Insurance Australia Limited t/as NRMA Insurance v Nassou

[2025] NSWPICMP 336

DETERMINATION OF REVIEW PANEL

CITATION:

Insurance Australia Limited t/as NRMA Insurance v Nassou [2025] NSWPICMP 336

CLAIMANT:

James Nassou

INSURER:

Insurance Australia Limited trading as NRMA Insurance

REVIEW PANEL

MEMBER:

Susan McTegg

MEDICAL ASSESSOR:

Richard Haber

MEDICAL ASSESSOR:

Margaret Gibson

DATE OF DECISION:

13 May 2025

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); whole person impairment (WPI); respiratory function; body mass index; weight gain; obstructive sleep apnoea; cataplexy; narcolepsy; MAC certified the claimant had 8% WPI of respiratory function due to increase in body mass index caused by motor vehicle accident; pre-accident history of obstructive sleep apnoea and gastric sleeve surgery; cataplexy and narcolepsy; Held – not convinced accident led to any consistent increase in weight given fluctuations since the accident; not satisfied any increase in weight and body mass index caused by accident; respiratory impairment due to increase in body mass not caused by accident; MAC revoked.

DETERMINATIONS MADE:  

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%

Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017

1.     The Review Panel revokes the certificate of Medical Assessor Christopher Grainge dated
9 February 2024 and issues a new certificate determining that the following injury was not caused by the accident:

·        respiratory – impairment of respiratory function due to increase in body mass index.

2.     The Review Panel revokes the combined certificate of Medical Assessor Geoffrey (Paul) Curtin dated 8 April 2024 and issues a new combined certificate determining that the following injuries were caused by the motor accident and give rise to a whole person impairment (WPI) of 4%:

·        cervical spine – soft tissue injury;

·        lumbar spine – soft tissue injury;

·        ribs and sternum – possible fracture and soft tissue injury;

·        left shoulder – soft tissue injury, and

·        right shoulder – soft tissue injury.

REASONS

3.     Details of the assessments and full reasons are given in the following certificates:

Certificate of the Review Panel dated 13 May 2025

4.     The Review Panel revokes the certificate of Medical Assessor Christopher Grainge dated
9 February 2024 and issues a new certificate determining that the following injury was not caused by the accident:

·        respiratory – impairment of respiratory function due to increase in body mass index.

Certificate of Medical Assessor Cameron dated 2 April 2024

5.     The permanent impairment in relation to the following injuries caused by the accident is
4% WPI:

·        cervical spine – soft tissue injury;

·        lumbar spine – soft tissue injury;

·        ribs and sternum – possible fracture and soft tissue injury;

·        left shoulder – soft tissue injury, and

·        right shoulder – soft tissue injury.

6.     The following injuries referred for assessment have been assessed and determined to be not caused by the motor accident: 

·        left arm - right upper limb including fingers, soft tissue injury and/or radiculopathy from neck injury (Nguyen Principle), nerve injury;

·        right arm – right upper limb including fingers, soft tissue injury and/or radiculopathy from neck injury (Nguyen principle), nerve injury;

·        left leg - soft tissue injury and/or radiculopathy from neck injury (Nguyen Principle), nerve injury, and

·        right leg - soft tissue injury and/or radiculopathy from neck injury (Nguyen Principle), nerve injury.

Certificate of Assessor Geoffrey (Paul) Curtin dated 7 April 2024

7.     The following injury referred for assessment has been assessed and determined to be not caused by the motor accident:

·        face - soft tissue injury.

8.     The following injury was referred back to the Personal Injury Commission for appropriate referral:

·        paraesthesia-left side of lip and tongue.

Using the Combined Values Chart at page 322 of the American Medical Association Guides to the Evaluation of Permanent Impairment, Fourth Edition, the combined permanent impairment is 4%.

REVIEW PANEL REASONS FOR DECISION

INTRODUCTION

1. On 25 March 2020 Mr James Nassou (the claimant) was driving his car on Milperra Road, Revesby when another car failed to give way and collided with the front driver’s side of his car (the accident).

2. Mr Nassou has brought a claim for common law damages under the Motor Accident Injuries Act 2017 (the MAI Act).

3. Allianz Australia Insurance Limited (the insurer) is the relevant insurer with liability to pay any damages to Mr Nassou under the MAI Act.

4. Section 4.11 of the MAI Act provides that there is no entitlement to damages for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the accident is greater than 10%.

5. The claimant commenced proceedings in the Personal Injury Commission (Commission) in respect of the dispute as to whether the degree of permanent impairment sustained as a result of the injury caused by the accident is greater than 10%. This constitutes a medical assessment matter pursuant to Schedule 2, cl 2 of the MAI Act.

6. A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[1]

   [1] Section 7.20 of the MAI Act.

7. The dispute as to permanent impairment in respect of the respiratory injury was referred to Medical Assessor Christopher Grainge who issued a certificate dated 5 February 2024. It is that certificate which is the subject of this review.

DOCUMENTS BEFORE THE REVIEW PANEL

1. On 20 September 2024 the insurer uploaded to the portal an indexed bundle of documents paginated from pages 1 to 1,743 (insurer’s documents). 

2. On 11 October 2024 the claimant uploaded to the portal an indexed bundle of documents paginated from pages 1 to 196 (claimant’s documents).

3. On 14 April 2025 in accordance with a direction made by the Panel the claimant uploaded to the portal an Application to Lodge Additional Documents (ALAD) paginated from pages 1 to 646 attaching the following documents:

   ·        the entire clinical notes of Milperra Medical Centre, and

   ·        the clinical notes of Dr David Freiberg.

