Howard v Department of Human Services (DHS)
[2025] NSWPICMP 644
•27 August 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Howard v Department of Human Services (DHS) [2025] NSWPICMP 644 |
| APPELLANT: | Robyn Howard |
| RESPONDENT: | Department of Human Services (DHS) |
| APPEAL PANEL | |
| MEMBER: | Carolyn Rimmer |
| MEDICAL ASSESSOR: | David Crocker |
| MEDICAL ASSESSOR: | David Gorman |
| DATE OF DECISION: | 27 August 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal in respect of assessment of the respiratory system on the basis that the Medical Assessor failed to utilise the Epworth Sleepiness Score in assessing sleep apnoea; Appeal Panel satisfied that it is not mandatory to conduct an Epworth Sleepiness Score and there was no demonstrable error in the assessment nor application of incorrect criteria; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 19 June 2025 Robyn Howard (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Peter Honeyman, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 22 May 2025.
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, 4th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The appellant sustained an injury in the course of her employment with the Department of Human Services (the respondent) on 10 July 2013 when she was assembling a trolley to move files and felt pain in her right upper extremity. The appellant developed a consequential sleep condition.
The appellant filed an Application to Resolve a Dispute dated 6 January 2025.
In a Certificate of Determination – Consent Orders dated 21 February 2025, Member Elizabeth Beilby the following orders were made:
“1. The claim in respect of injury to the right elbow is discontinued.
2. The matter is referred to the President to be remitted to a medical assessor for WPI assessment of the following parts;
a. Right upper extremity (shoulder only).
b. Respiratory system (sleep apnoea).
3. The application and reply are to be provided to the assessor.
4. The date of injury is 10 July 2013.”
The matter was referred to Dr Peter Honeyman, Medical Assessor, for assessment of whole person impairment (WPI) the right upper extremity (shoulder) respiratory (sleep apnoea).
The Medical Assessor examined the appellant on 17 March 2025.
The Medical Assessor assessed 6% WPI of the right upper extremity (shoulder) and 8% WPI of the respiratory system (sleep apnoea) which combined to total 14% WPI.
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 there was sufficient information on which to make a determination.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
The appellant’s submissions include the following:
(a) The appeal only concerns the assessment in respect of the respiratory system (sleep apnoea);
(b) Ground 1- The Medical Assessor made the following error which amounts to both a demonstrable error and the application of incorrect criteria. The Medical Assessor (i) failed to properly assess the sleep apnoea in accordance with the applicable guidelines and (ii) failed to utilise the Epworth Sleepiness Score in order to properly carry out the assessment;
(c) nowhere in the MAC is it apparent that the Medical Assessor required the appellant to complete the questionnaire or recorded the results of the Epworth Sleepiness Score questionnaire. The Medical Assessor does not explain why he did not use the Epworth Sleepiness Score assessment tool as prescribed by AMA5 despite it being used and referred to by the medico-legal experts for both the appellant and the respondent;
(d) it is not clear how the Medical Assessor assessed the impairment and why he did not use the Epworth Sleepiness Score and if he did, what the results were, as they were not recorded;
(e) this score is an important tool because the difference between class 1 and class 2 of Table 13-45 is not great in terms of satisfying criteria but is significant in terms of the outcome as to the WPI rating. Class 1 ranges from 0%-9% and class 2 ranges from 10%-29% WPI;
(f) Class 1 is appropriate when a person’s sleep apnoea results in reduced daytime alertness, but the individual can still perform most activities of daily living. Class 2 is appropriate where there is reduced daytime alertness which interferes with the ability to perform some activities of daily living. Using the Epworth Sleepiness Score would assist in assessing on which side of the dividing line a person may fall;
(g) the failure of the Medical Assessor to carry out the assessment in accordance with the guidelines, diligently using all available tools as used by the other Assessors amounts to a demonstrable error and has resulted in the assessment being based on incorrect criteria, and
(h) the Appeal Panel ought to find error and revoke the MAC. The Appeal Panel ought to re-examine in order to ascertain the correct WPI for the sleep apnoea and issue a new MAC in its place.
