Horish v S.M.A. Motors Pty Ltd
[2025] NSWPIC 209
•15 May 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Horish v S.M.A. Motors Pty Ltd [2025] NSWPIC 209 |
| APPLICANT: | Elias Horish |
| RESPONDENT: | S.M.A. Motors Pty Ltd |
| MEMBER: | Parnel McAdam |
| DATE OF DECISION: | 15 May 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987 (1987 Act); Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); sleep disorder; whether a valid claim made; extent to which the Commission can consider the validity of a claim; Macrae v St Margaret’s Hospital discussed; Woolworths Limited v Stafford, and Voudouris v TDV Constructions Pty Ltd distinguished; jurisdiction of the Commission where a medical dispute exists; Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine applied; terms of referral; Skates v Hills Industries Ltd, and Bucca v QBE Insurance (Australia) Ltd discussed; Held – valid claim made; medical dispute exists; matter referred to Medical Assessor. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant has made a valid claim for lump sum compensation. 2. The matter is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: Date of injury: 29 May 2020. Body systems/parts: lumbar spine, scarring and respiratory system. Method of assessment: whole person impairment. 3. The documents to be referred to the Medical Assessor are: (a) the Application and attached documents; (b) the Reply and attached documents, and (c) the Application to Lodge Additional Documents, lodged by the applicant on 25 March 2025. A brief statement is attached setting out the Commission’s reasons for the determination. |
STATEMENT OF REASONS
BACKGROUND
This dispute in this case is a narrow one, that comes with it significant complexity. The claim before the Personal Injury Commission (Commission) is one for lump sum compensation. It is agreed that the applicant suffered an injury to the lumbar spine in the course of his employment with the respondent. It is agreed that the lumbar spine injury and consequential scarring can be referred to a Medical Assessor for an assessment of permanent impairment.
The agreement ends when it comes to the claim for lump sum compensation for the respiratory system. This involves questions of statutory interpretation, the role of the Commission in determining disputes (and the consequent role of the Medical Assessor in assessing impairment), and the validity of a claim and the extent to which that can be determined.
ISSUES FOR DETERMINATION
The parties agree that the following issue remains in dispute:
(a) whether the applicant has made a valid claim for lump sum compensation for a consequential condition in the respiratory system.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
Mr Horish is represented by Mr Stanton of counsel, instructed by GMP Law. The respondent is represented by Mr Stiles of counsel, instructed by Lee Legal Group. The matter proceeded to a conciliation/arbitration on 2 April 2025. Mr Stiles had prepared written submissions prior to that occasion. Given the issues in dispute and the complexity of the legal issues raised, I proposed to, and it was agreed to by the parties, that the matter proceed by way of written submissions. I accordingly issued such a direction.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents;
(b) Reply and attached documents;
(c) Application to Lodge Additional Documents dated 5 March 2025, lodged by the respondent (simply being a list of authorities relied on by the respondent), and
(d) Application to Lodge Additional Documents dated 24 March 2025, lodged by the applicant.
Aspects of the documentary evidence will be discussed below as relevant to the issues in dispute. The documentary evidence has been considered in detail, although some of it is not relevant to the issue that I must determine.
HISTORY OF THE CLAIM AND NATURE OF THE DISPUTE
Background to the injury and sleep condition
Mr Horish worked for the respondent (S.M.A. Motors Pty Ltd, also referred to in the evidence at times as Suttons Group) as a motor mechanic and used car reconditioner. He worked various hours throughout his career with the respondent, as did his duties, but they involved working on cars, quoting, inspecting cars and at times unloading deliveries. The duties were all physical.
He suffered an injury to his lumbar spine on 29 May 2020 when removing a heavy seat from a vehicle he was servicing. This injury eventually required surgery, which was complicated by infection.
Following this injury, Mr Horish began to notice changes in his sleep schedule. He was eventually referred to a respiratory and sleep medicine specialist, Dr David Frieberg. Dr Frieberg is a treating specialist but also provides a report assessing whole person impairment, on which the claim for lump sum compensation for the sleep disorder is based. Dr Frieberg first saw Mr Horish on 6 December 2022. He provided some lung functioning tests at that time, and describes Mr Horish’s sleep functioning:
“He now retires to bed at 10 pm and takes 1/2 hour to go to sleep. He is in bed for 8 hours and he sleeps between 4 to 6 hours. He wakes frequently because of pain. He wakes two to three times a night to micturate. He is unrefreshed by his sleep. He scores 9/24 on an Epworth Sleepiness Score. His wife know reports snoring. He is not sure if apnoeic episodes are witnessed. He does not arouse with a sensation of this. He has no symptoms of periodic limb movement disorder. He now sleeps on his side because of his back injury.”
A diagnostic polysomnogram was recommended, which proceeded on 23 March 2023. He had a CPAP initiation sleep study on 27 March 2023, with a result leading to recommendation of home CPAP. Mr Horish proceeded to undergo a home trial of CPAP. This trial, as reported by Dr Freiberg on 13 June 2023, did not prove successful as Mr Horish was unable to tolerate the mask.