4. The Panel notes there are extensive medical records relating to the claimant’s injuries.  The Panel has not referenced all of those records in this review where the parties have agreed the review is limited to an assessment of permanent impairment of the following injury:

   ·        respiratory – impairment of respiratory function due to increase in body mass index.

RELEVANT LEGAL AUTHORITY

1. Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).

2. The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.[2]

   [2] Clause 1.2 of the Guidelines.

3. Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:

   “6.6   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, therefore, involves a medical decision and a non-medical informed judgement.

   6.7    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.”

OTHER MEDICAL ASSESSMENT CERTIFICATES

Certificate of Medical Assessor Alan Home

1. On 21 June 2022 Medical Assessor Home issued a certificate in which he certified injuries to the chest, cervical spine and lumbar spine were threshold (minor) injuries.[3]

   [3] Claimant’s bundle p 57.

2. Medical Assessor Home also certified the following treatment and care related to the injury caused by the accident but was not reasonable and necessary in the circumstances:

   ·        the request for exercise physiology, eight sessions (hydrotherapy) per Allied Health Recovery Request (No 3) dated 9 January 2021.

3. Relevantly Medical Assessor Home reported the claimant’s sleep was disturbed, he undertakes daytime napping and estimated he sleeps 15 hours per day.

Certificate of Medical Assessor Samson Roberts

1. Medical Assessor Roberts issued a certificate dated 30 July 2022 in which he certified the following injury caused by the accident was not a threshold (minor) injury for the purposes of the MAI Act:

   ·        post-traumatic stress disorder.[4]

   [4] Claimant’s bundle p 50.

2. Medical Assessor Roberts reported Mr Nassou realised approximately a year after the accident that he was psychiatrically compromised.  He stated his mood remained compromised and he described feeling very tired despite sleeping 12 to 15 hours a day.  He lacked motivation, tended to procrastinate and was irritable particularly with his children. He reported flashbacks of the accident, and he was fearful and hypervigilant on the road. He was working on increasing his engagement in activities including school drop off and pick up. Medical Assessor Roberts reported narcolepsy, compounded by medication, and cataplexy played a role and Mr Nassou must be rested to drive.  He also reported weight gain had caused an increase in pain.

Certificate of Medical Assessor Ian Cameron

1. Medical Assessor Cameron issued a certificate dated 2 April 2024[5] in which he certified the following injuries were caused by the accident and gave rise to a permanent impairment of 4%:

   ·        cervical spine – soft tissue injury;

   ·        lumbar spine – soft tissue injury;

   ·        ribs and sternum – possible fracture and soft tissue injury;

   ·        left shoulder – soft tissue injury, and

   ·        right shoulder – soft tissue injury.

   [5] ALAD p 132.

2. Medical Assessor Cameron certified the following injuries were not caused by the accident:

   ·        left arm – left upper limb including fingers, soft tissue injury and/or radiculopathy from neck injury (Nguyen Principle), nerve injury;

   ·        right arm – right upper limb including fingers, soft tissue injury and/or radiculopathy from neck injury (Nguyen Principle), nerve injury;

   ·        left leg - soft tissue injury and/or radiculopathy from neck injury (Nguyen Principle), nerve injury, and

   ·        right leg - soft tissue injury and/or radiculopathy from neck injury (Nguyen Principle), nerve injury.

3. Medical Assessor Cameron also certified the following treatment, or care did not relate to the injuries caused by the accident, was not reasonable and necessary in the circumstances and will not improve the recovery of the injured person:

   ·        the need for a recliner chair, bed wedge and Thera-med leg relaxer as requested by Mr Nguyen (Rehabilitation provider) on 14 September 2023;

   ·        a need for domestic assistance including gardening/outdoor cleaning assistance, and pool cleaning assistance, as requested by Mr Nguyen (Rehabilitation provider) on 14 September 2023 from date of medical assessment for 12 weeks;

   ·        a need for domestic assistance including one-off hedging service, one-off removalist service for garage cleaning tasks, and one-off handyman service as requested by Mr Nguyen (Rehabilitation provider) on 14 September 2023;

   ·        a need for an L4/5 and L5/S1 facet medial branch radiofrequency neurotomy, caudal block and bilateral sacroiliac joint injections and ketamine infusion as recommended by Dr James Yu in his report dated 12 May 2023, and

   ·        a referral to Dr Huynh (neurologist) as referred by general practitioner (GP) Thanh-Dzung.

Certificates of Medical Assessor Geoffrey (Paul) Curtin

1. On 7 April 2024 Medical Assessor Curtin issued a certificate in which he certified the following injury was not caused by the accident:

   ·        face – soft tissue injury.

2. Medical Assessor Curtin also issued a Combined Certificate dated 8 April 2024 in which he certified the following injuries caused by the accident gave rise to a permanent impairment which is greater than 10%:

   ·        respiratory – impairment of respiratory function due to increase in body max index as a consequence of injuries caused by the accident;

   ·        cervical spine – soft tissue injury;

   ·        lumbar spine – soft tissue injury;

   ·        ribs and sternum – possible fracture and soft tissue injury;

   ·        left shoulder – soft tissue injury, and

   ·        right shoulder – soft tissue injury.

