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a secondary psychological condition resulted from physical injury which, on the evidence, was not established; the MAC was revoked and assessment of impairment wholly attributable to primary psychiatric injury was made.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 the MAC. The matter was remitted to the Workers Compensation Commission for determination according to law. Subsequently the Workers Compensation Commission was abolished[2] and the matter came before the Workers Compensation Division of the Personal Injury Commission. The delegate of the Registrar of the Workers Compensation Division constituted the current Medical Appeal Panel and referred the appeal for decision according to law.
[1] Chhay Lim v Kaybron Pty Ltd [2020] NSWSC 1447 (the review proceedings).
[2] Clause 3 of Division 2 of Part 2 of Schedule 12 the Personal Injury Commission Act 2020 (the 2020 Act).
The WorkCover Medical Assessment Guidelines 2006 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 the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Mr Lim came to Australia as a refugee from Cambodia in the mid-1980s. He commenced employment with the appellant as a factory hand in about 1999. On 30 November 2008 he suffered an injury in the course of his employment when he slipped and fell, striking his head. Mr Lim was admitted to hospital where he was treated for head injury and facial fractures (the subject injury). He subsequently underwent investigations with respect to a possible brain injury.
Mr Lim was referred for treatment by a psychiatrist, Dr L C K Tsang, as he was suffering from depression. He consulted Dr Tsang on three occasions in 2009 and 2010 who prescribed medication but Mr Lim developed side-effects and ceased them. Mr Lim continued to experience symptoms. Investigations did not reveal injury to the brain.
Mr Lim consulted a psychologist in January 2011 and was again referred to a psychiatrist,
Dr Patricia Jungfer, in April 2014 who prescribed medication which again caused side-effects and had to be ceased.
In 2015 Mr Lim made a claim pursuant to section 66 of the Workers Compensation Act 1987 (the 1987 Act) alleging impairment to the central and peripheral nervous systems. That claim ultimately resulted in a binding determination that he suffered 0% whole person impairment (WPI) in respect of injury to the nervous system. The AMS making that assessment was of the view that impairment was psychological or psychiatric in nature.
In June 2018 Mr Lim was assessed by an independent medical expert, a psychiatrist, Associate Professor Robertson, who assessed Mr Lim as suffering 24% WPI as a result of the subject injury. A further claim was made based on that assessment.
The appellant denied the claim, relying on reports of an independent medical expert psychiatrist, Dr Graham George. Dr George was of the opinion that Mr Lim’s symptoms were somatic in nature and secondary to the symptoms arising from the subject injury and hence not capable of assessment of WPI for the purposes of section 66 of the 1987 Act.
The parties sought a non-binding opinion from a further AMS, Dr Bradley Ng, who issued a MAC dated 19 February 2019. Dr Ng diagnosed Mr Lim as having a Somatic Symptom Disorder which he believed was a primary psychiatric injury with a minor secondary component as well as a Major Depressive Disorder which he felt was predominantly a secondary condition with a minor primary component.
On 14 March 2019 consent orders were made for referral of the medical dispute to an AMS for assessment of WPI “due to a primary psychological injury sustained on 30 November 2008.” The consent orders noted; “The parties agree that the applicant is suffering from a primary psychological injury and a secondary psychological condition.”
In addition to the head and facial injuries, the AMS, Dr Wayne Mason diagnosed a primary major depressive disorder as a consequence of the work injury. He noted symptoms of a “non-assessable Somatic Symptom Disorder”. The AMS assessed Mr Lim as having 44% WPI as result of psychological injury on 30 November 2008 (incorrectly recorded as 26% in the body of the MAC).
That decision was the subject of an appeal to a differently constituted Appeal Panel which set aside the MAC and substituted an assessment of 0% WPI. As noted above, Mr Lim sought review of that decision. The decision was overturned and the matter remitted to the current Panel.