Dr Freiberg provides a report dated 24 July 2023 summarising the above history and assessing whole person impairment. This report forms the basis of the applicant’s claim for lump sum compensation. The applicant made a claim for lump sum compensation on 15 April 2024. The claim was “based on the findings of Dr Bentivoglio and Dr Freiberg” (Dr Bentivoglio having assessed the worker for the purposes of the lumbar spine injury). The claim was for 32% whole person impairment.
The response to the claim for compensation
The respondent made an offer on 22 October 2024 of compensation for 14% whole person impairment. The next day, a s 78 notice was issued, putting in dispute the entitlement to lump sum compensation for the claimed consequential sleep disorder.
Specifically, put in dispute in the summary was that the claimed consequential condition did not result from the accepted injury, and that there was no entitlement to lump sum compensation for the consequential condition as the permanent impairment has not resulted from an injury. The former of those issues is no longer in dispute; it is clear based on the medical evidence that Mr Horish has a consequential condition affecting his sleep due to the lumbar spine injury. The specifics of that acceptance, according to the s 78 notice, are:
“In conclusion, we accept that you have suffered a secondary condition of “sleep fragmentation due to pain”. We do not accept that the condition is compensable for the purposes of permanent impairment compensation for the reasons set out above.”
The reasons for disputing the entitlement are set out in detail in the s 78 notice and are repeated in the respondent’s submissions. They will be discussed in more detail below.
As part of this process, Mr Horish was assessed by Dr Dimitri, who, like Dr Freiberg, is a respiratory and sleep physician. He takes a similar history of normal sleep prior to injury, with good energy at wake and during the day. At the time of examination, Dr Dimitri noted Mr Horish had “insomnia due to pain. His sleep is extremely broken”. He would tire easily during the day, with significant daytime somnolence. He provides the following diagnosis:
“My diagnosis is that this patient has insomnia due to chronic pain. He also has sleep apnoea which would have been pre-existing given the fact that he has lost weight since the injury.”
He records that Mr Horish would have had pre-existing obstructive sleep apnoea, and goes on to state that “the reason he cannot tolerate CPAP, which is a treatment of sleep apnoea, is because of his chronic pain, which is due to his workplace injury”. He opines that overall he agrees with Dr Freiberg’s assessment. He assessed a base impairment of 20%, removing 5% for “his pre-existing sleep apnoea… and the reason he cannot tolerate CPAP is due to his chronic pain”.
The dispute in the Commission
Mr Horish then commenced proceedings in the Commission claiming lump sum compensation (where liability is in dispute and where the degree of permanent impairment is in dispute).
The matter proceeded as discussed above. The respondent has provided written submissions outlining their case, to which the applicant has replied. The respondent has provided written submissions in response.
SUBMISSIONS
As indicated, both parties have made written submissions. The below represents a summary of the submissions provided, which will be discussed in more detail below.
The respondent’s submissions
The respondent’s submissions helpfully set out the background to the claim, the dispute notice, and the relevant evidence. The submissions relevant to the legal issue in question are heading “Is there a valid claim for permanent impairment compensation?”, which, by extension, must be based on the conclusion in the s 78 notice that the secondary sleep condition (which is accepted, on a specific basis), is not “compensable for the purposes of permanent impairment compensation”.
The respondent’s submissions set out the relevant parts of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) that reference the existence of a “claim”, how that claim is made, and what are relevant particulars of a claim. The respondent goes on to refer to the Workers Compensation Guidelines, which are issued by SIRA.
The respondent submits that if the claim for permanent impairment compensation is not based on an assessment carried out in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th Edition (the PI Guidelines) (which, I note here, are distinct from the Workers Compensation Guidelines), then it would not be a valid claim, and not capable of referral to a Medical Assessor as there would be no medical dispute as required by s 319 of the 1998 Act.
The respondent refers to the assessment of Dr Freiberg under the Guidelines, which was undertaken with reference to the American Medical Associate Guides for the Evaluation of Permanent Impairment, 5th Edition (AMA 5). The assessment was undertaken with reference to Chapter 13, concerning the central and peripheral nervous system. There is no allegation of impairment to that body system in AMA 5, but rather, there is an allegation of impairment to the respiratory system, covered by Chapter 5 of AMA 5. The respondent submits that the assessment of Dr Freiberg is not based on obstructive sleep apnoea.
The respondent goes on to note that the Guidelines specifically exclude Chapter 18 of AMA 5, which deals with chronic pain. The respondent relies upon Bucca v QBE Insurance (Australia) Ltd [2024] NSWSC 1099 (Bucca), which is a case arising out the motor accidents division of the Commission, noting that cl 1.12 of the Guidelines is almost identical to cl 1.38 of the Motor Accident Permanent Impairment Guidelines, which were considered in that case.
