Insurance Australia Limited t/as NRMA Insurance v Fardoulis
[2024] NSWPICMP 718
•16 October 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Insurance Australia Limited t/as NRMA Insurance v Fardoulis [2024] NSWPICMP 718 |
CLAIMANT: | Jason Fardoulis |
INSURER: | Insurance Australia Limited t/as NRMA |
REVIEW PANEL | |
MEMBER: | Cameron Thompson |
MEDICAL ASSESSOR: | Ian Cameron |
MEDICAL ASSESSOR: | Magaret Gibson |
DATE OF DECISION: | 16 October 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; claimant injured in a motor accident on 9 January 2017 when another vehicle struck the rear passenger side of the vehicle he was driving; dispute as to whether the degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%; Medical Assessor (MA) found that the claimant’s obstructive sleep apnoea was caused by the accident and gave rise to a whole permanent impairment (WPI) of 5%; Medical Review Panel (Panel) agreed with the diagnosis of obstructive sleep apnoea but determined that the accident did not cause or materially contribute to this injury; Panel found that the claimant did not sustain any direct injuries in the accident which are likely to have caused him to develop obstructive sleep apnoea; Panel did not accept that weight gain since the motor accident secondary to the physical injuries the claimant sustained in the accident caused or materially contributed to the obstructive sleep apnoea or that the sleep apnoea was caused by pre-accident anxiety or that the cause of the obstructive sleep apnoea is pain secondary to the physical injuries to the cervical and lumbar spine sustained in the accident; whilst the Panel accepted that the presence of pain can disturb sleep, pain is not a medically accepted cause of obstructive sleep apnoea; Panel found that the claimant’s sleep disturbance is caused by both his obstructive sleep apnoea (which was not caused by the accident) and pain arising from his physical injuries; Panel accepted that the claimant suffers from chronic plain as a consequence of his physical injuries and that this disturbs his sleep but was of the opinion that because the claimant’s pain condition is not assessable separately from his physical conditions, the sleep dysfunction or disturbance which is caused by the pain is also not separately assessable for the purposes of WPI, that it is the body part or system which gives rise to the pain that is to be assessed for the purposes of WPI; clause 1.38 of the Motor Accident Permanent Impairment Guideline; Bucca v QBE Insurance (Australia) Limited; sleep is not identified as a body part or system to be assessed as contributing to the level of permanent impairment and, like pain itself, must be incorporated into the assessment of the body part or system which is the source of the pain; Held – claimant’s obstructive sleep apnoea was not caused by the accident and there is no assessable impairment; certificate of MA revoked. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Review Panel Assessment of Permanent Impairment Replacement Certificate issued under section Part 3.4 of the Motor Accidents Compensation Act 1999
(a) obstructive sleep apnoea |
STATEMENT OF REASONS
BACKGROUND
The claimant, Jason Fardoulis, suffered physical and psychological injuries in a motor accident on 9 January 2017 when another motor vehicle struck the rear passenger side of the vehicle he was driving (the accident).
The claimant’s claim and entitlements to compensation and/or damages are governed by the provisions of the Motor Accidents Compensation Act 1999 (the MAC Act).
Insurance Australia Limited t/as NRMA (the insurer), is liable for the driver of the vehicle which struck the claimant’s vehicle for liability to pay the claimant any damages under the MAC Act.
The present dispute between the parties is whether the “degree of permanent impairment as a result of the injury caused by the accident is greater than 10%”. This constitutes a medical dispute within the meaning of the MAC Act.[1]
[1] See ss 57 and 58 of the MAC Act.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[2]
[2] Clause 1.2 of the Guidelines.
The dispute in relation to the degree of permanent impairment of the claimant’s physical injuries caused by the accident was referred to Medical Assessor Meakin for assessment. In a certificate dated 12 June 2019, Medical Assessor Meakin determined that the accident caused soft tissue injuries to the claimant’s cervical spine and lumbar spine and assessed the whole person impairment of the claimant’s cervical spine at 5% and the lumbar spine at 5%, a total of 10% whole person impairment.
The dispute in relation to the degree of permanent impairment as a result of the claimant’s psychological injuries caused by the accident was referred to Medical Assessor Takyar for assessment. In a certificate dated 29 July 2019, Medical Assessor Takyar determined that the accident caused a DSM-5 Adjustment Disorder with mixed anxiety and depressed mood and that the whole person impairment arising from this injury is 7%.
The claimant subsequently lodged an application for further assessment pursuant to s 62 of the MAC Act on the basis of additional relevant information about the injury. That application related to an additional injury, sleep apnoea, which had not previously been referred for assessment. It alleged that on the basis of the report of Professor Bryant dated 27 March 2020 and a sleep study reported by Dr Herath dated 17 September 2019 there is objective evidence that the claimant developed consequential sleep apnoea and has a much greater degree of permanent impairment than previously assessed by Medical Assessor Meakin.
On 27 August 2020, Proper Officer Redmond referred the following injuries for further medical assessment:
(a) sleep disorder/sleep apnoea.
The further medical assessment was referred to Medical Assessor Grainge. On 26 April 2021, Medical Assessor Grainge issued a certificate in which he found that the following injuries caused by the motor accident give rise to a permanent impairment of 5% and is not greater than 10%:
(a) obstructive sleep apnoea.
The present application is a review of the medical assessment of Medical Assessor Grainge pursuant to s 63 of the MAC Act.
THE REVIEW
The insurer lodged an application for review of the Certificate of Medical Assessor Grainge.
On 11 February 2022, the President’s Delegate referred the medical assessment to a Review Panel as he was satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect.
Pursuant to s.63(3) of the MAC Act and Schedule 1, cl 14(F)(2) of the Personal Injury Act 2020 (the PIC Act), the Review Panel consists of two Medical Assessors and a Member of the Motor Accident’s Division of the Personal Injury Commission (the Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a Review Panel reviewing a decision of a medical assessor.[3]
[3] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[4]
[4] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters in which the medical assessment is concerned.[5]
[5] Section 7.26(6) of the MAI Act.
THE CLAIMANT’S OBJECTION TO THE COMPOSITION OF THE REVIEW PANEL
Following the decision of the President’s Delegate on 11 February 2022 referring the Certificate of Medical Assessor Grainge to a Review Panel, the Commission constituted a review panel comprised of Member Thompson and Medical Assessors’ Cameron and Gibson (the Panel) to determine the application.
The Panel initially conferred on 4 May 2022 and directed the claimant to attend a reassessment by Medical Assessor Cameron on 1 July 2022.
On 16 June 2022, the claimant’s solicitors emailed the Commission referring to the recent allocation of the Panel in this matter and noting that the two medical assessors are not respiratory physicians or specialists in respiratory injuries, and that given that the Certificate of Medical Assessor Grainge which is under review assessed the claimant’s sleep/respiratory issues, requested the Commission to reallocate the Panel to consist of appropriate medical assessors who would be able to adequately address this dispute.
The claimant did not attend the scheduled re-examination of it by Medical Assessor Cameron on 1 July 2022.
On 28 July 2022 the Commission emailed the parties advising that the claimant did not attend the scheduled assessment by Medical Assessor Cameron and requested the insurer to advise if it had any objection to the Panel which had been convened or having the claimant examined by either Medical Assessor Cameron or Medical Assessor Gibson.
On 9 August 2022 the insurer’s solicitor emailed the Commission submitting that the medical expertise of its medical assessors and their appropriateness to assess an issue is a matter for the Commission to determine and be satisfied with.
On 11 October 2022, the Commission emailed the parties referring them to Procedural Direction PIC 7 in relation to the constitution of a Review Panel and advising that Medical Assessor Gibson is trained and approved to assess the claimant and that a new appointment to do so will be provided.
A further appointment for re-examination of the claimant by Medical Assessor Cameron was scheduled for 9 December 2022.
On 8 November 2022, the claimant’s solicitors emailed the Commission advising that they had instructions that the claimant will not be attending his assessment on 9 December 2022 and that a complaint will be escalated shortly.
On 29 November 2022, the claimant’s solicitors emailed the Commission advising that the claimant will not be attending any assessment at this stage arranged with the Review Panel and attaching a signed statement from the claimant objecting to attending a re-examination with the medical assessors on the Panel because they are not specifically qualified as sleep physicians and do not practice as a respiratory physician or practice in this specific area of sleep study.
The claimant did not attend the rescheduled appointment for re-examination by Medical Assessor Cameron on 9 December 2022.
By letter dated 22 February 2023 the Commission wrote to the claimant’s solicitors advising that if the claimant continues to maintain his position in relation to the composition of the Panel, his assessment of damages will not progress in accordance with section 86(4)(a) of the MAC Act and requesting the claimant’s solicitors to advise in writing on before 21 February 2024 that he is agreeable to be re-assessed by Medical Assessor Cameron to allow this matter to proceed without any further unnecessary delay.