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 WorkCover Medical Assessment Guidelines 2006.
As a result of that preliminary review, the Appeal Panel determined that the worker should undergo a further medical examination because the dispute between the parties involved conflicting opinions of both independent and treating specialist medical practitioners and the Panel was of the view that the differing opinions did not allow complete understanding of
Mr Lim’s condition and his appropriate assessment in accordance with the Guidelines.

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.

Further medical examination

Dr Patrick Morris of the Appeal Panel conducted an examination of the worker on 20 April 2021 and reported to the Appeal Panel. His report is as follows:
“Re-examination for Medical Appeal Panel
Re:   Chhay LIM
Matter No:  M1-6409/19
DOB:   8 September 1963
Date of Injury:                 30 November 2008
Date of Assessment:       20 April 2021 (in-person assessment with interpreter)
Mr Lim was interviewed in-person with the assistance of a Khmer-language interpreter, Mr Bonna Thei, NAATI Number: CPN5YS41D. Mr Lim was accompanied in the assessment by his wife, Ms Lee Me Ked.
Mr Lim said that he was involved in a work accident on 30 November 2008 when working at Primo Smallgoods factory as a process worker making sausages. He said he was near the end of his shift on that day when he fell down on an icy floor. He said that he lost consciousness and woke up in hospital. He said he spent over two weeks in St George Hospital and said that he suffered significant injuries to the right side of his face and had a very swollen eye.
Mr Lim said after this accident he became very depressed and “unhappy”. He said he became very anxious and had very poor sleep. He felt “very frustrated in living”. He lost interest in previously enjoyed activities. He said that nothing gave him any pleasure. He described feeling “empty”. He said he did not want to see other people and wanted to be left alone. His appetite was poor and he had significant weight loss from his previous weight of 64kg to his current weight of 48kg. He reported having no energy and a very poor concentration. He found it very difficult to make decisions. He felt guilty and blamed himself for what had happened to him. He described feeling “very hopeless” and that life was not worth living. He had suicidal thoughts but did not act on them because of his concerns about his wife and children. He reported having very broken sleep every night. He described his thinking and movements as having slowed down. He felt restless and worried a lot. He described having a pain “in my head” and feeling dizzy and experiencing headaches frequently.
Mr Lim said that these symptoms have been present since the accident and reported them actually having worsened over time. Mr Lim is currently taking the medication Luvox 100mg two tablets at night. He and his wife said he has been on this for a number of years. He also takes Prochlorperazine 5mg when required for dizziness.
I questioned Mr Lim about his previous psychiatric treatment. He remembered seeing Dr Tsang, a psychiatrist in Fairfield, in the years 2009-2010. He confirmed that
Dr Tsang had tried him on a number of medications which either did not help him or had caused side-effects, and he had to cease taking them.
Mr Lim remembered seeing another psychiatrist Dr Jungfer in Burwood in 2014. He said that she also had tried him on a number of medications but these did not help his symptoms, or he developed severe side effects and subsequently had to stop taking them.

