Fenner Dunlop Australia Pty Ltd v Abeysinghe

DETERMINATION OF APPEAL PANEL
CITATION:	Fenner Dunlop Australia Pty Ltd v Abeysinghe [2023] NSWPICMP 573
APPELLANT:	Fenner Dunlop Australia Pty Ltd
RESPONDENT:	Sublime Wahalmuni Pty Ltd
APPEAL PANEL
MEMBER:	Deborah Moore
MEDICAL ASSESSOR:	Graham Blom
MEDICAL ASSESSOR:	Nicholas Glozier
DATE OF DECISION:	14 November 2023
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; the appellant submitted that the Medical Assessor erred in failing to apply a deduction on account of a pre-existing condition pursuant to section 323; complex medical claim involving a schizoaffective disorder; the Panel found no errors in the Medical Assessment Certificate (MAC) which was thorough and detailed; Held – MAC confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 11 September 2023 Fenner Dunlop Australia Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Surabhi Verma, a Medical Assessor, (MA) who issued a Medical Assessment Certificate (MAC) on 14 August 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because none was requested, and we consider that we have sufficient evidence before us to enable us to determine this appeal for reasons that will become apparent in due course.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the MA erred in failing to apply a deduction on account of a pre-existing condition pursuant to s 323 of the 1998 Act.
In reply, Wahalmuni Abeysinghe (the respondent) submits that no errors were made.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The appellant was referred to the MA for assessment of whole person impairment (WPI) in respect of a primary psychological injury on 4 March 2021.
The MA set out the history she obtained as follows:
“Mr Abeysinghe commenced working with Fenner Dunlop on 23 .3.2020 as a Machine Operator. He started the assessment by informing me that he was bullied and harassed at work. I asked him to elaborate on the incidents.
He reported that when he started working, he was asked to attend a union meeting and Mr Kumar asked him to tell him what happened in the meeting. He was asked to record the meeting and send the recording. He added that he was asked to attend the meeting despite not knowing English and secretly recording the meeting, which he thought was unprofessional.
He told everyone he didn’t attend the meetings because he couldn’t understand English. Then, allegedly Babu forced him to attend the meetings.
After the meetings, he was usually asked what happened and always told them he couldn't understand English.
He said he was later bullied and made fun of because ‘he didn’t know English’. He was being given complicated tasks to do. He was ‘jokingly asked to hold the thread of reels’. He felt that they wanted him to leave the job. He reported these bullying allegations on 28.2.2021.
Mr Abeysinghe reported that later 4.3.2021, he sustained physical injuries. He added that he was asked to hold the thread reel, and they pushed the forklift towards him. He said the thread reel is made of cotton but very heavy and connected to the steel weights. He said that as they pushed the forklift towards him, he started experiencing back pain. He did not sustain any visible injuries but experienced severe pain on bending. He reported the same to the GP.
Mr Abeysinghe said that his colleague Babu found out that he was taking medications for Schizophrenia and ‘read out the work compensation certificate for a back injury’ in front of everyone. Mr Abeysinghe later told me that he was diagnosed with Depression, not Schizophrenia. In the meeting, his colleagues referred to him as ‘crazy’ and referred to him that he was ‘taking tablets and was crazy’. He added that in front of other people, they said that if there was any problem, then take your ‘mad tablets.’
He said he was mostly given difficult work and bullied because of his poor English skills. Someone even remarked that because of backache ‘you can't even have sex.’
He added that he started experiencing mental health issues within three months of starting his employment with them. I clarified that since there were no incidents in the first three months, were there any other contributing factors? He explained that there was some bullying initially, but he didn’t think it impacted him.
He said that he was constantly on edge and in fear. He felt ‘ashamed’ that he was being targeted and started questioning if he was doing something wrong. He added that he feared they might ask him to do something. He also experienced insomnia and used to get up multiple times a night. He started struggling with his attention and concentration and was very forgetful. He found focusing hard during special training sessions and started getting distracted easily.
He reported that he started avoiding work altogether because he was scared and afraid. He had much absenteeism. His self-confidence was low, and he felt that he could not perform. He felt intimidated when trying to communicate with his colleagues. He prefers to be alone at work and doesn’t enjoy talking to anyone. His mood was usually fearful.