By letter dated 24 February 2023, the Commission wrote to the claimant’s solicitors advising that Medical Assessor Gibson is a specialist in occupational medicine who has completed the required respiratory module relevant to a sleep apnoea assessment and that Medical Assessor Cameron is a rehabilitation specialist, and that both Medical Assessors are suitably qualified to consider the matter before them, and that there is no basis on which to reconstitute the Panel and no grounds on which to consider reconstitution of the Panel other than where a conflict of interest has been found as provided by Procedural Direction PIC 7 at paragraph 46. That letter confirmed that the Panel is suitably qualified to assess the claimant and will not be reconstituted.
The Commission emailed the parties on 5 June 2023 advising that the claimant has failed to attend two appointments with Medical Assessor Cameron and requesting the claimant to advise as to whether he is going to attend the next appointment once it is booked.
On 6 June 2023 the claimant’s solicitors emailed the Commission advising that the claimant is awaiting a decision with respect to his complaint regarding the composition of the Review Panel before confirming whether he will attend any further appointments arranged by the Commission.
By letter dated 25 August 2023, the Commission confirmed to the claimant’s solicitors that there are no grounds on which to consider reconstituting the Panel other than where a conflict of interest has been found as provided in Procedural Direction PIC 7 at paragraph 46.
By letter dated 31 August 2023, the claimant’s solicitors referred to the Commission’s letter dated 24 February 2023 and advised the Commission that the claimant maintains his position that he is entitled to have any review medical assessment undertaken by a specialist respiratory physician and recommended Dr David Frieberg, Dr Paul Thomas, Dr Christopher Clarke and Dr Iven Young.
A further appointment for the re-examination of the claimant was scheduled for 16 February 2024, however, on 8 February 2024 the claimant’s solicitors wrote to the Commission advising that he would not be able to attend that appointment due to short notice of the appointment because of work commitments, but that favourable consideration would be given to any future appointments being arranged giving the claimant some two to three weeks’ notice, and confirming the claimant’s earlier submission that the Review Panel should comprise a specialist respiratory physician, and recommending the Review Panel be comprised of at least one respiratory physician, recommending Dr Geoffrey Kaufman.
By letter dated 13 February 2024, the Commission advised the claimant’s solicitors that the issue of the composition of the Panel had already been addressed formally by the Commission numerous times, and in particular, in correspondence dated 24 February and
25 August 2023. The Commission advised that its position as communicated in that correspondence has not changed in regard to the claimant’s request for reconstituting the Panel and it reiterated that the Panel is suitably comprised and that the Panel members are suitably qualified and that the claimant’s ongoing reluctance to attend for reassessment is causing an unnecessary delay in addressing the related application for assessment of damages which is in the Commission’s Stood Over List. The Commission referred to s 86(3) and (4) of the MAC Act and advised that if the claimant continues to maintain his position in relation to the composition of the Panel despite previously agreeing to attend a reassessment, the damages assessment will not progress. The Commission agreed to obtain a rescheduled assessment date providing three to four weeks’ notice to allow the claimant to make the necessary arrangements to attend if the claimant confirmed in writing before 21 February 2024 that he is agreeable to be assessed by Medical Assessor Cameron.
The claimant’s solicitors wrote to the Commission on 15 February 2024 confirming that the claimant has agreed to attend the Review Panel assessment but that he does require a few weeks’ notice before the appointment and confirming that the claimant had previously provided his undertaking that he would attend a re-examination with the Review Panel based on its current composition.
The claimant ultimately attended a re-examination by Medical Assessor Cameron on
12 April 2024.
THE ASSESSMENT UNDER REVIEW
The following injury was referred to Medical Assessor Grainge for assessment:
(a) sleep disorder/sleep apnoea
Medical Assessor Grainge obtained a history from the claimant that prior to the accident he was completely fit and active and specifically had no problem with witnessed snoring or apnoeas, had no sleep disturbance, was able to go to bed at a usual time late in the evening and quickly initiated sleep and maintained sleep throughout the night, did not have any daytime somnolence and he was extremely fit and active. His weight was approximately 75 kilograms and stable and had been for many years and in addition to playing basketball, tennis and bushwalking he was very active looking after his young children and his occupation as a real estate photographer involved moving large quantities of photographic material and equipment in and out of houses on a regular basis.
Medical Assessor Grainge recorded a history of the accident on 9 January 2017. The claimant said he was driving his pregnant wife following a pre-natal appointment when he passed the exit to a carpark on the right, and although he was driving a large four-wheel-drive vehicle, the impact of the small hatchback exiting the carpark and hitting his car spun his car through 180 degrees. The claimant said he did not notice any symptoms himself, possibly because he was concerned regarding his pregnant wife and his young daughter, but that over a period of the next 24 to 48 hours he noticed increasing neck and back pain.
Medical Assessor Grainge noted that the claimant has been diagnosed as having a C5/6 disc protrusion, associated pain and paraesthesia and that these had been assessed independently and records that due to the claimant’s neck, back and paraesthesia, he now finds it difficult to initiate or maintain sleep secondary to these pains. He does not wake up refreshed, his wife reports some snoring and he finds that he is sleepy during the day with an Epworth Sleepiness Score of 13/24. He dozes watching television, is likely to sleep post meals and also dozes when he is in a car as a passenger. The claimant reported that his weight gradually increased following the accident to 85 kilograms and he notices that his neck pain and arm paraesthesia is worse when he performs vigorous exercise, and his levels of physical activity have reduced as a result.
Medical Assessor Grainge reports that the claimant has been diagnosed with mild to moderate obstructive sleep apnoea with an Apnoea-Hypopnoea Index of 20. He has been reviewed by the Woolcock Sleep Institute and has been trialled on continuous positive airway pressure therapy, but this resulted in him becoming claustrophobic, and in addition he has also tried a mandibular advancement device but this induced nausea and currently there are no other treatments available for obstructive sleep apnoea of demonstrated benefit. Medical Assessor Grainge recorded that the claimant has symptoms in keeping with untreated obstructive sleep apnoea along the lines outlined with an Epworth Sleep Score of 13 and significant daytime somnolence.
On clinical examination of the claimant, Medical Assessor Grainge found that he appeared well, his weight was 88 kilograms, his upper airway was not crowded with a Mallampati Score of 1 and his cardiovascular and respiratory examination were entirely normal. Medical Assessor Grainge noted that the claimant’s presentation was consistent.
Medical Assessor Grainge refers to the report of Professor David Bryant dated
26 March 2020 and his supplementary report dated 26 March 2020 and notes the diagnosis of obstructive sleep apnoea attributing this to weight gain following decreased activity following physical injury following the accident, and Professor Bryant’s finding that the claimant’s reduced daytime alertness results in a whole person impairment of 5%.
Medical Assessor Grainge agrees with Professor Bryant in that although there were no direct physical injuries caused at the time of the accident which led to obstructive sleep apnoea, on the balance of probabilities, the claimant’s obstructive sleep apnoea was caused by his weight increase from 75 kilograms to 88 kilograms, a weight gain of more than 10%, which has been demonstrated to increase the likelihood of obstructive sleep apnoea. In conjunction with this symptomatology and Apnoea-Hypopnoea Index Score of 20, Medical Assessor Grainge diagnoses obstructive sleep apnoea and concludes that the preceding cause from this is immobility and inability to exercise secondary to his injuries sustained during the accident, and that the obstructive sleep apnoea is therefore attributable to and caused by the accident.
Medical Assessor Grainge also agrees with Professor Bryant’s assessment of a 5% whole person impairment.
THE ASSESSMENT OF MEDICAL ASSESSOR MEAKIN
On 12 June 2019, Medical Assessor Meakin assessed the claimant to determine the dispute as to whether the degree of permanent impairment of the claimant as a result of the following injuries caused by the accident is greater than 10%:
(a) cervical neck/neck-disc protrusion – left C5/6;
(b) thoracic spine/lower back – soft tissue injury;
(c) lumbar spine/lower back – soft tissue injury;
(d) left arm – soft tissue injury;
(e) right arm – soft tissue injury;
(f) left shoulder – soft tissue injury;
(g) right shoulder – soft tissue injury;
(h) left leg – soft tissue injury, and
(i) right leg – soft tissue injury.
Medical Assessor Meakin recorded a history that in 2012, the claimant experienced the onset of discomfort in his posterior cervical neck with some left upper limb symptoms and that although there was no major traumatic event, the symptoms developed after gardening and landscaping. The claimant was referred to the neurosurgeon, Dr Andrew Kam, who arranged for an MRI scan of the cervical spine which revealed at C5/6 level a moderate left paramedian, foraminal disc protrusion associated with left-sided uncovertebral arthrosis Because there was continuing discomfort, a second opinion was sought from Associate Professor Brian Owler in April 2013. He noted changes in the 2012 scan and suggested that a new scan should be obtained and recommended surgery and a steroid injection which was not performed.
