Wang v Star Timber Pty Ltd
[2023] NSWPICMP 515
•16 October 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Wang v Star Timber Pty Ltd [2023] NSWPICMP 515 |
| APPELLANT: | Yanan Wang |
| RESPONDENT: | Star Timber Pty Limited |
| APPEAL PANEL | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | John Baker |
| MEDICAL ASSESSOR: | Graham Blom |
| DATE OF DECISION: | 16 October 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Significant physical injury and psychological injury; referred to Medical Assessor (MA) without determination of primary/secondary psychological injury; ma diagnosed post-traumatic stress disorder (primary) and major depressive disorder (secondary) and apportioned 50% to each; appeal lodged then referred to Commission member who determined there was a primary and a secondary injury; MA did not set out symptoms relied on or diagnosis of major depressive disorder; re-examination; worker suffered both conditions; on the evidence, apportionment was open to the MA in the exercise of his clinical judgement; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 12 December 2022 Yanan Wang lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Douglas Andrews, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 15 November 2022.
The dispute as to permanent impairment was referred to the Medical Assessor without determination of any issue by a member of the Personal Injury Commission (the Commission).
The Medical Assessor determined that Mr Wang suffered a primary and a secondary psychological injury.
Mr Wang appealed and relied on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
Mr Wang was employed by Star Timber Pty Limited (Star Timber) as a floor layer. On 4 August 2020 he was cutting timber with a jigsaw when he suffered lacerations to his left index and middle fingers. On the following day he underwent surgery to his left middle finger extensor tendon, nail bed and digital nerve as well as stabilisation of the fracture by K-wire. Mr Wang underwent extensor tenolysis of his left middle finger in December 2020.
Mr Wang’s treating doctors diagnosed post-traumatic stress disorder, as did Dr Hong, qualified by his solicitors. Dr Verma, qualified for Star Timber, also diagnosed post-traumatic stress disorder but said that Mr Wang also suffered a secondary psychological injury.
Star Timber said in its dispute notices under s 78 of the 1998 Act that Mr Wang suffered a primary and a secondary psychological condition. That issue was also referred to in the Reply form but Star Timber did not ask the Commission to list the matter before a member and it was referred directly to the Medical Assessor.
The Medical Assessor assessed Mr Wang’s permanent impairment at 17% and attributed half to each of the primary and secondary injuries.
On 20 February 2023, a delegate of the President issued a written decision in which he determined that there was an outstanding liability decision and said that the question of whether Mr Wang suffered a secondary psychological condition was a medical dispute which the Medical Assessor did not have jurisdiction to determine. The matter was referred to a Member of the Commission to determine if Mr Wang suffered a secondary psychological injury. Depending on the outcome, the delegate said, the substance of the appeal would be reconsidered.
After an arbitration hearing, Member Sweeney gave an oral decision on 14 April 2023 in which he determined that Mr Wang suffered an injury to his left hand, a primary, psychological injury being post-traumatic stress disorder and a secondary psychological injury as a result of the injury to his left hand.
The parties both filed supplementary submissions after Member Sweeney’s decision as to how the Commission should deal with the medical appeal. Having reviewed those submissions, the President’s delegate was satisfied that, on the face of the application, at least one ground of appeal was made out – that the MAC contained a demonstrable error.
The appeal was then referred to us. We conducted a review of the original medical assessment, limited to the grounds of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
PRELIMINARY REVIEW
We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, we determined that Mr Wang should undergo a further medical examination. The Medical Assessor diagnosed post-traumatic stress disorder and major depressive disorder with anxious distress under the Diagnostic and Statistical Manual of Mental Disorders, 5th edition (DSM-5). While he set out Mr Wang’s symptoms, he did not identify those on which he relied to reach the latter diagnosis, as opposed to post-traumatic stress disorder. That was a demonstrable error rather than the application of incorrect criteria relied on by Mr Wang. A re-examination was necessary to resolve that error.
EVIDENCE
We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
Dr John Baker of the Appeal Panel conducted an examination of the worker on 22 September 2022 and reported to us. The report is attached to and forms part of these reasons.
The parts of the MAC 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 we have considered them.
Neither party made any submissions about the Medical Assessor’s overall assessment of 17% whole person impairment (WPI) or the method he used to reach it.
In summary, and in submissions prepared by his solicitor, Ms Huang, Mr Wang submitted that the Medical Assessor applied incorrect criteria because a diagnosis of major depressive disorder under DSM-5 does not include criterion B or C symptoms relevant to a diagnosis of post-traumatic stress disorder. He said that post-traumatic stress disorder was diagnosed by his treating doctors who were all aware of the pain and disability he suffered in his hand. He said that the fact that his pain and disability had triggered post-traumatic stress disorder symptoms did not preclude post-traumatic stress disorder being the only diagnosis and that his treating doctors had not diagnosed major depressive disorder.
Mr Wang said that the Medical Assessor made demonstrable errors in that he impermissibly elided the fact that Mr Wang underwent surgery to his hand with the causation of the psychological injury and that the trauma was the only cause of that injury. Mr Wang also said that the Medical Assessor erred in concluding that multiple diagnoses were available when the Medical Assessor did not identify any symptom which “lies outside PTSD.”
