of brain or neurological damage and that Mr Lim’s condition was not mediated by somatic symptoms of headache, dizziness or blackouts. That opinion and those reasons may have been right or wrong, but it was not a case of a failure to provide reasons at all. In any event, this was not an issue the Appeal Panel was called upon to determine.

47. The Appeal Panel went on to issue a new MAC based on the report of Dr Parmegiani. Dr Parmegiani concluded there was a WPI of 0%. This was based on two factors. First, the somatic symptom disorder was not assessable: see SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment – Fourth Edition (SIRA Guidelines) – Chapter 11, clause 11.4. Second, the major depressive disorder was a “secondary psychiatric condition” as it developed “as a result of his somatic symptom disorder”.

A diversion: Whether the somatic symptom disorder was assessable

48. There is potentially an issue in relation to the first of the reasons provided by the Appeal Panel (and in a number of the reports that proceeded it), that is that the somatic symptom disorder was not assessable under the relevant guidelines. The issue may be linguistic rather than substantive. It arises because the terminology used in the reports to describe the somatic condition was inconsistent. Further, the expression used to describe such disorders changed between the publication of DSM IV and DSM V. The relevant guidelines adopt the terminology used in the earlier version of the DSM.

49. The SIRA Guidelines provide:

“11.4 The impairment rating must be based upon a psychiatric diagnosis (according to a recognised diagnostic system) and the report must specify the diagnostic criteria upon which the diagnosis is based. Impairment arising from any of the somatoform disorders (DSM IV TR, pp 584-511) are excluded from this chapter.”

50. The problem with the application of this guideline is that DSM V refers to a “somatic symptom disorder” which, according to A/Prof Robertson “subsumed many of the previous psychosomatic disorders, which are excluded as grounds for a section 65 or 66 determination in the Guides”. A/Prof Robertson expressed a view that the conditions may be different and explained why. He described the issue as a “quandary” and the use of “DSM IV somatoform disorders” as redundant.

51. The Appeal Panel rejected the distinction drawn by A/Prof Robertson:

“52. The Panel does not agree that it is appropriate to draw the distinction proposed by A/Prof Robertson - that somatic symptom disorder as defined in DSM5 is different from one of three unrateable somatoform disorders (somatization, somatoform and pain disorders) as defined in DSMIV, that this diagnosis effectively replaced.

53. Whichever way the somatic symptom disorder is characterised, it is excluded from assessment under the Guidelines. By definition, if the evidence for a traumatic brain injury is weak in the context of the signs observed and symptoms described by Mr Lim, then the evidence for a somatoform disorder is strong.”

52. The defendant championed the position taken by the Appeal Panel. The plaintiff’s position on this issue was enigmatic but I think, for the purpose of this appeal only, I am inclined to accept that there was a something of a concession made in the following exchange:

“BEST: Somatic symptom disorder is not compensable.

HIS HONOUR: No, I understand that.

BEST: Yes.

HIS HONOUR: I mean, I understand that's the submission, but I also understand that that is not what 11.4 of the guidelines says. It refers to different language from a different diagnostic tool. And I am just trying to make sure when I walk out of here that everybody agrees there is no relevant distinction.

And I am sure you are right in terms of the policy behind this legislation, which seems to be to discount the fact that a plaintiff might be in absolutely horrifying pain, but because you cannot find a physical reason for it, you don't compensate them. I understand that's what the legislation does, but I just want to make sure that this changing language, which seemed to be important to Associate Professor Robertson, the reasoning rejected by the appeal panel, was common ground between the parties. But I do understand the submission, Mr Best.

BEST: Your Honour, the audio that I am hearing from your Honour is drifting in and out and I am just wondering whether Mr McManamey has got his on mute and may be that's the reason why?

MCMANAMEY: I don't think I am on mute. Can you hear me?

HIS HONOUR: We can hear you. I think the argument might be to be on mute, so we don't get feedback. You can always go off mute, if you want to interrupt.