He said that he put in a claim for his psychological injuries on 25.5.2021. He was then on light duties until March 2022 and hasn’t returned to work.”
Present treatment was noted as follows:
“He was prescribed medications by his GP. He was then referred to see Dr Howpage, Psychiatrist…
He continued to take the medications until October 2022. I tried to clarify how he was on antipsychotics when he had no psychotic symptoms. He then rationalized that he was told that it was being prescribed for anxiety.
He is currently not on any medications. He isn’t seeing any Psychiatrist and last saw Dr Howpage in May 2022. He reported that he was ‘wrongly diagnosed and treated’ by Dr Howpage as he never had any psychotic symptoms. He said that she misunderstood things when he talked about Sri Lankan politics. He saw her almost
2-3 times. He used to see Dr Abhay, Psychologist but hasn’t seen him since December 2022. He saw the Psychologist about 5-6 times.”
Present symptoms were noted as follows:
“Mr Abeysinghe reported that his mental health has gradually deteriorated.
He started working at Unilever in November 2022 as a Machine Operator. He stopped working as ‘he was asked to leave.’ He had a lot of absenteeism and wasn’t performing well.
He started working at Snack Brand three weeks ago as a Machine Operator. He works full-time at the snack brand. He doesn’t like working and is planning to resign from there as he feels that it is a risky job in terms of getting physical injuries. His wife added that if he discloses his previous work injuries, he might not get compensation should he get injured at work.
He is usually ‘scared of talking to people’. He feels tired and feels ‘fatigued, and short of breath. He has trouble sleeping and sleeps only for 4 hours. He mostly remains in his bed and watches youtube videos. He watches cricket matches and rugby matches. He is unable to follow the cricket matches and gets distracted frequently.
His appetite is ‘good’, and he eats to like [sic] sugary things.
He feels that people are ‘rude to him’. He then said that ‘people can harm him and bully him’. I then tried to clarify if random people could bully him. He said that yes, they can.
Mr Abeysinghe said that he continues to feel anxious. His wife added that he doesn’t sleep properly. He withdraws mostly in his room. He prefers not to leave his room. He no longer plays with his kids, and they no more have a connection as before.
Mr Abeysinghe said that he feels ‘hopeless about the future’.
Promodya [his wife] added that he continues to complain about headaches. He vomits pretty frequently, almost every morning. He has been having hair fall, and he is almost bald now.
Mr Abeysinghe feels ashamed of his appearance, another reason for avoiding people.
I asked her about Mr Abeysinghe’s symptoms, including disorganised behaviour or speech. She categorically denied that Mr Abeysinghe had ever experienced any delusion, suspiciousness, heard any voices, muttering, gesturing, thought insertion or withdrawal.
He also feels anxious and has panic attacks. He also experiences chest pain, which stems from his anxiety. Mr Abeysinghe added that he gets angry and snappy. He feels restlessness, and his hands shake with anxiety.
He said that one of the managers with his employer said that ‘they know all the doctors ‘and they would not help him.
He denied experiencing thought insertion, withdrawal and thought broadcasting. He denied hearing voices.
He said he continues to experience insomnia and only gets four to five hours of sleep. He is unable to go to sleep. His appetite ‘fluctuates’; he has lost about 3-4 kilos.
He has lost confidence in speaking in English after being repeatedly told that his English is not good. He, at times, wishes that he is ‘dead’ and wishes that he dies. He knows he will not actively take steps or commit suicide as he finds his family a protective factor.”
When asked to provide details of any previous or subsequent accidents, injuries or conditions, the MA said:
“Mr Abeysinghe first denied having any past history, and then I told him that I had noted that other medical reports mentioned a past history of psychosis.
He said he was unsure who reported the history and was only prescribed antianxiety medications after the alleged incident. He denied seeing a Psychiatrist, Psychologist or any MHU before the workplace incidents. I then enquired about his paranoia about the Sri Lankan people killing Tamilians in Sri Lanka (as mentioned in one of the reports). He said that Babu, his supervisor, had commented on this. Babu was a South Indian Tamilian and did not like the Singhalese government massacring Tamilians in Sri Lanka. He commented that Dr Howpage misinterpreted this. He has also written a google review about Dr Howpage, which his Psychologist has asked to remove.