Mr Myles prepared submissions on behalf of Star Timber and said that the Medical Assessor had not applied incorrect criteria because it was only necessary that he explain the diagnostic system used to reach a diagnosis. Star Timber said that Mr Wang’s submissions misunderstood the criteria in DSM-5 and the fact that the Medical Assessor said that the post-traumatic stress disorder was related to the trauma and major depressive disorder was due to physical pain. It said that the Medical Assessor appropriately applied the Guidelines, coming to his own diagnosis.
Star Timber did not agree that the Medical Assessor made a demonstrable error and said that Mr Wang’s submissions misunderstood the Medical Assessor’s conclusion.
In supplementary submissions prepared after the determination by Member Sweeney and dated 26 May 2023, Mr Wang said that while the question of injury was one for the Commission, the diagnosis was a medical issue. He said that the Medical Assessor applied incorrect criteria in determining that the diagnosis of major depressive disorder was available. He said that if the diagnosis of post-traumatic stress disorder existed, then it excluded the diagnosis of major depressive disorder.
In the alternative, Mr Wang adopted Member Sweeney’s observation that a 50% apportionment was “problematical” and said that s 323 (2) should have been applied because the extent of the contribution was difficult or costly to determine. On that basis, he said that a deduction of one-tenth was appropriate “for the pre-existing injury or condition.”
He also said that there was no basis in the legislation for the task set for the Medical Assessor and that it was a demonstrable error to make an apportionment on an ad hoc basis. Mr Wang said that even if the diagnosis of major depressive disorder was sustainable, the Medical Assessor was required to provide a basis for the apportionment, which extended beyond acknowledgement of the other medical evidence in the file. A copy of the transcript of Member Sweeney’s decision was attached to the submissions.
Star Timber said that it was inappropriate for Mr Wang to submit that he had not suffered a secondary psychological injury and that the assessment by the Medical Assessor should be upheld. It said that the reference to the apportionment being “problematical” was taken out of context, quoting from Member Sweeney’s decision at some length. Noting that Member Sweeney described the MAC as containing a “very detailed analysis” and being “logical and compelling” and “carefully prepared”, Star Timber said that there was no basis to assert that the Medical Assessor made a demonstrable error or applied incorrect criteria. Star Timber said that if the Guidelines did not mandate a process for apportionment, there cannot be a demonstrable error and that the Medical Assessor had not failed to give reasons for his assessment.
EVIDENCE
Treating medical evidence
Mr Wang underwent surgical treatment performed by Dr Kumar on 5 August 2020. The K‑wire was removed on 2 September 2020. Mr Wang’s hand did not heal and he saw Dr Chan, referred by Dr Zhu, on 21 October 2020. Dr Chan noted Mr Wang’s background medical history and said he had a lengthy discussion with Mr Wang regarding his injury. Dr Chan performed the third operation on 18 December 2020.
Mr Wang’s general practitioner at the time of the injury was Dr Zhu, whom he consulted for the first time after the injury on 6 August 2020, having undergone emergency treatment. He continued to consult Dr Zhu about his physical injury and other conditions until mid 2021. Dr Zhu provided a certificate of capacity for the period 28 August 2020 to 31 December 2020 in which he said that pain was a factor affecting recovery.
As the Medical Assessor noted, mental health was mentioned for the first time on 6 January 2021. A mental health care plan was created, citing relationship problems. The mental health care plan dated 6 January 2021 does not mention the injury.
On 12 January 2021 Mr Wang began to consult Dr Lim. In a report dated 13 January 2021, Dr Lim said:
“He experiences disturbed sleep due to pain and nightmares. He has flashbacks about cutting his fingers with an electric saw. He felt anxious and in a panic whilst using a stanley knife to open a parcel.”
Dr Lim noted “PTSD symptoms” at that first consultation.
Mr Wang consulted Ms Tang, a psychologist at Dr Lim’s practice on 28 January 2021 who noted the post-traumatic stress disorder diagnosis and recorded (PCL-5 = 70) referring to the score obtained using the post-traumatic stress disorder checklist for DSM-5. Ms Tang also used the Hamilton Rating Scale for Depression to assess Mr Wang at 27/52 which corresponds to “severely ill”.[1]
[1] Application to Resolve a Dispute (ARD) p 407.
Ms Wang saw Ms Tang on a fortnightly, then three weekly, basis.
Mr Wang saw Dr Kumagaya, psychiatrist, on 3 March 2021. He said in his report to Dr Lim of the same date:
“Mr. Wang reported the subsequent onset of posttraumatlc stress disorder symptoms after his workplace accident. These included Intrusion symptoms (intrusive and distressing memories and dreams of the accident, psychological distress at exposure to external cues that resembled the accident), avoidance symptoms (avoidance of external reminders of the accident e.g. knives, sharp objects, negative alterations in cognitions and mood (negative emotional state, difficulty experiencing positive emotions, markedly diminished interest and participation in significant activities e.g. exercising, socialising with friends), and arousal symptoms (hypervigilance, exaggerated startle response, consistent initial and middle insomnia, concentration difficulties). Mr. Wang denied any acute risks by virtue of thoughts of self-harm, suicidal Ideation, or harm towards others. He also denied any further affective/anxious/psychotic symptoms.
