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austlii:nsw/NSWPICMP/2025/736
General information, not legal advice.
NSWPICMP
2025-09-23
Original judgment source is linked above.
BMY v Mullungeen Pty Ltd [2025] NSWPICMP 736
WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appellant appealed from the Medical Assessment Certificate (MAC) which determined the MAC should be confirmed; the first Appeal Panel's determination was the subject of judicial review proceedings in the Supreme Court; by consent the first Appeal Panel's determination was set aside and the matter was remitted to the Commission for referral to a differently constituted Appeal Panel; with acceptance at preliminary review by the Appeal Panel that the Medical Assessor had not taken the proper approach required to be taken to a secondary psychological injury, the Appeal Panel determined the appellant should undergo re-examination; the Appeal Panel accepted assessment of the appellant at 8% whole person impairment (WPI); Held - MAC revoked; although the Appeal Panel's resultant WPI is the same as in the MAC this is purely coincidental and has arisen through very different approaches.
s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with
r 128(1) of the PIC Rules. 5. 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).
19 December 2024 relevant to the determination of the 2024 Medical Appeal Panel on
24 July 2024, the Appeal Panel considers it is appropriate to refer to the injured worker as "BMY" in this decision. 8. The 2024 Appeal Panel's decision was the subject of judicial review proceedings in the Supreme Court of New South Wales and on 15 May 2025, the Court made the following orders by consent:
(a) set aside the determination of the 2024 Medical Appeal Panel on 24 July 2024, and
(b) remit the matter to the President of the Commission for referral to a differently constituted Appeal Panel pursuant to s 328(1) of the 1998 Act to be determined according to law.
Medical Assessor Glozier said the assessment was conducted via the MS Teams platform. Medical Assessor Glozier said while there were no technical difficulties, BMY had to shift and move around constantly due to the pain he was in and an inability to sustain any position for more than a minute or two. Medical Assessor Glozier explained the bounds of confidentiality and process to BMY, who reportedly understood and consented to these bounds.
Medical Assessor Glozier noted the previous successful redaction request by BMY.
BMY's medical history, where it differs from previous records
Medical Assessor Glozier reported BMY said the only clinician he currently consults is his general practitioner, Dr Ping Li at Chatswood Medical & Dental Centre. BMY takes Ubers to consult with Dr Li when required. The only other clinician BMY has reportedly seen this year was Prof Van Gelder, a neurosurgeon, and BMY thinks this consultation was for treatment review rather than an Independent Medical Examination. BMY said while there was a possibility of surgery, nothing has eventuated. BMY does not consult with any other medical specialist, allied health professional, psychologist, counsellor etc. BMY's only treatment is medication and the minimal exercise he is able to do, mobilising around his room. BMY has not had any pain treatments such as ketamine infusions nor any treatment with other emerging psychotropics, although he said he did inquire about medicinal cannabis a number of years ago.
Medical Assessor Glozier reported BMY's current medication consisted of Mobic one tablet mane, Resotrans 2mg mane, Somac one mane, Procalm if he is nauseated, Lyrica 150mg bd, Mirtazapine 45mg nocte, and Duloxetine 90mg mane. Medical Assessor Glozier reported BMY said he takes up to six Panadol every day and occasionally uses Endone, although has not done so for a month.
Additional history since the original MAC was performed:
Medical Assessor Glozier noted BMY continues to live in the family home with his parents, three brothers and sister. BMY told Medical Assessor Glozier one of his brothers has significant medical difficulties, but the others, including his parents, work and he is alone much of the day. BMY reportedly lives in a room which has a couple of steps down from the entrance. BMY has to use the bathroom in his parents' bedroom which necessitates using stairs and so he uses the bathroom rarely due to his pain and physical limitations. BMY is completely unable to access the kitchen due to his physical limitations as a whole staircase is an insurmountable problem for him. BMY has a kettle in his room so that he can make basic foods (e.g. ramen and pot noodles), as well as hot drinks.
Medical Assessor Glozier reported BMY's symptoms are dominated by an ever-present, severe and debilitating pain. BMY said his pain is generally around seven out of ten, as it was at the time of assessment, and never gets lower than four or five. The pain is constantly present in his back, highly limiting and impairing, and frequently radiates down his right leg to as far as the heel via the buttocks. The pain can be associated with numbness, paraesthesia and electric shocks. The pain causes BMY to find almost no position comfortable beyond being able to lie on his side for a maximum of 10-15 minutes. BMY is unable to walk without crutches and aids, and this has led to secondary conditions in his shoulders and wrists, which BMY thinks will require future surgery. BMY can also experience some numbness and paraesthesia in his wrists from his constant use of crutches. BMY cannot climb or descend more than a few stairs. BMY has an intermittent but frequent gastrointestinal pain that goes up to the throat which he attributes to his medications and manages with proton pump inhibitors. BMY reported he does little throughout the day for much of his days, in part through pain and especially if he has had poor sleep, which is impacted by his 'depression' and anxiety.