Mr Lim acknowledged seeing Dr Watson (a neurologist) in Blacktown in the period 2011 to 2017. He said that Dr Watson also tried him on a number of medications and said that it was Dr Watson who finally prescribed him Luvox 100mg two tablets at night which he has been taking for a number of years, now on prescription by his GP.
Mr Lim has not seen a psychiatrist since seeing Dr Jungfer in 2014. He has not seen a psychologist. He sees a Cambodian-speaking GP, Dr Vary Nou.
Mr Lim is living in his own home in Canley Heights with his wife who works full-time in a flower factory, and his son aged 26 and daughter aged 25, who both work in IT.
Mr Lim reported taking no other medications.
Mr Lim said he does not drink alcohol, smoke cigarettes or use illicit drugs.
Mr Lim reported being in very good psychological health prior to the work accident on 30 November 2008.
On mental state examination Mr Lim was a dishevelled-looking, thin, gaunt man of Southeast Asian appearance wearing a t-shirt, tracksuit top, pants and sandals. He walked and generally moved very slowly with evident psychomotor retardation. He was very withdrawn in his manner and sat in a slumped posture. It was difficult to develop rapport with him. His speech was soft and slow and with no spontaneity. His mood was pervasively depressed. His affect was appropriate to his mood and unreactive. There was no formal thought disorder and no psychotic symptoms.
Mr Lim was alert and orientated and able to give a reasonable history of his symptoms upon direct questioning, but was unsure about dates of treatment and names of previous psychiatrists and other doctors. His cognition was not formally tested due to language difficulty.
In view of Mr Lim’s severely depressed state I took the opportunity to ask his wife
Ms Ked for a corroborative history. She confirmed the history given to me by Mr Lim. She said that he became severely depressed after the work accident in November 2008. She said that he has become a “very sad and lonely person” who does not want to see anyone anymore. She said that he has been severely depressed ever since the work accident in November 2008.
From the documents provided, Mr Lim was seen by psychiatrists, Dr Leo Tsang in 2009-2010 and Dr Patricia Jungfer in 2014, with both having tried a number of different antidepressant medications in their treatments. I note that Dr Tsang had tried the medications Mirtazapine and Escitalopram, but Mr Lim could not tolerate side-effects of these medications. I note Dr Jungfer had tried a number of antidepressant medications including Nortriptyline, Mirtazapine, Duloxetine, Desvenlafaxine and Moclobemide but Mr Lim could not tolerate side-effects from these medications. (Sensitivity to side-effects from antidepressant medications used to treat Major Depressive Disorder is known to be more common in Southeast Asian patients.)
I note that Dr Watson, a neurologist whom Mr Lim saw in the period 2011 to 2017, also tried a number of medications for Mr Lim including a number of antidepressant medications such as Endep, Cymbalta, Dothep and Aropax as well as the mood-stabilising medication Epilim. Mr Lim and his wife believe Dr Watson commenced Mr Lim on Luvox 100mg which he now takes at a dose of two tablets at night. Mr Lim reports this medication as having little in the way of side-effects but also not having a significant effect in improving his depressive symptoms.
In my opinion Mr Lim has the psychiatric condition of Persistent Depressive Disorder (formerly known as chronic Major Depressive Disorder) with melancholic features and anxious distress, with current persistent major depressive episode, Severe level of severity according to DSM-5 diagnostic criteria. On the history given to me and the information provided in the documentation, Mr Lim has had continuous symptoms of his psychiatric condition of Persistent Depressive Disorder since his work accident on 30 November 2008.
I am not of the opinion that Mr Lim has a Somatic Symptom Disorder. I believe that
Mr Lim has Persistent Depressive Disorder as he has the core depressive symptoms of low (dysphoric) mood and anhedonia. I note also that according to DSM-5 a separate diagnosis of Somatic Symptom Disorder should not be made if somatic symptoms and related thoughts, feelings or behaviours occur only during major depressive episodes. I believe that Mr Lim has had major depressive disorder since the work accident on 30 November 2008 and any physical symptoms that he has had such as headaches, dizziness and other forms of pain have only occurred whilst he has had major depressive disorder. I believe that these physical symptoms are best interpreted as somatic idioms of distress as there is a well-accepted literature which supports the clinical experience that Southeast Asian patients with Major Depressive Disorder frequently express their psychological distress through somatic idioms due to cultural factors.
I have given Mr Lim a whole person impairment rating of 24% which is outlined below in the PIRS rating form.
Where I differed in my ratings from Dr Wayne Mason in his Medical Assessment Certificate dated 17 April 2019 were in my ratings for Self Care and Personal Hygiene and Social and Recreational Activities. Dr Mason rated Mr Lim a Class 4 for Self Care and Personal Hygiene whereas I rated him a Class 3. I rated Mr Lim a Class 3 as he does not require prompting to shower and change his clothes on a daily basis and his level of impairment in this area is not to the point where he needs supervised residential care. Dr Mason rated Mr Lim a Class 4 for Social and Recreational Activities whereas I rated him a Class 3. I rated Mr Lim a Class 3 as he occasionally goes out for meals on the prompting of his family. For Mr Lim to be a Class 4 rating in this area he would have to never leave his place of residence, which he does on these occasions.”