Certificate of Medical Assessor Nelukshi Wijetunga

1. Medical Assessor Wijetunga issued a certificate dated 6 May 2024.[6] She certified a request for further hydrotherapy in accordance with AHRR 3 and a request for a pool pass were reasonable and necessary in the circumstances.

   [6] ALAD p 115.

2. She certified a request for physiotherapy treatment in accordance with AHRR 5 was not reasonable and necessary in the circumstances.

CERTIFICATE UNDER REVIEW

Certificate of Medical Assessor Christopher Grainge

1. On 9 February 2024 Medical Assessor Grainge issued a certificate in which he certified the following injuries caused by the accident gave rise to a permanent impairment of 8%:

   ·        respiratory – impairment of respiratory function due to increase in body mass index.[7]

   [7] Insurer’s bundle p 24.

2. Medical Assessor Grainge reported the following pre-accident medical history:

   “Mr Nassou, prior to the motor vehicle accident, had been diagnosed with obstructive sleep apnoea in 2013 when he weighed approximately 130kg. He was then diagnosed with narcolepsy in 2014 and also underwent a gastric sleeve operation in 2016 when he weighed approximately 160kg. He was diagnosed with cataplexy in 2017 and had appropriate therapy. By June 2018, Mr Nassou had lost a significant amount of weight and had a diagnostic polysomnogram which demonstrated mild sleep disordered breathing with a respiratory disturbance index of 7 per hour, increased slightly to 11 per hour whilst he was supine, and on his side 3 per hour. By 02/08/2019, his weight was recorded at 98kg. At that point, he was not using treatment for his mild obstructive sleep apnoea and was remaining on therapy for his narcolepsy and cataplexy.”

3. Following the accident Medical Assessor Grainge reported Mr Nassou experienced ongoing neck, back, rib pain and bruising and was prescribed analgesia. He was unable to work and started on Pregabalin.  He started to get sleep problems potentially due to Pregabalin causing drowsiness. He was also diagnosed with depression and anxiety and post-traumatic stress disorder. He has also been diagnosed with hypertension.

4. Medical Assessor Grainge reported Mr Nassou sleeps using CPAP therapy for about four hours a night before waking due to pain or panic attacks.  He manages to get back to sleep about 8.00am. He finds himself groggy during the day and uses modafinil to stay awake.

5. On examination Medical Assessor Grainge reported:

   “Mr Nassou was 111kg in weight and 184cm tall.

   There was no peripheral stigmata of respiratory disease. Chest expansion, percussion note and breath sounds were all normal.

   Heart sounds were dual with no murmurs. JVP was not visible. There was no peripheral oedema.

   Mr Nassou’s Epworth Sleepiness Score was 18/24.”

6. Medical Assessor Grainge concluded Mr Nassou developed obstructive sleep apnoea requiring CPAP therapy due to weight gain following the accident. He considered this was contributing to daytime hyper-somnolence, although he also noted the diagnosed depression and post-traumatic stress disorder was also contributing to the sleep disorder and daytime somnolence.

7. He expressed the following opinion as to causation:

   “But for the accident it was more likely that not that Mr Nassou would have maintained his pre-accident weight of around 98kg rather than increasing his weight to 111 kg and re-developing his obstructive sleep apnoea on a known genetic predisposition.”

8. Medical Assessor Grainge assessed a current permanent impairment of 16% stating:

   “Mr Nassou has sleep disordered breathing due to his increase in weight, but this is adequately treated with CPCP therapy, despite this has increased daytime somnolence with an Epworth Sleepiness Score of 18/24. His daytime somnolence results in a whole person impairment of 14% with an additional 2% for the effect of treatment which is likely to be needed lifelong and is moderately intrusive.”

9. Whilst he found apportionment not applicable, he stated he estimated the daytime somnolence caused by the obstructive sleep apnoea due to the weight gain due to the accident was 50% of the overall daytime somnolence and deducted 8% from the assessable impairment arriving at an assessable 8% WPI. 

REVIEW PROCEDURE

1. On 2 May 2024 the insurer sought a review of the medical assessment of Medical Assessor Grainge.

2. On 25 July 2024 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).[8]

   [8] Section 7.26 of the MAI Act, AD2 p 6, AD7 p 189.

3. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the Personal Injury Commission Act 2020 (PIC Act). A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[9] The review is by way of a new assessment of all matters with which the medical assessment is concerned.

   [9] Rule 128 of the PIC Rules.

4. On 14 November 2024 the Panel agreed an examination was necessary.

EVIDENCE BEFORE THE REVIEW PANEL

Application for personal injury benefits (the application)

1. In the application dated 16 April 2020 the claimant reported he had suspected broken ribs. He also reported a sore neck and back and stiffness as well as pain and burning sensation in both legs.[10]

   [10] Claimant’s bundle p 14.

Pre-accident treating medical evidence

1. Mr Nassou underwent a left ACL reconstruction and medial meniscectomy on
   22 December 2009.

2. The records of Dr Barlow of Family Medical practice include a diagnosis of narcolepsy on
   

   [11] Insurer’s bundle p 172.

   3 September 2012 and cataplexy on 3 September 2018.[11] 

3. On 22 July 2013 Dr Freiberg, respiratory physician reported moderately severe sleep disordered breathing.[12] He recommended significant weight reduction and CPAP therapy.

   [12] Insurer’s bundle p 492 and ALAD 633 – 641.

4. On 21 August 2013 Dr Joseph Janjis, physician in respiratory medicine and sleep disordered breathing reported a CPAP titration study demonstrated that the claimant’s sleep disordered breathing was controlled by CPAP at a pressure of 10cm of water via a Pilairo nasal mask.[13]

   [13] ALAD p 632.