Medical Assessor Glozier said BMY reported trying to get to sleep around 11.00 pm or midnight. Prior to this BMY has been watching TV, listening to music, and listening to 'Audible' - although BMY said he just has these as background rather than focusing on them. BMY told Medical Assessor Glozier his current book but suggested he can recall little of it. BMY said he can only focus on such activity for brief periods of time, having to shift frequently. BMY experiences a delayed sleep onset, having taken his sedating Mirtazapine at around 10.30pm, often by several hours. BMY reported he goes over and over the incident in his head, his lack of life and his watching others move on with their life. BMY will then have anywhere between two - five hours of sleep at night. BMY said he may wake with nightmares and panic. BMY said he wakes up when the family all get up around 6.30am-7.00am.
Medical Assessor Glozier reported BMY rarely leaves his room during the day due to his physical impairment. Medical Assessor Glozier reported if BMY is feeling good he will get up and have a shower. BMY has a chair in his parents' shower room and a chair that goes over the toilet, which enables him to manage all of this himself. BMY said he may do some basic exercise around his room. However, if in a lot of pain, BMY spent much of the day in bed. BMY described doing little during the day - watching YouTube and TV, shifting and being in constant pain.
BMY also reportedly spent much of his time thinking about the incident. He said he ruminates about the incident, memories of which can come unbidden. If there is a physical aggravation, this can make his anxiety worse which in turn aggravates his pain. At times this can form the basis of a panic attack, and BMY described classical symptoms of this, which can also occur at night. These memories reportedly come unbidden, are intrusive and at times have more associated sensory phenomena, such as the feeling of being hit with a cricket bat in the back, fear, and multimodal sensory recollections of the event and being on the floor afterwards, helpless. BMY reportedly will also then often move onto worrying about his future, how he feels stuck, how he feels unable to move on, and how he is completely limited by injury.
Medical Assessor Glozier reported BMY does not have pervasive misery or frequent tearfulness, but BMY does have reduced enjoyment and some emotional numbing. BMY is not anhedonic in that he is able to enjoy the occasional times he spends with his friends and listening to music.
BMY told Medical Assessor Glozier he only uses his computer for documentation/emails and BMY reported he finds it very difficult to focus for periods of time, only being able to sit still for at most a minute or two and thus having to get up and move around. BMY also told Medical Assessor Glozier that at times feeling his anxiety limits his focus. BMY said that for that same reason he has not engaged in any vocational retraining, he had not looked at any kind of activities that would not rely on a physical ability, and he appeared to find himself very 'stuck.'
Medical Assessor Glozier noted BMY reported intermittent fasting recently, such that he had managed to lose 25kg in the past six months and is now down to 90kg. BMY takes Hydrolyte to ensure his electrolyte intake during that time and also occasionally has to eat with his medication. BMY can prepare his own basic foods in his room but otherwise relied upon others to cook for him because he cannot physically access the kitchen nor undertake any physical chores. BMY can shower, wash and clean himself, although he had few requirements to shower more than every couple of days as he frequently does not leave his room nor need to make himself presentable. BMY reported being adherent with all of his medications and continuing to help-seek.
Medical Assessor Glozier reported that as such the impairment arising from BMY's psychological or psychiatric symptoms is mild (class 2). Medical Assessor Glozier emphasised BMY's reliance on others and inability to live independently is dependent upon BMY's physical limitations. Medical Assessor Glozier noted BMY can prepare his own meals, wash, dress, and undertake the activities that he does within his physical limitations and continued to push himself to do so, although at times BMY's mood and anxiety may be such that he won't undertake such activities for a day or so.
Medical Assessor Glozier noted BMY continued to be positively goal-directed and tried to make some time to see his friends. BMY said many friends had dropped him because he is physically unable to do any of their previous activities and is very debilitated in his ability to get to other activities. BMY explained when he sees his friends every few weeks at a local pub, he calls an Uber, and the Uber driver can generally help him with the physical functions required in getting in and out of the car. BMY said he cannot go to any of his friends' homes or places that have steps and therefore goes to venues that have ramps. BMY will call ahead to their main meeting venue - The Greengate Hotel in Gordon - so as to ensure the venue's side gate and ramp are available such that he can actually get into the venue and meet his friends. However, BMY said when with his friends, he feigned enjoying himself, so they do not know how he is. BMY said he is less engaged, and his friends continued to call and check on him.
Medical Assessor Glozier reported that as such the impairment arising from BMY's psychological or psychiatric symptoms is mild (class 2). Medical Assessor Glozier explained BMY occasionally goes out without prompting and is able to do so without a support person on the basis of psychiatric symptoms as opposed to physical symptoms. However, BMY feigned enjoying himself with reduced involvement.
Medical Assessor Glozier reported BMY is able to travel to some local places using an Uber but is physically unable to drive or use public transport. Professor Glozier noted BMY can at times be quite anxious, panicky and fearful, which limited him from further travel and at times limited him from local travel.
Medical Assessor Glozier reported that as such the impairment arising from BMY's psychological or psychiatric symptoms is mild (class 2). Medical Assessor Glozier relevantly explained any Uber driver retained by BMY is not a support person required for him on the basis of any psychiatric disorder but was required to help him physically.
Medical Assessor Glozier reported BMY had lost some friends because he is not able to do physical things. However, a number of friends remained supportive of BMY, and he saw them every few weeks. BMY said his close family have all been very supportive, although there was tension at times and stress because of his pain limitations and his dependency on them. BMY said his uncles, aunts and cousins came around at times and he continued to meet them at family events when his family host or on Saints' Days.
