DETERMINATION OF APPEAL PANEL	
	
CITATION:	Yawson v Assetlink Services (23) Pty Limited [2023] NSWPICMP 68	
		
APPELLANT:	Benjamin Yawson	
		
RESPONDENT:	Assetlink Services (23) Pty Limited	
		
Appeal Panel		
		
MEMBER:	John Wynyard	
		
MEDICAL ASSESSOR:	Nick Glozier	
		
MEDICAL ASSESSOR:	Doug Andrews	
		
DATE OF DECISION:	3 March 2023	
		
CATCHWORDS: 	wORKERS cOMPENSATION -  Workplace Injury Management and Workers Compensation Act 1998; appeal from reconsidered Medical Assessment Certificate adjusting the assessment from 15% to 14% following orders made by the President’s Delegate; whether Medical Assessor (MA) adequately explained his reasons for the section 323 deduction of 1/10th; whether MA considered all the evidence; Held – any ambiguity in the MA’s reasons by his comment that there was insufficient information for him to make a deduction after reconsidering clinical notes was clarified by his later explanation; appellant was rendered more vulnerable and the deduction was open to him.

BACKGROUND TO THE APPLICATION TO APPEAL
1.	On 11 October 2022 Benjamin Yawson, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by 
Dr Michael Hong, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 13 September 2022.
2.	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.
3.	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. 
4.	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 the PIC Rules.
5.	The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment. 
RELEVANT FACTUAL BACKGROUND
6.	On 31 August 2021 this matter was referred to the MA for an assessment of WPI caused by a psychological/psychiatric disorder caused by injury on 7 August 2018.
7.	Mr Yawson was born in Ghana in 1958.  He came to Australia in 1992, and worked in a government department for 13 years before being made redundant. He holds a Diploma in Plumbing, Certificate IV in Education – Training and Assessment, a Bachelor of Education and Masters of Education from Charles Sturt University. 
8.	He obtained work with the respondent but was bullied and humiliated by management in the presence of other workers and before the public. He was ordered to do “the dirty jobs” such as sucking water from a drain, and Mr Yawson finally went off sick on 7 August 2018 after being told to empty a bucket of dirty water.  His statement contained further episodes of the conduct of management that humiliated him.
9.	Mr Yawson gave the history to the MA that management targeted “people of colour”, and that there were other workers from Malaysia and Somalia who were bullied similarly.  He could remember about five workers who had left because of the behaviour of two managers.
10.	On 7 December 2021 the MA issued his MAC. However, on 13 May 2022 the delegate of the President, Kathryn Camp, granted the respondent’s application to have the MA reconsider his decision.  On 27 July 2022 a further referral was made to the MA.  It contained the same request but added to it was the Order made by the delegate.   
11.	The MA reconsidered his decision.  In his MAC of 7 December 2021 the total WPI awarded was 15%.  In his reconsidered MAC of 13 September 2022, the MA found a total WPI of 14%.
PRELIMINARY REVIEW
12.	The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties.
13.	The appellant sought to be re-examined by an MA on the Panel but, for the reasons given below, no re-examination was necessary. 
EVIDENCE
Documentary evidence
14.	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.  
Medical Assessment Certificate
15.	The parts of the medical certificate given by the MA that are relevant to the appeal are set out, where relevant, in the body of this decision. 
SUBMISSIONS 
16.	Both parties made written submissions which have been considered by the Appeal Panel. 
FINDINGS AND REASONS 
17.	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. 
18.	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.
19.	The appellant appeals against the reconsidered assessment of 14% WPI.
THE MAC
20.	In his first MAC, the MA did not refer to the clinical notes that were before him, simply finding that there was no past psychiatric injury.  The MA noted:
“He has been married for 38 years and stated the relationship is not good since the work bullying started, he reported they have been having some arguments. He stated he has no income and has to draw on his superannuation and has almost no money left, and this is a source of argument at times.”
21.	On 13 May 2022 President’s delegate Kathryn Camp, in ordering a reconsideration, said: 