Such were his psychiatric / psychological symptoms that Mr. Wang commenced St. John’s Wort approximately 3 weeks ago, in addition to Valerian Forte. He was yet to experience a significant Improvement In his mental state as a result of these two medications, however. There were mild gastrointestinal upsets noted in relation to St. John’s Wort.”
Dr Kumagaya’s only diagnosis was post-traumatic stress disorder. He continued to see Mr Wang at monthly intervals.
On 4 March 2021 Mr Wang was reviewed by Dr Chan who wrote to Dr Zhu and said:
“Yanan has done very well with his extensor tenolysis and his relative motion extension splinting. I have encouraged him to return to work. Psychologically, he does not feel ready and is hesitant to use a saw. I understand that you had already referred him to a psychologist to help address this. If not, referral would be worthwhile.”
On 27 May 2021 Ms Tang completed an Allied Health Recovery Request in which she said that Mr Wang’s diagnosis was post-traumatic stress disorder though his score under PCL-5 had reduced to 44/80. She recorded that his Hamilton Rating Scale was 27/52.
On 8 July 2021 Dr Chan wrote again to Dr Zhu and said:
“Yanan has not returned to work. He described significant sleep and mood disturbances. He has been receiving treatment from a psychologist and a psychiatrist.
Yana’s fingers have responded well to surgery. His main issues are now psychological and psychiatric. He does not need to see me unless there are ongoing problems with his trigger finger.”
Though his diagnosis did not change, Dr Kumagaya recorded symptoms relevant to post-traumatic stress disorder and to major depression on 1 October 2021:
“Mr Wang reported relative mental state stability from the point of his previous review. He reported enduring problems with arousal symptoms – irritability, concentration difficulties, sleep disturbance (initial insomnia even with mirtazapine), and exaggerated startle response, hypervigilance. He continued to be troubled by a mood that remained low, spontaneous teariness, flashbacks (especially when experiencing pain about his hands, which reminded him of the workplace trauma). His nightmares had resolved, although Mr Wang suspected that this may have been contributed to be his sleep disturbance (‘I’m not sleeping enough to see nightmares’). There were no acute risks elicited.”
Mr Wang prepared a statement on 13 March 2022 in which he said that his psychological injury developed immediately following the accident, and he began to develop nightmares, flashbacks to the instant, and anxiety when using sharp objects. He said that particularly in the first few months after the accident, he could not use any knives to cut vegetables at home. He described suffering nightmares about the incident and he said he had developed various anxieties. Mr Wang said:
“My PTSD symptoms commenced from the immediate outset of my injury but became more prominent after the second surgery. The ongoing physical complications in my left hand triggers my memory of the accident. I think about the accident all the time, especially when I am reminded of it due to the pain or swelling in my left middle finger. This in turn causes flashbacks about the incident itself to resurface.”
Independent medical examiners
Dr Hong saw Mr Wang at the request of his solicitors and reported on 14 December 2021. He set out a series of symptoms, which Mr Wang had recently suffered the first of which was depressed mood and having no motivation. Dr Hong summarised his opinion:
“Mr Wang described an accident involving a power saw and reported that the first surgical intervention was not successful. He had a further operation a few months later and that had improved his hand functioning and reduced the pain, but he has ongoing problems using the left hand, particularly with sustained grasping actions. He described developing anxiety since the accident and continued to be triggered by noises or electrical saws. He had knife related anxiety, which subsided after a while. Although there has been improved symptomology over time, he has not gained substantial remission with treatment in the past 12 months. Overall, my view is that he suffered PTSD and that his condition has stabilised.”
Dr Verma saw Mr Wang and reported to Star Timber’s insurer on 16 March 2022. He obtained the history that Mr Wang’s mental health symptoms started after the second surgery that is six months after the initial injury and that it was the ongoing pain which causes his mental health symptoms. Dr Verma said:
“Mr Wang is a 33-year-old male who presents with symptoms of major depressive disorder. He meets the criteria for major depressive disorder currently because he has low mood, anhedonia, disrupted sleep, significant weight gain, low energy, reduced concentration, feelings of worthlessness and intermittent thoughts of death (passive suicidal ideation).
He also meets the criteria for posttraumatic stress disorder (PTSD) delayed onset as he has experienced a serious injury and has intrusive nightmares, avoidance for example of power tools and traffic noise, along with negative alteration in cognition and mood evidenced by diminished interest for participation in activities and a sense of detachment from others, along with irritable behaviour and problems with concentration. PTSD has been delayed because it occurred 6 months after the initial injury.
His mental health symptoms were reported to have commenced six months after the initial injury. There appears to have been some mild improvement since mental health symptoms first began.”
Dr Verma said that the psychological injury was post-traumatic stress disorder, and that the secondary psychological injury was major depressive disorder due to ongoing pain and limitation following the physical injury.