The respondent ultimately submits that the same scenario arises in the present case as occurred in Bucca, and if the claim is not a valid claim, then there can be no referral to a Medical Assessor as there is no medical dispute.
The applicant’s submissions
The applicant commences by noting that it is uncontroversial that Mr Horish has suffered a back injury, which has left him with a degree of permanent impairment in excess of 10%. Given that, there is no controversy that he can advance a s 66 claim. The applicant then makes a series of observations about the making of a claim, a medical dispute, and the Commission’s jurisdiction. I will discuss the provisions referred to below as all are relevant to the determination of the dispute.
In referring to these sections and aspects of the Workers Compensation Guidelines, the applicant provides commentary. The applicant submits that he has complied with his obligations per the relevant claim making provisions, that the President has a clear power to refer the medical dispute in this case for medical assessment, and that the Commission has jurisdiction to determine the dispute that exists between the parties.
The applicant refers to a number of authorities cited by the respondent in their submissions (Woolworths Limited v Stafford [2015] NSWWCCPD 36 (Stafford) and Voudouris v TDV Constructions Pty Ltd [2023] NSWPICPD 53 (Voudouris)) about the validity of a claim, submitting, in essence, that those cases concerned specific factual scenarios, and the phrase “valid claim” was not being used in a general way.
The applicant then provides a series of emboldened headings summarising the respondent’s arguments, disputing that:
(a) that a claim can only be made for lump sum compensation is a valid claim (for reasons previously discussed);
(b) that a claim can only be valid if it is assessed in accordance with the Guidelines – on the basis that the Guidelines recognise there are a variety of medical conditions that exist and can arise, differences of opinion arise as to how the Guidelines are to be applied, and there is a pathway within the Commission for the assessment of a medical dispute and the appeal thereof. The applicant goes on to submit that Bucca is authority for the proposition that construction of the Guidelines is a matter for Medical Assessors, not the Commission. The applicant submits that it would be inappropriate to determine that the claim relating to the respiratory system cannot proceed further, because it is the role of the Medical Assessor to do this, and
(c) the assertion that the applicant’s sleep disorder is only arising from pain – the applicant refers to the opinion of Dr Freiberg dated 7 March 2025.
Submissions in response
The respondent made brief submissions in response pursuant to the direction I issued on 2 April 2025.
The respondent accepts that all claims must be advanced at the same time, but that all such claims must be valid. The respondent disputes that there is an allegation of “injury” to the respiratory system (as opposed to a consequential condition).
The respondent submits that the question of whether a claim is valid or defective is not a medical dispute as contemplated by s 319 of the 1998 Act, but is rather a question for the Commission. The respondent’s position is not that there are “procedural difficulties” with the applicant’s claim that can be cured – it is that the claim has not been validly made, and there can be no medical dispute that is capable of being referred to a Medical Assessor. The fact that some aspects of the claim are valid (namely the lumbar spine) does not validate the components of the claim that are not valid.
In respect of Bucca, the respondent notes that that case was in respect of a summons seeking judicial review. The comments of Basten AJ, whilst relevant to the determination of whether there is a sleep disorder due to pain, is of no assistance in determining whether the applicant’s claim is a valid one.
The respondent submits that it is for the applicant to establish that all components of the impairment complained of result from a compensable injury or condition in accordance with the Guidelines and AMA 5. The applicant has not demonstrated how an impairment resulting from chronic pain is an assessable condition.
FINDINGS AND REASONS
The dispute in this case concerns the nature of a claim for lump sum compensation, the jurisdiction of the Commission (and bifurcation of that jurisdiction in proceedings in the Commission), and the role of the member in determining disputes.
The legislative framework
Both parties have referred to particular aspects of the legislation in support of their submissions. It is worth referring to the relevant sections here.
A claim is defined in s 4 of the 1998 Act:
“claim means a claim for compensation or work injury damages that a person has made or is entitled to make.”
Chapter 7 of the 1998 Act provides for the “new claims procedures”. Section 260 of the 1998 Act provides how claims are made:
“(1) A claim must be made in accordance with the applicable requirements of the Workers Compensation Guidelines.
(2) The Workers Compensation Guidelines may make provision for or with respect to the following matters in connection with the making of a claim—
(a) the form in which a claim is to be made,
(b) the manner in which a claim is to be made,
(c) the means by which a claim may be made,
(d) the information that a claim is to contain,
(e) requiring specified documents and other material to accompany or form part of a claim,
(f) such other matters as may be prescribed by the regulations.
(3) Without limiting this section, the Workers Compensation Guidelines can require that a claim be accompanied by a form of authority signed by the claimant and authorising a provider of medical or related treatment, hospital treatment or workplace rehabilitation services to the claimant in connection with the injury to which the claim relates to give the insurer concerned information regarding the treatment or service provided or the worker’s medical condition or treatment relevant to the claim.