1. On 10 March 2014 Dr Freiberg reported the claimant was remarkably hypersomnolent scoring 17/24 on an Epworth Sleepiness Scale.[14]

   [14] ALAD p 631.

2. On 1 July 2014 Dr Frieberg reported on a multiple sleep latency test.[15] He reported in the sleep study he slept for nearly 7.5 hours but the next day he had five naps on the multiple sleep latency test with a mean latency to sleep onset only 4.5 minutes which he thought was indicative of narcolepsy.

   [15] ALAD p 619 – 630.

3. On 6 August 2014 Dr Peter Brimage, consultant neurologist reported the “blips” experienced by the claimant were most likely caused by sleep intrusions.[16]

   [16] Insurer’s bundle p 309.

4. On 10 October 2014 Dr Brimage reported the claimant said he had trouble staying awake during the day for a few years. He had been diagnosed with sleep apnoea and had commenced Modafinal yet still felt tired.[17] He reported on a flight from Sydney to Brisbane two months earlier he had a possible seizure after he awoke with biting of his tongue and surrounded by people with fluctuating consciousness.  He felt spaced out and could only recollect half the flight. He had been sleep deprived and dehydrated. Dr Brimage reported there was no epileptiform discharges on ambulatory EEG monitoring.  On 29 October 2014 Dr Brimage diagnosed the episode on the plane as sleep paralysis, part of the cataplexy/narcolepsy syndrome.[18]

   [17] ALAD p 615.

   [18] Insurer’s bundle p 313.

5. On 13 October 2014 Dr David Freiberg reported he had commenced Mr Nassou on Modafinal because of his extreme hypersomnolence besides being on CPAP therapy.[19] He reported he was still scoring 16/24 on an Epworth Sleepiness Scale, noting he had a lot of work pressures, was sleeping less and was not as compliant with his CPAP machine as he should be.

   [19] Insurer’s bundle p 310.

6. On 20 October 2015 Dr Craig Presgrave, neurologist reported Mr Nassou had obstructive sleep apnoea and excessive day time sleepiness attributed to idiopathic hypersomnolence rather than narcolepsy.[20] He also noted symptoms of sleep paralysis and described the momentary episodes of dizziness as blips and entirely benign.

   [20] Insurer’s bundle p 317.

7. On 5 April 2016 Dr David Martin, upper GI surgeon reported the claimant’s weight was 151 kg and his BMI 44.1 to discuss sleeve gastrectomy.[21]

   [21] Insurer’s bundle p 319.

8. On 16 May 2016 Mr Nassou underwent laparoscopic extended sleeve gastrectomy. His pre-operative weight was 151kg. On 20 July 2016 Dr Ticehurst reported his weight was 126.5kg.[22] On 22 June 2017 Dr Martin reported Mr Nassou weighed 93.3kg.[23]

   [22] Insurer’s bundle p 321.

   [23] Insurer’s bundle p 322.

9. On 4 May 2018 Dr Frieberg saw Mr Nassou after four years.[24] He reported he had lost approximately 40kg since last seen.  He described Mr Nassou as a man who was only mildly overweight with normal lung functions.

   [24] Insurer’s bundle p 323 and ALAD p 612 – 614.

10. On 27 July 2018 Dr Freiberg reported the claimant’s overnight polysomnogram showed his respiratory disturbance index was only 7/hour and there was no oxygen desaturation.[25]  He concluded his sleep disordered breathing had been almost completely abolished by his weight loss from gastric sleeve surgery and he no longer required CPAP therapy. He noted he had narcolepsy with cataplexy.

    [25] Insurer’s bundle p 327.

11. On 4 April 2019 Dr John Barlow noted “discuss fogginess”.

12. On 2 August 2019 Dr Freiberg reported Mr Nassou was still tired and lethargic and it was affecting his work.[26]  He reported he remained thin, and the obstructive sleep apnoea (OSA) had resolved with his significant weight loss. 

    [26] Insurer’s bundle p 334.

13. On 20 September 2019 Dr Barlow noted “Brain fog ??income protection”.

14. On 12 October 2019 Dr Barlow reported the reason for visit was narcolepsy and noted ongoing issues with cataplexy.[27]

    [27] Insurer’s bundle p 220.

15. On 20 December 2019 Dr Eric Barlow noted “ongoing issues with cataplexy - symptoms fluctuate”.

16. On 5 February 2020 Dr Diane Phillpot referred the claimant to Dr Neil Griffith, neurologist re confusion and ‘brain fog’. In her clinical record she also noted “slow to react -  needs spec care - work getting affected. Reason for visit: Confusion.”

17. In a referral to Dr Jangwal on 11 March 2020 Dr Philpot listed Mr Nassou’s current medications as follows:

    ·        Dexamphetamine 5mg tablet – 1 tablet four times a day p.r.n.;

    ·        Lexapro 10 mg tablet – 1-11/2 daily;

    ·        Modafinil 100mg – 2 tablets twice a day;

    ·        Panadeine 500mg, 8mg tablet – 2 tablets three times a day p.r.n.;

    ·        Panadeine Forte 500 mg; 30 mg tablet – 1-2 twice a day p.r.n., and

    ·        Vivaxim 0.025mg; 160 ELISA units syringe – for doctor’s use.[28]

    [28] Insurer’s bundle p 216.