The respondent’s submissions include the following:
(a) there has been no demonstrable error of the MAC, nor utilisation of incorrect criteria by the Medical Assessor, in the manner which has been suggested by the appellant. The submission of error is predicated on an assertion that the Medical Assessor was required to provide an assessment on the basis of an Epworth Sleepiness Score;
(b) pParagraphs 8.8 - 8.10 of the Guidelines deal with the assessment of ‘Obstructive Sleep Apnoea’ and make no reference to the Epworth Sleepiness Score. The Guidelines do not support an assertion that an assessment of sleep apnoea must be undertaken utilising the Epworth Sleepiness Score. Paragraph 8.10 of the Guidelines specifically states that ‘The degree of permanent impairment due to sleep apnoea should be calculated with reference to AMA5 Table 13-4 (p 317).’ Table 13-4 of the AMA5 Guide does not refer to the Epworth Sleepiness Score, nor to the requirement for a Medical Assessor to utilise the same. Table 13-4 assigns a WPI range to a particular clinical presentation. There is no suggestion that such a clinical presentation is required to be assessed by reference to the Epworth Sleepiness Score specifically;
(c) paragraph 13.3c of the AMA5 refers to the Epworth Sleepiness Scale but does not require that a Medical Assessor utilise that score for the purposes of assessment;
(d) neither the Guidelines nor the AMA5 require a Medical Assessor to utilise the Epworth Sleepiness Scale for the purposes of an assessment of WPI under Table 13-4 of the AMA5;
(e) It is necessary for the Medical Assessor to utilise their own clinical judgment in undertaking any assessment of impairment, as set out under paragraph 1.5 of the AMA5. The Medical Assessor has utilised this clinical judgment to assess the appellant under Class 1 of Table 13-4, and it is not reasonable in the absence of any error in the method of assessment or ultimate result to alter the assessment provided at first instance;
(f) there are no comments recorded above which would suggest that the appellant’s sleep and arousal disorder ‘interferes with ability to perform some activities of daily living’, as is required for an assessment under Class 2 within Table 13-4;
(g) the Medical Assessor’s reasoning in this regard was not insufficient and the MAC clearly delineates the path of reasoning followed by the Medical Assessor to make the decision ultimately reached;
(h) the reasons provided by the Medical Assessor must not be scrutinised in a fine or minute manner. The Medical Assessor is only required to explain the “actual path of reasoning” leading to the decision (see State of NSW (NSW Department of Education) v Kaur [2016] NSWSC 346;
(i) there was no error in the Medical Assessor’s path of reasoning. The Medical Assessor made an assessment on the basis of his experience and clinical judgment and has provided a clear path of reasoning for the assessment recorded in the MAC, and
(j) the Medical Assessor has not made any demonstrable errors or applied incorrect criteria in determining the appellant’s level of WPI. The Medical Assessor is not required, in assessment of sleep and arousal disorders under Table 13-4 of the AMA5, to obtain and record a worker’s Epworth Sleepiness Score. In the absence of such a requirement, there is no error on the part of the Medical Assessor under MAC of 22 May 2025 which can be demonstrated by the appellant. Further, there is no argument made by the appellant, nor any comment or evidence to suggest that the assessment in MAC, by reference to Table 13-4 of the AMA5 Guidelines, was incorrect.
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 Appeal Panel reviewed the MAC and the evidence in this matter.
Ground 1 – (i) Failure to properly assess the sleep apnoea in accordance with the applicable guidelines
The appellant submits the Medical Assessor made a demonstrable error and applied incorrect criteria in that he failed to properly assess the sleep apnoea in accordance with the applicable Guidelines. The appellant submits that because of the failure of the Medical Assessor to record the appellant’s Epworth Sleepiness Score, the Medical Assessor erred in assessing the appellant under Class 1 of Table 13-4 for Sleep and Arousal Disorders.
The Medical Assessor noted that the appellant attended the examination with her husband and that there were no problems with communication. The Medical Assessor recorded the following history of sleep problems:
“She says that in 2014, her husband kept noticing that she intermittently stopped breathing through the night. She saw a GP and was subsequently referred for sleep studies at the end of 2014. Her initial Doctor assessing her was Dr Fogarty who is an ENT Surgeon. He recommended a CPAP machine which she has used since. She also saw a Dentist who recommended and issued her with a mouth guard to assist breathing. She says if she goes away, this is what she uses.
Prior to the accident, she describes her weight as 65kg and she was very active. With the problems, she currently ranges in weight between 84 kg and 89 kg.
There is no history of any significant interruption of daytime activities of daily living, nor interruption to her work as a receptionist. I note she frequently uses medication to assist with sleep.”
Under “Details and Dates of Special Investigations” the Medical Assessor note:
“9/2/24 Prof Grainge IME: notes good sleep pattern, and minimal day time drowsiness when using CPAP machine and classifies her in low end of Class 1 for sleep impairment….
11/8/24 Dr Freiberg IME: notes the sleep study shows the combination of moderately severe obstructive sleep apnoea with sleep fragmentation due to insomnia from pain. He places her in class 2 for impairment of sleep”.
Under “Summary of injuries and diagnoses” the Medical Assessor noted: “Sleep apnoea managed with full time usage of CPAP machine. She has been assessed by an ENT and a dentist for alternate causes.”