(4) The Workers Compensation Guidelines can also provide for any of the following matters in connection with the making of a claim—
(a) waiving the requirement for the making of a claim in specified cases (such as cases in which notice of injury has been given or provisional weekly payments of compensation have commenced),
(b) providing for the time at which a claim is taken to have been made in any case in which the requirement for the making of a claim has been waived,
(c) providing for the time when a claim is taken to have been made in a case in which requirements of the Guidelines with respect to the making of the claim have been complied with at different times.
(5) The failure to make a claim as required by this section is not a bar to the recovery of compensation or work injury damages if it is found that the failure was occasioned by ignorance, mistake or other reasonable cause or because of a minor defect in form or style.
(6) Except to the extent that the Workers Compensation Guidelines otherwise provide, an insurer can waive a requirement of those Guidelines with respect to the making of a claim on the insurer.
(7) The Workers Compensation Guidelines can require an insurer to notify a worker of any failure by the worker to comply with a requirement of those Guidelines with respect to the making of a claim, and can provide for the waiver of any such failure by the worker if the insurer fails to give the required notification.”
There are specific procedures for the making of a claim in respect of the different entitlements that arise under the workers compensation legislation. There are general obligations imposed on insurers in respect of what must occur once a claim is made. Section 281 is one such section, requiring claims to be determined within two months after the worker has “provided to the insurer all relevant particulars about the claim”. For the purposes of a worker making a claim, they must provide relevant particulars pursuant to s 282:
“(1) The relevant particulars about a claim are full details of the following, sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant’s full entitlement on the claim—
(a) the injury received by the claimant,
(b) all impairments arising from the injury,
(c) any previous injury, or any pre-existing condition or abnormality, to which any proportion of an impairment is or may be due (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),
(d) in the case of a claim for work injury damages, details of the economic losses that are being claimed as damages and details of the alleged negligence or other tort of the employer,
(e) information relevant to a determination as to whether or not the degree of permanent impairment resulting from the injury will change,
(f) in addition, in the case of a claim for lump sum compensation, details of all previous employment to the nature of which the injury is or may be due,
(g) such other matters as the Workers Compensation Guidelines may require.”
The Workers Compensation Guidelines loom large over the claim-making and determining provisions. Those Guidelines are issued pursuant to s 376 of the 1998 Act:
“(1) The Authority may issue guidelines with respect to the following—
(a) the assessment of the degree of permanent impairment of an injured worker as a result of an injury,
(a1) the professional or other requirements (including qualifications, training or membership of professional bodies) for a medical practitioner to be permitted to assess (or carry out any function related to assessing), for the purposes of the Workers Compensation Acts, the degree of permanent impairment of an injured worker as a result of an injury,
(b) (Repealed)
(c) such other matters as a provision of the Workers Compensation Acts provides may be the subject of Workers Compensation Guidelines.
(2) (Repealed)
(3) The Authority may amend, revoke or replace Workers Compensation Guidelines made by the Authority, and the Minister may amend, revoke or replace Workers Compensation Guidelines made by the Minister.
(4) Workers Compensation Guidelines may adopt the provisions of other publications, whether with or without modification or addition and whether in force at a particular time or from time to time.
(5) Workers Compensation Guidelines (including any amendment, revocation or replacement) are to be published in the Gazette and take effect on the day of that publication or, if a later day is specified in the Guidelines for that purpose, on the day so specified.
(6) The regulations may make provision for or with respect to any matter for which the Workers Compensation Guidelines can provide.”
More specifically, for the claims making process, s 376(1)(c) applies to the issue of the Workers Compensation Guidelines, as they are matters provided for under provisions of the Workers Compensation Acts (see ss 260 and 281(g) above).
The Workers Compensation Guidelines are differentiated from the PI Guidelines, which are issued pursuant to s 376(1)(a) of the 1998 Act. There are “special requirements” for the PI Guidelines set out in s 377 of the 1998 Act:
“(1) This section applies to Workers Compensation Guidelines that relate to the assessment of the degree of permanent impairment of an injured worker as a result of an injury.
(2) Those Guidelines must be developed in consultation with relevant medical colleges, including the Royal Australasian College of Physicians, the Royal Australasian College of Surgeons, the Australian Orthopaedic Association and other relevant colleges and associations.
(3) Sections 40 (Notice of statutory rules to be tabled) and 41 (Disallowance of statutory rules) of the Interpretation Act 1987 apply to those Guidelines in the same way as those sections apply to statutory rules.”
The Workers Compensation Guidelines were referred to by both parties in submissions. Part 8 provides for the claims process for lump sum compensation:
“8.1 Relevant particulars about a claim
Section 282(1) of the 1998 Act states that ‘the relevant particulars about a claim’ are full details that enable the insurer (as far as practicable) to make a proper assessment of the claimant’s entitlement. Section 282(1)(g) allows these Guidelines to specify any further relevant particulars about a claim.
8.1.1 For injuries received on or after 1 January 2002
A claim for lump sum compensation must be accompanied by a report from a permanent impairment assessor listed on the SIRA website, for the body system(s) being assessed.