18. Mr Nassou saw Dr Jangwal for cardiac review on 30 March 2020 when he noted he currently weighed 105kg.[29] He reported some atypical sounding chest pain with left arm radiation that can happen at rest and exertion. He also reported the car accident which caused rib fractures and superficial trauma in the abdominal wall. He also reported shortness of breath when he jogged or did exercise. Dr Jangwal thought the symptoms might be side effects from the narcolepsy medications.

    [29] Insurer’s bundle p 342.

Post accident treating medical records

1. Mr Nassou attended Bankstown Hospital on 26 March 2020 with chest pain and tenderness post-accident. Seatbelt marks and a small bruise was noted on the abdominal wall.[30] There was no cervical spine tenderness, stiffness and Mr Nassou was moving his neck in all directions.  On examination of the back there was no tenderness or bruises noted. Shoulders, elbows, wrists, hands, hips, knees, ankles and feet had no tenderness, no deformity and normal movements.

   [30] Claimant’s bundle p 107.

2. On 26 March 2020 Dr Anna Jeroschenko reported the motor vehicle accident the preceding night.[31] She recorded pain anterior chest and whilst no fracture was seen on X-ray at the hospital recorded, “Feels like previous broken ribs”. She noted seatbelt bruising over the clavicle and superficial linear bruising to the mid right chest wall.  There was bony tenderness over the medial aspect of the right 2, 3, 4^th ribs. The chest was clear and the neck moving freely.

   [31] Insurer’s bundle p 274.

3. On 17 June 2020 Dr Barlow reported, “Pain ++ neck and lower back and leg weakness. McKechnie wants non-operative Rx. Insomnia – off dexamphetamine. Reduce modafinil.”[32]

   [32] Insurer’s bundle p 255.

4. On 11 September 2020 Dr Cao of Milperra Medical Centre reported “narcolepsy catalepsy Midafinal Lexapro low back pain flare up loss 60kg sleep study”.[33]

   [33] Insurer’s bundle p 79.

5. On 23 February 2021 Dr Cao reported low back pain and sleeping three to four hours in two days. On 1 May 2021 Dr Cao reported “need script for narco” and described the reason for contact as “low back pain, Nacolepsy”. On 7 July 2021 Dr Cao reported “Narcolepsy play up”.

6. On 23 June 2021 Dr Cao provided a referral to Dr David Freiberg for management of the claimant’s narcolepsy.[34]

   [34] Insurer’s bundle p 124.

7. On 10 February 2022 Dr Cao reported “Height 185 cm, Weight 105 kg, BMI 30.7”.[35] On
   24 February 2022 Dr Cao reported Mr Nassou was trying to lose weight, his weight was recorded as 100kg.  On 3 March 2022 Dr Cao recorded a weight of 99kg and on
   

   [35] Insurer’s bundle p 53.

   18 March 2022 a weight of 98kg.

8. Mr Nassou commenced physiotherapy with Wilfred Lea of Campbelltown Physiotherapy on 16 April 2020 in relation to back pain radiating down both legs, neck pain radiating towards his arms and face and anterior rib pain.[36] In a report dated 9 February 2021 he noted treating consisted of manual therapy, electrotherapy, neck and back traction and stretching and strengthening exercises. Mr Lea reported improvement in overall mobility and strength although Mr Nassou continued to suffer from pain with prolonged load and physical activities.

   [36] Insurer’s bundle p 702.

9. On 6 October 2022 Dr Cao noted low back pain and overweight.[37] He prescribed Ozempic.

   [37] ALAD p 55.

10. On 10 January 2023 Dr Cao noted low back pain and erectile dysfunction and that he was “more sleepy”.[38]

    [38] ALAD p 48.

11. On 6 July 2023 Dr Cao reported tiredness from snoring. He noted the claimant was going to a sleep study.

12. On 13 August 2023 the claimant presented at Bankstown/Lidcombe Hospital with low back pain and right foot weakness.[39]

    [39] ALAD p 298.

13. On 6 March 2024 Dr Cao reported the claimant was unable to sleep well due to pain and on 21 March 2024 he reported worsening narcolepsy catalepsy and questioned whether it was due to pain.[40]

    [40] ALAD p 25.

14. On 9 April 2024 Dr Cao reported the claimant was sleeping more during the day with nil sleep at night.[41]

    [41] ALDA p 24.

15. On 29 June 2024 Dr Cao recorded the claimant’s weight at 116kg although on 2 July 2024 and 8 July 2024 he reported it was 114kg.[42]

    [42] ALAD p 20 and 19.

16. On 28 August 2024 Dr Cao reported the claimant’s weight at 114kg.[43]

    [43] ALAD p 16.

17. On 3 September 2024 Dr Cao reported the claimant was not sleeping well due to pain at night. His weight was reported to be 112kg.[44] On 21 September 2024 Dr Cao reported the reason for contact as narcolepsy, overweight and back pain. He noted the claimant’s weight was 112kg.[45]

    [44] ALAD p 14.

    [45] ALAD p 13.

18. On 10 October 2024 Dr Cao reported the claimant’s weight at 111kg.

19. On 14 January 2025 Dr Rajiv Wijesinghe, neurologist reviewed the claimant and reported the claimant presented with chronic pain and right-sided arm and leg weakness following the accident.[46] He concluded the symptoms were consistent with functional motor weakness but noted no clear structural evidence of either cord or nerve pathology to explain the symptoms. He noted chronic pain symptoms.