MCMANAMEY: I heard that. I will just go on mute.

HIS HONOUR: Thank you. Mr Best, I don't know whether you picked up, I mean I do understand, I just want to know whether it's common ground?

BEST: Your Honour, I can't speak for Mr McManamey but as far as the defendant is concerned it is common ground and I might leave it at that and if Mr McManamey takes your Honour somewhere else on that, I'll leave that to him.

HIS HONOUR: What I might do, I know I have taken you out of your submissions, but this strikes me as being important to sort out.

BEST: Yes.

HIS HONOUR: Because it's something that I may be being unnecessarily preoccupied by.

BEST: Your Honour, I will place myself on mute and allow Mr McManamey to respond.

HIS HONOUR: Thank you. Mr McManamey this is not an area of dispute, is it?

MCMANAMEY: Well, your Honour, yes, but unfortunately it is yes and no. I know that's not very helpful but perhaps I can just explain the difference?

HIS HONOUR: As long as you don't explain it to me by saying exactly what I just said to Mr Best?

MCMANAMEY: I hope not. I missed part of it. It's this. There is a distinction. The difference between DSM IV and DSM V, it is common ground, makes no difference to the application of the guidelines at chapter 11.

However it does make a difference to what a Dr Robertson actually had to say and in that extent the appeal panel has fundamentally misconceived what he had to say and it's this; under the guidelines what is actually prohibited is impairment arising from any of the somatoform disorders and he cites DSM IV. I'm happy to accept that that also includes the equivalent that is under DSM V.

However what Dr Robertson said doesn't offend that section. Because what he in fact says at page 62 is this; he has already made an assessment of impairment resulting from the depressive issue which he opined is primary and he says this, ‘there remains the question of whether there could be a deduction for the effects of a secondary psychological injury’.

HIS HONOUR: Where were you just reading from?

MCMANAMEY: Page 62 of Dr Robertson's report.

HIS HONOUR: Of Dr Robertson's report?

MCMANAMEY: Yes, it's where the distinction arises. Your Honour will see there he raises the question whether there should be a deduction for the effect of the secondary psychological injury. He then says ‘the somatic symptom disorder diagnosed is different from the previous pain somatisation disorders’. He then says this, ‘having given the likelihood that Mr Lim's presentation of a somatising presentation of a depressive illness. The entirety of the observed WPI should be attributed to the psychological injury’.

What he is saying is all of the effects result from the depressive condition, but he doesn't defend that anyway. He is not saying that the effects are coming from the somatised disorder or whatever, he is saying they are the effects of a depressive condition. So that he is not actually drawing a distinction in analysis between one or the other, he is making the observation that the names have changed.”

53. The Appeal Panel, comprised of two expert medical practitioners, is in a better position than this Court to assess the language employed in the diagnostic tools and the implications of the change of expression between DSM IV and DSM V. Accordingly, I will proceed on the basis that, in spite of the change of language, the somatic symptom disorder could not attract lump sum compensation under the Act in spite of the distinctions drawn by A/Prof Robertson and the fact that the relevant guidelines referred to the “redundant” language of DSM IV. However, it is a matter that should be addressed by those responsible for the publication and currency of the relevant guidelines.

Returning to the reasons of the Appeal Panel

54. Having disposed of A/Prof Robertson’s opinion about the impact of the change of language concerning psychosomatic disorders, the Appeal Panel addressed the question of whether the major depressive disorder was a primary psychological injury or a secondary psychological injury. It concluded that it was a secondary psychological injury and therefore no compensation was payable in respect of the major depressive disorder pursuant to s 65A(1) of the Act. The reasons for this conclusion were essentially two-fold.

55. First, the Appeal Panel reasoned that the psychological injury must be secondary to the physical injury because Mr Lim had no memory of the fall. That part of the reasoning was as follows:

“56. However Mr Lim did not provide a history of graphic or distressing experiences or images at the time of his injury because he had no memory of the fall.