“38.	….The MAC does not disclose that the Medical Assessor had regard to Dr Mohammed’s clinical notes set out at pages 20-23 of the Reply to the Application. Having regard to the MAC, and, in particular, the extracts set out above at [12]-[16], it is arguable that the Medical Assessor either overlooked or failed to have regard to material evidence concerning the applicant’s clinical psychological history. This is arguable because the history recorded by the Medical Assessor that the applicant had no past psychiatric history or “no prior psychiatric difficulties” is inconsistent with the clinical evidence of the applicant’s treating General Practitioner Dr Mohammed. Indeed, those clinical notes disclose that the applicant had reported psychological symptoms to Dr Mohammed from August 2017. In the clinical note entry for 17 August 2017, Dr Mohammed records “Depression/anxiety”. Also, in the clinical note entry for 4 October 2017, Dr Mohammed records that the applicant was referred to Ms Georgees for psychological counselling. Having regard to these clinical notes, it is arguable that the Medical Assessor has overlooked or failed to have regard to evidence that was material in the assessment of the applicant’s degree of permanent impairment. The failure to take relevant material into account may constitute a demonstrable error under s 327(3)(d) of the 1998 Act.5
39.	…The applicant concedes what is set out in Dr Mohammed’s clinical records, at pages 20-23 of the Reply. The applicant also concedes, by way of submissions, that he had marital discord in 2017 and that he attended on Ms Georgees for couples counselling but his wife refused to attend. On the background of this accepted evidence, it was incumbent on the Medical Assessor to have regard to this evidence in the assessment of the applicant’s degree of permanent impairment, and it is unclear on the face of the MAC whether this was undertaken.”
22.	In his MAC of 13 September 2022 the MA noted the referral for reconsideration.  He said:
“Mr Ben Yawson presented for a reconsideration assessment. He stated he understood why he is being assessed, and I discussed with him there were GP records and handwritten notes related to his past psychiatric history. He stated he has not seen these records.”
23.	The MA noted that Mr Yawson had never taken any psychotropic medication and was taking anti-hypertensive medication. When discussing Mr Yawson’s past psychiatric history, the MA said:
“In my last assessment, I recorded he had no past psychiatric history, and noted 
Dr George and Dr Clark also recorded the same history. 
I asked Mr Yawson why he did not discuss his pre-existing psychiatric history with any of the assessors or in my last assessment, and he said that he had no prior psychiatric problem.
I read some of the statement in Mr Yawson's GP records. He told me there was a misunderstanding in Ghana and that his wife’s sister was there, and he flew back. She was evicted, but his wife was not happy with him and sided with the sister. He said he spoke to the GP only because he wanted some help to contact the consular and to talk to his wife and about her sister, and said the sister was being rude to him. He recalled he was then referred to a psychologist, Klara Gerges, and had two consultations. He recalled she told him that he needed to come back with his wife for marital counselling, but the wife declined. He said later the issue between him and his wife resolved and they came to an agreement. He stated he was looking for work and subsequently started work with Asset Link. 
He did not have any psychological problem. He stated that if he continued to have a major psychiatric problem, he would not have been able to socialise or perform work, and he also performed electrical and some carpentry work for Asset Link. I discussed with Mr Yawson the recorded psychological symptoms in the GP record, and he agreed and said he had those symptoms when he was at his worst, but does not believe the symptom persisted when he started work.”
24.	The MA noted that one of his two daughters was living at home with whom he got on well. 
25.	The MA noted that he had been asked to reconsider his MAC.  He said:
“I noted the submission and directed my attention to Mr Yawson's GP's medical records, hand-written notes which discussed his pre-employment psychological history. 