    [46] ALAD p 396.

20. On 20 January 2025 Dr Cao reported the claimant’s weight at 110kg.[47]

    [47] ALAD p 7.

21. On 4 February 2025 Dr Cao reported the claimant’s weight at 111kg.[48] On 20 February 2025 Dr Cao reported the claimant was tired, was sleeping on the couch and forgot to change the nappy for his three-year-old child.

    [48] ALAD p 6.

22. On 26 February 2025 Dr Kevin Ooi, colorectal and general surgeon reported complaints of altered bowel habits mixed between constipation and loose motion.[49]  He reported the claimant did not exercise and had put on weight. He reported Mr Nassou had lost 65kg following a gastric sleeve procedure but now weighs up to 111kg. He reported the claimant felt fatigued because he had narcolepsy and poor eating habits.

    [49] ALAD p 394.

Dr Freiberg, respiratory and sleep physician

1. On 28 June 2023 Dr Freiberg reported he reviewed the claimant after four years.[50]  He reported Mr Nassou developed post-traumatic stress disorder as a result of the accident for which he was taking Prozac which was helping control his cataplexy.  He reported
   Mr Nassou found it hard to tolerate Modafinal because it causes worsening anxiety, and he was avoiding Dexamphetamine as he has developed hypertension. Dr Frieberg reported
   

   [50] Claimant’s bundle p 123.

   Mr Nassou scored 15/24 on an Epworth Sleepiness Score. He had gained 9kg since last seen and BMI had increased from 28 to 31. He concluded this placed the claimant in the type 1 obesity range with a gain of 9% of total body weight. He recommended a further sleep study under polysomnographic conditions.

2. In a report dated 9 August 2023 Dr Freiberg compared his evaluation of the claimant’s narcolepsy undertaken in 2019 to the sleep study undergone by the claimant on
   25 July 2023.[51]  He stated:

   “He had a multiple sleep latency test which showed a 14 minute latency to sleep onset which was in the normal range indicating that his hypersomnolence was well controlled. At that time that was with Modafinal 200 mg mane and midi and occasional extra doses of Dexamephetamine Sulphate. He was on Lexapro for the cataplexy. A sleep study preceding the multiple sleep latency test at that time showed mild sleep disordered breathing with a respiratory disturbance index (RDI) of 11/hour (RDI 5-15/hour mild OSA) but on his side his RDI was 3/hour (RDI < 5/hour normal OSA). I therefore recommended for him to avoid the supine position and he continued on his effective treatment and he was fit to work and drive. Now I enclose the recent diagnostic polysomnogram and multiple sleep latency test in a man whose hypersomnolence has become much worse since the motor vehicle accident. Since that that he has gained 9% of his total body weight. His BMI has increased into the obesity range at 31 and he uses the respiratory suppressant medication Palexia. He also wakes constantly at night due to pain.

   He had 21 spontaneous awakenings and a spontaneous arousal index of 9/hour. The likely aetiology of the spontaneous arousals and awakenings is due to his pain.

   His respiratory disturbance index has increased to the moderate range of 22/hour and it is now occurring in all body positions such that his RDI on his side has increased to 17/hour (RDI 15-30/hour moderate obstructive sleep apnoea). He spent 62% of the sleep study on his back. Positional therapy now is of little benefit for his sleep disordered breathing that has progressed from normal on his side to moderate on his side and moderate on his back.

   Therefore, in summary the truncation and fragmentation of sleep due to pain and the weight gain and respiratory suppressant medications that have increased this man’s sleep apnoea into the moderate range have significant deteriorated his hypersomnolence which previously was well controlled. This is reflected by his multiple sleep latency test where his latency to sleep onset is not 5 minutes and 37 seconds which is consistent with severe hypersomnolence. This is despite using Armodafinal 250 mg on the morning of the multiple sleep latency test.”

   [51] ALAD p 600 – 606.

3. Dr Freiberg provided a further report dated 16 October 2023.[52] The claimant had undergone a CPAP Titration sleep study at the Meredith Sleep Centre on 3 October 2023.[53] His weight was recorded at 107kg. He noted a sleep latency of 13 minutes and a sleep efficiency of 87%.  The reduction in slow wave sleep was 11% of total sleep time but a normal proportion of REM sleep.  There were 24 spontaneous awakenings and a spontaneous arousal index of 12/hour due to pain. He reported borderline periodic limb movement disorder with an arousal index of 5/hour. Dr Freiberg recommended the commencement of CPAP treatment.

   [52] Claimant’s bundle p 148.

   [53] ALAD p 595.

4. Dr Freiberg reported on 19 December 2023.[54] He noted Mr Nassou cannot use his usual Armodafinal because on Palexia he develops anxiety. His Epworth Sleepiness Score was 17/24. Dr Freiberg concluded that Mr Nassou’s severe insomnia due to pain was worsening.

   [54] Claimant’s bundle p 167.

5. Dr Freiberg also assessed the claimant for medico-legal purposes and provided a report dated 27 January 2024.[55]  His last clinical review of the claimant was on 19 December 2023 after he had introduced CPAP into the home environment. He reported his apnoea-hypopnoea index (AHI) had reduced from 22/hour to 6/hour on the CPAP therapy.

   [55] Claimant’s bundle p 162.