57. Mr Lim said in his statement dated 26 October 2018 that he remembered punching his card to knock off. He did not remember falling and said he awoke on the floor. He said that he ‘was very confused after waking up, and had great difficulty remembering why or how I sustained the injury.’ He described his treatment and said that when he saw Dr Tsang in December 2009, over a year after the physical injury, he told him that he ‘was feeling very depressed as a result of my injury.’ That description suggests a secondary condition.

58. The evidence about waking up on the floor of the factory is not consistent with the histories Mr Lim provided to medical practitioners.”

56. Second, the Appeal Panel adopted the reasons of Dr Parmegiani:

“61. Based on this evidence, Dr Parmegiani said:

‘In summary, Mr Lim had no recollection of his fall on 30 November 2008. He did not experience graphically distressing recollections of the accident, or the pain and terror normally associated with significant psychological trauma. Mr Lim woke up in hospital and he reported persistent cognitive deficits. Other symptoms included vertigo and dizziness. Mr Lim was initially distressed about his poor memory and other physical symptoms. His sleep pattern and appetite changed gradually with the passage of time.

Mr Lim's cognitive deficits have been extensively investigated by neuropsychologists, neurologists and neurosurgeons. His cognitive deficits have been now attributed to a Somatic Symptom Disorder, and not a brain injury. Mr Lim's history indicated that he developed a secondary Major Depressive Disorder as a result of his Somatic Symptom Disorder. Contemporaneous medical records indicated that he was still focusing on his cognitive deficits and other physical symptoms in 2010. Dr Tsang, psychiatrist, still questioned in 2010 whether Mr Lim had suffered cognitive impairment. Mr Lim's current Major Depressive Disorder was therefore a secondary psychiatric injury, and therefore impairment arising from it cannot be rated. Similarly, the Guides state that impairment arising from somatoform disorders, including a Somatic Symptom Disorder, cannot be rated.’

62. The Panel adopts that conclusion.”

57. The Appeal Panel then (relevantly) concluded its analysis as follows:

“65. The Panel does not agree that being upset about an injury of which Mr Lim has no memory of it is a primary psychological injury. That psychological upset is an injury which is secondary to a physical injury and is therefore a secondary psychological injury.

66. We acknowledge that Mr Lim suffers two significant psychiatric conditions. They are, however, conditions which do not result in an assessment of permanent impairment under the legislation and the Guidelines. The 2016 Guidelines state that impairment arising from a somatoform disorder (diagnoses now subsumed in the DSM5 diagnostic category of somatic symptom disorder) cannot be rated. Mr Lim's major depressive disorder was a secondary psychological condition, because it was caused by the now resolved physical injury and an ongoing somatic symptom disorder.”

Grounds 1 and 2:

1. The Appeal Panel erred in point of law when it failed to follow the binding agreement of the parties noted by the Arbitrator that the Plaintiff had suffered from a primary psychological injury and a secondary psychological injury.”

1. The Appeal Panel erred in point of law when it held that the Approved Medical Specialist ('AMS'), and therefore itself, was not bound by the agreement expressed in the Certificate of Determination because the nature of the Plaintiffs condition was a medical dispute as defined by section 319 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW).”

58. It is appropriate to deal with these grounds together. In view of the conclusion I have reached as to ground 3 it is sufficient to dispose of these grounds briefly. The approach taken by the plaintiff before the Appeal Panel, set out at paragraph [34] above, was inconsistent with the substance of these grounds.

59. Before the Appeal Panel, the plaintiff submitted that the AMS, Dr Mason, was entitled “to reach his own conclusions about the precise nature of the condition suffered by the respondent worker and more importantly, the impairment that resulted from any injury as found”. The plaintiff suggested that the agreement only went to “the existence of the injury in the first instance” and that the agreement was “not, in any event, binding on the AMS or even persuasive”.