In summary, the GP record noted that immediately before Mr Yawson commenced work, there were prolonged issues involving his wife and her family, causing depression, anxiety and affecting his functioning, including poor appetite and sleep, as well as racing thoughts, tearfulness, and being distressed. I accepted his history that it was a relatively minor preexisting psychological condition and that he may have reached asymptomatic state when he started work. There is insufficient information to assess his pre-existing impairment according to the Guides and I have applied a one-tenth deduction for a pre-existing injury, an Adjustment disorder, which was likely asymptomatic, but contributes to his current impairment.”
26.	The MA referred to contemporaneous notes made by Mr Yawson’s general practitioner (GP)  between 3 August 2017 and 7 February 2018. 
“Mr Yawson's GP’s handwritten record, page 20 (page 178 in my package), noted:
•	3 August 2017, very stressed, problem at home with wife. His wife taking her sister’s side, who is in Ghana. The patient will think, and choosing to separate.
•	9 August 2017, the patient has been advised by children that for his best interest and health, the way to go is to separate, wife has asked him to try marriage counselling. The patient over the last one and a half years complained of reduced appetite, tearful, reduced sleep, worried, thought racing, rejection by wife for intimacy, no suicide ideation.
•	9 August 2017, depression, anxiety, needs marital counselling.
•	14 August 2017, the patient is still distressed and angry, conflict with wife.
•	23 August 2017, the patient happy to convince his wife, he is loyal to her and the family.
•	2 October 2017, referred to Uplift for psychological counselling with Klara. 23 October 2017, the patient still angry regarding his wife.
•	2 November 2017, having psychological issues because of wife’s behaviour
•	The subsequent entry on 7 February 2018 noted at work, feeling dizzy.”
27.	At [8e] of the MAC, the following appeared:
“e. Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality?
Yes. He confirmed the history in his GP's medical records, which is similar to his current symptoms and impairment in some aspects, therefore, my view is that his preexisting injury contributed to his current impairment.”
(As written)
28.	At [11] the templated paragraph relating to deductions, the MA said:
“…(i) There is a pre-existing injury, which contributes to his current injury impairment. He likely had an Adjustment disorder with anxiety and depression, as a result of family stressors.
…(i) There is a pre-existing psychological condition which directly contributed to 
Mr Yawson's WPI.
…The extent of the deduction is difficult and/or costly to determine, so in applying the provisions of s.323(2), I assess the deductible proportion as one-tenth. This is not at odds with the available evidence.”
SUBMISSIONS
The appellant
29.	After setting out the above facts, Mr Yawson submitted that the 14% assessment has been made on the basis of incorrect criteria and that the reasons contained a demonstrable error in the MA’s application of the provisions of s 323 of the 1998 Act. 
30.	It was argued that the MA did not adequately consider all the relevant material in determining that there should be a deduction. 
31.	It was further submitted that the MA did not apply the correct criteria in assessing the provisions of s 323.
32.	We were referred to Mr Yawson’s statement that he did not discuss his pre-existing psychological conditions with his doctors because he did not have any.
33.	Mr Yawson submitted that the14% WPI assessment was not consistent with the MA’s finding that Mr Yawson was asymptomatic when he started work.  It was argued that the MA had based the s 323 deduction on exactly the same factual findings as he had made in finding that no deduction was warranted when he issued his original MAC on 7 December 2021.
34.	Mr Yawson submitted that the MA “did in fact consider the appellant’s pre-existing psychological condition but did not agree that it was relevant to allocate any impairment deduction to his current work related injury”. 
35.	Mr Yawson also referred to the MA’s remark that, “according to the Guides” there was insufficient information to make a deduction.   The deduction he then made contradicted his statement, it was argued.
36.	Mr Yawson submitted that it was relevant that both medico-legal assessors agreed that no deduction was warranted – as indeed did the MA himself in his first MAC of 
7 December 2021.  Mr Yawson submitted that the medico-legal specialists also considered the clinical records in question but nonetheless concluded that no deduction was necessary.
37.	The appellant concluded that the MA had failed to articulate a logical path of reasoning.
38.	We were referred to Cole v Wenaline Pty Ltd and to Vitaz v Westform (NSW) Pty Ltd.