Medical Assessor Meakin records that the claimant’s symptoms associated with the neck and left shoulder settled within a year and that the claimant said that he was completely asymptomatic leading up to the current motor accident on 9 January 2017. Medical Assessor Meakin records that there was no previous history of painful traumatic disorder in the right or left upper lower extremities just prior to the current motor vehicle accident or a history of thoraco-lumbar disorder.
Medical Assessor Meakin obtains a history from the claimant as to the circumstances of the accident. The claimant said that he was driving his daughter and wife from a private hospital where an ultrasound had been performed on his wife. A vehicle travelling at approximately 40 kilometres per hour struck his four-wheel drive vehicle on the rear passenger side causing it to spin 180 degrees. Medical Assessor Meakin that the claimant was wearing a seatbelt and that whilst the claimant did not strike his head or lose consciousness in the accident, he stated that had discomfort in his posterior cervical neck and posteriorly and low in the midline low lumbar back with a feeling of paraesthesia involving both arms and both legs over the next five days. He saw his local practitioner and was again referred to Professor Owler who reviewed him in February 2017 and a repeat scan performed on 12 January 2017 demonstrated again the left postero-lateral herniation at C5/6 with the focal area of abnormality at the C6/7 level of uncertain aetiology and that the remainder of the cord remained normal. At the C5/6 level the left postero-lateral disc herniation impinged on the left lateral recess and the left exit foramen, but the proximal and distal discs were normal. Professor Owler again suggested conservative treatment including physiotherapy and in his report dated 28 February 2017 he noted no evidence of neurological deficit in the upper or lower extremities and no evidence of myelopathy. Medical Assessor Meakin notes that Professor Owler has not been consulted again.
Medical Assessor Meakin records that at the time of the assessment the claimant reported continuing discomfort in his posterior cervical neck and in the midline posterior lumbar back in the mid-third and across the pad of the right and left shoulder, and that the claimant agrees that there has been no direct injury to the right or left shoulder. Medical Assessor Meakin notes that the discomfort appears to be radiating from the cervical neck.
In his conclusions, Medical Assessor Meakin records that the claimant presented with neck pain and upper left extremities symptoms in 2012 with symptoms persisting for up to a year, although complete resolution occurred. He underwent two neurosurgical opinions at that time and there was known scan evidence of a left-sided disc lesion at the C5/6 level but there was no history of trauma. In the opinion of Medical Assessor Meakin the accident on
9 January 2017 has resulted in a soft tissue injury to the cervical neck and lumbar back with ongoing discomfort and pain radiating onto the pad of the right and left shoulder as well as intermittent occipital headaches. He further concludes that although there was no soft tissue injury to the right or left arm or leg, the claimant has continued to complain of a partial sensory loss involving the toes and fingers of these four quadrants, sparing only the fifth toe and finger on the right and left sides. He initially reported a feeling of paraesthesia involving all four limb quadrants which was not noted on re-examination by Medical Assessor Meakin, but he records that the claimant continues to report vertigo and intermittent headaches.
Medical Assessor Meakin determined that the following injuries were caused by the accident:
(a) cervical spine – soft tissue injury; and
(b) lumbar spine - soft tissue injury.
Medical Assessor Meakin notes that the neurological symptoms referencing the right and left upper and lower extremities relate to the injury to the cervical and lumbar spine respectively, that there has been no direct injury to the right or left arm, shoulder or leg, but rather continued subjective, sensory involvement, and that there was no direct soft tissue injury to the thoracic back.
Medical Assessor Meakin determined that the following injuries were not caused by the motor accident:
(a) thoracic spine/lower back – soft tissue injury.
Medical Assessor Meakin assessed the whole person impairment of the claimant’s cervical spine at 5% and the lumbar spine at 5% with no pre-existing or subsequent causes.
STATUTORY PROVISIONS AND GUIDELINES
Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 of the MAC Act provides a disagreement between a claimant and an insurer on three distinct matters are “medical assessment matters” and includes “whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%”.
Section 60 of the MAC Act provides that either party may refer a medical dispute to the President who is to arrange for the dispute to be referred to one or more Medical Assessors. Clauses 1.5-1.7 of the Guidelines relate to the assessment of permanent impairment and provide:
“1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the (MAC) Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
1.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows ‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.’
This involves a medical decision and a non-medical informed judgement.
1.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAC Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act apply to the MAC Act.[6] In Raina v CIC Allianz Insurance Ltd[7] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss 5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[6] See s 3B(2) of the CL Act
[7] [2021] NSWSC 13 (Raina) at [65]
These observations were made in the context of a review panel being constituted by three medical experts as opposed to the composition of the present panel following the amendments to the MAC Act.
MATERIAL BEFORE THE PANEL
The Panel issued directions requiring the parties to upload to the portal indexed and paginated bundles of documents they relied upon in the review of Medical Assessor Grainge’s certificate.
In response to these directions, the insurer uploaded to the portal at AD2 a bundle of documents indexed and paginated from pages 1 to 103 (IB). The claimant initially uploaded to the portal a bundle of documents at AD3, but in response to a further direction lodged an amended and Final Index of Documents for Review Panel which were indexed and paginated and attached documents from pages 1 to 123 (CB).
In response to further directions by the Panel the claimant uploaded to the portal the following further material:
(a) clinical notes of MyHealth Medical Centre Baulkham Hills[8];
(b) clinical notes of Dr Adrian See[9];
(c) patient report from National Reference Laboratory in Dubai in February 2015.
[8] Found at AD6 on the portal
[9] Found at AD7 on the portal
The Panel has read and considered the documents relied upon by the parties on this review as identified in paragraphs 63 to 65 above in making its findings and determinations.
Treating medical evidence
Without providing an exhaustive summary of all of the treating medical evidence included in the documents relied upon by the parties, the Panel notes the following.
The dermatologist, Dr Adrian See, in a report dated 28 June 2013 to Dr Madni at MyHealth Medical Centre records that Mr Fardoulis' weight was 85 kg at that time[10].
[10] AD7
Dr Samantha Herath, consultant respiratory and sleep physician arranged for the claimant to undergo a home polysomnography sleep study on 17 September 2019 and prepared a report.[11] She reports that the claimant’s sleep architecture was fragmented with a sleep efficiency of 67% and concludes that he has moderate obstructive sleep apnoea and notes that the lowest oxygen saturation during that study was 90%. This is the sleep study report contained in the documents.
[11] CB p.40.
The clinical notes of My Health Medical Centre Baulkham Hills have been provided. These commenced in 2008. Left shoulder pain was noted by Dr Tsang at a consultation on
26 April 2012. Subsequently Dr Tsang requested imaging of the cervical spine. Dr Lee on 28 April 2012 noted ongoing symptoms with suggestion of a left C6 nerve root compression. He noted a low speed motor vehicle crash one year previously.A consultation with Dr Eracovici on 9 May 2012 recorded that Mr Fardoulis was anxious about the MRI cervical spine result. On 6 October 2012 Dr Wettimuni reported that Mr Fardoulis was feeling very stressed at work due to "bullying harassment, threat of losing job". Ongoing stress related to workplace issues was reported by Dr Tsang on
8 November 2012. Dr Tsang on 08 November 2012 reported that Mr Fardoulis was distressed. Dr Tsang said that he would provide a medical certificate for stress leave. Dr Wettimuni on 13 November 2012 reported that Mr Fardoulis was extremely stressed and was "not sleeping". Temazepam was started for sleep as a result of that consultation. On 8 December 2012 Dr Wettimuni noted that Mr Fardoulis was still feeling very stressed although he had left his previous employment. On 13 December 2012 Dr Wettimuni reported that Mr Fardoulis was improving following the resignation from his previous position.On 7 January 2013 Dr Watt reported that Mr Fardoulis had requested a second opinion with reference to his neck pain with radicular symptoms. Due to a facial rash Dr Madni on 25 June 2013 made a referral to Dr See, Dermatologist.
On 23 July 2019 Dr Namdakumar reported upper gastrointestinal symptoms which were said to be present since the motor vehicle accident in 2017. Imaging requests were made "as requested by the MAS assessor". On 28 August 2019 Dr Watt noted that Mr Fardoulis requested referral to a sleep physician. She recorded that there was a sleep problem and said "….Finds it hard to get to sleep with broken sleep averaging about five hours per night on background of MVA in 2017. Initially started with neck pain after MVA however, subsequently gets ongoing headache, dizziness, paresthesia in fingers and legs which apparently had been thoroughly investigated by various specialists including a few neurosurgeons. Also advised to see psychologists. He had been instructed by his insurance company to have a review by a sleep physician including organising a sleep study".
On 17 September 2019 Dr Watt had a further consultation with Mr Fardoulis. She noted that NRMA would not be paying for the sleep consult.