He denied ever feeling paranoid, hallucinations, or suspiciousness. He added that Dr Howpage ‘pressured him into saying these’. His wife added that he returned from Dr Padmini’s appointment one day and said she was misinterpreting and writing about things he had never experienced in the report. She added that she called Dr Padmini to find out what had happened but couldn’t talk.
She denied ever noticing him having any hallucinations. She denied Mr Abeysinghe was ever talking to himself or gesturing. She denied that he experienced any persecutory or referential paranoid thoughts.
His wife denied him having any mental health issues.”
The MA then turned to consider the impact of the respondent’s injury on his social activities and activities of daily living (ADL’s) and said:
“He reported showering and brushing his teeth every 2 weeks only at his wife's insistence. He only changes into clean clothes once a week. He added that he depends on his wife to cook and do household chores. He doesn’t do any household chores. His wife has to remind him to change his undergarments. He used to do grocery shopping, cleaning, and cooking before but doesn’t do that now.
He used to enjoy seeing ruby matches, walking, and playing cricket. He used to meet his friends every Friday and watch matches together.
He doesn’t engage in any of the above pleasurable activities. He hasn’t been going out as frequently and last saw his friends about seven months back.
He drives to work. There haven’t been any changes to his capacity to drive. He can drive for at least 20-30 kilometres.
He hasn’t travelled back to Sri Lanka since 2019 because of the COVID restrictions.
His relationship with his wife is strained as he can no longer contribute much to household chores. He rarely interacts with his wife. He mostly remains withdrawn at home.
He said there had been conflicts with his wife because he had been unemployed for some time. His mother, too, is ‘angry with him’ as she found that he didn’t have a job for a long time. She has now stopped talking to him.
He said that he is currently working full-time. He added that but [sic] is quite anxious about his performance at work, although there have been no formal performance management plans or any formal complaints. He was concerned that he might be fired from his job.”
Findings on examination were reported as follows:
“I reviewed Mr Abeysinghe via Video. He engaged superficially during the assessment and was cooperative. He was accompanied by the Singhalese interpreter and his wife
He presented as a Sri Lankan man who looked the stated age. He was casually dressed in a multi-coloured t-shirt. He was almost bald and adorned moustache and beard. He was alert and oriented.
He reported his mood to be ‘low’ and his affect was flat. He described fearfulness that ‘anyone might bully him, even unknown people on the streets.’ He denied hallucinations, thought insertion or thought broadcast.
His speech was mostly spontaneous and normal in volume and tone. His thoughts were logical and goal-directed. There was no evidence of any manic or psychotic symptoms or perceptual abnormalities.
I did not attempt to test his cognition formally, but there appeared to be minor deficits in understanding the questions at times and the interpreter had to repeat the questions at times.
He remained slightly anxious throughout the interview. He gave a coherent account of most of his symptoms and difficulties. He was, however, guarded around some aspects of the past history and history around psychotic symptoms.”
The MA then addressed “DETAILS AND DATES OF SPECIAL INVESTIGATIONS” noting the first factual report dated 5 November 2021. The report concluded that:
“The Claimant alleges his psychological injury has been caused by the treatment he has received from Subramani…
The Insured provided a constructive work environment and moved the Claimant to the day shift after his incident in March 2021.
On 26 May 2021, the Claimant emailed the Insured and stated he had no issues with Subramani.
The Insured had multiple discussions with the Claimant regarding mediation, but the Claimant declined and did not provide a reason.
In April 2021, the Claimant was diagnosed with generalised anxiety disorder due to workplace bullying and harassment....
On 15 October 2021, the Claimant requested a new claim form from the Insured relating to his psychiatry treatment.
His solicitor has dealt with HR since 27 May 2021. He has not had direct contact with HR.
Currently he alleges his mental status is getting better after seeing his psychologist and psychiatrist.