Medical Assessor Glozier reported that as such the impairment arising from BMY's psychological or psychiatric symptoms is mild (class 2).
Medical Assessor Glozier said although BMY reported being virtually unable to focus, for the 60 minutes of interview at assessment BMY was able to follow the pace without any difficulty, BMY was able to focus. Even though moving around, BMY was able to bring himself back to Medical Assessor Glozier's questions and follow what was at times a quite complex and challenging exploration of the difference between physical and psychiatric disorders. BMY perceived he cannot read, in part due to his anxiety, his fatigue arising from his sleep disturbance, and the side effects of the medications he is taking. BMY had not undertaken any further training courses. Medical Assessor Glozier noted conversely BMY demonstrated no concentration deficits during the hour-long assessment, BMY was able to come back to the points under discussion after stopping to move position, and BMY followed the assessment's pace without limitation.
Medical Assessor Glozier reported that at most BMY matched the descriptors for a moderate impairment (class 3). Medical Assessor Glozier explained the evidence supported BMY's psychiatric disorder in and of itself would probably lead to a moderate impairment, even were he not constantly shifting and in pain.
Medical Assessor Glozier described assessment of BMY's employability as "challenging" given how very impairing BMY's pain symptoms are and BMY's physical limitations. However, Medical Assessor Glozier noted BMY reported reduced capacity to undertake a range of tasks which he believed to be caused by his depression and anxiety disorder related fatigue, intermittent problems with motivation and variable presentation.
Medical Assessor Glozier reported that as such, even if BMY's physical injury was not present (being a hypothetical scenario), the impairment arising from BMY's psychological or psychiatric symptoms is severe (class 4). Medical Assessor Glozier explained BMY's psychological or psychiatric symptoms would limit him to an erratic work attendance in a fairly undemanding role for a few hours a week at most.
Medical Assessor Glozier reported BMY was prompt but in obvious considerable pain. BMY kept apologising even when Medical Assessor Glozier could discern nothing to apologise for. Medical Assessor Glozier described BMY as pleasant, open and seemingly determined to engage with the complexities of disentangling symptoms and impairment despite his pain. Medical Assessor Glozier noted that throughout the hour of assessment BMY was unable to sit still or sit for more than a couple of minutes. He said BMY would stretch, get up, and move around (relying on his crutches). However, Medical Assessor Glozier said BMY remained focused and came back to the question or point after having moved, even if BMY had stopped and winced. Medical Assessor Glozier described BMY as having become somewhat anxious and hyperventilated when he related the injury (spontaneously as BMY had not been asked to do so) and did so in a very detailed, almost over-rehearsed fashion. BMY repeatedly referred to 'my depression' but on exploration by Medical Assessor Glozier, the phrase 'my depression' seemed to be a catch-all for BMY's pain, fatigue, rumination and anxiety. Medical Assessor Glozier said BMY had some depressive phenomena (but not anhedonia or misery), some motivation, poor sleep through pain, nightmares and rumination, and subsequent fatigue. Medical Assessor Glozier said BMY had intrusive recollections, some avoidance of stimuli, negative self-belief, and an understandable worry about his future.
Results of any additional investigations since the original MAC:
Medical Assessor Glozier said that although BMY demonstrated depressive phenomena, his current diagnostic picture is dominated by recurrent intrusive recollections of the injury, avoidance of potential triggers, sleep disturbance with nightmares, efforts to avoid thinking about the injury, as well as negative alterations in cognition and mood. Medical Assessor Glozier noted BMY reported alterations in arousal, activity of sleep disturbance, and concentration problems as opposed to actual hypervigilance or hyperstartle. Medical Assessor Glozier provided opinion that as such, BMY meets the DSM Category 5 criteria for a post-traumatic stress disorder, which Medical Assessor Glozier confirmed is BMY's primary psychiatric injury.
In circumstances where it was impossible to disentangle the impairment arising from BMY's secondary psychological injury, which Medical Assessor Glozier said was in the nature of a Persistent Depressive Disorder, from the impairment arising from BMY's primary psychological injury, Medical Assessor Glozier said:
"all of the whole person impairment rated is caused by the primary psychological injury and I can identify no aspect of this impairment that could be attributed solely to the secondary psychological injury."
(a) BMY submitted,
(i) the MAC contains a demonstrable error in that the Medical Assessor erred in his application of s 65A of the 1987 Act and (ii) the Medical Assessor's provision of reasons for his conclusion relevant to the section were not adequate, and
(b) Mullungeen submitted,
(i) the Medical Assessor did not err in his application of s 65A of the 1987 Act, and
(ii) the Medical Assessor's provision of reasons for his conclusion relevant to the section were adequate.
(a) BMY submitted.