On 6 February 2023 Dr Torbolov noted that Mr Fardoulis had a family law matter. It was alleged that there was physical and mental abuse by the children’s mother. Dr Torbolov said Mr Fardoulis "has brought in photos/videos of said abuse - photos of hand slap marks and rough handling of child". That is the last consultation recorded in the available clinical records.
The records from My Health Centre Baulkham Hills do not contain any record of Mr Fardoulis' weight.
Medicolegal reports
The Panel notes that the documents contained the following medicolegal reports obtained by the parties:
(a) report of Dr Paul Thomas, consultant respiratory physician and professor (Professor Thomas) dated 8 March 2020 retained by the insurer;
(b) report of Dr John Davis, specialist in occupational medicine, dated 28 March 2018 retained by the claimant, and
(c) report of Professor Bryant, respiratory physician, dated 26 March 2020 retained by the claimant.
SUBMISSIONS
Application for review - Insurer’s submissions dated 15 November 2021[12]
[12] IB p.1
The insurer submits that Medical Assessor Grainge has fallen into material error on three grounds:
(a) he failed to review the additional report of Professor Thomas, respiratory physician, dated 8 March 2021 provided by the insurer and confirmed by the Commission to have been provided to Medical Assessor Grainge prior to his assessment of the claimant (Error 1);
(b) he submits that the insurer had not provided a Reply yet makes references to the Insurer’s submissions (Error 2), and
(c) he has not considered or addressed the treating records which are not consistent with the claimant’s history that he gained weight after the subject accident and had no prior sleep issues, noting that Medical Assessor Grainge attributed the claimant’s weight gain in the absence of pre-existing sleep issues as causative of the claimant's sleep apnoea and thereby related to the accident (Error 3).
With regards to Error 1, the insurer submits that whilst the Commission confirmed that Medical Assessor Grainge was provided with a report of Professor Thomas prior to his assessment of the claimant, he makes no reference to it in his report and indicates that there were no additional late documents.
The insurer submits that this is clearly in error and it is a matter of procedural fairness that a medical assessor has an opportunity to address the evidence relied upon by the parties as well as an obligation to consider any such material in making his assessment. It submits that this is particularly relevant because the opinion of Professor Thomas highlighted inconsistencies in the claimant’s history. It submits that it is apparent that Medical Assessor Grainge accepted the claimant's history of post-accident weight gain attributed to the accident related impairment as causative of his sleep apnoea and thereby related to the accident, and further that had Medical Assessor Grainge had an opportunity to consider Professor Thomas’ opinion and his evidence based opinion on why he did not consider the sleep apnoea was accident related (there being pre-accident evidence of sleep apnoea as well as no post-accident weight gain), this could have led to Medical Assessor Grainge forming a different opinion about whether the claimant’s sleep apnoea was related to the accident.
With regards to Error 2, the insurer submits that there is no dispute that it provided a Reply dated 11 August 2020 in respect of which Medical Assessor Grainge makes reference to the submissions made by the insurer in that reply that the claimant’s weight gain is not causally related to the accident and that therefore the development of obstructive sleep apnoea is also no related to the accident, but also notes that there was no reply from the insurer. The insurer submits that this inconsistency is a further error in Medical Assessor Grainge’s certificate which casts doubt on the extent to which he has considered the Insurer’s submissions.
With regards to Error 3, the insurer refers to the history obtained by Medical Assessor Grainge from the claimant that he was completely fit and active prior to the accident, had no problems with witnessed snoring or apnoeas, and had no sleep disturbance. It submits that Medical Assessor Grainge took a history that the claimant’s weight gradually increased following the accident up to 85 kilograms but that this is clearly incorrect upon review of the medical evidence as noted by Professor Thomas when he said the following in explaining the basis for his divergent opinion on causation to that of Professor Bryant:
“(a) Mr Fardoulis reported to Professor Bryant that he had gained weight from 75-78kg to 85-88kg since the accident. I note however that in the letter from Dr Adrian See dated 28 June 2013 [4 years pre-accident] his weight was 85kg. I would therefore be of the opinion that no significant weight gain has occurred in relation to the time of the accident or afterwards. His BMI derived from the time of his sleep study is normal (25.38 kg/m2).
(b) In addition, he estimated his level of daytime sleepiness on the Epworth Sleepiness Scale to be 3/24 at the time of his sleep study, but this had increased to 13/24 when Professor Bryant asked him to rate himself again.
(c) Furthermore, the general practitioner records indicate that in 2012 he reported sleep disturbance to both the general practitioner and also to his specialists in neurosurgery. There were in part attributed to workplace stress and also to his neck pain in the year 2012.
(d) In addition, the polysomnography dated 17 September 2019 did not show a latency to sleep which would not suggest that insomnia is a major problem, at least on the night of the study. While fragmentation of the sleep was noted, he remained for long periods of time lying on his right or left side and not shifting position which would not suggest that pain was a major factor in the sleep disturbance. Usually one would expect the patient to shift position to relieve any discomfort.
(e) From my review of the notes I would agree with Dr Bryant that he has moderate sleep apnoea with a degree of obstruction, but also sleep fragmentation relating to a longer-term anxiety disorder which was noted in 2012.”[13]
[13] IB p 22
The insurer submits that Medical Assessor Grainge’s finding that the claimant’s sleep apnoea is caused by the accident would not be sustained because he has placed such significance on the claimant’s weight gain as being on the balance of probabilities the cause of his sleep apnoea when a correct history confirms there was minimal change in the claimant’s weight from prior to and following the accident, as well as an awareness of the claimant’s pre-accident sleep issues as well as neck and anxiety issues as potential unrelated causes of these pre-accident sleep issues.
The insurer submits that the errors referred to above by Medical Assessor Grainge constitute significant error, lack procedural fairness and form a ground for review of his certificate and warrant referral to a medical review panel for their proper consideration.
Insurer’s submissions dated 30 July 2020 in reply to the claimant’s application for a further medical assessment[14]
[14] IB p.58
These submissions were relied upon by the insurer in reply to the claimant's application for a further medical assessment on the basis that the report of Professor Bryant is additional relevant information.
The insurer submits that the allegation of sleep apnoea disorder did not form part of the claimant’s Medical Assessment Service (MAS) 2A dated 26 March 2019 which referred only to the injuries to the neck, left and right shoulders, radiculopathy of both arms, hands and legs, blurred vision and vertigo.
The insurer notes that Medical Assessor Meakin, who determined that application, diagnosed the claimant with a soft tissue injury to the cervical spine and a soft tissue issue to the lumbar spine and considered that there had been no direct injury to the right or left arm, shoulder, leg or the thoracic back caused by the accident but rather continued subject, sensory involvement.
It refers to the application made in February 2020 by the claimant for further medical assessment on the grounds that the claimant had developed sleep apnoea from the accident and the decision of the proper officer on 1 April 2020 rejecting that application. It submits that this decision basically accepted the insurer’s submission that the evidence provided did not relate the sleep apnoea to the accident-related injuries.
The insurer concedes that the report of Professor Bryant is additional information as it post- dates the previous MAS assessment of Medical Assessor Meakin but does not concede that it is relevant for the purposes of diagnosing the claimant with a condition related to his accident-related injuries.
The insurer notes the following opinion from Professor Bryant’s report:
“I can find no evidence that he sustained any direct injuries in the accident which is likely to have resulted in him developing obstructive sleep apnoea. However, it appears that he is likely to have put on a significant amount of weight since the accident and, in the absence of any other likely cause, this is likely to have arisen as a consequence of the reduced physical exercise which he has been able to undertake as a consequence of the injuries sustained in the accident.”[15]
[15] IB p.60
The insurer rejects the suggestion that any post-accident weight gain by the claimant (which it does not concede) has caused the sleep apnoea over three years post-accident. It notes that in the claimant’s submissions for the previously unsuccessful application for further assessment it was alleged that the most common causes of sleep apnoea, which do not relate to the claimant, are smoking, drinking, being overweight and old age.
Accordingly, the insurer submits that the claimant discounts that his weight relates to the possibility of sleep apnoea and furthermore that Professor Bryant did not examine the claimant but based his report on the claimant’s history alone.
The insurer further submits that an assessment of sleep apnoea in accordance with AMA 4 is undertaken in line with a respiratory condition not a spinal/disc or nerve injury and submits that the claimant cannot establish causation of sleep apnoea in accordance with AMA 4 and therefore cannot satisfy how any assessment of sleep apnoea could be material in any event. It submits that the application for further assessment should be dismissed.
Insurer’s submissions dated 18 March 2020 in reply to the claimant’s application for a further assessment[16]
[16] IB p.97
These submissions were relied upon by the insurer in reply to the claimant's application for further assessment of the claimant’s alleged physical injuries on the basis of the following additional reports:
(a) report of Dr Herath, Sydney Respiratory Specialist, dated 17 September 2019; and
(b) sleep study referral of Dr Kitty Watt, general practitioner, dated 28 August 2019 alleging sleep apnoea disorder.