Under “Reasons for Assessment” the Medical Assessor wrote:
“The sleep apnoea is rated with reference to T14.4 p317. She can perform her work and daytime activities without significant interruption which puts her in class 1. I place her in the middle of Class 1 at 5% and add 3% for treatment requiring to use (sic) a CPAP machine on a full-time basis.
In making that assessment I have taken account of the following matters: Review of the material provided and a detailed examination of the claimant”.
In commenting on the other medical opinions, the Medical Assessor wrote:
“Prof Grainge and I agree that ADLs are not significantly affected by her sleep problems when using her CPAP machine. He has not added WPI for the continuous and significant requirement to keep using this machine.”
Dr David Freiberg, consultant physician in respiratory and sleep medicine, in a report dated 11 October 2023, assessed 15% WPI in respect of sleep apnoea.
Under “Sleep History”, Dr Freiberg noted:
“After her shoulder injury she could no longer sleep on her side and she slept for the majority of the time on her back. She also gained significant weight. Her husband reported snoring and apnoeic episodes. She would arouse with a sensation of upper airway obstruction. She developed progressive hypersomnolence. She was referred for sleep studies”.
Dr Freiberg referred to a diagnostic polysomnogram which was conducted at the Albury-Wodonga Sleep Disorders Centre at the Murray Valley Private Hospital conducted on
27 May 2014 as well as a treatment sleep initiation study also conducted in 2014.Dr Freiberg wrote:
“One year later on the 27 May 2014 Mrs Howard had a diagnostic polysomnogram in the Albury-Wodonga Sleep Disorders Centre at Murray Valley Private Hospital. At that time her weight was 78 kg or a BMI of 27. She had a sleep efficiency of 88% but as a proportion of the overall sleep time there was a significant reduction in the stage of slow wave sleep at 10% of total sleep time (normal range 15-20%) and of REM sleep at 17% of total sleep time (normal range 20-25%).
She had 13 spontaneous awakenings and a spontaneous arousal index of 33/hour. The likely etiology of the spontaneous awakenings and arousals were due to her pain.
Heavy snoring was heard from the patient who slept the majority of the time on her back. She had an apnoea-hypopnoea index (AHI) of 25/hour (AHI 15-30 is moderate obstructive sleep apnoea). However in REM sleep her AHI was in the severe range at 37/hour. There was oxygen desaturation to 82%.
Therefore this sleep study shows the combination of moderately severe obstructive sleep apnoea with sleep fragmentation due to insomnia from pain.
On the 15 July 2014 Mrs Howard had a treatment initiation sleep study with a sleep efficiency of 64% and persistent reduction in the proportions of slow wave and REM sleep at 10% and 13% of total sleep time respectively. She had 7 spontaneous awakenings and a spontaneous arousal index of 24/hour. The likely etiology of these persistent spontaneous awakenings and arousals was due to her ongoing pain. CPAP up to 9 cm H2O via a nasal cushion was shown to reverse her potential for sleep disordered breathing and again she slept predominantly in the supine position.”
Dr Freiberg noted that since the treatment intervention sleep study the appellant had been sleeping for an average of 9 hours a night wearing CPAP therapy via nasal mask and frequent downloads of data from the device “shows that her AHI has returned to the normal range”. Dr Freiberg recorded a history that although the appellant “wore the CPAP for up to 9 hours she reported that she was only asleep for between 4 to 6 hours per night, because she is constantly and continually waking because of pain and discomfort”. He noted that she was unrefreshed by her sleep on CPAP and that she had significant and persistent daytime hypersomnolence which “affects her activities of daily living as reflected by an Epworth Sleepiness Score performed today at 15/24”.
Dr Freiberg noted that the appellant would have scored 0 out of 24 on an Epworth Sleepiness Score prior to the work injury.
Dr Freiberg referred to AMA5, Table 13-4, noting that “Class 2 impairment is a 10%-29% Impairment of Whole Person which Results in reduced daytime alertness and interferes with the ability to perform some activities of daily living”. Dr Freiberg noted that “a score of 10/24 on the Epworth Sleepiness Score is equal to excessive sleepiness or a Class 2 impairment”.
Dr Freiberg wrote:
“As a result of Mrs Howard's workplace injury she is dependent upon nocturnal ventilation and she remains moderately severely hypersomnolent despite reversing the sleep disordered breathing with CPAP therapy. I would therefore classify her as a 15% Impairment of Whole Person due to sleep and arousal disorders. I would add 3% because of her dependency on nocturnal ventilation which was not required prior to her workplace injury. Therefore she has a final 18% Impairment of Whole Person (sic)
due to sleep and arousal disorders. No deduction needs to be made for any pre-existing condition.”