(i) while it is accepted BMY suffers from a primary psychological injury as a result of the injury on 4 April 2019, it was not accepted BMY suffers from a secondary psychological injury (submission which the Appeal Panel finds somewhat curious in circumstances where BMY further submitted the Medical Assessor erred because he did not consider the principles "set down in Oakley" (being reference to State Government Insurance Commission v Oakley[2]) and requirement to disentangle symptoms and impairments resulting from both primary and secondary psychological injury and the Medical Assessor erred In his application of s 65A of the 1987 Act in that he failed "to adopt the one step approach as endorsed in the decision of Matheson"), and
(ii) the Medical Assessor's provision for his reasons for his conclusion relevant to the section were not adequate;
(b) Mulligan submitted:
(i) that having regard to the Certificate of Determination issued on 12 February 2024 (referred below) Mulligan agrees BMY suffers from a primary psychological injury as a result of the injury on 4 April 2019 and secondary psychological injury;
(ii) Matheson and Oakley "endorse, or otherwise provide principals in respect of the assessment of permanent impairment, a PIRS assessment of impairment should be conducted in relation to the primary psychological condition only";
(iii) while there is no error in final assessment of primary psychological impairment in the MAC, if this is not accepted the secondary psychological injury is capable of being disentangled from the primary psychological injury "which, on any view of the evidence, is overwhelmingly minor in the overall medical presentation of the applicant", and
(iv) the Medical Assessor's provision of reasons for his conclusion relevant to the section were adequate.
Review of Certificate of Determination dated 12 February 2024
(a) BMY suffers from primary psychological injury as a result of injury on 4 April 2019 namely major depressive disorder;
(b) BMY also suffers from a secondary psychological injury namely a somatic symptoms disorder, and
(c) the matter is to be remitted to the President for referral to a Medical Assessor to certify the degree, if any, of WPI as a result of a primary psychological injury on
4 April 2019 bearing in mind the secondary psychological condition.
"The law is familiar with injury, including psychiatric injury, having multiple causes. A diagnosis is not an injury. But plainly it can have multiple causes. On the evidence, I am inclined to find that the applicant experienced nightmares, flashbacks, startle response, and other psychiatric symptoms which flow directly from the incident constitute a primary psychological injury. These symptoms materially contributed to the applicant's major depressive disorder. I find that the applicant's major depressive disorder was caused both by his reaction to the incident and by his reaction to his physical injuries. Thus, the major depressive disorder is a manifestation of both a primary and secondary psychological injury.
From my perspective, the secondary psychological aspect of the injury is overwhelming and accounts for the largest part of the applicant's psychological dysfunctionality. However, as the claim before the Commission if solely for permanent impairment, the function of the Commission is to determine liability issues. They include the issue of injury and the nature of the injury, although it is not always incumbent on the Commission to precisely identify the injury. Whether the applicant has permanent impairment, whether the impairment results from a secondary psychological injury, or from a primary psychological injury, and what adjustments should be made from a pre-existing condition, or supervening events are matters solely within the jurisdiction of a Medical Assessor.
I intend to find that as a result of the injury on 4 April 2019 the applicant suffers from a somatic symptom disorder, which is a secondary psychological injury, and a major depressive, which is a primary psychological injury, but which also arose from the applicant's physical injuries. Having found a primary psychological injury, I intend to remit the matter to the President for referral to a Medical Assessor to certify the degree of permanent impairment as a result of the primary psychological injury having regard to the fact that the applicant also has a secondary psychological injury..."
"BMY worked as a waiter at the Orchard Hotel in Chatswood. While taking food to a table on 4th April 2019 he fell on stairs injuring his back. BMY immediately experienced pain in his back and difficulties with the function of his legs. He experienced fear with respect to the potential severity of his injury. Some colleagues came to assist BMY and due to his pain, he was advised to consult with Dr Patel who had a surgery nearby, which he did. BMY was advised by Dr Patel to go to hospital for full assessment and so he returned to the hotel to wait for the ambulance. He describes persistent pain, anxiety and difficulty walking at this time BMY was assessed at Northern Beaches Hospital and sent home later that day.
On April 8th BMY consulted with his usual GP, Dr Artinian, who completed a WorkCover Certificate. BMY continued to experience high levels of anxiety, and at times panic attacks. His sleep was disturbed by nightmares relating to the fall and injury.
In May 2019, BMY was reviewed by spinal surgeon, Dr Pope. Imaging showed possible disc herniation with L5 nerve compression. VMY was experiencing chronic pain and limited movements. On review, Dr Pope believed there was no identifiable disc injury and that the pain arose from a musculoskeletal cause. BMY was referred to Dr Khan for pain management and assistance in a graded return to work. When seen by Dr Khan in July 2019 symptoms continued and low dose amitriptyline was introduced. When referred back to Dr Pope by Dr Khan, BMY was found to be 'quite depressed about the whole situation.'
BMY was treated by the pain service at the Michael J Cousins Pain Management and Research Centre from August 2020. This included an assessment by psychiatrist
Dr A Singer in September 2020 and introduction of the antidepressant medication duloxetine, and subsequently mirtazapine. Despite treatment, BMY did not improve in his symptoms or level of disability and in retrospect believes that he deteriorated in his mental health during the period with pain service.
BMY was under the care of psychologist Mr Amadi during late 2019 and 2020. He found this helpful though contact was discontinued due to a funding issue approximately two years ago.
Despite treatment BMY has continued with a high level of symptoms and disability and has not returned to employment or study."