However, he does not want to go out as he is afraid people will make fun of his English. He does not have self-confidence. He does not feel comfortable working for the Insured and is planning to look for a new job.”
She then summarised the injuries and diagnoses as follows:
“Mr Abeysinghe alleged that he was forced to attend Union meetings and was asked to record them as well. He alleged that he was discriminated against because of his Sri Lankan background and was mocked because of his poor English skills.
The documents, including Dr Fernando’s referral letter and Dr Howpage’s assessment, point to psychotic symptoms, including paranoia and persecutory beliefs.
He started experiencing symptoms of depression, paranoia, and paranoid beliefs, which have primarily been in remission with treatment (including antidepressants and antipsychotics). He does, however have some vague paranoia around people trying to harm him. He restarted working with a new employer and is currently working full-time.
He presented with amotivational and anhedonia, which can be a symptom of both depression and psychosis. He is currently not on any antipsychotics or antidepressants.
There is a past history of an episode where he was admitted to the hospital in Sri Lanka which was in the context of a friend spiking his drink and ‘poisoning him’.
There were no residual symptoms reported, and he wasn’t on any medications or therapy until he started getting symptoms in the context of work place based incidents.
His symptoms and presentation are consistent with the diagnosis of Schizoaffective Disorder.”
As regards consistency of presentation, the MA said:
“His presentation was consistent with the documentation received. There were, however, some inconsistencies regarding his psychotic symptoms, which could be attributed to a lack of insight into the past symptoms.
There are other discrepancies in the account provided by Mr Abeysinghe and the employer representatives and factual investigation report. These include Mr Abeysinghe alleging that he was pressured to attend union meetings by Mr Kumarsiri and Mr Subramani despite both denying making such requests. He also alleged that Mr Kumarsiri discriminated against him because of his ethnicity despite Mr Kumarsiri stating that he was always friendly in his interactions with Mr Abeysinghe, which was corroborated by other colleagues.”
The MA assessed 15% WPI.
She then turned to consider the other medical reports and documents before her and said:
“I have noted the assessment by Dr Graham George Dated 17.1.2022.
He opined: ‘Mr Abeysinghe is a 31-year-old man of Indian extract. Whilst working as machine operator for his employer, he injured his back. However, he indicated that for a month or two prior to injuring his back, he had been subject to what he believed was bullying and harassment.
He indicated that, what caused change in his mood state, related to the fact that he felt pressured to attend Union meetings. He was not a Union member. He alleged that he was asked to report on the content of the meetings. From that point in time onwards, he became anxious and depressed and suspicious of the people, with whom he worked.
He has come under the care of GP and psychiatrist and his treating psychiatrist has been concerned due to the fact that he has not only had a depressed mood state but paranoid ideas as well. It does appear that he may have had major depression with psychotic features. He has been resistant to taking antipsychotic medication and still remains somewhat suspicious although his mood state has improved.’
I have noted the report by Dr Abdul Virk dated 23.8.2022. Dr Virk has mentioned that ‘On the balance of probabilities, Mr Abeysinghe's account appears to be consistent with the evidence provided with regards to the events at the workplace and accessing medical services.
However, there is inconsistency with regards to the timeline of his symptoms.
Mr Abeysinghe is adamant that he only experienced persecutory beliefs following the issue of being forced to attend union meetings however correspondence from Dr Fernando indicates longstanding persecutor beliefs and Dr Howpage noted a prior episode of persecutory phenomena leading to a cessation of his previous employment.’
I have also noted Dr Chow’s report dated 9.8.2022. I have noted that he calculated the WPI as 23 %.He diagnosed Mr Abeysinghe with major Depressive Disorder with Psychotic symptoms.
Kindly note the reasons why my diagnosis differs from Dr Chow’s assessment. I believe that Mr Abeysinghe has symptoms consistent with the diagnosis of Schizoaffective disorder. This is based on the DSM-5 criterion…”

The MA then set out her assessments with respect to each of the Psychiatric Impairment Rating Scale (PIRS) categories which we do not intend to repeat given the issue in dispute.

The appellant’s submissions

The appellant submits that, having taken a history that “other medical reports mentioned a past history of psychosis” the MA should have made a deduction.