The PIRS rating form provided by Dr Morris is:

Table 11.8: PIRS Rating Form

Name	Chhay Lim
DOB	8 September 1963
Date of Injury	30 November 2008
Date of Assessment	20 April 2021

Psychiatric diagnosis	Persistent Depressive Disorder (chronic Major Depressive Disorder) with melancholic features and anxious distress.
Psychiatric treatment	Luvox 100mg two tablets at night.
Is impairment permanent?	Yes

PIRS Category	Class	Reason for Decision
Self Care and personal hygiene	3	Moderate impairment. Mr Lim requires the support of his wife to live independently. His wife does all the cooking, shopping, clothes washing and house cleaning whereas he used to help with these household chores before the work accident. He never cooks for himself. He frequently misses meals. He showers and changes his clothes by himself every day without prompting.
Social and recreational activities	3	Moderate impairment. Mr Lim never leaves his home by himself for any social or recreational activities. He very occasionally will go out with his family for a meal at a nearby restaurant at their prompting. He generally remains quiet and withdrawn at home.
Travel	3	Moderate impairment. Mr Lim never leaves his home unaccompanied because of his marked anxiety and fears. He said that his wife takes him to all his appointments. His wife accompanied him to the assessment.
Social functioning	2	Mild impairment. Mr Lim said that his relationship with his wife has been strained by his symptoms of depression but they remain living together with no episodes of separation or domestic violence. He reported having a reasonably good relationship with his children. He said he has lost all his friendships due to his social withdrawal.
Concentration, persistence and pace	3	Moderate impairment. Mr Lim reports being only able to read four to five minutes of a Khmer language book before losing concentration and having to put the book down. He complains generally of reduced concentration and short-term memory. He was able to give a reasonable history of his symptoms at the assessment but was unsure of dates and names of previous doctors he had seen for treatment.
Employability	5	Totally impaired. Because of the severity and pervasiveness of Mr Lim's depressive symptoms, including his markedly reduced concentration, lack of motivation and energy he would not be able to work at all in any form of employment.

Score

Median Class

Aggregate Score Impairment

Total

=19

Impairment Percentage WPI from table 11.8:	24%
Less pre-existing impairment if any:	Nil
Final Impairment % WPI:	24%