With regards to the report of Dr Herath, the insurer notes that whilst there is a diagnosis of “obstructive sleep apnoea” and a referral to a sleep physician was apparently organised, this report does not make any reference to a potential cause of the claimant’s sleep apnoea and how this could relate to any injury sustained by the claimant in the accident.
With regards to the sleep study referral of Dr Watt, the insurer submits that this is a referral from a GP to Dr Herath seeking an opinion for management of “sleep disturbance” and there is no expert opinion in the document, it simply being a treating doctor noting a history of the claimant’s sleeping difficulties and referring the claimant for assessment of the condition.
The insurer refers to the claimant’s submissions that spinal disc and nerve injury commonly resulting in neuromuscular weakness that impacts on respiratory function as well as cervical radiculopathy can all be related to sleep apnoea. The insurer does not accept that there is any clear link between these conditions and sleep apnoea and submits that the claimant has not provided any expert opinion relating sleep apnoea to a spinal discal nerve injury/radiculopathy, and further that it does not concede that this is an accident related condition in any event because Medical Assessor Meakin diagnosed the claimant with a soft tissue injury to the neck and back. It submits that despite the claimant’s referral to a sleep physician there is no additional document relating to the claimant’s sleep apnoea to the claimant’s injury sustained in the accident.
With regards to causation, the insurer argues that the claimant’s additional documents are not relevant as they do not address causation of the claimant’s alleged sleep apnoea and how it relates to any accident-related injuries. The insurer submits that a proper officer cannot be satisfied that these documents are “additional relevant material” because the claimant has failed to provide any expert connection and/or link between the claimant’s sleep apnoea and the injuries from the accident.
The insurer further submits that the claimant has not established that the claimant’s accident-related injuries have deteriorated since the accident. It submits that there was no previous suggestion of the claimant having sleep apnoea as a result of the accident, the first evidence of this being served in 2020, over three years post-accident. It further submits that there is no contemporaneous evidence of the claimant suffering from sleep apnoea as a consequence of the accident and that this raises a significant causation issue in respect of the claimant’s diagnosis of this condition. The insurer submits that if the claimant has sleep apnoea this is unrelated to the accident and there is no expert evidence connecting this condition to any accident-related injuries, and that therefore the claimant cannot establish any deterioration of the claimant’s accident-related injuries, and therefore submits that the material contained in the claimant’s further application cannot provide any evidence of any deterioration in the claimant’s accident-related injuries.
The insurer also submits that an assessment of sleep apnoea in accordance with AMA 4 is undertaken in line with a respiratory condition and not a spinal/disc or nerve injury, and submits that the claimant cannot establish causation of sleep apnoea in accordance with AMA 4 and therefore cannot satisfy how any assessment of sleep apnoea could be material in any event.
The insurer concludes that the claimant has not established that these additional documents are relevant or material or provide any evidence of deterioration of an accident-related injury/condition and that the application for a further assessment should be dismissed.
Claimant’s submissions dated 19 June 2020[17]
[17] CB p.43
These submissions were relied upon by the claimant on the application for a further medical assessment on the basis that the report of Professor Bryant dated 26 March 2020 is additional relevant information which supports the claimant’s claim that he has developed a consequential obstructive sleep apnoea condition.
The claimant submits that prior to the accident, he had no history of any snoring, sleep disturbance, daytime somnolence or physical limitations, but that since the accident he has found that his sleep has been disturbed because his increasing neck pain has made it difficult for him to find a comfortable position in which to sleep and remain asleep.
The claimant submits that within a month or two of the accident, his weight started to increase due to inactivity caused by increasing neck and lower back pain and that some months after the accident his wife told him that he had begun to snore for the first time. He underwent a sleep test on 17 September 2017 which revealed a moderate degree of obstructive sleep apnoea with an apnoea hypopnoea index of 20 per hour and that his sleep efficiency was reduced to 67% and wake time after sleep onset increased to 132 minutes.
The claimant submits that in his report dated 26 March 2020, Professor Bryant commented that the claimant’s symptoms were indicative of clinically significant insomnia and excessive daytime somnolence and that with no history of snoring, sleep fragmentation or sleep apnoea prior to the subject accident, Professor Bryant concluded the claimant’s weight gain due to inactivity was more probable than not caused by the subject accident. The claimant therefore submits that the report of Professor Bryant constitutes additional relevant information about the claimant’s injury as to be capable of having a material effect on the outcome of Medical Assessor Meakin’s previous assessment and that accordingly the matter should be referred for further assessment.
Claimant’s further submissions dated 11 January 2022[18]
[18] CB p.54
These submissions were relied upon by the claimant on in reply to the insurer’s application for review of Medical Assessor Grainge’s certificate and the resulting combined certificate dated 20 October 2021.
The claimant submits that Medical Assessor Grainge did not make an error in a material respect to the assessment and addresses the three errors alleged by the insurer.
With regards to Error 1, the allegation that Medical Assessor Grainge did not review the report of Professor Thomas, the claimant submits that the insurer’s submission does not indicate how this error affected the assessment in a material respect, and further that that this alleged error did not do so. The claimant submits that the report of Professor Thomas is merely the opinion of another medical professional and should not be given more weight than that of Medical Assessor Grainge. It notes that Medical Assessor Grainge attributed the claimant’s weight gain to the accident and therefore determined that the claimant’s sleep apnoea was as a result of the accident, whereas Professor Thomas did not attribute the sleep apnoea to the accident.
The claimant submits that Medical Assessor Grainge had access to and reviewed all primary medical evidence that Professor Thomas reviewed in making his assessment and that therefore the difference in conclusions is that of differing opinions rather than any error and that Medical Assessor Grainge has an obligation to consider the primary medical evidence, not to account for or consider another doctor’s opinion.
The claimant submits that Professor Thomas’ report was merely subjective opinion rather than objective medical evidence.
The claimant relies upon the determination by the Commission of an application for review of an assessment by Medical Assessor Rosenthal in 2021, and that in rejecting that application, the Commission noted in that decision that:
(a) the medical assessor is not required to specifically comment on every medical opinion that is before him;
(b) the applicant does not indicate how the matters raised are material to the outcome of the medical assessment, and
(c) insofar as other doctors may have made different clinical findings, the medical assessor is open to rely upon his own clinical findings obtained on the day of the assessment.
The claimant submits that the failure by Medical Assessor Grainge to consider Professor Thomas’ report is not an error in a material respect as the report merely provided a different opinion to Medical Assessor Grainge based on the objective medical evidence.
With regards to the alleged Error 2, the suggestion by Medical Assessor Grainge that the insurer has not provided a Reply, the claimant submits that whilst this may be in error, it is not an error in a material respect as it had no material impact on the assessment.
With regards to the alleged Error 3, the allegation of not addressing the inconsistency between the claimant’s history and his treating medical evidence, the claimant submits that Medical Assessor Grainge came to his own conclusions as to the claimant’s medical history and consistency based on the medical evidence that was provided to him and was aware of the insurer’s submission that the claimant’s weight gain, and therefore sleep apnoea, was not causally related to the accident, and considered all documents in the further application and in the previous application to the Commission and came to his own conclusions as to the claimant’s medical history and consistency based upon the medical evidence that was provided to him. Further, the fact that Medical Assessor Grainge has not come to the same conclusions as the insurer’s medico-legal expert does not give rise to a material error.
The claimant disputes the submission of the insurer that Medical Assessor Grainge did not properly consider the report of Dr See dated 28 June 2013, nor the GP’s records from 2012 and that had he done so, as Professor Thomas did, he would have come to a differing conclusion as to causation. The claimant submits that the insurer never provided these documents for consideration by Medical Assessor Grainge in the assessment and that therefore Medical Assessor Grainge was not able to review them for the purposes of the assessment, and the fact that these documents may have been provided to Professor Thomas does not materially affect the assessment as the medical assessor cannot make a determination based on Professor Thomas’ subjective interpretation of the findings.
The claimant further submits that Professor Thomas’ findings are based on inaccurate assumptions and generalisations in relation to the matter. The claimant refers to the claimant’s further statement in relation to the report of Professor Thomas outlining the extensive inconsistencies and inaccuracies in his report.
The claimant refers to the reference by Professor Thomas to the claimant’s pre-accident weight at 85 kilograms in a letter from Dr See and Professor Thomas’ opinion that the sleep fragmentation is caused by anxiety disorder allegedly noted back in 2012 and that therefore the sleep fragmentation and obstructive sleep apnoea are unrelated to the subject accident on 9 January 2017. The claimant notes that the evidence of supposed pre-accident weight and anxiety are dated significantly prior to the accident and that there was four to five years between the evidence relied upon and the subject accident and submits that evidence of the condition closer to the accident is more reliable.