"The assessment today was by telehealth and so mental state examination necessarily limited. BMY appeared with long hair and beard and rather unkempt. His pupils appeared significantly dilated in keeping with experiencing anxiety, and he described subjective anxiety at the time of the interview. BMY recurrently apologised during interview suggestive of anxiety and low self-esteem. He would alter his position every few minutes due to physical discomfort.
BMY's mood was objectively and subjectively low. He descried passive suicidal ideation though denied active suicidal ideation. His thought form was normal. He required reminding of questions on occasion suggestive of poor concentration which he described subjectively. There were no abnormal beliefs in the form of delusions and no abnormal perceptions. BMY's thought content revealed prominent negative cognitions and reduced hope for the future consistent with a depressive illness. He was fully alert and orientated at interview. I did not carry out a formal cognitive assessment."
"BMY is a 24-year-old man who sustained an injury to his back when he fell on stairs in the workplace in April 2019. Since that time, he has had chronic and disabling pain in his back and right leg. Since the workplace incident BMY has had significant problems with his mental health, particularly mood and anxiety symptoms which are debilitating. He has developed a persistent depressive disorder with anxious distress, with persistent major depressive episode and this is comorbid with a somatic symptom disorder with predominant pain."
Self-care and personal hygiene: class 3 - BMY is unable to live independently and is reliant on family members to ensure adequate self-care. He showers and brushes his teeth every few days and requires prompting for this. He struggles with an increase in symptoms when in the vicinity of steps. He does not prepare his own meals and is provided with food by family members, usually his father.
Social and recreational activities: class 3 - BMY rarely participates in any social or recreational activities. He will meet with one or two friends every few months to watch a football game on the television at a friend's house. At a similar frequency he may go to a pub with those friends. [BMY] maintains some online contact with friends and will do things such as chat or participate in "footy tipping." He describes a general reduction in interest in the activity and will not be actively involves, remains quiet and withdrawn.
Tavel: class 3 - BMY leaves his residence infrequently and only for appointments. He is unable to travel other than by private vehicle, such as a taxi or Uber. He is unable to drive due to a combination of mental health and physical health problems. He has excessive anxiety and poor concentration which would impair an ability to drive and so he does not do so. He is unable to travel by public transport such as bus or train.
Social functioning: class 2 - BMY has lost some friendships through the course of this episode of ill health, though he has been able to maintain a few. He lives with his parents and four siblings. There are occasional tensions in the relationship between BMY and his family members as he is persistently anxious and often irritable. He feels a burden on his family.
Concentration, persistence and pace: class 4 - BMY is now unable to read books as he loses focus after a few lines. He listens to audiobooks though due to concentration difficulties often must replay some of a novel. He withdrew from a course of study shortly after the workplace incident due to attempted further study. BMY will watch television programs, though struggles to focus on these. At interview poor concentration was evident with occasional redirection being necessary and reminding of questions asked.
Employability: class 5 - BMY describes persistent problems with low mood, low motivation and energy, high levels of anxiety and poor concentration. His symptoms are of severity which leave him totally impaired for any work.
"A large part of BMY's impairment is due to his physical injury causing pain and immobility, and his somatic symptom disorder with predominant pain. These disorders impact all areas of function. Neither of these disorders are a primary psychological condition and so impairment caused by these disorders is excluded from the calculation of whole person impairment.
BMY's persistent depressive disorder with anxious distress is both a primary and secondary psychological condition. This has developed in part due to the persistent pain and mobility problems, and part due to the primary psychological injury at the time of the workplace incident. Symptoms of this disorder also cause impairment in all areas of function.
Taking all evidence into consideration, in my opinion the proportion of impairment due to the primary psychological condition is 30% of the total impairment found at assessment. This leads to a whole person impairment rating due to primary psychiatric condition of 8%."
(a) In his report dated 26 September 2019, Dr Nazha, pain specialist, reported:
"Pain in right leg and back persists. On self-assessment standard testing, DASS 21: Moderate severe for anxiety, mild for depression and normal for stress. There are significant catastrophizing thoughts relating to pain and re-injury."
(b) In his Allied Health Recovery Request dated 27 September 2019, Mr Amani, psychologist, noted at initial assessment BMY exhibited both typical post-traumatic stress disorder symptoms and a number of symptoms consistent with the development of a major depressive episode:
"Depressed Mood, with depressive symptoms including difficulties getting out of bed due to depression. Difficulties planning daily activities, poor attention, concentration, motivation, appetite, memory, lack of energy, lack of impulse control, flashback, anhedonia (reduced ability to experience any pleasure, interest or enthusiasm), sensitive, tearful, tired, persistent headache, and panic attack. Sleep disturbance broken sleep - 3-4 hours/night. Reduced socialization with friends and impulse control. Reduced self-confidence and worry about the future. He shows very poor memory, and he forgets things easy."
(c) In his initial independent medical examination report dated 17 August 2020
Dr Dayalan noted a decline in BMY's mental health in the later part of 2019.
Dr Dayalan provided diagnosis of adjustment disorder with mixed anxiety and depressed mood and a somatic symptom disorder with predominant pain. While Dr Dayalan noted BMY exhibited some trauma-related symptoms he did not consider a diagnosis of post-traumatic stress disorder to be warranted.