Dr Hong prepared a further report dated 30 March 2022 after reviewing Dr Verma’s report, noting the apportionment of 50% to post-traumatic stress disorder, and 50% for major depressive disorder. Dr Hong noted that Mr Wang’s treating doctors did not diagnose a separate major depressive disorder. Dr Hong said that there was no secondary psychological injury, because there was only one psychiatric injury being post-traumatic stress disorder. He said:
“In my assessment, I took the history that Mr Wang's anxiety symptoms started immediately after the original accident, this then evolved into a full blown PTSD.
This is not a delay onset condition, it is PTSD in evolution. He described being phobic of knives shortly after the accident, and continues to have anxieties around machines.
His depressive symptoms are part of PTSD, characterized by depressed mood, loss of enjoyment and depressive cognitions.”
Dr Hong also stated that “[t]here is no secondary psychological injury, as there is only one psychiatric injury, PTSD with depressive symptoms.”
The parties did not seek to obtain any further medical evidence after Member Sweeney’s decision.
The MAC
The Medical Assessor obtained a history of the physical injury and said:
“Mr Wang assured me he was well from a mental health perspective until December 2020. He had continued pain and limited use of his left hand and required a left middle finger extensor tenolysis under the care of Dr Simon Chan. Because his recovery was slow, he started developing symptoms in the mood and anxiety spectrum. These symptoms have slowly worsened over time.
He first sought support for mental health problems from his general practitioner on 6 January 2021 and was referred to a psychiatrist, Dr David Kumagaya, whom he first saw on 3 March 2021.”
When describing Mr Wang’s present symptoms the Medical Assessor said:
“Mr Wang said that he felt okay mentally after the injury and that it wasn’t until the second surgery that he ‘felt up and down a lot.’ Initially, he thought he would be okay, but later, he lost hope. Asked why he felt his mental state was deteriorating, he said, ‘every time I move, I’m in pain and uncomfortable.’
He has lost interest and motivation and has a pervasively low mood, without diurnal variation and with anhedonia.
He is irritable and prone to being argumentative.
He has subjective difficulties with concentration and memory.
He often thinks about his injury because ‘all of a sudden, I will feel very uncomfortable.’
He is anxious when away from home and feels uncomfortable around people. Machine noises, such as those from a lawnmower, create anxiety because they remind him of the sound of the saw that injured him.
He denied thoughts of self-harm or suicide.
He has erratic sleep patterns, often going to bed by 9-10 PM with long sleep latency. His sleep is fitful, and he experiences nightmares about the accident.
He eats regular meals but ‘a lot more than normal.’ He has gained 15-20 kg since leaving work.”
The Medical Assessor said:
“My diagnoses rely on the Diagnostic and Statistical Manual – Fifth Edition (DSM-5), published by the American Psychiatric Association.
omajor depressive disorder (MDD) with anxious distress
opost-traumatic stress disorder with delayed onset
The treating clinicians and IME psychiatrists had all diagnosed PTSD, although there are inconsistencies in Mr Wang’s description of when his symptoms started. He had a traumatic event that could satisfy the mandatory Criterion A for PTSD. He has intrusion symptoms, avoidance, negative alterations in cognition and mood and increased arousal and reactivity. I accept this diagnosis as having occurred with delayed onset.
However, he also meets the criteria for a major depressive episode, and he was clear that his ongoing pain and continued disability with poor recovery from his physical injuries was distressing to him in early 2021 and continues to be. He did not have significant symptoms of mental health problems until he lost confidence in his recovery. He has eight of nine symptoms consistent with major depression (excluding only suicidal thoughts). MDD is a secondary injury, as argued by Dr Verma. The depression would have occurred regardless of the PTSD, which had its onset at about the same time. It needs to be accounted for in determining whole-person impairment.”
Referring to Mr Wang’s statement dated 13 March 2022 in which he said that psychological symptoms developed immediately following the accident, the Medical Assessor said:
“Dr Hong took a similar history, but Dr Verma wrote:
He stated that mental health symptoms started after the second surgery, i.e. six months after the initial injury.
Mr Wang reported that his mental health symptoms commenced after the second surgery, six months after the initial injury when they had to operate on his ligaments. He stated that it is the ongoing pain which causes his mental health symptoms.
I took a similar history to Dr Verma. Because of the inconsistency, I sought clarification from Mr Wang and asked him to confirm that he had been well. He repeated that he had, and I paraphrased what he had told me, had this repeated by the interpreter, and asked him again to confirm that it was accurate, which he did.
Having had the opportunity to confirm this with Mr Wang, and having regard to the contemporaneous medical records, I accept that his mental health problems started late in 2020 or early 2021, when he became distressed about ongoing pain and disability, requiring further surgery, with limited progress.”
The Medical Assessor assessed 17% WPI and provided his reasons in the Psychiatric Impairment Rating Scale form. He said:
“Mr Wang has a primary and a secondary injury; his secondary injury and impairment would be present whether or not the primary injury had occurred. During my interview, Mr Wang’s primary concerns related to his distress with ongoing pain, poor physical recovery and continued limitations in his hand.