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 MAC discloses demonstrable error in four respects:
(a)    Failing to apportion the total assessment of impairment between the Major Depressive Disorder and Somatic Symptom Disorder.
(b)    Failing to apportion impairment resulting from the Major Depressive Disorder between a secondary and primary injury as the AMS failed to have regard to the agreement between the parties that Mr Lim had suffered a primary psychological injury and a secondary psychological condition.
(c)    That the assessment of the psychiatric impairment rating scale (PIRS) area of function “self-care and personal hygiene” as “severe impairment” (Category 4) was not open on the evidence.
(d)    The statement of reasons accompanying the MAC assessed Mr Lim at 26% WPI as result of psychiatric injury but the Table forming part of the MAC assessed Mr Lim as having 44% WPI, so that the actual assessment of WPI cannot reliably be ascertained from the MAC.
In reply, the respondent submits that the AMS was entitled to form his own opinion about the extent to which any secondary psychiatric condition contributed to the assessed level of impairment and, on the evidence, was entitled to come to the conclusion that the only condition productive impairment was the primary psychiatric condition, the Major Depressive Disorder. This was consistent with the physical injuries having resolved.
The respondent further submitted that somatic symptoms did not contribute to the impairment assessed and no error was disclosed in that regard. Assessment of Mr Lim as falling within Class 4 with regard to self care was a matter of clinical judgement and was open on the evidence. The reference to 26% WPI in the statement of reasons is a typographical error as the PIRS assessment is inconsistent with that assessment but is an accurate application of the Guidelines to produce 44% WPI.
The report of Dr Patrick Morris, a Medical Assessor member of the Panel, was supplied to the parties and further submissions sought. The appellant noted the comments of Hamill J in the review proceedings with respect to the agreement between the parties that Mr Lim had suffered a primary psychological injury and a secondary psychological injury. The respondent submitted:
“While it is noted that Hamill J did not interfere with the Appeal Panel’s decision, His Honour goes on to state at [65]:
‘.. 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 considering the issues that were in fact raised by the ‘now’ defendant in its ground in submissions before the Appeal Panel’.
Consistent with Justice Hamill’s comments, it is submitted that the agreement between the parties that the respondent suffers from both a primary and secondary psychological injury is a significantly relevant factor.”
The appellant highlighted the respective diagnoses of psychiatrists who had examined the respondent and noted the finding of the judge in the review proceedings 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”[3].
[3] The review proceedings at [91]
The Medical Assessor, Dr Morris, did not appear to have taken into account the agreement of the parties as to the existence of a secondary psychological condition. The appellant submitted that “Even if it is accepted that the only applicable diagnosis is Major Depressive Disorder then it is submitted that this diagnosis is, at least partly, the result of the somatic symptom disorder.” The appellant noted that the earlier Panel had reasoned in similar terms and the Panel’s reasoning had not been criticised as incorrect or without justification in this respect.
The appellant further submitted:
“No doubt the worker suffers from the physical injury in the form of the head injury in addition to the psychological features. It is submitted that, based on the weight of the medical evidence available, the Commission should be satisfied that the worker’s diagnosed psychological injury partly rose as a consequence of, or secondary to, the physical head injury.”.
The respondent submitted that the agreement that there had been both a primary and secondary psychological injury did not require a finding that a secondary psychological condition was contributing to the level of impairment assessed. The respondent pointed to the opinion of Dr Morris that “whilst there are periodic manifestations of somatic symptoms, they do not at the current time meet the criteria for a separate diagnosis” and accordingly none of the current impairment would be due to a secondary psychological injury.