(d) In his subsequent medical examination report dated 13 April 2023 Dr Dayalan noted a deterioration in BMY's mental health since last assessment. Dr Dayalan described BMY as experiencing low mood and anxiety, functional restrictions due to pain, weight gain, sleep disturbance, poor concentration and low self-esteem. Dr Dayalan provided diagnosis of somatic symptom disorder with predominant pain comorbid with major depressive disorder. Dr Dayalan considered both the disorders were secondary psychological injuries. While the Medical Assessment agreed with the diagnoses, he did not agree that both the disorders were secondary in nature. The Medical Assessor explained:
"The somatic symptom disorder with predominant pain is a secondary condition. The major depressive disorder, now persistent depressive disorder, with both a primary and psychiatric injury and a secondary injury. The psychological symptoms at the time of the workplace incident were initially identified by Dr Dayalan as indicating an adjustment disorder. These progressed to being a major depressive disorder, and as this disorder has become chronic, a persistent depressive disorder. The persistent depressive disorder is also a secondary psychiatric condition caused by persistent pain and disability arising from the physical injury."
(e) In his clinical assessment dated 17 September 2020, Dr Singer, psychiatrist with the Pain Main Management Centre, described BMY as exhibiting mood and anxiety symptoms that included panic attacks and significant reduction in activity. While the description of symptoms is consistent with an adjustment disorder with mixed anxiety and depressed mood or major depressive disorder with anxious distress of moderate severity, the Medical Assessor notes this diagnosis is not provided. Dr Singer reported:
"In summary, BMY presents with chronic low back pain and left leg pain against the background of generalised anxiety disorder with panic."
(f) In his independent medical examination report dated 6 May 2022 Dr Hong described the progression of BMY's symptoms and his current situation. Dr Hong provided summary:
"BMY has developed a primary psychological injury which commenced immediately after the fall and persisted in the form of Major Depressive Disorder with panic attacks. He has Somatic Symptom Disorder, and this is a secondary psychological injury which developed some months after the accident."
Dr Hong described BMY as avoiding places with stairs due to an increase in anxiety as well as a restriction in his mobility. Dr Hong recorded low mood, anhedonia, changes in sleep habits, changes in eating habits with associated weight gain, and low self-esteem with characteristic negative cognitions.
The Medical Assessor considered the immediate psychological symptoms described by Dr Hong indicated either a normal psychological reaction, or more likely, an adjustment disorder with mixed anxiety and depressed mood. The Medical Assessor considered this contributed to the development of a major depressive disorder with anxious distress in the following months, and said:
"The cause of the major depressive disorder with mixed anxiety and depressed mood is both the immediate psychological injury at the time of the incident (primary injury), and the pain and disability arising from the physical injury (secondary injury)."
"I tried to get myself up but was having difficulty controlling my legs and I went into shock. At that point I became extremely worried about the severity of my injury and began to panic.
I felt very confused at this point in time and my mind was racing. I was concerned about the severity of my injury and the fact that I was continuing to have trouble getting myself up. I felt scared and I was freaking out."
"I first experienced nightmares and flashbacks after returning from hospital on 4 April 2019. They involve me falling over again and reliving the original pain. I take a step down and I slip hitting my back on each step down.
I also experience nightmares of me falling backwards into darkness unable to get up. I wake up in panic covered in sweat with pain in my chest and difficulty breathing. At these times I have a feeling of impending doom.
Also experience what I call sleep paralysis. At such times I am petrified by min inability to move while lying awake. My eyelids feel like a ton of bricks, and I panic with difficulty breathing. When I am able to move after about 30-45 minutes (which feels like hours when it's happening) I sit on the side of my bed and experience a further wave of panic."
"When I am out in public, I have a fear that I will fall or slip down on the ground or fall on a small step and hurt my back even more or injure other body parts. The era is very strong when I am experiencing panic attacks in public and my legs become so weak that I feel I will fall."
"It did not improve me overall and the pain program did not help me in the end to get back to work, which made me even more depressed and anxious about my future as I was really hopeful it would work."
"BMY had noted a decline in his mental state in the latter part of 2019. He acknowledged that his mental state fluctuated, and he noted a brief period of improvement in his mental state when his knee pain had reduced from engaging in hydrotherapy. He believed that his mental state would improve if the back injury was resolved. He believed that the symptoms from the back injury and the associated functional impairment were the main cause of his psychiatric symptoms."
"His presentation and description of symptoms would not warrant a diagnosis of Post Traumatic Stress Disorder (PTSD) at this stage, but I agree that he manifests some of the symptoms noted in PTSD.
BMY describes some somatic symptoms that are quite distressing and results in significant impairment in his functioning. He was noted to have a high level of anxiety about his health and appeared pre-occupied with the physical symptoms associated with the injury. He had these symptoms more than 6 months. BMY would fulfil the diagnostic criteria for Somatic Symptom Disorder with predominant pain."
"The back injury sustained at the workplace and the consequent symptoms and impaired functioning appear to have resulted in depressive and anxiety symptoms and also symptoms of Somatic Symptom Disorder.
The injury at the workplace, the personality vulnerability and the concerns regarding his brother's health would be regarded as causes for BMY's psychiatric diagnosis.'