There is no scientific method for apportionment between a primary and secondary psychological injury. In making my determination, I have noted the emotional response to the physical symptoms and impairment, Mr Wang’s emphasis on these during my interview, comments by the treating and independent assessors, and relied on my experience and expertise.
I apportion half his impairment to the secondary injury and half to the primary injury.”
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is 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[2] the Court of Appeal held that an 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.
[2] [2006] NSWCA 284.
A member of the Commission noted that it was agreed that Mr Wang suffered a primary psychological injury and determined that he suffered a secondary psychological injury. It is agreed that the primary psychological injury, is post-traumatic stress disorder. In his supplementary submissions, Mr Wang continued to maintain that there was no basis for a diagnosis of major depressive disorder. We do not consider that submission was open to him.
Any comments that the Member made about the apportionment used by the Medical Assessor were not part of the dispute that he was required to determine and we have disregarded submissions based on those comments.
The Medical Assessor was required to reach his own diagnosis on the day of his examination. He was not required to accept the diagnoses made by Mr Wang’s treating and qualified doctors and the fact that his treating and qualified doctors did not assess major depressive disorder is not determinative. In State of New South Wales (NSW Department of Education) v Kaur[3] Campbell J said:
“In Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480, the High Court of Australia dealt with the nature of the jurisdiction exercised by a medical panel under cognate Victorian legislation. The legislation is not entirely the same but it is broadly similar in purpose. Allowing for some differences, the High Court said at page 498 [47]:
‘The material supplied to a medical panel may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on the medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the functions of the panel as being either to decide a dispute or to make up its mind by reference to completing contentions or competing medical opinions. The function of a medical panel is neither arbitral or adjudicative: It is neither to choose between competing arguments nor to opine on the correctness of other opinions on that medical question. The function is in every case to perform and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.’
Not all of this, as I have said, is apposite in the context of the New South Wales legislation. In particular it is obvious that approved medical specialists are required to decide disputes referred to them by the process of medical assessment. Even so, it is not necessary that approved medical specialists should sit as decision makers choosing between the competing medical opinions put forward by the parties. Essentially, the function is the same as that described by the High Court in Wingfoot Australia. That is to say, their function is in every case to form and give his or her own opinion on the medical question referred by applying his or her own medical experience and his or her own medical expertise.”
[3] [2016] NSWSC 346.
We do not accept the submission that there was only one injury being post-traumatic stress disorder. Mr Wang referred to the injunction in DMS-5 to consider differential diagnoses in the diagnosis of post-traumatic stress disorder, suggesting that the conditions do not co-exist. The requirement to consider other diagnoses does not mean that two conditions with different symptoms cannot be suffered at the same time.
Dr Hong accepted Mr Wang’s statement that he suffered post-traumatic stress disorder immediately following the physical injury. Our review of the contemporaneous medical evidence does not support that contention and we note that Mr Wang’s statement was prepared in 2022, well after the injury. The evidence shows that the onset of both conditions was after the third surgery.
We also do not accept the submission that the Medical Assessor elided the fact of surgery with the causation of injury. The Medical Assessor said that Mr Wang developed symptoms in the mood and anxiety spectrum because his recovery was slow. Dr Chan’s reports – particularly that dated 21 October 2020 – show that he spent time explaining to Mr Wang the likely outcomes from surgery. Mr Wang’s statement confirms his subjective experience of pain which is at odds with Dr Chan’s assessment in his report dated 8 July 2021 that Mr Wang’s fingers have responded well to surgery.
The evidence also shows that, at least from the time of the onset of the primary injury, Mr Wang also suffered depressive symptoms. The submission that he did not suffer symptoms outside the criteria for post-traumatic stress disorder is not supported by the evidence. The different checklists used by Ms Tang confirm that – she noted the scores on both PCL-5 for post-traumatic stress disorder and the Hamilton Rating Scale for depression. The submission is also inconsistent with the Medical Assessor’s finding on the day of his examination that Mr Wang suffered symptoms of major depression.
Re-assessment
The Medical Assessor was required by the Guidelines to make a psychiatric diagnosis, according to a recognised diagnostic system and specify the diagnostic criteria on which the diagnosis is based.[4] That meant that the Medical Assessor was required to set out the symptoms on which he relied to reach the diagnosis of major depressive disorder. The Medical Assessor said only that Mr Wang has eight of nine symptoms to support the diagnosis, without specifying what they were.
[4] Guidelines paragraph 11.4.
The diagnostic criteria for major depressive disorder under DSM-5 are as follows:[5]
[5] DSM-5 p 161.
“A. Five (or more) of the following symptoms have been present during the same 2-week period and represent a change from previous functioning; at least one of the symptoms is either (1) depressed mood or (2) loss of interest or pleasure.
...
1. Depressed mood most of the day, nearly every day, as indicated by either subjective report (e.g., feels sad, empty, hopeless) or observation made by others (e.g., appears tearful). …
2. Markedly diminished interest or pleasure in all, or almost all, activities most of the day, nearly every day (as indicated by either subjective account or observation).
3. Significant weight loss when not dieting or weight gain (e.g., a change of more than 5% of body weight in a month), or decrease or increase in appetite nearly every day. (Note: In children, consider failure to make expected weight gain.)