The assessor’s report must include:
·a statement about whether the condition has reached maximum medical improvement
·an assessment of the part or system of the body being assessed including the percentage of permanent impairment in line with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (version current at the time of the assessment)
·where the claim relates to hearing loss, a copy of the audiogram used for the medical report.”
The Workers Compensation Guidelines bring into relevance the PI Guidelines, requiring the assessment to be “in line with” the PI Guidelines. The respondent’s contention, in essence, is that there has not been an assessment “in line with” the PI Guidelines, rendering the claim invalid.
The initial question is whether the legislation allows for contemplation, and thus determination, of whether a claim can or can’t be “valid” in any circumstances. Section 260 of the 1998 Act provides “how a claim is made”, requiring that a claim “must be made in accordance with the applicable requirements of the Workers Compensation Guidelines”. The Workers Compensation Guidelines, at Part 3, provides general guidance on the making of a claim. Clause 3.1 sets out minimum requirements, including:
(a) name and details of the worker, the employer, medical practitioner, and if applicable, other witnesses;
(b) description of the injury and how it happened, and
(c) information to support the medical expenses and other losses the worker is claiming.
There can be no dispute that the worker has complied with these minimum requirements. It was certainly not asserted by the respondent that that was the case.
The respondent refers to a number of cases that considered the meaning of the term claim, the first of which is Stafford. Stafford is an appeal that, by its own description, concerns the following:
“The present appeal concerns the meaning of the word “claim” in s 66(1A). The main issue is whether, as the employer contends, “claim” in s 66(1A) means “a demand” for payment of permanent impairment compensation, or, as the worker contends, and the Arbitrator found, it means a claim for compensation which is capable of payment in accordance with the 1987 Act.”
The respondent referred to the relevant part of that decision as being [66]:
“If, by the making of one claim for permanent impairment compensation, a worker is to be prevented from making any further claim for such compensation, the word “claim” should be interpreted to mean, at the least, a valid claim. On this approach, consistent with the Arbitrator’s conclusion, Mr Stafford’s demand on 7 April 2014 was not a valid claim because it was not capable of payment in accordance with the 1987 Act. As a result, it does not qualify as “one claim” for the purposes of s 66(1A). There are a number of reasons for adopting this interpretation.”
Given the issue in dispute in that case concerned s 66(1A) and the “one claim” provisions, contrasting a claim for payment as a demand with a claim capable of payment in accordance with the 1987 Act, it must be considered as obiter at best. That issue is not at stake in these proceedings.
Likewise the issue in Voudouris, which was “whether a body system assessed at 0% WPI could be referred to a medical assessor for an assessment” does not presently arise. In that case, his Honour President Judge Phillips said this about that issue (at [50]):
“A valid claim, inter alia, involves a claim for compensation. In this matter the dispute about whether the appellant surmounts the s 39 threshold I accept is a claim for compensation. But the constituent parts of the claim are made up of the various WPI assessments, including two assessments of 0%. The individual assessments of 0%, by definition, cannot form part of the claim for compensation as neither contributes to the WPI percentage necessary to surmount the s 39 threshold. As a result, neither is a valid claim.”
I do not intend to divert from his Honour’s decision, only to observe that the issue in dispute in Voudouris is different to that presently before me. There is clearly an assessment of impairment that is not 0% in this case – that is agreed by both independent medical experts that have assessed the worker.
Authorities must be read in the context of the principles that they stand for. The respondent has referred to two decisions in respect of claims – the first is that a claim for compensation must be a claim capable of being compensation (for the purposes of s 66, in excess of 10%). The second is that parts of a claim for compensation that include assessments of 0% cannot form part of a claim for compensation.
The applicant referred to Ottomen Pty Ltd ATF Labour ADM t/as Otto Design Interiors v Lee-Chee [2013] NSWWCCPD 42. The consideration of whether a claim had been made in that case turned on whether all relevant particulars had been provided, and follows on from Tan v National Australia Bank Ltd [2008] NSWCA 198 (Tan). There is no issue in this case that all relevant particulars have been provided.
The only relevant principle that can be drawn from the above cases is that there are circumstances that exist on a factual basis in which a claim for compensation can be invalid, or not a valid claim.
The assessment of impairment
Claims for lump sum compensation are made pursuant to s 66 of the 1987 Act. The entitlement arises under s 66(1) and is in addition to any other compensation. Compensation is paid based on the degree of permanent impairment calculated in accordance with subs (2), (2A) and (3) of s 66.
Section 65 of the 1987 Act provides for the “determination of permanent impairment” and brings into play the 1998 Act: “the degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7 (Medical assessment) of Chapter 7 of the 1998 Act”.
Section 322 of the 1998 Act provides for the assessment of impairment. Relevantly, s 322(1) provides:
“The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with Workers Compensation Guidelines (as in force at the time the assessment is made) issued for that purpose.”
These provisions are separate to the claim provisions but inform them. They apply equally to a Medical Assessor appointed by the Commission as they do to an independent medical expert who provides an opinion on behalf of a party to a dispute.