"In comparison to his mental state at the time of my last assessment, BMY indicted that his mental state has deteriorated. He explained the persistent nature of the pain, lack of response to treatment for his physical injury and ongoing impairment in his functioning had contributed to the deterioration in his mental state. He repeated that he required assistance for simple day to day tasks."
"I vary on the opinion provided by Dr Hong in that BMY's account of symptoms both in my initial assessment and subsequent assessment indicated that they were consequent to the persistent pain and significant impairment in functioning."
"BMY has developed a primary psychological injury which commenced immediately after the fall and persisted in the form of Major Depressive Disorder with panic attacks.
He has Somatic Symptom Disorder, and this is a secondary psychological injury which developed some months after the incident."
Legal considerations relevant to the Medical Assessor's application of s 65A of the 1987 Act
"(1) No compensation is payable under this Division in respect of permanent impairment that results from a secondary 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
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.
Impairments arising from the same injury are to be assessed together. Impairments resulting from more than one injury arising out of the same incident are to be assessed together to calculate the degree of permanent impairment of the claimant.
The exception to this rule is in the case of psychiatric or psychological injuries. Where applicable, impairments arising from primary psychological and psychiatric injuries are to be assessed separately from the degree of impairment that results from any physical injuries arising out of the same incidents. The results of the two assessments cannot be combined.
Psychiatric and psychological injuries in the NSW workers compensation system are defined as primary psychological and psychiatric injuries in which work was found to be a substantial contributing factor.
A primary psychologic condition is distinguished from a secondary psychiatric or psychological condition, which arises as a consequence of, or secondary to, another work-related condition (e.g. depression associated with a back injury). No permanent impairment assessment is to be made of secondary psychiatric and psychological impairments. As referenced in paragraph 1.19, impairments arising from primary psychological and psychiatric injuries are to be assessed separately from the degree of impairment that results from physical injuries arising out of the same incident. The results of the two assessments cannot be combined.
Permanent impairment assessment for psychiatric and psychological disorders are only required where the primary injury is a psychological one. The psychiatrist needs to confirm that the psychiatric diagnosis is the injured worker's primary diagnosis.
The impairment rating must be based upon a psychiatric diagnosis (according to a recognised diagnostic system) and the report must specify the diagnostic criteria upon which the diagnosis based. Impairment arising from any of the somatoform disorders (DSMIVTR, pp485-511) are excluded from this chapter.
If pain is present as the result of an organic impairment, it should be assessed as part of the organic condition under the relevant table. This does not constitute part of the assessment of impairment relating to the psychiatric condition. The impairment ratings in the body organ systems chapters in AMA 5 make allowance for any accompanying pain.
It is expected that the psychiatrist will provide a rationale for the rating based on the injured worker's psychiatric symptoms. The diagnosis is among the factors to be considered in assessing the severity and possible duration of the impairment, but it not the sole criterion to be used. Clinical assessment of the person may include information from the injured worker's own description of his or her functioning and limitations, and from family members and others who may have knowledge of the person. Medical reports, feedback from treating professionals and the results of standardised tests - including appropriate psychometric testing performed by a qualified clinical psychologist and work evaluations - may provide useful information to assist with the assessment. Evaluation of impairment will need to take into account variations in the level of functioning over time...
(e) Chapter 11.11 is relevant to the psychiatric impairment rating scale and provides:
Behavioural consequence of psychiatric disorder are assessed on six scales, each of which evaluates an area of functional impairment:
"I am of the view that the definition of secondary psychological injury in s 65A of the 1987 Act should be read as meaning a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical work related injury. That is to say, a physical injury within the meaning of s 4 of the 1987 Act. This conclusion follows from a consideration of s 65A as a whole. It is quite clear that where 'injury' appears in the phrases, 'secondary psychological injury', 'primary psychological injury' and 'physical injury' it is referring to an injury within the meaning of s 4 in respect of which compensation is, but for the provision of s 65A, otherwise payable. One needs to read the 1987 and 1998 Act together as forming part of a single scheme in relation to workers' compensation. Approaching the matter in this way it is clear to me that s 65A of the 1987 Act and s 323 of the 1998 Act, albeit working in harmony as part of a single scheme, have different work to do."
"Whilst arguably a convenient means of resolving the difficulty of apportionment of impairment, a process which, it must be noted, is extraordinarily artificial, it was not open to the MAP to utilise s 323 as the methodology adopted by which to determine secondary psychological impairment pursuant to s 65A of the 1987 Act ...
Sections 65A and 323 serve different purposes: s 65A deals with compensation; s 323 deals with assessment of impairment. The two provisions are not intended to work together."
"the statutory scheme creates a twostep approach in assessing the degree of WPI for 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 ... leaving the primary psychological injury remaining", in ETM Projects Pty Limited (in liquidation) v Gregorio[7] the Appeal Panel found that this twostep approach is only applicable if there can be a 'disentanglement' of the impairment and symptoms suffered by an injured worker from primary injury from the impairment and symptoms suffered by an injured worker from secondary injury.
"As can be seen from s 65A(2), impairment resulting from a secondary psychological injury is not so much a basis for a deduction as a matter to be disregarded in assessing the permanent impairment resulting from the permanent impairment resulting from the primary psychological injury. One consequence of this approach is that both must be assessed on the correct basis, namely by application of the Guidelines.