60. Further, it was open to the Appeal Panel to take the view that the agreement was ambiguous. The Appeal Panel said:

“63. The Panel presumes that Dr Ng's report was the basis for the agreement in the COD [Certificate of Determination] dated 14 March 2019 that Mr Lim has a primary and a secondary psychological condition. Unfortunately, what the parties intended to convey by that agreement is unexplained and it is essentially meaningless.

64. The AMS was required to draw his own conclusion about the nature of the injury and the extent of the impairment.”

61. The Appeal Panel also said:

“48. The parties agreed that Mr Lim suffers a primary psychological injury and a secondary psychological condition and a Commission arbitrator issued a COD which led to the referral to the AMS. The AMS was not bound by the agreement expressed in that determination because the nature of Mr Lim’s condition was a medical dispute as defined in s 319 of the [WIM] Act.

49. In Bindah v Carter Holt Harvey Woodproducts Australia Pty Limited Emmet JA said:[8]

8. [2014] NSWCA 264 at [109].

"Thus, because an arbitrator has no jurisdiction to decide a medical dispute, an arbitrator has no jurisdiction to make findings that are binding on an approved medical specialist or on an Appeal Panel. A finding made by a person without jurisdiction cannot bind a person or persons who have jurisdiction (see Haroun v Rail Corporation New South Wales [2008] NSWCA 192 at [16] and [19] - [21])."

62. I accept that it is arguable that the Appeal Panel erred in its application of Bindah because of the repeal of s 65(3) of the Act in 2018. At the time Bindah was decided, s 65(3) provided that “if there is a dispute about the degree of permanent impairment of an injured worker, the Commission may not award permanent impairment compensation unless the degree of permanent impairment has been assessed by an approved medical specialist”: see Bindah at [36] (Emmett JA). The Second Reading Speech to the Workers Compensation Legislation Amendment Bill 2018 (NSW) included:

“The amendment will allow arbitrators to make determinations of permanent impairment by removing section 65 (3) from the [Act], which requires all permanent impairment disputes to be referred to an approved medical specialist prior to the Workers Compensation Commission awarding permanent impairment compensation.”

63. In any event, given the nature of the review provided for under s 69 of the Supreme Court Act 1970 (NSW), I would not interfere with the Appeal Panel’s decision in circumstances where the plaintiff invited the Appeal Panel to accept that the agreement was not binding or of very much weight: cf Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; [2010] NSWCA 190 at [268]-[275] (McDougall J).

64. I would not uphold grounds 1 and 2.

65. However, to conclude that it was open to the Appeal Panel to find that the agreement was not strictly binding is not the same as concluding that the agreement, and the way in which the case reached the Appeal Panel, was not a relevant matter in determining the appeal and in considering the issues that were in fact raised by the (now) defendant in its grounds and submissions before the Appeal Panel. That observation is pertinent to a consideration of ground 3.

“Ground 3: The Appeal Panel erred in point of law when it decided that there was no primary psychological injury in circumstances where that had not been advanced by either party and the Plaintiff was not afforded an opportunity to be heard on the issue.”

66. I have concluded that ground 3, which raises a similar but more fundamental issue, should be upheld.

67. As has been seen, the nature of the appellate review to be undertaken by the Appeal Panel was restricted by the operation of s 328(2) of the WIM Act.

66. The terms of the remitter to the AMS and the submissions made by the parties were such that it was clear that both parties were operating on an understanding that there was at least one “primary psychological injury”. There is no other way to understand the task cast upon the AMS to assess “the whole person impairment due to a primary psychological injury sustained on 30 November 2008”. [9]

    9. Determination (Consent Orders) dated 14 March 2019, order 2.

67. Neither the grounds of appeal nor the submissions made by the defendant to the Appeal Panel suggested that there was no primary psychological condition, or that the AMS erred in finding that the plaintiff’s major depressive disorder was a primary psychological condition.