6. Dr Freiberg opined that Mr Nassou had developed severe hypersomnolence as a result of the accident with “his previously confirmed normal mean latency to sleep onset on a multiple sleep latency test at 14 minutes deteriorating to 5 minutes”. He suggested this was due to
   Mr Nassou’s inability to tolerate his previous successful treatment for narcolepsy as those medications worsened his post-traumatic stress disorder, anxiety and depression, consequential injuries from the accident. He concluded the claimant’s “severe hypersomnolence both subjectively (Epworth Sleepiness Score 17/24) and objectively (mean latency to sleep onset on multiple sleep latency test of 5 minutes) would prevent him from driving safely or returning to full-time work.”

7. He noted that the AMA 4 Guides table titled “Activities of daily living with example” states that having a restful sleep pattern is essential to activities of daily living.

8. He referred to table 6 titled “Impairment Criteria for Sleep and Arousal Disorders” which states a 10-19% WPI results in reduced daytime alertness which requires supervision carrying on daytime activities. He concluded the claimant falls into that category where returning to any form of work or driving would require close supervision with his ongoing hypersomnolence. He assessed a 15% WPI due to sleep and arousal disorders.

9. On 21 June 2024 Dr Freiberg reported the claimant had gained 11kg in the last six months.[56] He reported the claimant’s usage on the CPAP was only 3.5 hours because he wakes with insomnia due to pain. He reported the Epworth Sleepiness Score was 16/24. D Freiberg reported the claimant had three sleep disorders, type 1 narcolepsy, insomnia due to pain and a sleep disordered breathing. He reported only the latter had been successfully treated. He reported the post-traumatic stress disorder has prevented him from effectively using regular treatment for narcolepsy.

   [56] ALAD p 573.

10. On 20 January 2025 Dr Freiberg reported he reviewed the claimant. His weight was more or less stable and his BMI 32.[57] Frequent panic attacks were affecting his adherence to his CPAP device which was 39% of the night.  He reported his sleep duration on CPAP was on average 3 hours and 35 minutes. He noted an Epworth Sleepiness Scale score of 19/24.

    [57] ALAD p 552.

11. On 20 January 2025 Dr Freiberg provided the following BMI report:

Date	Weight (kg)	BMI
25 June 2013	135	39
4 May 2018	97	28
2 August 2019	98	28
28 June 2023	107	31
19 December 2023	105	30
21 June 2024	116	33
20 January 2025	113	32

Dr Simon McKechnie, neurosurgeon

1. In a report dated 25 November 2020 Dr McKechnie stated he first reviewed Mr Nassou on
   

   [58] Insurer’s bundle p 708.

   1 June 2020 when he complained of neck and lower back pain with intermittent radiation through the arms and legs as well as paraesthesia and numbness distally.[58] He reported neck and lower back tenderness with mild decreased range of movement but no neurological deficits.

2. Dr McKechnie reported a cervical MRI demonstrated a small to medium sized C3/4 protrusion without thecal sac or nerve root compression and minimal disc pathology at C6/7. He reported a lumbar MRI demonstrated mild disc desiccation at L4/5 and L5/S1 with minimal bulging but no thecal sac or nerve root impingement. He recommended non operative treatment. Mr Nassou underwent CT guided bilateral sacroiliac joint injections, medication, physiotherapy and exercises.

3. Dr McKechnie reviewed the claimant on 21 December 2023.[59]  He recommended he continue with pain management.

[59] ALAD p 463.

Dr James Yu, pain specialist

1. Dr Yu saw the claimant on 11 January 2021 for widespread body pain including neck pain, lower back pain, bilateral leg pain and sternal burning pain.[60]  He noted treatment with
   

   [60] Insurer’s bundle p 188.

   Dr McKechnie, TENS machine treatment two to three times a day, physiotherapy twice a week and hydrotherapy three times a fortnight. He noted Dr Frieberg had diagnosed Cataplexy. He reported his sleep pattern had been satisfactory. He recommended a multidisciplinary pain management approach.

2. On 9 December 2021 Dr Yu reported widespread body pain including neck pain, thoracic back pain, lower back pain, bilateral leg pain, bilateral gluteal pain and hip pain and coccygeal pain.[61] Mr Nassou was under the care of a physiotherapist, Dr McKechnie, a psychologist Ms Mary Habib and a psychiatrist Dr Rastogi.  He was using a walking stick for ambulation.

   [61] Insurer’s bundle p 519.

3. On 2 May 2023 Dr Yu reported the claimant presented with worsening lower back pain and bilateral leg pain.[62] He also reported neck pain associated with double vision and blurred vision and upper limb pain. He noted there was significant sleep disturbance associated with his pain condition.

   [62] ALAD p 318.

4. In a report dated 19 October 2023 Dr Yu recommended an ongoing multidisciplinary pain management approach for the claimant’s chronic pain.[63] 

   [63] Claimant’s bundle p 158.

Dr Richa Rastogi, psychiatrist

1. Dr Rastogi saw Mr Nassou on 12 May 2021.[64]  She reported chronic pain, ongoing nightmares, flashbacks and dreams of the accident. She reported poor adaption, depressed mood, poor emotional regulation negative cognitions, excessive fears, poor sleep and marked irritability. She noted Mr Nassou had a history of narcolepsy and cataplexy and had been treated adequately with a good response. She reported anxiety and marked fatigue and his narcolepsy had worsened.

   [64] Insurer’s bundle p 290.

2. In a report dated 2 November 2022 Dr Rastogi diagnosed a major depressive disorder with chronic pain syndrome.[65] She reported a depressed mood, restricted affect, pervasive depressive cognitions and anxiety with passive suicidal ideation. She noted marked cognitive deficits and debilitating anxiety and avoidance. She reported Mr Nassou had a history of narcolepsy and cataplexy and was treated adequately with good response and functioning well.