4. Insomnia or hypersomnia nearly every day.
5. Psychomotor agitation or retardation nearly every day (observable by others, not merely subjective feelings of restlessness or being slowed down).
6. Fatigue or loss of energy nearly every day.
7. Feelings of worthlessness or excessive or inappropriate guilt (which may be delusional) nearly every day (not merely self-reproach or guilt about being sick).
8. Diminished ability to think or concentrate, or indecisiveness, nearly every day (either by subjective account or as observed by others).
9. Recurrent thoughts of death (not just fear of dying), recurrent suicidal ideation without a specific plan, or a suicide attempt or a specific plan for committing suicide.
B. The symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.
C. The symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.
D. The occurrence of the major depressive episode is not better explained by schizoaffective disorder, schizophrenia, schizophreniform disorder, delusional disorder, or other specified and unspecified schizophrenia spectrum and other psychotic disorders.
E. There has never been a manic episode or a hypomanic episode.”
DSM-5 also requires that the severity of major depressive disorder be coded and says:
“In recording, the name of the diagnosis, terms should be listed in the following order: major depressive disorder, single, or a current episode, severity/psychotic/remission specifiers, followed by as many of the following specifies without codes that apply to the current episode.”
One of the specifiers is “with anxious distress”, applied by the Medical Assessor.
The lack of clarity in the diagnosis required led to the need for a re-examination, limited to the issue of diagnosis of the secondary psychological condition. We adopt Dr Baker’s findings and are satisfied that the secondary psychological injury is major depressive disorder, moderate severity. On the day of the re-examination, Mr Wang no longer met the criteria for the addition of the specifier “with anxious distress” because he did not demonstrate distress with the use of his hand or when reporting pain symptoms.
Apportionment
Mr Wang did not submit that the total assessment made by the Medical Assessor was in error.
Mr Wang submitted that the contribution of the secondary psychological injury should be assessed under s 323 of the 1998 act. We do not accept that submission because the secondary psychological injury was not a previous injury or pre-existing condition within the meaning of that section. Mr Wang suffered two psychological injuries – post-traumatic stress disorder as a result of the trauma of the injury and major depressive disorder as a result of the pain he suffers and the condition of his hand.
Section 65A of the Workers Compensation Act 1987 provides:
“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.
…
(5) In this section—
primary psychological injury means a psychological injury that is not a secondary psychological injury.
psychological injury includes psychiatric injury.
secondary psychological injury means a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury.”
There is no mechanism in the legislation for the apportionment required by s 65A. In State of New South Wales v Kaur,[6] Campbell J said of s 65A:
“Looking at the language of s 65A(1), as matter of construction, it is, to adopt Emmett JA's phrase, ‘a disentitling provision’. This is made clear in my view by the language ‘no compensation is payable’ at the outset of s 65A (1). Similar language appears in s 9A and s 11A which are clearly recognised as ‘disentitling provisions’. It is true that s 65A is not found in a division dealing with general liability to receive compensation, as s 9A and s 11A are. Nonetheless, the language of s 65A is concerned with substantive rights rather than questions of the process of the quantification of the entitlement to monetary compensation dealt with in the other provisions of Division 4 of part 3 of the 1987 Act.”
[6] [2016] NSWSC 346.
In Mercy Connect Limited v Kiely, Harrison AsJ said:[7]
“The statutory scheme comprising of the WIM Act and the Workers Compensation Act creates a two-step approach in assessing the degree of WPI for a psychological injury. The assessor must first calculate the entire degree of psychological injury in line with the PIRS categories. The secondary psychological injury must then be assessed and deducted in accordance with s 65A of the Workers Compensation Act, leaving the primary psychological injury remaining.”
[7] [2018] NSWSC 1421 at [95]-[97].
In El Masri v Woolworths Ltd[8], Campbell J said:
“…, the process is one of expert evaluation. Often when judgment of any type is called for, there will be a gap between expression of reasons and articulation of decision which cannot itself be fully articulated. That gap constitutes what might be called judgment.”
[8] [2014] NSWSC 1344 at [50].
The Medical Assessor accepted that the task of apportionment was difficult and we agree that assessing a contribution of 50% from each injury was open to him in the exercise of his clinical judgement. We agree that it is likely that the secondary psychological injury would be present even in the absence of post-traumatic stress disorder.
As Dr Baker has pointed out, the psychological tests applied by Ms Tang over time show an amelioration of Mr Wang’s post-traumatic stress disorder symptoms during 2021 so that it could be argued that an greater proportion of the percentage impairment resulted from major depressive disorder.
For these reasons, we have determined that the MAC issued on 15 November 2022 should be confirmed.
PERSONAL INJURY COMMISSION
APPEAL AGAINST MEDICAL ASSESSMENT
REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBER OF THE APPEAL PANEL
Matter Number: | M1-W2889/22 |
Appellant: | Yanan Wang |
Respondent: | Star Timber Pty Limited |
Examination Conducted By: | Dr John Baker |
Date of Examination: | 22 September 2023 |
The claimant attended an in-person assessment with Medical Assessor Baker on behalf of the Panel. Mr Yanan Wang was identified by his NSW driver’s licence. He held a HR (heavy rigid) truck license. He stated that after he was trained to drive a HR vehicle, he had never driven a truck commercially.