68. Rather, the argument was that the AMS erred by (1) failing to apportion the percentage WPI between the major depressive disorder and the somatic symptom disorder and (2) failing to apportion the impairment resulting from the major depressive disorder between the secondary and primary injury. The Appeal Panel, at [21], noted the defendant’s submission was that “the appropriate result was to apportion the assessment of 26% as to 50% to each of the somatic symptom disorder and major depressive disorder, so that the assessment attributable to the major depressive disorder was 13% WPI”. Nowhere was it suggested that the WPI was 0% because the psychological injuries were secondary to the resolved physical injury and ongoing somatic symptom disorder, which was the effect of the Appeal Panel’s finding. Of course, the result is the same; if the plaintiff’s WPI is less than 15% it is not compensable: s 65A(3) of the Act.

69. In spite of the limited grounds and submissions advanced by the defendant, the Appeal Panel acted on its own finding that the major depressive disorder was a secondary psychological condition. Putting aside the adequacy of its reasons for this conclusion, the approach did not accord with the restrictive nature of the review permitted by s 328(2) of the WIM Act.

70. Further, because the Application to Appeal and the submissions accompanying that application did not raise the issue, Mr Lim had no opportunity to address the issues that arose. The report of Dr Parmegiani was not provided to the parties. The plaintiff was not afforded the chance to argue either, that the approach was not open as a matter of construction and operation of s 328 of the WIM Act, or that the approach was factually or medically wrong.

71. In the submissions filed after the hearing, the defendant relied on a number of authorities to assert that there was no denial of procedural fairness in the Appeal Panel relying on the report and opinion of Dr Parmegiani without providing it to the parties. However, the cases relied on were decided on their own facts and did not provide authority for what occurred in the plaintiff’s case.

72. In Estate of Heinrich Christian Joseph Brockmann v Brockmann Metal Roofing Pty Limited & Ors [2006] NSWSC 235, Studdert J held that the worker was not denied procedural fairness when an appeal panel did not provide an adverse report prepared by one of its members. The only real issue in the case of Brockmann was the extent of the impairment. That was an issue upon which the parties had the opportunity to address the panel and the examination and report undertaken as part of the appeal process went only to the issue that had been ventilated.

73. The decision of Studdert J was considered by the Court of Appeal in Maricic v The Registrar, Workers Compensation Commission [2011] NSWCA 42. The Court accepted that it was not a universal or general requirement of procedural fairness that an adverse report prepared by a member of an appeal panel be made available to the parties. However, the judgment of Hodgson JA made it clear that it depended on the circumstances of the case. His Honour said at [35]-[38]:

“[35] In my opinion Brockmann was correct, insofar as it decided that the relevant requirement to afford procedural fairness did not generally require disclosure to an applicant of an adverse report to an appeal panel by a member of that appeal panel who has, as an approved medical specialist, carried out a further medical examination for the purposes of an appeal to that appeal panel.

[36] However, in my opinion it should not be read as deciding that in no circumstances would failure to provide such a report be a denial of procedural fairness; and in my opinion, if it were to be so read, it would be an error. For example, if such a report were to reject an applicant's case on a basis not previously raised and not addressed in material provided by the applicant, procedural fairness may well require that the applicant be given an opportunity to deal with it: cf Siddik v WorkCover Authority of NSW [2008] NSWCA 116.

[37] In the present case, the issue of whether the applicant's complaints, including her complaints about her ability to move her neck, were genuine, had been squarely raised, for example in Dr Mathieson's report. When the applicant through her solicitor requested a further medical examination, it must have been apparent, at least to the applicant's solicitor, that one issue to be addressed would be whether the applicant's complaints concerning her ability to move her neck were genuine, and that the approved medical specialist would be observing the behaviour of the applicant during the examination in order to come to a view about this. The circumstance that the approved medical specialist's observation extended to his observation of the applicant talking to her husband just after the examination does not in my opinion make a significant difference.

