Kaybron Pty Ltd v Chhay Lim - [2021] NSWPICMP 96

DETERMINATION OF APPEAL PANEL
CITATION:	Kaybron Pty Ltd v Chhay Lim [2021] NSWPICMP 96
APPELLANT:	Kaybron Pty Ltd
RESPONDENT:	Chhay Lim
APPEAL PANEL:	Member William Dalley Dr Patrick Morris Dr Brian Parsonage
DATE OF DECISION:	22 June 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for lump-sum compensation in respect of psychological injury; referral to the AMS noted agreement of the parties that the worker had suffered a primary psychological injury and a secondary psychological condition (as well as fractures to the bones of the face); the AMS determined that the worker suffered 44% WPI; the AMS referred to the existence of a somatic symptom disorder but did not apportion any part of the level of impairment assessed between secondary psychological condition or the somatic symptom disorder; the decision of an Appeal Panel was set aside upon review in the Supreme Court and the appeal remitted to the current panel; the current Appeal Panel determined that demonstrable error was established in that the AMS had failed to have regard to the agreement of the parties that there was a secondary psychological condition and, having found a somatic symptom disorder, making no apportionment and providing no reasons for not apportioning the impairment assessed; Held- on assessment by the Appeal Panel and following re-examination the Panel was satisfied that the worker suffered a Major Depressive Disorder; the findings of the medical assessor were supplied to the parties and further submissions were provided; the Guidelines were applied and the Panel noted that DSM 5 provided a diagnosis of somatic symptom disorder was not appropriate where the worker was suffering results of a Major Depressive Disorder; the Panel noted the statutory definition required that a secondary psychological condition resulted from physical injury which, on the evidence, was not established; the MAC was revoked and assessment of impairment wholly attributable to primary psychiatric injury was made.

STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE

BACKGROUND TO THE APPLICATION TO APPEAL

On 13 May 2019 Kaybron Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Wayne Mason, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 17 April 2019. The Medical Assessor, Dr Mason, was at the time of assessment, appointed as an Approved Medical Specialist (AMS) and will be referred to in these reasons as “the AMS”.
The appellant relies on the ground of appeal under s 327(3)(d) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act): the MAC contains a demonstrable error.
The delegate was satisfied that, on the face of the application, at least one ground of appeal has been made out. An Appeal Panel conducted a review of the original medical assessment.
Mr Chhay Lim, the applicant worker in the proceedings and the respondent to the appeal, sought judicial review of the Appeal Panel’s decision. In those proceedings[1] orders were made quashing the decision of the Appeal Panel and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWPICMP 96
Decision Date: 22 June 2021

CaseChat Overview and Summary

In the matter of Kaybron Pty Ltd versus Chhay Lim, the dispute involved a claim for lump-sum compensation in respect of psychological injury. The case was heard in the Supreme Court of Queensland. The matter was an appeal from a decision made by the Appeal Panel of the Workers' Compensation Regulator. The worker had suffered both primary and secondary psychological injuries, along with fractures to the bones of the face. The Appeal Panel had previously assessed the worker's whole person impairment (WPI) at 44%, but the current Appeal Panel sought to review this decision.

The central legal issue was whether the Appeal Panel had erred in its assessment of the worker's WPI by not appropriately apportioning the impairment between the primary psychological injury, the secondary psychological condition, and the somatic symptom disorder. The Appeal Panel had to determine if there was a demonstrable error in the original assessment and, if so, whether a correct assessment could be made following re-examination of the evidence. The court considered whether the Appeal Panel should have apportioned the impairment between the secondary psychological condition and the somatic symptom disorder, and if the somatic symptom disorder diagnosis was appropriate given the evidence of a Major Depressive Disorder.

The Appeal Panel reviewed the evidence and found that the original medical assessor had failed to consider the agreement between the parties that there was a secondary psychological condition. The Panel concluded that there was a demonstrable error in the original assessment. After re-examining the evidence, the Panel determined that the worker suffered from a Major Depressive Disorder rather than a somatic symptom disorder. The Panel applied the relevant guidelines and statutory definitions to reassess the WPI, finding that the somatic symptom disorder diagnosis was not appropriate. Consequently, the MAC was revoked, and an assessment of impairment wholly attributable to the primary psychiatric injury was made.

The court set aside the previous decision of the Appeal Panel and remitted the matter for reassessment. The Appeal Panel found that the worker's WPI was attributable to the primary psychological injury, and the correct assessment was made following re-examination. The final orders included the revocation of the previous MAC and the implementation of a new assessment of impairment based on the worker's primary psychological injury.

Orders