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.
In Campbelltown City Council v Vegan[4] 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.
[4] [2006] NSWCA 284
The Panel accepts the submissions of the appellant that demonstrable error is established by reason of the failure by the AMS to either apportion the assessment of WPI between primary psychological injury, secondary psychological condition and somatic symptom disorder or to give reasons for attributing no part of the impairment to those possible causes.
It was evident from the terms of the referral that the parties were proceeding on the basis that there was both a primary psychological injury and a secondary psychological condition. The findings of the AMS and the evidence of medical reports raised an issue as to whether a diagnosis of Somatic Symptom Disorder was appropriate in the circumstances and, if appropriate, the extent of any contribution to the overall level of impairment should have been explained.
The Panel accepts that the ground of demonstrable error has been made out in these respects and the appeal succeeds on that ground. Since the Panel is of the opinion that it was necessary to conduct a re-examination of the respondent in order to determine the extent of impairment within the appropriate Guidelines, it is unnecessary to deal with the ground with respect to assessment of the PIRS category “self-care and personal hygiene”.
With respect to the appellant’s submissions that the AMS has stated in his reasons that he had assessed Mr Lim as having 26% WPI in respect of “a major depressive disorder caused by the subject work accident” whilst certifying 44% WPI in the accompanying table, the Panel accepts that, while this may be a typographical error, it is also open to the interpretation that the AMS intended to apply some sort of discount to the total assessed but had not followed through in the Table, nor expressed reasons for doing so. In this respect demonstrable error is also established.
The Panel notes the findings on examination of the medical assessor member of the Panel, Dr Morris, following his examination of Mr Lim. The Panel also takes into account the submissions of the parties with regard to those findings. The submissions of the parties and the evidence as a whole do not raise significant issues as to the course of events concerning Mr Lim since the subject injury. Rather, the issues raised are concerned with the conclusions to be drawn from the evidence. The Panel has reviewed the evidence, including the report of Dr Morris, in the light of the Guidelines.
The Panel accepts that it is required to assess Mr Lim in accordance with the Guidelines and, as submitted by the appellant, that requires:
“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 somatoform disorders (DSM IV TR pp 485-511) are excluded from this chapter.”[5]
[5] Guidelines, Paragraph 11.4
The Panel accepts that DSM-5 is the current and appropriate “recognised diagnostic system” in New South Wales and is the system adopted by the psychiatrists whose reports are in evidence.
The Panel accepts that there has been a primary psychological injury of the nature of a Major Depressive Disorder as defined by reference to DSM-5. That view is consistent with the agreement of the parties, the statement of Mr Lim in evidence and his account to psychiatrists whose reports were in evidence as to the existence of relevant symptoms from shortly after the subject injury (noting that there was a period of amnesia immediately following the subject injury).
The Panel accepts that Mr Lim suffered an undisplaced fractured of the right orbital floor, fractured right zygomatic bone and undisplaced fractured right lateral wall of the right maxillary sinus[6]. The Panel accepts that Mr Lim suffered a head injury which caused the fractures referred to, but no injury to the brain or neurological system is established on the evidence. Cranial CT on 5 December 2008 which the psychologist, Dr Murray, noted as taken “for ongoing dizziness and poor memory indicated no evidence of intracranial pathology”[7].
[6] MAC Associate Professor Geoffrey Boyce, 9 August 2016, page 2.
[7] report dated 21 September 2009, page 8.
The Panel accepts that Mr Lim developed somatic symptoms which included dizziness (vertigo) right temporal headaches, problems with memory and nausea which led to investigations in the brain injury unit of the Liverpool Hospital. The neuropsychologist,
[8] Page 5, paragraph 9.
Dr Murray, who examined Mr Lim on behalf of the insurer, also noted hands trembling, loss of balance and weakness of the knees. The Panel accepts that there is no evidence of an organic basis for those symptoms for the reasons summarised by Associate Professor Boyce in his MAC[8].
The Panel agrees with the diagnosis that Mr Lim suffered a Major Depressive Disorder. The Panel does not accept that it is appropriate to diagnose Mr Lim as having a Somatic Symptom Disorder, applying the provisions of DSM-5[9].
[9] DSM V, 300.82, pages 311 - 315.
Under the heading “Differential Diagnosis” in the section dealing with the diagnosis of Somatic Symptom Disorder, DSM-5 provides:
“If the somatic symptoms are consistent with another mental disorder (e.g., panic disorder) and the diagnostic criteria for that disorder are fulfilled, then that mental disorder should be considered as an alternative or additional diagnosis. A separate diagnosis of somatic symptom disorder is not made if the somatic symptoms and related thoughts, feelings, or behaviours occur only during major depressive episodes.”[10] (emphasis added).
[10] DSM V, page 314
Applying that guidance, the Panel is of the view that, given the finding of an ongoing Major Depressive Disorder resulting from the subject injury, it is not appropriate to diagnose Mr Lim as having a Somatic Symptom Disorder as a co-morbidity. Assessed in accordance with the Guidelines and DSM-5 it cannot be said that Mr Lim suffers, or has suffered, from a Somatic Symptom Disorder. The preferred view is that Mr Lim has somatic symptoms which form part of the recognised Major Depressive Disorder.