39.	The appellant concluded that the MA had failed to articulate a path of reasoning that was logical.
RESPONDENT’S SUBMISSIONS
40.	We were referred Mahenthirarasa v State Rail Authority of New South Wales and Ors.  The respondent disputed the appellant’s assertion that the MA was aware of the appellant’s pre-existing psychological condition.  It noted that this was the basis of the reconsideration application.  The respondent kindly enclosed a copy of its submissions in that reconsideration application.
41.	The respondent conceded that the MA recorded a history that Mr Yawson did not suffer from any psychological problems but submitted that such history was based on only Mr Yawson’s subjective reporting.  It was consistent with Mr Yawson’s position throughout the dispute – that he had no prior psychiatric problem.
42.	We were referred to the record made by the MA (at page 8) summarising the clinical records.  Having reviewed that material, the respondent submitted, the MA was satisfied there was indeed a pre-existing adjustment disorder.  
43.	We were referred to Matthew Hall Pty Ltd v Smart as to whether an asymptomatic 
pre-existing condition was relevant in the application of s 323.   In any event, the respondent said, Mr Yawson had been making complaints to his GP up to November 2017, when 
Mr Yawson started work with the respondent.  
44.	The respondent noted [8e] of the MAC and stated that there was a similarity between the current reported symptoms and some aspects of the earlier impairment.  This too was open to the MA to find.
45.	The respondent acknowledged that the MA had said there was insufficient information to assess the extent but pointed out that the MA then relied on s 323(2) to make his finding.  
46.	Thus it was submitted there was no demonstrable error or any application of incorrect criteria.  The MA was not required to give expansive reasons and in the circumstances and by reference to the relevant authorities, it was submitted that the reasons were clear and an adequate disclosure of his reasons had been given by the MA. 
47.	The respondent further observed that the opinions taken by the medico-legal specialists as to the applicability or otherwise of s 323 was only as good as the history that that were given.   In the case of Dr George, it was hardly surprising that he found that s 323 had no application, as he advised the respondent that Mr Yawson had not suffered any psychiatric injury.
DISCUSSION
48.	Section 323 provides:
“323 Deduction for previous injury or pre-existing condition or abnormality 
(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.”
49.	It can be seen that the contemporaneous clinical notes by Mr Yawson’s GP, Dr Mohamed, demonstrated that there had been domestic discord recorded between 3 August and 
2 November 2017, related to a family conflict involving Mr Yawson’s sister-in-law, who was living in Ghana.  Significantly, the discord had been ongoing (as at 3 August 2017) for 18 months.  
The clinical notes
50.	The notes were handwritten and somewhat difficult to decipher.  Doing the best we can, on 
3 August 2017 Dr Mohamed wrote: 
“very stressed, problems at home with his wife
Seems like his wife is taking her sister’s side who is in Ghana, unfairly and [indecipherable] in the conflict between pt [patient] and wife sister – for the last 1½ years.
Has given up, children, friends, ministers have all advised him that the number one priority is his health
Counselled
Pt will think on deciding & choosing to separate.”
51.	On the 9 August 2017 the GP notes record that: 
“over the last 1/1.2 years c/o (much reduced) appetite, tearful, (much reduced) sleep, worries, thoughts racing….no suicidal ideation, no plans
Diagnosis depression/anxiety”
52.	A further entry on 14 August 2017 stated:
“Pt is still distressed & angry
Conflict with wife, who continues to side with her sister in Ghana & … allowing her 
To stay in their house in Ghana.  The sister who apparently had major conflict with him whilst he was in Ghana.”
53.	Dr Mohamed’s next entry of 17 August 2017 simply noted “depression/anxiety”.
54.	On 23 August 2017 Dr Mohamed noted:
“pt happy to convince his wife he is loyal to her and her only.”
55.	On the same day Dr Mohamed completed a GP mental health treatment plan (“GPMHTP”), but noted in an entry of 2 October 2017 that the plan was finally processed after some administrative difficulties, and Mr Yawson was referred to Ms Georgees for psychological counselling.
56.	On 23 October 2017 Dr Mohamed noted that Mr Yawson’s wife was:
“still taking sides…The frustration of his wife’s inability to show him her stance whether she wishes to continue on their relationship