Specifically, the appellant submits:
(a)    the MA failed to give proper consideration to the medical evidence;
(b)    the MA failed to give proper consideration to the issue of credit and the possible effect of the respondent worker’s schizoaffective disorder when accepting the respondent worker’s history of past psychiatric symptoms/illness, and
(c)    the MA should have made at least a one-tenth deduction for the worker’s pre-existing condition.
As regards ground (a), the appellant states:
(a)    Reference is made to the medical referral dated 6 May 2021 from treating general practitioner (GP), Dr Nidarshi Fernando, to Dr Padmini Howpage. Dr Fernando confirmed that the respondent worker reported ‘a long term history of suspicious thoughts – often feels that people are spying on him, tracking his phone, talking about him etc.’
(b)    In corresponding clinical notes from Quakers Hill Medical Practice also dated 6 May 2023, the following was recorded: “History of drug use whilst in Uni - had daily marijuana [sic] for about a year. Episode of drink being spiked by his friend. Became very aggressive and damaged a car. Was hospitalised for this. No psychotic episodes since then.”
(c)    Dr Abdul Virk, psychiatrist qualified on behalf of the appellant employer (report dated 23 August 2022), noted that the respondent worker also referred to “a previous episode of ‘feeling paranoid’ when his ex-girlfriend left him but would not elaborate further.”
(d)    The appellant acknowledges that the MA notes that “other medical reports mentioned a past history of psychosis” when questioning the respondent worker regarding his psychological history. However, the MA does not further engage with these reports, or provide an explanation as to her actual path of reasoning as to why the respondent worker’s history was preferred to the history provided by the treating and qualified doctors.
(e)    Both the MA and Dr Virk agreed on the diagnosis of schizoaffective disorder. Dr Virk posited that this was a pre-existing condition that was not adequately treated “prior to it becoming exacerbated during his employment.” This was also supported by the findings of Dr Howpage.
(f)    The MA has not addressed or considered the possibility of a pre-existing untreated mental health condition as identified by Dr Virk and Dr Howpage.
(g)    In failing to give proper consideration to all of the medical evidence, the MA failed to take into account the objective evidence of pre-existing symptoms that would warrant a deduction under s 323 of the 1998 Act.
The respondent submits as follows:
(a)    The examination by the MA was taken at a different time to the other assessors.
(b)    The MA was bound by the examination conducted on that day (together with the other documentary evidence).
(c)    The evaluation and assessment, based on the history and examination, was a matter purely for her.
(d)    In order to enliven the jurisdiction of the appeal provisions contained in the 1998 Act the appellant employer must demonstrate either a “demonstrable error” on the face of the certificate or that the assessment was made “on the basis of incorrect criteria”.
(e)    The appellant employer’s appeal solely criticizes the MA on the basis of the exercise of her discretion or opinion, rather than an obvious legal or factual error. That is, the appellant employer submits that the MA ought to have assessed the worker in a in a different way, rather than saying she was wrong in assessing the worker pursuant to s 323 of the 1998 Act.
(f)    The case law establishes that the worker must have had a pre-existing injury and that that pre-existing injury contributes to the level of impairment: Cole v Wenaline Pty Ltd [2010] NSWSC 78 and Elcheikh v DiamondFormwork (NSW) Pty Ltd(in liq) [2013] NSWSC 365.
(g)    In Fire and Rescue v Clinen [2013] NSWSC 629, the following was said:
“As Schmidt J pointed out in Cole and Elcheikh, it is necessary to find a pre-existing abnormality or condition, here the latter, actually contributing to the impairment before s.323 is engaged. This conclusion has to be supported by evidence to that effect. Assumption will not suffice.”
(h)    The MA determined “There is no evidence of any residual symptoms after this episode”, when referring to the incident at Kandy Hospital. Simply put, s 323 of the 1998 Act is not enlivened and the appeal must fail.
(i)    The appellant employer acknowledges that the MA had noted “other medical reports mentioned a past history of psychosis” when questioning the respondent worker regarding his psychological history.