[38] In those circumstances, I do not think this case is one of those cases where procedural fairness required that there be a report shown to the applicant and an opportunity given for the applicant to contest it.

[39] It is true that this has the effect that other members of an appeal panel may receive material adverse to an applicant, which has the considerable weight of a report and opinion of a co-member of the appeal panel, which the applicant has no opportunity to contest. However, where as in this case the material relates to an issue previously raised, on which the applicant has had an opportunity to put evidence and submissions, this does not in my opinion amount to a denial of the measure of procedural fairness which the WIM Act mandates.”

76. In my view, this was clearly “one of those cases where procedural fairness required that there be a report shown to the applicant and an opportunity for [him] to contest it”. This was particularly so because of the limited nature of the appeal process and the fact that the defendant’s grounds did not assert that that there was no primary psychological condition or that the AMS had erred in finding that the major depressive disorder was such a condition. There was also the fact that the approach taken by Dr Parmegiani gave rise to a difficult question as to the meaning of “secondary psychological condition” in s 65A(5). This is referred to below in dealing with ground 5 at [84]-[91]. However, it is also relevant that neither party requested a further examination or an oral hearing.

77. In the particular circumstances of the case, procedural fairness required the plaintiff to be given notice of these matters so that arguments could be addressed as to the factual findings upon which the Appeal Panel proceeded, whether the Appeal Panel was acting beyond the limited power of review and the grounds advanced by the defendant, and the issues of statutory construction that arose. These were not matters upon which the plaintiff had focussed his submissions in the proceedings before the Appeal Panel: cf Siddik v WorkCover Authority of NSW [2008] NSWCA 116 at [11]-[12] and [103]-[104].

78. For those reasons, ground 3 must be upheld.

“Ground 4: The Appeal Panel erred in point of law when it failed to give reasons for adopting the conclusion of Dr Julian Parmegiani.”

79. The observation at [62] of the Appeal Panel’s reasons, that “[t]he Panel adopts that conclusion”, being the conclusion of Dr Parmegiani set out at [61] (and [56] of this judgment), must be considered in context.

80. The surrounding observations and findings explain, rightly or wrongly, why the Appeal Panel decided to accept and act on Dr Parmegiani’s opinion. Stripped back to its essentials, those reasons were that (1) Mr Lim had no memory of the fall and, thus, any assessable psychological damage (severe depression) did not result from the fall but was secondary to the physical injury and (2) because brain and neurological damage were ruled out, the major depressive disorder must have been caused by the somatic symptom disorder. Thus it was a secondary psychological condition.

81. Those reasons, whether they were right or wrong in law or fact, were adequate for the reader and plaintiff to understand the basis of the decision. In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, Mahoney JA said at 273[E]:

“There is, I think, no formula the application of which to the instant case will indicate what, in that case, the judge must do. Where, in the decision of an ordinary dispute, reasons are necessary, they are necessary because of the expectation that, being a judicial decision, a sufficient explanation will be given of why the order was made. And, in my opinion, it will ordinarily be sufficient if — to adapt the formula used in a different part of the law: see R v Associated Northern Collieries (1910) 11 CLR 738 at 740 — by his reasons the judge apprises the parties of the broad outline and constituent facts of the reasoning on which he has acted.”

82. McHugh JA (as his Honour then was) adopted a similar approach at 280:

“If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5; 63 WN 34 at 36. But it is necessary that the essential ground or grounds upon which the decision rests should be articulated. In many cases the reasons for preferring one conclusion to another also need to be given.

…

Moreover, I agree with the statement by Mahoney JA in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (at 386) that the extent of the duty to give reasons is related ‘to the function to be served by the giving of reasons’.”

83. I would not uphold ground 4.

“Ground 5: The Appeal Panel erred in point of law when it considered that the Major Depressive Disorder was a secondary psychiatric injury because it was a result of another psychiatric condition being a Somatic Symptom Disorder.”