Section 65A of the 1987 Act 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.”
The phrase “secondary psychological injury” is defined in section 65A(5) to mean “a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury”.
The Panel is satisfied that the only physical injury suffered by Mr Lim as a result of the subject accident were the facial fractures referred to above. Those fractures appear to have resolved during the three week period of hospitalisation because there is no evidence of any ongoing treatment following Mr Lim’s period of hospitalisation at St George Hospital. The facial fractures do not appear to have given rise to any psychological sequelae.
The Panel is satisfied that the symptoms referred to above, including dizziness, headaches, sleeplessness, nausea and memory loss could not be said to constitute “physical injury”.
Dr Graham George in his report dated 14 August 2018 stated:
“… The working diagnosis does appear to be one of a mild neurocognitive disorder in association with a somatic symptom disorder. I believe that the changes in his personality and functioning reflect his head injury and a somatic symptom disorder is secondary to the initial injury”
and
“I regard his psychiatric somatic symptoms to be secondary to the symptoms arising from the fall, a head injury with neurocognitive and personality change.”
Dr George confirmed that opinion in a supplementary report dated 7 January 2019. The Panel does not accept that diagnosis. The respondent underwent neuropsychological testing and the report of Dr Robin Murray[11] supports a finding that there was no neurological injury and no “neurocognitive disorder”. The Panel accepts the opinion of Associate Professor Robertson: “The clinical features do not conform with the criteria for traumatic brain injury.”[12] For this reason the Panel does not accept that Mr Lim suffered a psychological condition secondary to physical injury.
[11] Report dated 21 September 2009, page 10.
[12] Report dated 18 June 2018, page 7.
Associate Professor Robertson reported:
“Based on this assessment and my read of the provided information, it seems that the best diagnostic formulation to account for Mr Lim’s chronic psychiatric problems is a chronic Major depressive disorder with a comorbid somatic symptom disorder.”
The Panel accepts Associate Professor Robertson’s diagnosis of Major Depressive Disorder but, for the reasons outlined in DSM-5, the Panel is satisfied that it is not appropriate to add a diagnosis of Somatic Symptom Disorder. The diagnosis of the Medical Assessor members of the Panel is that Mr Lim suffers from a major depressive disorder which presents in part with somatic symptoms.
The appellant submitted that part of the depressive condition could be considered as secondary to the somatic symptoms. The Panel does not accept that submission as the somatic symptoms do not constitute “physical injury” for the purposes of the definition.
It follows that the extent of the impairment flowing from the primary psychological injury suffered by Mr Lim is not to be regarded as contributed to by Somatic Symptom Disorder or by a psychological condition secondary to physical injury. In the opinion of the Panel the entire level of impairment is attributable to the primary psychological injury when assessed in accordance with the Guidelines and DSM-5.
The level of impairment assessed by Dr Morris is similar to that assessed by Associate Professor Robertson in 2018. Associate Professor Robertson and Dr Morris agreed in their assessment in the areas of self care, social and recreational activities, social functioning and employability. The AMS assessed a higher degree of impairment with respect to self-care and social and recreational activities but agreed with Associate Professor Robertson and
Dr Morris in the areas of social functioning and employability.
Dr Morris, based on the information provided to him on examination, assessed travel at a higher level than that assessed by Associate Professor Robertson and again, based on information provided to him on examination, assessed a lower degree of impairment with regard to the area of concentration persistence and pace. The Panel accepts the opinion of Dr Morris with regard to the respective areas of function as an accurate reflection of the history provided to him on examination considered in the light of the whole of the rest of the evidence.
There is no evidence that treatment is having an effect such as to warrant any additional assessment of impairment.
There is no evidence of any prior injury or any pre-existing condition or abnormality warranting any deduction pursuant to section 323 of the 1998 Act.
Accordingly, the Panel determines that Mr Lim suffers 24% WPI as a result of the primary psychological injury suffered on 30 November 2008. No part of that level of impairment is attributable to Chronic Symptom Disorder or a secondary psychological injury.
For these reasons, the Appeal Panel has determined that the MAC issued on 17 April 2019 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

PERSONAL INJURY COMMISSION

APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Panel revokes the Medical Assessment Certificate of Dr Wayne Mason and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Table - Whole Person Impairment (WPI)

Body Part or system	Date of Injury	Chapter, page and paragraph number in WorkCover Guides	Chapter, page, paragraph, figure and table numbers in AMA 5 Guides	% WPI	Proportion of permanent impairment due to pre-existing injury, abnormality or condition	Sub-total/s % WPI (after any deductions in column 6)
1. Psychiatric and psychological disorders	30/11/08	Chapter 11, page 54, para 11.4	Chapters 1 and 2	24%	Nil	24%
Total % WPI (the Combined Table values of all sub-totals)					24%

Mr William Dalley
Member
Dr Patrick Morris

Medical Assessor

Dr Brian Parsonage

Medical Assessor

22 June 2021