The claimant submits that whilst Professor Thomas relies upon a report of the claimant’s weight in 2012, there is the photo of the claimant dated 29 October 2015 in which his weight is shown to be 75 kilograms. The claimant also notes that his medical records from Dubai on 29 October 2015 confirm his weight as 75 kilograms and that this is a more reliable representation of the claimant’s weight prior to the accident.
The claimant submits that his normal weight was 75 kilograms and that whilst he gained some weight after his neck injury in 2012, after 12 months of rehabilitation he became fit, healthy and active again and returned to his normal weight.
The claimant firmly denies the allegation of Professor Thomas that the claimant’s sleep fragmentation related to a “longer term anxiety disorder which was noted in 2012”. The claimant submits that he experienced isolated and short-term secondary symptoms of anxiety directly as a result of workplace bullying in 2012, but that there has been no diagnosis or complaints of ongoing anxiety and that Dr Thomas has no grounds to assert that there is “longer term anxiety disorder”.
The claimant submits that Professor Thomas is a respiratory physician and therefore has no expertise in which to diagnose any anxiety disorder and submits that Professor Thomas incorrectly made a diagnosis of anxiety and incorrectly determined this to be the cause of the claimant’s sleep fragmentation.
Accordingly, the claimant concludes that the medical assessment of Medical Assessor Grainge was not incorrect in a material respect.
Feedback on Professor Thomas’ medical report[19]
[19] CB p.63
The claimant’s bundle contains a document entitled “Feedback on the report dated 8/3/21 by Dr. Paul S. Thomas, Consultant Respiratory Physician and Professor” which is identified as document R2.
This document contains a critique of the report of Professor Thomas and his conclusions and opinions.
It includes photos said to be of the claimant from the claimant’s medical records from Dubai and indicating weight to be 75 kilograms on 29 October 2015 and approximately 85 kilograms on 22 March 2021.
In summary this document contends that the facts remain as follows:
“1. Dr Thomas agrees with 5% whole body impairment of the patient.
2. There is documented medical evidence (before and after the MVA) showing the weight gain caused from the MVA.
3. There is documented medical evidence showing the direct effect the MVA had on the development of moderate to severe sleep apnoea.
4. There is documented medical evidence showing that the pain and discomfort caused by the MVA is causing restless sleep, discomfort, and fragmented sleep architecture.
5. There is documented medical evidence showing direct causation between the 5% whole body impairment, and the 2017 MVA.”[20]
[20] CB p.73
RE-EXAMINATION
The claimant was ultimately re-examined by Medical Assessor Cameron on 12 April 2024. The re-examination report is as follows:
“Mr Fardoulis attended unaccompanied on 12 April 2024 at Hornsby.
History of Injury
On 09 January 2017 Mr Fardoulis was the driver of a vehicle. He was transporting his pregnant wife. His vehicle was hit by another vehicle and spun.
Mr Fardoulis said that neck and back pain developed over 24 to 48 hours. This has persisted since then.
Mr Fardoulis reported that he has also developed sleep problems and has gained weight since the accident.
A sleep study indicated moderate sleep apnoea. A continuous positive airway pressure (CPAP) and a mandibular advancement device have been trialed, but both were not tolerated by the claimant.
Background
Mr Fardoulis is living at Castle Hill with his wife and children who are now aged 11 and 7.
Mr Fardoulis works as a property photographer and media consultant for real estate companies. This is a fulltime job that involves significant driving.
Mr Fardoulis said that apart from the injuries he sustained in the motor accident his health was good.
Mr Fardoulis is a non-smoker and does not consume alcohol. He said that he was fit, healthy and active with no problems sleeping prior to the motor accident.
Current Status
Mr Fardoulis said that his overall lifestyle had been affected greatly by the injuries he sustained in the accident.
Mr Fardoulis said he had gained weight since the accident. He said he struggles with sleep. He said he sleeps for about five hours each night and his sleep is disrupted. He said he is always tired and has significant daytime sleepiness.
He completed the Epworth Sleepiness scale indicating that he had a high chance of dozing while sleeping and reading, watching TV, sitting inactive in a public place, as a passenger in a car for an hour without a break, lying down to rest in the afternoon when circumstances permit and sitting quietly after lunch without alcohol. He recorded that there was a moderate chance of dozing while sitting and talking to someone. He recorded that there was no chance of dozing in a car while stopped for a few minutes in traffic. His score was 20/24 on this scale.
The Panel notes that the claimant has undertaken the Epworth Sleepiness test on two other occasions which have resulted in variable scores. When Dr Herath conducted the initial Epworth test in September 2019 the score was 3/24 but this subsequently increased to 13/24 when Professor Bryant conducted the test in March 2020.
Mr Fardoulis said that he also had ongoing neck pain with symptoms in the arms and legs.
Mr Fardoulis said that he was managing his work responsibilities.
Current medications are Nurofen or Panadeine Forte as required. Voltaren gel is also used. Mr Fardoulis said he attends Baulkham Hills Medical Centre as his general practitioner.
Examination
Mr Fardoulis is right handed, his height was measured at the time of the re-examination 185 cm and weighed at 87 kg in his clothes and shoes. This results in a body mass index (BMI) of 25.4.
Mr Fardoulis was anxious. His pulse was 96 and regular and blood pressure 156/96.
Mr Fardoulis' Mallampati score was class 1. No specific respiratory abnormality was detected.
Mr Fardoulis mobilised without difficulty.
Summary
Mr Fardoulis states he has significant symptoms that are related to sleep apnoea. He self reports a very high sleepiness score. At the time of the assessment there was no evidence of sleepiness.
A score of 13 (compared to the current 20) had been recorded by Dr Bryant in 2020. The score at the time of the sleep study was 3.
While Mr Fardoulis reports weight gain it was recorded at 85kg in June 2013. His current weight is 87kg and his BMI is just outside the normal range.”
FINDINGS
The review is a new assessment of all matters with which the medical assessment is concerned.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[21] and Insurance Australia Ltd v Marsh.[22]
[21] [2021] NSWCA 287 at [40], [41] and [45].
[22] [2022] NSWCA 31 at [11], [21], and [64].
The Panel adopts the examination report of Medical Assessor Cameron in its reasons and adds the following further reasons.
Medical Assessor Meakin recorded a history that in 2012 the claimant developed an onset of discomfort in his posterior cervical neck with some upper limb symptoms and he was referred to the neurosurgeons, Dr Kam and Professor Owler, and underwent MRI scans of the cervical spine.
The claimant was examined medico-legally at the request of his solicitors by Dr John Davis, specialist in occupational medicine, on 27 March 2018 who prepared a report. Dr Davis refers to the claimant’s history of neck symptoms and associated left sided radiculopathy in 2012 for which he was seen by two neurosurgeons, Dr Kam and Associate Professor Owler, The claimant reported to Dr Davis that over time his left sided radicular symptoms totally resolved.
Dr Davis records that after the accident on 9 January 2017, the claimant developed symptoms almost immediately in his neck and lower back although the intensity of symptoms was considerably greater in his cervical spine whereas his lower back symptoms have increased in intensity over time. He records that after the accident, the claimant was seen by his general practitioner, Dr Wang, who referred him for MRI scans of the cervical region and to his previous neurosurgeon, Professor Owler, and that Professor Owler advised the claimant to restrict his lifting to less than 10 kilograms and not to exert himself and told him not to have acupuncture but physical therapy.[23]
[23] CBp.33
Dr Davis refers to an MRI of the cervical spine dated 12 January 2017 performed by Dr Perry[24]. That report is not included in the documents relied upon by the parties and nor are the clinical records of Dr Wang. However, Professor Owler prepared the medical certificate dated 22 February 2017 which is attached to the Personal Injury Claim Form[25].
[24] CBp.35
[25] CBp.8
Dr Davis diagnosed that the claimant had a C5/6 disc protrusion with accompanying non-verifiable radicular symptoms in his upper limbs and mechanical trauma to the upper limb which was consistent with his stated mechanism of trauma in the accident.
The claimant reported to Medical Assessor Cameron on his re-examination of him that after the accident he developed neck and back pain over 24 to 28 hours which has persisted since then. According to Professor Thomas, a repeat MRI scan showed the same left posterior lateral herniation at C5/6 and focal area of abnormality at C6/7 and that the disc herniation at C5/6 impinged on the lateral recess of the left exist foramen[26]. The repeat MRI was reportedly unchanged from the earlier studies prior to the accident and Professor Owler suggested conservative management including physiotherapy and noted no evidence of a neurological deficit nor evidence of myelopathy.[27]
[27] IB p.21
On 27 August 2019, the GP, Dr Kitty Watt, referred to the claimant to the respiratory physician, Dr Herath, and requested her to review and provide an opinion and management of sleep disturbance because the claimant was finding it hard to get to sleep with broken sleep, averaging about 5 hours per night on the background of the accident in 2017.