Professor Grainge made a diagnosis of moderate to severe obstructive sleep apnoea. He noted that this condition was likely to continue unless the appellant lost a significant amount of weight “but that rarely occurred”.
Professor Grainge was of the view that but for the workplace injury to the right shoulder, the appellant would have remained at her pre-injury weight and would not have developed moderate to severe obstructive sleep apnoea, requiring treatment. He considered that there were no pre-existing factors which contributed to her development of obstructive sleep apnoea, other than a genetic predisposition to the condition as her weight increased.
Professor Grainge utilised the Epworth Sleepiness Score, noting that on the day of his examination, she scored 4/24 which indicated normal levels of daytime somnolence. In his assessment, the appellant had no impairment on the day of his assessment. He noted the difference between his assessment and that of Dr Freiberg. He awarded 2% WPI for the effects of ongoing therapy as CPAP nocturnal ventilatory assistance was moderately rather than mildly or markedly intrusive.
The appellant submits that because of the failure of the Medical Assessor to record the appellant’s Epworth Sleepiness Score, the Medical Assessor erred in assessing the appellant under Class 1 of Table 13-4 for Sleep and Arousal Disorders.
Chapter 8 of the Guidelines at 8.8 - 8.10 provides:
“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)”.
AMA5 section 11.4 is headed “The Nose, Throat and Related Structures’ and at 11.4a includes a reference to “Sleep apnoea, which is covered in Chapter 5, may be related to functional upper-airway obstruction.”
AMA 5 section 13.3c is headed “Arousal and Sleep Disorders” provides on page 317:
“The clinician can evaluate sleepiness with the Epworth Sleepiness Scale, which assesses the likelihood of dozing (never = 0 to high chance = 3) in different situations: sitting and reading, watching television, sitting in a public place, riding as a passenger for an hour, taking an afternoon nap, sitting and talking to someone, sitting after a non-alcohol lunch, and stopped in traffic in a car.” A score of “10/24 is equal to excessive sleepiness, or class 2 impairment. This scale correlates with the multiple sleep latency test (MSLT), which supports pathologic sleep in narcolepsy and idiopathic hypersomnia. See Table 13-4 for impairment due to sleep and arousal disorders.”
The Appeal Panel accepts that while the Epworth Sleepiness Scale can be and is often used by assessors to assist in an assessment, there is no mandatory or imposed requirement for a Medical Assessor to administer the Epworth Sleepiness Scale in the examination or rely on this score for the purposes of their assessment.
Table 13-4 of AMA 5 sets out the criteria for rating impairment due to sleep and arousal disorders. Class 1 ranges from 0%-9% WPI and class 2 ranges from 10%-29% WPI.
The criteria for Class 1 are: “Reduced daytime alertness, sleep pattern is such that individual can still perform most activities of daily living”.
The criteria for Class 2 are: “Reduced daytime alertness, interferes with the ability to perform some activities of daily living”.
The examples of assessment under Table 13-4, commencing at Example 13-17 on page 318 of the AMA5 Guide do not refer to the Epworth Sleepiness Score. Example 13-17 confirms current symptoms relevant to the individual’s classification under Table 13-4, though at no stage relies on that individual’s Epworth Sleepiness Score.
The Medical Assessor reported that there was no history of any significant interruption of daytime activities of daily living, nor interruption to the appellant’s work as a receptionist
The Medical Assessor has utilised his clinical judgment to assess the appellant under Class 1 of Table 13-4. It is not mandatory to conduct an Epworth Sleepiness Scale in an assessment. The Appeal Panel is not persuaded that there has been error on the part of the Medical Assessor.
The Appeal Panel is satisfied that the Medical Assessor carried out the assessment in accordance with the Guidelines, and the assessment is not based on incorrect criteria. The fact that the Medical Assessor did not record the appellant’s Epworth Sleepiness Score, did not amount to an error in assessing the appellant under Class 1 of Table 13-4 for Sleep and Arousal Disorders.
This ground of appeal is not made out.
Ground 1(ii) - Failure to utilise the Epworth Sleepiness Score in order to properly carry out the assessment.
The appellant submits that the Medical Assessor failed to utilise the Epworth Sleepiness Score in order to properly carry out the assessment.
As noted above, neither the Guidelines nor AMA 5, make it mandatory to utilise the Epworth Sleepiness Score in order to carry out an assessment of sleep and arousal disorders.
Although the use of the Epworth Sleepiness Score may assist in an assessment, the failure by the Medical Assessor to record the appellant’s Epworth Sleepiness Score in his assessment does not amount to a demonstrable error or the use of incorrect criteria.
This ground of appeal is not made out.
For these reasons, the Appeal Panel has determined that the MAC issued on 22 May 2025 should be confirmed.
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