Chhay Lim v Kaybron Pty Ltd

1. [1]

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

2. [2]

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

3. [3]

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

4. [4]

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

5. [5]

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

6. [6]

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

7. [7]

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

8. [8]

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

9. [9]

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

10. [10]

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

11. [11]

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

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

1. [12]

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

2. [13]

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

3. [14]

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

4. [15]

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

5. [16]

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

6. [17]

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

7. [18]

   Dr Ng’s somewhat guarded conclusion was as follows:

8. [19]

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

9. [20]

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

10. [21]

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

11. [22]

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

12. [23]

    Dr Mason said at [10(a)]:

13. [24]

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

14. [25]

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

15. [26]

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

16. [27]

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

17. [28]

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

18. [29]

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

19. [30]

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

20. [31]

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

21. [32]

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

22. [33]

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

23. [34]

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

The proceedings before the Appeal Panel

1. [35]

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

2. [36]

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

3. [37]

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

4. [38]

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

5. [39]

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

   1. (1)

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

   2. (2)

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

   3. (3)

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

6. [40]

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

7. [41]

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

8. [42]

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

9. [43]

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

10. [44]

    It continued:

11. [45]

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

12. [46]

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

13. [47]

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

14. [48]

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

15. [49]

    The SIRA Guidelines provide:

16. [50]

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

17. [51]

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

18. [52]

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

19. [53]

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

20. [54]

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

21. [55]

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

22. [56]

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

23. [57]

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

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

1. [58]

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

2. [59]

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

3. [60]

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

4. [61]

   The Appeal Panel also said:

5. [62]

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

6. [63]

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

7. [64]

   I would not uphold grounds 1 and 2.

8. [65]

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

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

1. [66]

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

2. [67]

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

3. [68]

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

4. [69]

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

5. [70]

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

6. [71]

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

7. [72]

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

8. [73]

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

9. [74]

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

10. [75]

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

11. [76]

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

12. [77]

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

13. [78]

    For those reasons, ground 3 must be upheld.

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

1. [79]

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

2. [80]

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

3. [81]

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

4. [82]

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

5. [83]

   I would not uphold ground 4.

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

1. [84]

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

2. [85]

   Section 65A is in the following terms:

3. [86]

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

4. [87]

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

5. [88]

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

6. [89]

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

7. [90]

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

8. [91]

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

9. [92]

   I would uphold ground 5.

Conclusions and orders

1. [93]

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

2. [94]

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

3. [95]

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

4. [96]

   The orders I make are these:

   1. (1)

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

   2. (2)

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

   3. (3)

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

   4. (4)

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

   5. (5)

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