In Mercy Connect Lavington Limited v Kiely, the secondary psychological condition arose at the same time as the primary psychological condition and could not be treated as a pre-existing condition for the purposes of s 323 of the Workplace Injury Act (why both psychological conditions did not result from the physical injury was obscure) Wilson J stated:
'60. Sections 65A and 323 serve different purposes. S 65A deals with compensation; s 323 deals with assessment of impairment. The two provisions are not intended to work together '.
If the intended meaning of that observation was that each provision had its own operation, that may be accepted. However, while each of ss 65A and 323 must be applied having regard to their separate functions, it cannot be correct to read the Workers Compensation Act and the Workplace Injury Act as if they were dealing with different matters. First s 2A of the Workers Compensation Act relevantly provides:
'2A Relationship to Workplace Injury Management and Workers Compensation Act 1998
(1) The Workplace Injury Management and Workers Compensation Act 1998 is referred to in this Act as the 1998 Act.
(2) This Act is to be construed with, and as if it formed part of, the 1998 Act. Accordingly, a reference in this Act to this Act includes a reference to the 1998 Act.
(3) In the event of an inconsistency between this Act and the 1998 Act, the 1998 Act prevails to the extent of the inconsistency.'
Secondly, s 65A of the Workers Compensation Act includes two Notes, each of which refers to the assessment require by s 322 of the Workplace Injury Act.
Thirdly, and consistently, s 322 itself expressly refers to s 65A of the Workers Compensation Act in a note to sub-s (3). The two Acts must be read coherently and harmoniously. They contain their own paramountcy provision in s 2A (3) of the Workers Compensation Act. That is, in the case of inconsistency the Workplace Injury Act prevails. As has already been noted, s 65A qualifies in two respects the exercise required by s 322 of the Workplace Injury Act that does not demonstrate inconsistency but is part of the overall legislative scheme.
Mercy Connect was correct to treat the two provisions as requiring separate calculation and denying that s 65A gave rise to a deduction under s 323. That construction is consistent with the Guidelines which state:
'1.22 A primary psychiatric condition is distinguished from a secondary psychiatric or psychological condition, which arises as a consequence of, or secondary to, another work-related condition (e.g. depression associated with a back injury). No permanent impairment assessment is to be made of secondary psychiatric and psychological impairments. As referenced in [the] section [headed] Multiple Impairments, impairments arising from primary psychological and psychiatric injuries are to be assessed separately from the degree of impairment that results from physical injuries arising of the same incident. The results of the two assessments cannot be combined'.
In stating that 'no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury', s 65A (2) is badly worded: it does not require the medical assessor to have no regard to such impairment or symptoms; on the contrary, they are to be identified so as to exclude them from the assessment process. That exercise must be undertaken in conjunction with the assessment of the degree of permanent impairment attributable to the primary psychological injury the subject of the claim. Thus, a secondary psychological injury is to be identified and then disregarded in calculating the degree of permanent impairment arising from the injury the subject of the claim."
"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....''
"From my perspective, the secondary psychological aspect of the injury is overwhelming and accounts for the largest part of the applicant's psychological dysfunctionality."
"A large part of BMY's impairment is due to his physical injury causing pain and immobility, and his somatic symptom disorder with predominant pain. These disorders all areas of function. Neither of these disorders are a primary psychological condition and so impairment caused by these disorders is excluded from the calculation of whole person impairment."
"As can be seen from s 65A (2), impairment resulting from a secondary psychological injury is not so much a basis for a deduction as a matter to be disregarded in assessing the permanent impairment resulting from the permanent impairment resulting from the primary psychological injury...
In stating 'that no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury', s 65A (2) is badly worded: it does not require the medical assessor to have no regard to such impairment or symptoms; on the contrary they are to be identified so as to exclude them from the assessment process. That exercise must be undertaken in conjunction with the assessment of the degree of permanent impairment attributable to the primary psychological injury the subject of the claim. Thus, a secondary psychological injury is to be identified and then disregarded in calculating the degree of permanent impairment arising from the injury the subject of the claim."
"all of the whole person impairment rated is caused by the primary psychological injury and I can identify no aspect of this impairment that could be attributed solely to the secondary psychological injury."
27 August 2025 are 2,2,2,2,3 and 4, providing a median class score of 2 and an aggregate score of 15, resulting in 8% WPI. 4. For the reasons outlined above, while the Appeal Panel's resultant WPI is the same as in the MAC, this is purely coincidental and has arisen through very different approaches. The Appeal Panel has determined that the MAC issued on 8 April 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act 1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Alan Doris and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Chapter, page and paragraph number in NSW workers compensation guidelines
Chapter, page, paragraph, figure and table numbers in AMA 5 Guides
Proportion of permanent impairment due to pre-existing injury, abnormality or condition
Sub-total/s % WPI (after any deductions in column 6)
Total % WPI (the Combined Table values of all sub-totals)
[2] (1990) 10 MVR 570 (Oakley).
[3] [2013] HCA 43 (Wingfoot Australia).
BMY
Mullungeen Pty Ltd [2025] NSWPICMP 736;
(1990) 10 MVR 570