On 12 July 2019 Medical Assessor Meakin assessed the claimant and found that he had soft tissue injuries to the cervical spine and the lumbar spine which were caused by the accident.
On 17 September 2019, Dr Herath arranged for the claimant to undergo a home polysomnography sleep study and prepared a report which concluded that he has moderate obstructive sleep apnoea.
On 25 March 2020, the claimant was examined medicolegally at the request of his solicitors by Professor Bryant. In his opinion the claimant has a significant arousal disorder since the accident and that some of this disturbance is due to discomfort which he has in his neck which results in him changing positions frequently during the night and that some of this disturbance is due to him having developed obstructive sleep apnoea.[28] Professor Bryant was unable to find any evidence that the claimant sustained any direct injuries in the accident which is likely to have resulted in him developing obstructive sleep apnoea and is of the opinion that it appears that he is likely to have put on a significant amount of weight since the accident and in the absence of any other likely cause, this is likely to have arisen as a consequence of the reduced physical exercise which he has been able to undertake as a consequence of injuries sustained in the accident. On the basis of the evidence it appeared likely to Professor Bryant that the claimant’s weight had increased by between 8 to 10 kilos since the accident based on the claimant’s self-reported weight change together with the weight noted at the time of the sleep study conducted by Dr Herath in September 2019 of 85 kilograms which indicates that it is likely that his weight has increased between 11% to 13% since the accident. He refers to research which recognises that weight gain of 10% or more from baseline weight is sufficient to either cause or materially aggravate any pre-existing unsuspected tendency to obstructive sleep apnoea, and therefore concludes that the weight gain that the claimant has experienced subsequent to the accident is sufficient to either cause obstructive sleep apnoea or to have materially aggravated any minor sub-clinical sleep apnoea that may have or may not have been previously present, there being no history to suggest that he did have any pre-existing minor sleep apnoea.
[28] CB p.12
Professor Thomas, consultant respiratory physician, prepared a report dated 8 March 2021 at the request of the insurer’s solicitors which was based solely on information and documentation provided to him. He did not take a history from the claimant, nor did he examine him. Professor Thomas agrees with the opinion of Professor Bryant that the claimant has moderate sleep apnoea with a degree of obstruction and also with Professor Bryant’s assessment that the claimant has a 5% whole person impairment arising from this condition. However, he disagrees with Professor Bryant’s opinion that the claimant’s sleep apnoea is related to weight gain secondary to the accident. He notes that Professor Bryant recorded that the claimant had gained weight from 75 to 78 kilograms to 85 to 88 kilograms since the accident, but that Dr Adrian See on 28 June 2013 recorded the claimant’s weight at 85 kilograms and therefore is of the opinion that no significant weight gain has occurred since the accident. He also notes that the claimant’s level of daytime sleepiness in the Epworth Sleepiness Scale was 3/24 at the time of the sleep study performed by Dr Herath but that this increased to 13/24 when Professor Bryant asked the claimant to rate himself again. He further notes that the general practitioner’s records indicate that in 2012 the claimant reported sleep disturbance to both his general practitioner and also his specialist in neurosurgery which were in part attributed to workplace stress and also his neck pain in the year 2012. He notes that the polysomnography dated 17 September 2019 did not show a long latency to sleep which would not suggest that insomnia is a major problem, at least on the night of the study, and that whilst fragmentation of the sleep was noted, the claimant remained for long periods of time lying on his right or left side and not shifting position which would not suggest that pain was a major factor in the sleep disturbance because usually one would expect the patient to shift position to relieve any discomfort. Professor Thomas concludes that the claimant has sleep fragmentation relating to longer term anxiety disorder which was noted in 2012.[29]
[29] IB p.22
In his certificate dated 26 April 2021, Medical Assessor Grainge found that the claimant has obstructive sleep apnoea caused by the motor accident which gives rise to a permanent impairment of 5%. He agrees with Professor Bryant that although there was no direct physical injuries caused at the time of the accident which led to obstructive sleep apnoea, on the balance of probabilities, the claimant’s obstructive sleep apnoea was caused by his weight increase from 75 kilograms to 88 kilograms, a weight gain of more than 10%, which has been demonstrated to increase the likelihood of obstructive sleep apnoea, and concludes that the preceding cause from this is immobility and inability to exercise secondary to his injuries sustained during the accident and that the obstructive sleep apnoea is therefore attributable to and caused by the accident.
Diagnosis
The Panel agrees with the diagnosis of the three respiratory physicians, Medical Assessor Grainge, Professor Bryant and Professor Thomas, that the claimant has obstructive sleep apnoea.
Causation
The Panel has determined that the accident did not cause or materially contribute to the claimant’s obstructive sleep apnoea for the following reasons.
The Panel agrees with the opinions of Professor Bryant and Medical Assessor Grainge that the claimant did not sustain any direct injuries in the accident which are likely to have caused him to develop obstructive sleep apnoea. Professor Thomas is also of the opinion that the claimant has not sustained an injury resulting in sleep apnoea or sleep fragmentation.[30]
[30] IB p.24
Whilst the Panel accepts the opinion of Professor David Bryant, that it is recognised that weight gain of 10% or more from baseline weight is sufficient to either cause or materially aggravate any pre-existing unsuspected tendency to obstructive sleep apnoea, in the opinion of the Panel the evidence does not establish on the balance of probabilities that the claimant’s weight increased by 10% or more after the accident.
A chronology of the recorded evidence of the claimant’s weight contained in the documentation before and after the accident is as follows:
(a) On 26 August 2013, Dr Adrian See refers to the claimant having a body weight of 85 kilograms.[31]
[31] AD7
(b) On 10 February 2015, the report from the National Reference Laboratory in Dubai records the claimant’s weight at 75 kilograms.
(c) There is no reference to the claimant’s weight in the clinical records from MyHealth Medical Centre.[32] Further those clinical notes do not record any surgery consultation with the claimant between a consultation on 8 July 2013 and a consultation on 26 June 2018.
[32] CB p.74 and AD6
(d) A document entitled “Micro-Compare” (the Micro-Compare document) includes a photograph said to be of the claimant’s “upper body right side” with a “shooting date” of 29 October 2015 with a typed inscription beneath it as follows:
“29/10/15
75 kg”[33]
[33] CB p.69
(e) The accident occurred on 9 January 2017.
(f) Medical Assessor Meakin when he examined the claimant on 12 June 2019 records that the claimant told him his weight was 83 kilograms.
(g) Dr Davis’ report dated 28 March 2018 does not include any reference to the claimant’s weight.
(h) The report of Dr Herath in relation to the polysomnography sleep study conducted on 17 September 2019 records the claimant’s weight at 85 kilograms.[34]
[34] CB p.41
(i) Professor Bryant did not personally examine the claimant but conducted a telephone conversation with him and his report dated 26 March 2020 does not record his weight at that time. However, Professor Bryant records that the claimant told him that within a month or two of the accident he noted his weight was starting to increase, he was careful to keep a watch on his diet to minimise this tendency but his weight has increased from 75 to 78 kilograms to his current weight which he told Professor Bryant varies between 85 to 88 kilograms. Professor Bryant further records that the claimant said to him that as he is watching his diet, he has attributed this to the reduced amount of exercise that he has been unable to undertake because of pain in his neck.[35]
[35] CB p.11
(j) The Micro-Compare document also includes a photograph said to be of the claimant and taken on 22 March 2020 with an inscription beneath it as follows:
“22/10/21
Approx 85kg”.[36]
(k)
Professor Paul Thomas did not examine the claimant and his report dated
8 March 2021 has no record of the claimant’s weight.
(l) The certificate of Medical Assessor Grainge dated 26 April 2021 records on clinical examination of the claimant that his weight was 88 kilograms. Medical Assessor Grainge obtained a history from the claimant that prior to the accident his weight was approximately 75 kilograms and stable and had been for many years.
(m) On 12 April 2024, Medical Assessor Cameron records on clinical examination of the claimant that his current weight was 87 kilograms.
[36] CB p.69
There is no evidence of the claimant’s weight at around the time of the accident on
9 January 2017 which can be used as a baseline weight in order to gauge the extent of any increase in weight since then. The last records or reports of the claimant’s weight prior to the accident is on 10 February 2015 in the report from the National Reference Laboratory in Dubai and the photograph in the Micro-Compare document taken on 29 October 2015, which both record the claimant’s weight at 75 kilograms. At the very least, the latest of these recorded weights on 29 October 2015 was 14 months prior to the accident.