The claimant required the benefit of a Mandarin interpreter provided by the Commission.
Ms Guoying Zhao, the Mandarin interpreter, was present for all of the assessment. She had her CPN0QY13C, Mandarin and English translators identification. Mr Wang was asked whether he could clearly understand the interpreter. He reported he understood her well.
The claimant attended the assessment 30 minutes prior to the appointed time. He was observed in the waiting areas using his mobile telephone. He held the mobile telephone in both hands and had unrestricted use of both thumbs.
The claimant appeared anxious. He approached the assessor politely to inform the assessor that the interpreter had entered to the assessment room about 10 minutes prior to the assessment.
The claimant was instructed to speak in his first language to reduce error from usage of less accurate words that failed to fully communicate his psychological, psychiatric, physical and pain experience since the onset of this injury.
The workers medical history, where it differs from previous records
The first mention of depression was by treating general practitioner on 6 January 2021. The claimant’s first attendance to “Worker’s doctors” was on 13 January 2021 and PCL-5 confirms severe symptom report of posttraumatic stress disorder. The onset of depression preceded the diagnosis of posttraumatic stress disorder by one week. The order of presentation of the primary psychological injury does not affect the assessment of whole person impairment for this assessment.
Additional history since the original Medical Assessment Certificate was performed
The claimant is right hand dominant.
Pain symptoms
The claimant reported suffering from anger and frustration that his fingers were not the same, since the injury to his left hand.
The claimant reported that he was distressed and upset that he had to have hand therapy without his hand returning to normal functioning.
The claimant said he was unable to use his left hand to drive a car. On direct questioning the claimant was advised that in prior assessments he had advised that he was able to drive to his mothers who was about 10 km from his current home. The claimant clarified that he preferred not to drive, but he was able to drive alone from his home to his mother’s home for short distances even if he had some pain in his left hand.
The claimant was asked about his pain experience. He said he only used two panadiene forte tablets daily. He took one panadiene forte in the morning and one in the evening. During the day the claimant would use paracetamol up to 4 tablets daily for his pain.
The claimant during the assessment of his pain spontaneously offered without prompting two new symptoms. He stated that he had a constant distressing experience of his left middle finger being swollen and this caused him pain. He said he also experienced his left middle finger “looking longer” since the surgical treatment. On direct enquiry, the claimant was able to confirm that he knew the finger was the same size and length, however the swelling and pain prevented him from lifting shopping bags and working in his role as a floor layer. The claimant reported he could not lift his 1-year-old daughter as his left hand was too painful and weak. The claimant reported he was able to stabilise his mobile phone to text and he was able to lift a glass of water with his left hand without spilling the drink. The claimant was seen opening the main door of the office with his left hand without any apparent pain or concern as he exited the assessment.
The claimant reported abdominal pain. He said this pain was associated with his chronic diarrhoea. On direct questioning he stated that his abdominal pain experience was not work related and had been investigated since the work injury. He reported that this pain was associated with chronic diarrhoea. The patient reported that he would have between 8 to 10 bowel movements daily since about 2021. He said he had undergone endoscopic investigation for this chronic diarrhoea with urgency. No cause for his abdominal pain associated with diarrhoea was found on recent investigations documented in the forwarded papers. He remains with his chronic abdominal symptom at the time of this assessment.
Depression symptoms
The claimant said that he had asked for a second opinion after the removal of the K-wires as he was not happy that his finger had ongoing problems. He stated he had hoped that the surgery would fix the injury to his fingers. He said he was becoming more depressed and upset with him having to attend a hand therapist after having the tenolysis in December 2020. By 6 January 2021 his general practitioner reported that he had depression and was emotional. On direct enquiry about what was his understanding of being emotional he stated, “panic” that he was not getting well.
The claimant reported that he had lost interest in work since the injury. He stated he had lost hope for his future career. He stated that his depressed mood was made worse by the pain and changes to his left hand since the injury and this affected him nearly every day with him becoming hopeless. He reported that he had poor sleep with insomnia, loss of interest in his career as well as loss of interest in learning or reskilling. He was tearful as he stated he found his mind busy. He felt worthless and stated he was confused as he did not know what to do and had difficulty making decisions.
The claimant stated he was depressed by not being able to return to his chosen work due to the physical injury and ongoing pain. His loss of interest in socialising and fishing is consistent with his major depressive disorder as he does not experience any joy or happiness due to his pain.
Using DSM5 criteria at the time of this assessment the claimant’s major depressive disorder severity code is 296.22 (moderate severity). The severity rating of moderate is due to the number and the intensity of symptoms being less than when assessed by the psychologist with the Hamilton Depression Rating scale in May 2021. At that time the claimant was assessed with a severe depressive disorder in May 2021. The functional impairment had reduced prior to stabilising and reaching maximum medical improvement.