84. This ground raises a question of fact that arises in the context of the application of s 65A of the Act. On one view, the question is whether a somatic symptom disorder is a relevant “physical injury” for the purpose of the definition of “secondary psychological injury” under sub-s 65A(5) of the Act. As set out at [57] above the Appeal Panel (at [66] and [67]) characterised the somatic symptom disorder as a psychiatric injury, not a physical injury, and concluded that the major depressive disorder was secondary to that disorder as well as the “now resolved physical injury”.

85. Section 65A is in the following terms:

65A SPECIAL PROVISIONS FOR PSYCHOLOGICAL AND PSYCHIATRIC INJURY

(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.

(3) No compensation is payable under this Division in respect of permanent impairment that results from a primary psychological injury unless the degree of permanent impairment resulting from the primary psychological injury is at least 15%.

Note: If more than one psychological injury arises out of the same incident, section 322 of the 1998 Act requires the injuries to be assessed together as one injury to determine the degree of permanent impairment.

(4) If a worker receives a primary psychological injury and a physical injury, arising out of the same incident, the worker is only entitled to receive compensation under this Division in respect of impairment resulting from one of those injuries, and for that purpose the following provisions apply--

(a) the degree of permanent impairment that results from the primary psychological injury is to be assessed separately from the degree of permanent impairment that results from the physical injury (despite section 65 (2)),

(b) the worker is entitled to receive compensation under this Division for impairment resulting from whichever injury results in the greater amount of compensation being payable to the worker under this Division (and is not entitled to receive compensation under this Division for impairment resulting from the other injury),

(c) the question of which injury results in the greater amount of compensation is, in default of agreement, to be determined by the Commission.

Note: If there is more than one physical injury those injuries will still be assessed together as one injury under section 322 of the 1998 Act, but separately from any psychological injury. Similarly, if there is more than one psychological injury those psychological injures will be assessed together as one injury, but separately from any physical 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.

86. The plaintiff’s position is put succinctly in its written submissions at [57]:

“The reasoning adopted by the Panel makes it clear that the Major Depressive Disorder was at least in part, if not totally, the result of the Somatic Symptom Disorder. To that extent it was the result of a psychological injury and not a physical injury. Applying the terms of section 65 the condition was not a secondary psychological injury. A secondary psychological injury is one that results from a primary physical injury. A psychological injury that results from a primary psychological injury does not satisfy the definition in section 65.”

87. The defendant submits the plaintiff is wrong to assert, or proceed on the basis, that he suffered from only two conditions. In addition to the two psychological injuries, he also suffered an undoubted physical injury in the form of a head injury and facial fracture. The defendant submits:

“71. Understood in this context, the cause of the Plaintiff’s somatic symptom disorder – the physical and cognitive symptoms disproportionate to the mechanism of injury as described by the [Appeal Panel] at [44] of its Statement of Reasons – was a primary psychological injury that arose out of the same incident as the undoubted physical injury (as defined by s 65A(4)) – the Plaintiff’s head injury and facial fractures sustained on 30 November 2008.

72. None of the medical or other material suggests that the Plaintiff’s physical or psychological conditions arose in a vacuum. All arose as a result of the head injuries and facial fractures suffered on 30 November 2008. If follows that the Plaintiff’s major depressive disorder arose as a consequence of or secondary to the physical injury sustained by the Plaintiff on 30 November 2008 and, as such, it is secondary psychological injury, as defined.”

(Emphasis in original.)

88. In oral submissions, the defendant’s position was explained further in the following exchange:

“HIS HONOUR: Is the corollary of what you submit and what the Appeal Panel seemed to act upon that in any brain damage case, where a person has no memory of the incident any psychological sequela is a secondary injury?

BEST: Yes, it fits the criteria for the symptomatic somatic form disorder, yes.

HIS HONOUR: Putting that aside, let us say post-traumatic stress disorder, something outside the facts of this case, the way the Panel reasoned seemed to me to have the logical end game that if a worker, or injured party, does not remember the incident, then it must be a secondary disorder and that seems--

BEST: Yes.