Ms Georgees can only give psychological counselling to his psychological problems and not marriage counselling.”
57.	On 2 November 2017 Dr Mohamed noted that Mr Yawson was:
“Having psychological issues b/c of wife’s behaviour
Advised to see her LMO [indecipherable] wife to seek marital counsellor to exclude psychiatric mental health.”
58.	Apart from some vertigo/dizziness issues in February 2018, the next relevant entry in 
Dr Mohamed’s notes was on 7 August 2018 and it related to Mr Yawson’s being bullied and intimidated by his managers at work.
59.	It can thus be seen that the cause of Mr Yawson’s prior psychological condition was unrelated to the issue that caused the subject injury, but consisted of similar symptoms, and enough to meet the criteria for at least and adjustment disorder and with the duration and range, of a major depressive disorder, despite Mr Yawson’s assertion he had no prior psychiatric condition.  The cause of Mr Yawson’s current condition and associated impairment was the bullying he had encountered. The history to the MA included conduct that had been directed at Mr Yawson, and other “people of colour” working there, such as Malaysians and Somalians.  He said that about five people had left “one by one” because of this conduct by the respondent’s managers. 
60.	Mr Yawson argued that the MA had misapplied s 323, because the MA failed to consider all the relevant material.  We apprehended Mr Yawson to argue that the MA’s finding of a minor pre-existing condition was a reflection that it may not indeed have been relevant to the impairment caused by the workplace injury. The MA did not explain how a domestic issue, notwithstanding that it continued for 18 months, was relevant as contributing to the impairment caused at the workplace.  It is clear that the workplace injury was concerned with bullying, intimidation and, it would seem, racism, putting Mr Yawson in a situation that he could not control.  The domestic issue had none of those elements, we take the submission to be, and Mr and Mrs Yawson had resolved it by the time the MA assessed him on 
31 August 2022.
61.	It is settled law that an MA is required to give adequate reasons for his assessment, as we have noted in the above reference to Vegan.  The adequacy of the reasons will depend on the particular facts.  In Western Sydney Local Health District v Chan the dicta in Wingfoot Australia Pty Ltd v Kocak was found to be applicable to an MA as much as a Medical Appeal Panel.   The High Court held (at [48]) that:
“…What is to be set out in the statement of reasons is the actual path of reasoning by which the Medical [Assessor] arrived at the opinion the Medical [Assessor] actually formed for [him]self.”
62.	The order of delegate Kathryn Camp and the MA’s subsequent discussion of the contemporaneous GP notes make it likely that the MA based his original assessment of 
7 December 2022 on clinical grounds, and his assessment of the appellant on the day of the consultation.  If the MA had read the GP notes, he did not comment, but rather accepted 
Mr Yawson’s statement that he had never had a psychological injury as being consistent with the MA’s appraisal.
63.	In the subject MAC, having detailed the GP notes, the MA said, as indicated, that he accepted Mr Yawson’s history that it was a relatively minor pre-existing condition.  He also said that there was insufficient information to assess the pre-existing impairment.  This finding does not justify reliance on s 323(2).  The statutory presumption of 10% can only be applied where “the extent of a deduction” is “difficult or costly to determine”, not where there is insufficient information to establish a deduction at all.  
64.	In that regard however, any ambiguity was resolved by the comments at [8e] and [11] of his MAC. 
65.	The MA’s comments in both paragraphs make it clear that the pre-existing psychological condition contributed to Mr Yawson’s current impairment. We concur with that opinion.  The symptoms recorded by Dr Mohamed existed only a few months before a very similar set of symptoms arose from the subject injury.  His depression and anxiety in 2017 would have rendered him more vulnerable.  The cause of a psychological condition by one type of interpersonal difficulty that differed in character from another is irrelevant from a epidemiological and epistemological viewpoint.  In both situations, Mr Yawson had his support undermined.  The deduction was open to the MA.
66.	For these reasons, the Appeal Panel has determined that the MAC issued on 
13 September 2022 should be confirmed.