The Workers Compensation Guidelines require that a claim be accompanied by a report from a permanent impairment assessor, and that the report must include certain things, relevantly for this case:
“an assessment of the part or system of the body being assessed including the percentage of permanent impairment in line with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (version current at the time of the assessment)”
There are a number of aspects of that of that requirement in the Workers Compensation Guidelines that require consideration. The first is that the assessment is of a “part or system of the body”. The respondent has made submissions about the PI Guidelines concerning whether there is a “respiratory condition” that is capable of assessment. The respondent submits that the PI Guidelines contemplate an assessment of impairment based on a diagnosis of obstructive sleep apnoea as being a “respiratory condition”, but based on the report of Dr Freiberg he has not assessed impairment based on obstructive sleep apnoea.
The below discussion concerning the PI Guidelines are by way of observation. I am wary of entering into the realms of a “medical dispute”, which is solely the jurisdiction of a Medical Assessor to assess and determine. However, the PI Guidelines require some commentary as assessments (and thus claims for lump sum compensation) must be made “in line with” those guidelines.
Chapter 8 of the PI Guidelines concerns the “respiratory system”. As with most chapters, it includes reference to AMA 5 – in this case Chapter 5 of AMA 5 (cl 8.1 of the PI Guidelines). Clause 1.1 of the PI Guidelines makes it clear how the two documents interact:
“The Guidelines adopt the 5th edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA5) in most cases. Where there is any deviation, the difference is defined in the Guidelines and the procedures detailed in each section are to prevail.”
Obstructive sleep apnoea is covered in cll 8.8-8.10 of the PI Guidelines in the following terms:
“Obstructive sleep apnoea (AMA Section 5.6)
8.8 This section needs to be read in conjunction with AMA5 sections 11.4 (p 259) and 13.3c (p 317).
8.9 Before permanent impairment can be assessed, the person must have appropriate assessment and treatment by an ear, nose and throat surgeon and a respiratory physician who specialises in sleep disorders.
8.10 The degree of permanent impairment due to sleep apnoea should be calculated with reference to AMA5 Table 13-4 (p 317).”
Clause 8.8 refers to sections 11.4 and 13.3c of AMA 5. Section 11.4 concerns the nose, throat and related structures. Various structures are referenced, divided into four categories: respiration, mastication and deglutition, olfaction and taste, and speech.
Section 13.3c of AMA 5 appears in the “central and peripheral nervous system” chapter. It is headed “arousal and sleep disorders” and provides:
“Arousal and sleep disorders include disorders related to initiating and maintaining sleep or an inability to sleep; excessive somnolence, including sleep induced respiratory impairment; and sleep-wake schedules”.
Table 13-4 appears in that section and is the table under which both independent medical experts assessed Mr Horish.
The PI Guidelines require the identification of a body system or part. This was discussed in Skates v Hills Industries Ltd [2021] NSWCA 142 (Skates) at [33]:
“Without attempting to set out the detail of the Guidelines and the AMA Guides, to which the Court was not taken, it is sufficient to note that the medical assessment certificate was required to identify the specific body part or system, together with the “chapter, page and paragraph number in WorkCover Guides” and the “chapter, page, paragraph, figure and table numbers in AMA 5 Guides”. Identification of the extent of impairment by reference to individual body parts and body systems is required by the Guidelines and Guides which the statute obliges the AMS to follow.”
In Yates v Flavorjen Pty Ltd [2022] NSWSC 388, the terms body systems and parts were described as “problematic”:
“I interject here that the terms ‘body parts’ and ‘systems’ are used interchangeably and are problematic as these terms do not appear in the Statute. However, identification of the extent of impairment by reference to individual body parts and body systems is required by the Guidelines and Guides which the statute obliges the AMS to follow: see Skates as per Basten JA at [33].”
That does not mean that the applicant, as the respondent submits, must have an injury to the “central and peripheral nervous system”, as he has been assessed under a table that appears in that chapter in AMA 5. Whilst a claim, and a medical dispute must be made with reference to a body part or system, an assessment under a table in a different part of AMA 5 to that body part does not, of itself, render a claim invalid. That requires consideration of the evidentiary basis for the claim being made, and the dispute in the Commission, which, per Leeming JA in Skates is “the fundamental legal concept”. There may be circumstances where that is the case. But for present circumstances, the PI Guidelines, in Chapter 8 (the respiratory system) explicitly refer to table 13-4 of AMA 5.
The question of whether that table appropriately applies to the medical dispute is a matter for a Medical Assessor. In answer to the issue raised before me, the reference to a consequential condition in the respiratory system does not invalidate the claim, merely because that injury is assessed in AMA 5 pursuant to a table that appears in the central and peripheral nervous system chapter. Mr Horish does not need to prove a condition in the central and peripheral nervous system. The respondent has accepted that he has a consequential condition.