Posttraumatic stress disorder symptoms
The claimant reported having posttraumatic stress disorder symptoms after it became obvious to him that he was not going to have “normal fingers again”.
The claimant reported nightmares about the injury. He reported that he was fearful of injuring himself again. He said he was also fearful of being injured by others. When asked to described what was his fear, the claimant stated he could not explain, though he just preferred to remain at home, alone.
The claimant reported that his relationship with the mother of his children had improved since the birth of his first daughter. He stated he was often at home when his wife was working. He reported that his concentration was reduced since the primary psychological injury.
The claimant reported that he became intensely distressed when reminded about the saw injury. He reported increased irritable behaviour directed towards the mother of his two children, a son and an infant daughter. He reported difficulty remaining asleep and having nightmares of the saw cutting his fingers.
The claimant reported that he had spoken with his doctor about returning to some work about 3 hours in duration for about 3 days per week. He stated he was fearful of work and been injured by other workers.
Current and proposed treatment.
The claimant continued to comply with prescribed medical treatment. He reported that he was continuing to use Fluoxetine 20mg two tablets daily for his posttraumatic stress disorder and depressive disorder symptoms. He had received psychological treatment for his posttraumatic stress disorder and depressive symptoms.
The psychologist reported a significant improvement in the claimant’s posttraumatic stress disorder symptoms. The initial score of 70/80 in January 2021 was in May 2021 reduced by treatment to 42/80. A score of 42/80 demonstrates a self-report by the claimant assessing himself with much milder posttraumatic stress disorder than at the time of the initial assessment in January 2021. The Hamiliton Depression self-rating score of 27/52 was measured at the same time the claimant self-rated his posttraumatic stress disorder. The finding of 27/52 demonstrates the claimant rating his major depressive disorder as more severe than his posttraumatic stress disorder at that time. The treatment provided had stabilised both the claimant’s posttraumatic stress disorder and major depressive disorder at the time of this re-examination.
The claimant reported he continued to attend his psychologist for treatment and his general practitioner for monitoring of his mental state and pharmacotherapy.
Comments on consistency
The claimant demonstrated some inconsistency whilst not being prompted. These inconsistencies involved the use of generalisable, or contracted language usage or terms. This can be seen, in the medical record prior to this assessment. Examples include, the term step-father being contracted to father, in relation to his mother’s second husband. The term wife and “divorsee” in relation to his wife and mother of all of his children. In my opinion the inconsistencies were not related to the claimant avoiding, concealing or attempting to exacerbate or minimise his condition, relationships or lifestyle.
In my medical opinion the style of responding to questions placed before the claimant was similar to claimants that rarely need to speak English. Mandarin the main language used at home by the claimant with the members of his household and mother. The claimant reported that the children first speak Mandarin and then English when at school.
Findings on mental state examination
The claimant presented as a neatly groomed man. He was able to follow requests such as to speak only in his first language to avoid misunderstanding. He did not appear to be in any apparent pain. He was observed using his mobile phone without pain with both hands whilst texting. He was not observed to be rubbing his fingers, as might be seen in patients experiencing pain. He did not complain of altered sensation to his fingers as had been documented in the medical record. He reported that his left hand was painful and weak in strength. The pain stopped him working. He was observed opening the main door to exit the room with his left hand on leaving the assessment. he did not demonstrate having induced pain in his left hand from this spontaneous action.
The claimant stated he had abdominal pain at the time of this assessment. He did not show any distress in the assessment. He did not report urgency to open his bowels during the assessment. He induced his stomach region was uncomfortable during the assessment.
The claimant was tearful on occasions throughout the assessment. He did report a depressed mood and his affect was mood congruent. He became frustrated at times however was able to contain his emotions and continue responding to questions asked.
The claimant did not report suicidal thoughts or plans. He did not have any delusional ideas. The claimant had good insight that his middle finger was not swollen, however he asserted that his finger felt swollen and looked longer which caused pain. He did not have psychotic symptoms. His judgement was normal.
The claimant was orientated in time, place and person. The claimant reported poor concentration. He had loss of interest in most things. His loss of interest in socialising and fishing is consistent with a major depressive disorder. This loss of interest in most things is a core symptom of major depression.
My opinion
The claimant has reached maximum medical improvement.
There are no assessable psychiatric or psychological impairments prior to the onset of this primary psychological injury.
The pain that is present as the result of physical injury had caused the development of a major depressive disorder. This major depressive disorder is a secondary psychological injury as its onset was after the physical injury and due to the failed expectation of the claimant that the surgery he had received would quickly resolve his injuries to his left hand’s fingers. The pain caused by the injury, exacerbated by the surgery as well as the outcome of surgery stabilising as below the claimants’ expectation all contributed to the chronic pain and loss of functioning due to pain.
Due to the chronic pain he developed a secondary psychological injury of depression.
At the time of the re-examination the most prominent clinical feature was major depressive disorder. The severity of the major depressive disorder had improved from severe when measured in May 2021. But remained of moderate severity at the time of this re-examination and was clinically more significant than the posttraumatic stress disorder.
Results of any additional investigations since the original Medical Assessment Certificate
Not applicable.
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