HIS HONOUR: You say that is right?

BEST: Yes.

HIS HONOUR: Is there any authority to support that proposition?

BEST: No your Honour.” [10]

10. T, pp 23-24.

89. I do not accept that, in every case where an injured party has no memory of the event itself, it necessarily follows that any subsequent psychological illness is secondary to the physical injuries. That must be a matter for quite particular expert evidence. It was a matter that required more detailed consideration or argument before the Appeal Panel, particularly when the issue was not central to grounds of appeal or submissions before the panel and was not subject to any, or any extensive, argument. It is easy to imagine a case where a party’s psychological injury is caused, not by the physical injury itself, but by the unexpected nature of the event albeit that physical injury also results.

90. Further, it is difficult to conclude that the somatic symptom disorder is a “physical injury” as that expression is used in the definitions in s 65A(5). If it was that (psychological) disorder that caused the depression, on a literal interpretation of the definition of “secondary psychological injury”, the major depressive disorder was, at least in part, a “primary psychological injury”. The question may have become whether the somatic symptom disorder arose as a consequence of, was caused by, or was secondary to the anterior physical injuries. If so, it may be that both psychological injuries were secondary injuries. However, that was not a ground or submission upon which the appeal before the Appeal Panel was based: cf s 328(2) of the WIM Act. Given that there were (at least) two possible resolutions to this question, it was important for the Appeal Panel explain its reasons for coming to the conclusion that it did: Campbelltown City Council v Vegan & Ors (2006) 67 NSWLR 372; [2006] NSWCA 284 at [121] (Basten JA).

91. It follows that, while it was open to the Appeal Panel to reach its ultimate conclusion that the major depressive disorder was a secondary psychological injury, it erred in law in its approach to that question. It approached the matter on a basis that had not been argued in the grounds and written submissions. It failed to identify the physical injury and how the depression arose as a consequence of, or was secondary to, that physical injury whether “via” the somatic symptom disorder or otherwise.

92. I would uphold ground 5.

Conclusions and orders

93. The decision of the Appeal Panel was made on the basis of an error of law which appears on the face of the record. That legal error was constituted by the failure to afford Mr Lim the opportunity to be heard in relation to the conclusions reached by Dr Parmegiani and in determining the appeal on bases that were outside the scope of the grounds and submissions made by the defendant.

94. Accordingly, the decision of the Appeal Panel, and the MAC dated 16 August 2019, must be quashed and the case remitted to the Commission for further consideration. Whether the application proceeds before another Appeal Panel or is referred to an Arbitrator will be a matter for the Registrar of the Commission, depending on the position taken and submissions made by the parties. I say this noting that the parties before this Court seemed to agree that the matter could be determined by an arbitrator. However, I have not reached any conclusion as to the issue beyond the determination that the MAC that resulted from the proceedings before the Appeal Panel cannot be permitted to stand.

95. Ordinarily, costs would follow the event and there would be an order that the defendant pay the plaintiff’s costs. However, as a matter of procedural fairness, I will allow the defendant 7 days in which to file written submissions if it seeks any different order as to costs. The plaintiff will have 7 days in which to respond. The submissions are to be no longer than 3 pages.

93. The orders I make are these:

1. The decision of the Appeal Panel dated 19 August 2019 is quashed.

2. The Appeal Panel’s Medical Assessment Certificate bearing the date 16 August 2019 is quashed.

3. The matter is to be remitted to the Workers Compensation Commission to be dealt with according to law.

4. The defendant has until 29 October 2020 to file written submissions of no longer than 3 pages if it seeks to be heard against an order that “the defendant is to pay the plaintiff’s costs”.

5. The plaintiff has until 5 November 2020 to make written submissions in reply to the defendant’s costs submissions.

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Endnotes

Decision last updated: 22 October 2020