(j)    The MA, under the heading. “Reasons for Assessment” said that she had “taken into account the clinical interview, mental status examination and the documentation received including previous IME’s and thereafter provides opinions on why her reasoning differed from other medical opinions.” It is incorrect to state that she did not further engage with the report or provide an explanation as to actual path of reasoning.
(k)    In the appellant’s submissions, the following is submitted: “In the MAC, the MA noted that the worker only ‘engaged superficially during the assessment’ and was ‘guarded around some aspects of the past history and history of psychotic symptoms’.”
(l)    However, the MA noted that he was “co-operative, alert and oriented.”
(m)     Importantly, under the heading “Consistency of Presentation”, it is noted that: “His presentation was consistent with the documentation received. There were however some inconsistencies regarding his psychotic symptoms, which could be attributed to a lack of insight into the past symptoms.” The MA did give due consideration to the possibility that the respondent worker’s history may have been coloured by the symptoms of his diagnosed schizoaffective disorder.
We agree with the thrust of the respondent workers submissions for reasons that follow.
Section 323 of the 1998 Act states:
“(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.”
The significant aspect of s 323 is that there is to be a deduction for any proportion of the impairment that is due to any pre-existing injury or condition.
In this case, the MA obtained a history of some paranoid/psychotic episodes in the past, but they were fairly non-specific. As the MA noted: “He does, however have some vague paranoia (our emphasis) around people trying to harm him.”
On 26 July 2021 Dr Howpage identified paranoia after the back injury and a “past history” of “persecutory beliefs about others trying to harm him. He said he left work after three months due to persecutory beliefs.” It is not clear to the panel that this refers to a time prior to February 2020 or to a period between then and the back injury. The history obtained by the MA is of such beliefs arising in 2020. The same is true of the similar observation by the GP in May 2021.
In addition, when the respondent spoke of his “paranoia about the Sri Lankan people killing Tamilians in Sri Lanka” he noted that “Babu was a South Indian Tamilian and did not like the Singhalese government massacring Tamilians in Sri Lanka.” This is simply a statement of his views and concerns about the political situation in Sri Lanka and consistent with the well documented recent history of cultural and religious groups treating each other differently during the civil war.
In short, as the MA noted, he was “sometimes” paranoid when talking about his past. It was also considered likely that, given the worker has no psychiatric training, the worker was using this word in its colloquial sense, rather than in its more strict clinical meaning.
The MA noted:
“There is a past history of an episode where he was admitted to the hospital in
Sri Lanka which was in the context of a friend spiking his drink and ‘poisoning him’. There were no residual symptoms reported, and he wasn’t on any medications or therapy until he started getting symptoms in the context of work- place based incidents.”
Again, if the spiking did not happen, this seems to be no more than another instance of past paranoia, or some other undefined substance- induced episode from which he apparently recovered, with no residual effects until he commenced employment with the respondent. If this did happen then given the workers limited English and potential translation issues the use of the term “poisoning” for spiking a drink seems a reasonable colloquial use of the word.
Again, this seems to be no more than another instance of past paranoia or some other undefined substance-induced episode from which he apparently recovered from which he apparently recovered, with no residual effects until he commenced employment with the respondent.
Indeed, the clinical notes from Quakers Hill Medical Practice recorded: “Episode of drink being spiked by his friend. Became very aggressive and damaged a car. Was hospitalised for this. No psychotic episodes since then.”
Dr Abdul Virk noted that “On the balance of probabilities, Mr Abeysinghe's account appears to be consistent with the evidence provided with regards to the events at the workplace…”
We also note that the MA said:
“His presentation was consistent with the documentation received. There were however some inconsistencies regarding his psychotic symptoms, which could be attributed to a lack of insight into the past symptoms.”
We agree with the respondent that the MA did give due consideration to the possibility that the respondent’s history may have been coloured by the symptoms of his diagnosed schizoaffective disorder.
In our view, the MA has clearly carefully considered all of the evidence when making an assessment of impairment resulting from the acknowledged work-place injury.
For these reasons, the Appeal Panel has determined that the MAC issued on 14 August 2023 should be confirmed.

[2023] NSWPICMP 573

14 November 2023