The claimant makes the following submissions in relation to the photographs in the Micro-Compare document:
(a) “As can clearly be seen from the medical photo from 29/10/15, the patients weight was a healthy 75 kgs in October 2015 (before the accident), vs 85kg’s today…”[37]
(b) “As can be seen in the patient medical record from 29/10/15 from Dubai, photographic medical evidence shows significant weight gain has occurred in relation to the time of the accident and afterwards. As can be seen from the photos on page 7. The patient was fit and healthy at 75kgs prior to the 2017 MVA, versus a photo from today (22/3/21) where the patient is incapacitated and weights approximately 85 kg, as a direct causation from the 2017 MVA.”[38]
(c) “While Dr Thomas relies upon a report of his weight in 2012, the claimant refers to his photo dated 29 October 2015, in which his weight is shown to be 75kg. He also notes that his medical records from Dubai on 29 October 2015 confirm his weight as 75 kilograms. It is submitted that this is a more reliable representation of the claimant’s weight prior to the accident.”[39]
[37] CB p.68
[38] CB p.70
[39] CB p.57
Medical Assessor Meakin records that the claimant advised him that he worked in Dubai between 2013 and 2016 during which time he started a secondary business as a photographer[40], which is consistent with the claimant undergoing medical treatment in Dubai in 2015 including the dermatopathology study referred to in the report from the National Reference Laboratory in Dubai at that time.
[40] CB p.21
However, the medical records in 2015 from Dubai were not included in the documents relied upon by the parties, and there is no other evidence contained in the documents relied upon by the parties, such as a statement from the claimant, which corroborates the contention by the claimant that the photos in the Micro-Compare document are photographic medical evidence from the claimant’s medical record from October 2015 from Dubai.
On 23 April 2024, the Panel issued the Fourth Review Panel Directions which noted that paragraph 30 of the claimant’s Further Submissions and Annexures (being document A5 in the Claimant’s original bundle of documents found at AD3 on the portal) referred to the photograph of the claimant dated 29 October 2015 in which his weight is shown to be 75 kilograms and medical records from Dubai on 29 October 2015 which confirm the claimant’s weight as 75 kilograms, but that all the medical records from Dubai were not included in the claimant’s original bundle. The Panel directed the claimant to upload to the portal and serve on the insurer all of the medical records from Dubai dated 29 October 2015 which were referred to by 21 May 2024. Because the claimant’s solicitors were having difficulty in obtaining these documents, the time for the claimant to comply with this direction was extended to 12 June. On 4 June 2024 the claimant’s solicitors advised by email that all their enquiries had been unsuccessful at that stage and they were not able to provide the documentation that had been requested. The claimant was then directed to advise by email by 21 June 2024 as to whether he sought further time to produce this documentation. In response to this, the claimant’s solicitors advised by email that the last time they corresponded with Dubai Medical Practice was on 6 June 2024 but to date they had not received a response, nor the relevant clinical notes requested, and submitted that the matter had already been significantly delayed and wished to not delay the matter any further. Because the claimant did not seek further time to produce the medical records from Dubai, the Panel decided to proceed to finalise its decision without them.
Whilst the Panel places little weight on the photographs in the Micro-Compare document as evidence of the claimant’s weight in October 2015, the Panel accepts that, as recorded in the report from National Refence Laboratory in Dubai in February 2015, the claimant’s weight at that time was 75 kilograms. However, this was just under two years before the accident and, apart from the Micro-Compare document, there is no evidence as to the claimant’s weight from that point in time until two and a half years after the accident when Medical Assessor Meakin records in June 2019 that the claimant told him his weight was 83 kilograms.
There are a number of references in the documents relied upon to the claimant’s weight since 2013 which indicate that his weight has changed, and has increased at various times, during the period from 2013 to the date of Medical Assessor Cameron’s re-examination on 12 April 2024. However, there is no evidence of the claimant’s weight at the time of the accident on 9 January 2017, and without that as a baseline, the Panel finds that it is not established on the evidence that the claimant’s weight has increased by 10% or more since the accident. The Panel also notes that the claimant’s weight of 87 kilograms in April 2024 is similar to the 85 kilograms recorded by Dr See in 2013.
Therefore, the Panel does not accept that weight gain since the accident secondary to the physical injuries the claimant sustained in the accident has caused or materially contributed to the claimant’s obstructive sleep apnoea.
The Panel also does not accept the insurer’s submission that the claimant’s sleep apnoea was caused by pre-accident anxiety since 2012. The medical evidence in relation to this indicates that this had long since resolved prior to the accident and there is no evidence of anxiety in the medical records contemporaneous with the date of the accident or since then, with the exception of a note from a consultation with Dr Namdakumar at MyHealth Medical Centre at Baulkham Hills on 23 August 2019 that the claimant said that he was advised to see psychologists and a consultation with Dr Torbolov, also from MyHealth Medical Centre at Baulkham Hills, on 6 February 2023 which indicates that whilst the claimant is not divorced from his wife, he is undergoing the process through the family courts and is concerned that his children are being physically and mentally abused by their mother and that his lawyers are petitioning his wife at present as an unfit mother. There is no evidence in the clinical records of any ongoing treatment or counselling in relation to any anxiety arising from the claimant’s marital problems.
There remains the issue as to whether the cause of the claimant’s obstructive sleep apnoea is pain secondary to the physical injuries he sustained in the accident.
The claimant submits that prior to the accident, he had no history of any snoring, sleep disturbance, daytime somnolence or physical limitations, but that since the accident he has found that his sleep has been disturbed because his increasing neck pain has made it difficult for him to find a comfortable position in which to sleep and remain asleep.
The Panel has determined that the claimant did not sustain any direct injuries in the accident which are likely to have caused him to develop obstructive sleep apnoea. However, Medical Assessor Grainge obtained a history from the claimant that due to his neck, back and paraesthesia, he now finds it difficult to initiate or maintain sleep secondary to these pains. This is consistent with the history obtained by Professor Bryant that since the accident the claimant has found that his sleep has been disturbed because he finds it difficult to find a comfortable position in which to go off to sleep and he finds it difficult to remain asleep because whenever he tries to move the pain causes him to wake. It is also consistent with the history obtained from the claimant by Medical Assessor Cameron that neck and back pain developed over 24 to 48 hours after the accident which has persisted since then and that he also developed sleep problems and that he has ongoing neck pain with symptoms in the arms and legs.
Sleep apnoea can be caused by brain or airway factors. Central sleep apnoea is caused by problems with the way the brain controls breathing while sleeping and obstructive sleep apnoea is caused by conditions that block airflow through the upper airways during sleep.
Whilst the Panel accepts that the presence of pain can disturb sleep, pain is not a medically accepted cause of obstructive sleep apnoea. The Panel notes that none of the three specialist respiratory physicians, Medical Assessor Grainge, Professor Bryant and Professor Thomas have expressed a contrary opinion.
The Panel also accepts that the claimant suffers from chronic pain as a consequence of his physical injuries, and in particular to his neck, and that this disturbs his sleep, causing him difficulty in initiating and maintaining sleep. In the Panel’s experience, this is a common issue with patients suffering from all forms of chronic pain, the extent of which being dependent upon the type and seriousness of the condition producing the pain.
However, apart from obstructive sleep apnoea, there is no other sleep, respiratory or neurological condition which has been diagnosed or was evident on clinical history or examination, and in the opinion of the Panel, the claimant’s sleep disturbance is caused by both his obstructive sleep apnoea (which the Panel has determined was not caused by the accident and therefore does not give rise to any assessable impairment), and pain arising from his physical injuries.
Pain is addressed at Clause 1.38 of the Guidelines which states that:
“Some tables require the pain associated with a particular neurological impairment to be assessed. Because of the difficulties of objective measurement, medical assessors must not make separate allowance for permanent impairment due to pain, and Chapter 15 of the AMA4 Guides must not be used. However, each chapter of the AMA4 Guides includes an allowance for associated pain in the impairment percentages.”
The Panel is of the opinion that because the claimant’s pain condition is not assessable separately from his physical conditions, the sleep dysfunction or disturbance which is caused by the pain is also not separately assessable for the purposes of whole person impairment. It is the body part or system which gives rise to the pain that is to be assessed for the purposes of whole person impairment, and it is only by having regard to a body part or system affected by injuries caused by an accident in a way provided by AMA 4 that a level of impairment can be assessed[41]. As Basten AJ said in Bucca v QBE Insurance (Australia) Ltd:
“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” [footnote not included]. 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.”[42]
[41] Per Basten AJ in Bucca v QBE Insurance (Australia) Ltd [2024] NSWSC at [70]
[42] [2024] NSWSC 1099 at [71]
Permanent impairment
As the Panel has determined the claimant’s obstructive sleep apnoea was not caused by the accident, there is no assessable impairment.
CONCLUSION
For the reasons set out above, the Panel has determined that the following injury was not caused by the accident on 9 January 2017 and there is no assessable impairment of the claimant as a result of it:
(a) obstructive sleep apnoea.
The certificate of Medical Assessor Grainge dated 26 April 2021 is therefore revoked. A replacement certificate is attached at the commencement of these reasons.
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