The other issue raised by the respondent in terms of the PI Guidelines concerns pain. Chapter 18 of AMA 5 is entirely excluded (see cl 1.12 of the PI Guidelines). Clause 1.12 provides:
“AMA5 Chapter 18, on pain, is excluded entirely at the present time. Conditions associated with chronic pain should be assessed on the basis of the underlying diagnosed condition, and not on the basis of the chronic pain. Where pain is commonly associated with a condition, an allowance is made in the degree of impairment assigned in the Guidelines. Complex regional pain syndrome should be assessed in accordance with Evaluation of permanent impairment arising from chronic pain in the Guidelines.”
The respondent submits that the PI Guidelines provide no scope for sleep disorders outside of those arising from neurological and respiratory disorders. There is no such disorder pleaded. Indirect effects such as pain must be incorporated into the body part which is the source of pain, and the evidence confirms that is the lumbar spine injury. Therefore the assessment provided by Dr Freiberg is not “in accordance with” the PI Guidelines, and the claim for lump sum compensation is not a valid claim.
Dealing with the latter point first, the assessment of permanent impairment must be made “in accordance with” the PI Guidelines, per s 322(1). But those words do not extend to the making of a claim. Per 8.1 of the Workers Compensation Guidelines, a report must include an assessment “in line with” the PI Guidelines.
I have been unable to find any cases interpreting what “in line with” means in a statutory sense. In Pearce, DC (2024) Statutory Interpretation in Australia (10th Edition), a series of legislative drafting expressions are discussed, none of which include “in line with” (see Chapter 12). The words “in line with” are of a general nature and a lower standard than “in accordance with” which infer a higher degree of necessary compliance. The words “in line with” here can be given an ambulatory construction, implying a wide range of meanings.
Further, the Workers Compensation Guidelines are statutory guidelines and do not require strict compliance (Tan), whereas the PI Guidelines have been held to be delegated legislation, and are certainly elevated to a higher standard, by the operation of s 377(3) of the 1998 Act.
In Macrae v St Margaret’s Hospital (1999) NSWCCR 1 (Macrae) the claim making provisions in s 92 and 92A of the 1987 Act (the precursors to ss 65 and 66 of the 1987 Act) were considered in the context of the requirements for postal service. Claim making provisions (at least in the context of service requirements) were said to fall into one of three categories:
(a) requiring strict compliance;
(b) requiring substantial compliance, or
(c) where total non-compliance will not invalidate an act done.
Many of the requirements of those earlier provisions were said to fall into the second category, but “the crucial question is whether what was done achieved the intent and object of the provision” (Macrae at 15).
It is my view that the requirement in the Workers Compensation Guidelines must be made “in line with” the PI Guidelines cannot be one of strict compliance as the term is too vague to impart that kind of standard. I cannot see that this is the type of requirement that total non-compliance can still be valid – an example would be a claim made without reference to the PI Guidelines at all, or made based on a report provided by a health practitioner (as opposed to a medical practitioner).
In that case it must be that the requirement to provide an assessment “in line with” the PI Guidelines requires substantial compliance. This is consistent with the claim making provisions as a whole, which requires the respondent to respond to a claim, but may allow them to delay a response to obtain full particulars, including requiring a worker to submit for examination (see s 282(2) of the 1998 Act). This process may ultimately trigger a medical dispute.
In such circumstances it may be that an assessment of impairment is not made “in accordance with” the PI Guidelines but is made “in line with” the PI Guidelines. The PI Guidelines, by adoption of a specific part of AMA 5, envisages that not all conditions will be covered (per cl 1.23):
“Given the range, evolution and discovery of new medical conditions, these Guidelines cannot provide an impairment rating for all impairments… In situations where impairment ratings are not provided, these Guidelines suggest that medical practitioners use clinical judgment, comparing measurable impairment resulting from the unlisted condition to measurable impairment resulting from similar conditions with similar impairment of function in performing activities of daily living.’ The assessor must stay within the body part/region when using analogy. The assessor’s judgment, based upon experience, training, skill, thoroughness in clinical evaluation, and ability to apply the Guidelines criteria as intended, will enable an appropriate and reproducible assessment to be made of clinical impairment.”
The respondent refers to Bucca in support of this submission. Whilst that case concerned a claim for a sleep disorder, it arose under different legislation (being a motor accidents injury), with a different set of guidelines for the assessment and for the making of a claim. At [71] of Bucca, the issue of the scope of the “medical dispute” and the nature of the body parts was considered:
“Indeed, so much was implicit in the referral of the ‘medical dispute’ for assessment which identified the body part or system as ‘respiratory’. The subject of assessment was therefore so limited. Once the Panel (and indeed the original assessor) was satisfied that there was no degree of impairment of the respiratory system, the plaintiff was not entitled to any degree of permanent impairment related to that system. As Chapter 1 of the AMA4 Guides (though not applicable for assessing permanent impairment) noted, ‘[t]he medical, social and economic consequences of pain are enormous’. That statement recognises medical effects on a variety of body parts and systems. However, sleep is not identified as a body part or system to be assessed as contributing to the level of permanent impairment. Like pain itself, such indirect effects must be incorporated into the assessment of the body part or system which is the source of the pain.”
I have dealt with the identification of the body part or system as “respiratory” above. I am satisfied that an assessment “in accordance with” the PI Guidelines is capable of taking place of the respiratory system, as cl 8.10 includes, by reference, section 13.3c and Table 13-4 of AMA 5. Those clauses appear in Chapter 8, headed “respiratory system”. Applying the authority of Skates, a medical dispute exists as to the degree of impairment that has arisen as a result of the accepted consequential condition. It is not the role of the Commission to comment on the proper interpretation of the PI Guidelines.
This was made clear in some later paragraphs in Bucca:
“That reasoning does not identify a legal principle. The proper application of the Permanent Impairment Guidelines and the AMA4 Guides is a matter for the medical assessors. If they adopt an approach which is manifestly unreasonable, there may be a basis for judicial review. No such ground was relied upon, nor could it have been in the present circumstances.” (at [72])
Further discussion of the point appears at [73] to [78], which concludes with “Short of that, their construction and application are matters for medical assessors, subject to the guidance provided by the Authority”.
This is consistent with the Court of Appeal’s decision in Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine [2016] NSWCA 213, per Meagher JA:
“The jurisdiction conferred on the Commission by s 105 of the 1998 Act, subject to the exceptions in s 105(2) and (3), is to determine a limited class of matters. Those matters include disputed claims for compensation for permanent impairment. However where an aspect of any such dispute concerns the degree of permanent impairment resulting from an injury for which the employer is liable, the Commission is required to refer that medical dispute for assessment and must determine the disputed claim in accordance with that assessment. Its jurisdiction to determine that claim does not extend to making or acting on its own assessment or finding in relation to such a medical dispute. Nor does that jurisdiction permit it to rely on such an assessment or finding as determining whether there is a medical dispute to which Ch 7, Pt 7 of the 1998 Act applies.”
The specific issued raised in Bucca, which the respondent relies upon and purports to exclude insomnia due to pain, is addressed in the medical evidence in a report provided by Dr Freiberg on 7 March 2025. I will treat Dr Freiberg’s commentary on the legal aspects of the case with circumspect, as he is a medical expert. He provides a lengthy commentary on insomnia due to pain under AMA 5:
“This stance incorrectly assumes that insomnia, when initially triggered by pain, remains a secondary symptom rather than progressing into an independent disorder. This perspective disregards established sleep medicine literature, clinical experience, and recognized impairment assessment principles….
A common misconception—reflected in the insurer’s argument—is that insomnia caused by pain remains entirely dependent on the pain itself. However, research and clinical experience contradict this. Pain-related sleep disturbances frequently evolve into chronic insomnia, a condition that remains even when the pain is well controlled...
Chronic insomnia is a recognized disorder with its own diagnostic criteria, pathophysiology, and functional consequences. Pain and insomnia form a vicious cycle, where sleep disturbances become self-perpetuating and independent of the initial injury.”
Dr Freiberg’s opinion is that Mr Horish has insomnia, a separate condition, that was in part initially triggered by pain. Mr Horish does not claim a pain disorder assessable under Chapter 18 of AMA 5. If that were the case, I would agree that there has been no assessment “in line with” the PI Guidelines and his claim is invalid.
The question of whether Mr Horish is entitled to an assessment of permanent impairment of the respiratory system, under Chapter 8 of the PI Guidelines is a matter for a Medical Assessor. I note cll 8.8-8.10 refer to permanent impairment due to sleep apnoea and there have been medical opinions expressed about the causation of Mr Horish’s insomnia and daytime somnolence. Questions of causation are not foreign to medical disputes (Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264 at [110]) and that may be a matter that requires appropriate consideration by a Medical Assessor (and potentially Appeal Panel).
It is It is my view that, as a jurisdictional fact, there exists a medical dispute within the meaning of s 319 of the 1998 Act. There is clearly a dispute as to the degree of permanent impairment of the worker as a result of an injury pursuant to s 319(c). There is potentially a dispute about the worker’s condition (being the aetiology of the condition) pursuant to s 319(a).
As that is the case, I am unable to make the findings asserted for by the respondent. Per Hine at [56]:
“Whether a medical dispute existed was a jurisdictional fact depending on the true character of any dispute between the parties. If there was such a dispute concerning permanent impairment it was required to be resolved in accordance with a medical assessment under Pt 7. The appellant’s second argument does not take the matter any further. Whilst the Commission has jurisdiction to decide collateral or incidental matters, that jurisdiction does not extend to deciding those matters for all purposes within that limited jurisdiction.”
For present purposes, I am satisfied that Mr Horish has made a valid claim for lump sum compensation, including of the respiratory system. I am satisfied that a medical dispute has arisen in respect of that claim that can (and must) be assessed by a Medical Assessor. I will make a referral in that regard.
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