   [65] Insurer’s bundle p 712.

3. On 10 April 2023 Dr Rastogi diagnosed major depressive disorder stemming from chronic pain and functional impairment.[66] She reported he continued to have debilitating pain in the neck and back radiating to his hands and legs with stiffness and restricted movement. She considered the prognosis very guarded. On 13 July 2024 Dr Rastogi reported the claimant’s narcolepsy had worsened and he had poor sleep patterns at night.[67]

Medico-legal evidence

[66] Claimant’s bundle p 25.

[67] ALAD p 397.

Dr Andrew Keller, occupational physician

1. Dr Keller assessed the claimant for the insurer and provided a report dated
   

   [68] Claimant’s bundle p 70.

   21 November 2022.[68] He reported constant pain and restriction of motion of the cervical spine which radiates to the trapezius muscles and both upper arms. Constant lower back pain radiated to the posterior buttocks and legs associated with burning and cold feeling in his thighs and feet. He also reported left and right foot and ankle pain. Mr Nassou said in the past it had been his habit to spend between 12 and 15 hours in bed during the day but this had recently reduced to six hours per day. Mr Nassou reported the medications he was taking following the accident affected his cataplexy and narcolepsy, making him sleepier.

2. Dr Keller reported Mr Nassou suffered from narcolepsy, cataplexy, altered sensation in the face and left arm, a previous lower back claim with neurological symptoms in the legs, an episode of migraine and erectile dysfunction prior to the accident. Dr Keller concluded he was unable to find objective evidence of ongoing musculoskeletal complaints caused by the accident to explain his current disability.

Dr Alice Neale, psychiatrist

1. Dr Neale assessed the claimant for the insurer and provided a report dated
   

   [69] Claimant’s bundle p 87.

   5 January 2023.[69] She reported after noticing increased anxiety about 9 to 10 months after the accident Mr Nassou sought treatment from his GP and was referred to a psychiatrist and psychologist. Since then, his anxiety had worsened despite treatment.

2. She stated Mr Nassou gained weight for a period of time, then deliberately lost weight to address his pain and over the preceding six months he had a reduced appetite. Dr Neale diagnosed a major depressive disorder with anxious distress secondary to chronic pain.

SUBMISSIONS

Insurer’s submissions

1. The insurer provided submissions dated 2 May 2024.[70]

   [70] Insurer’s bundle p 3.

2. Medical Assessor Grainge opined that the claimant has developed obstructive sleep apnoea requiring CPAP therapy due to weight gain following the accident. This is contributing to daytime hypersomnolence which was causally related to the accident. The insurer submits Medical Assessor Grainge did not provide reasons for this conclusion.

3. The insurer refers to the pre-accident history of prolonged problems, sleep problems and respiratory injuries reported by Medical Assessor Grainge:

   (a)     prior diagnosis of obstructive sleep apnoea in 2013 when he weighed approximately 130kg;

   (b)     diagnosed with narcolepsy in 2014;

   (c)     underwent a gastric sleeve operation in 2016 when he weighed 160kg;

   (d)     diagnosed with cataplexy in 2017 and had appropriate therapy;

   (e)     June 2018 lost significant weight and had a diagnostic polysomnogram which demonstrated mild sleep disordered breathing with a respiratory disturbance index of 7 per hours, increased slightly to 11 per hour whilst he was supine, and on his side 3 per hours, and

   (f)     by 2 August 2019, his weight was recorded at 98kg. At that point, he was not using treatment for his mild obstructive sleep apnoea and was remaining on therapy for his narcolepsy and cataplexy.

4. Whilst Medical Assessor Grainge reported Mr Nassou used a CPAP machine for the first time since the accident the insurer submits that Dr Frieberg recommended the use of a CPAP machine between 2013 and 2015.

5. The insurer submits Medical Assessor Grainge did not provide a reason for his conclusion that the claimant’s change in weight from 98kg to 111kg was causally related to the injuries sustained in the accident and nor does he state how he found the respiratory injury to be causally related to the accident.

6. The insurer submits Medical Assessor Grainge used Chapter 5 of AMA 4 Guides but did not indicate which table he used to make his assessment. The insurer submits the correct table according to the Guidelines would have been table 6 on page 143 of the AMA 4 Guides.

7. Further, the insurer submits Medical Assessor Grainge noted apportionment was not applicable even though he concluded “the daytime somnolence caused by his obstructive sleep apnoea due to the weight gain due to his accident is 50% of his overall daytime somnolence, hence the deduction above”.

8. In summary, the insurer submits Medical Assessor Grainge:

   (a)    failed to provide adequate reasons as to causation and the diagnosis of respiratory impairment increasing his body mass index;

   (b)    failed to properly consider the relevant evidence in relation to the assessment of impairment of the respiratory function, and

   (c)    failed to apportion or make deductions for pre-existing impairment.

Claimant’s submissions

1. The claimant provided submissions dated 14 May 2024.[71] The claimant’s submissions address the test required to be addressed by the delegate by reference to the certificate of Medical Assessor Grainge.

   [71] Claimant’s bundle p 178.

MEDICAL EXAMINATION

1. Mr Nassou was examined by Medical Assessor Gibson at her rooms on 24 January 2025.

Past work history

1. Mr Nassou said prior to the accident he held a position with Australian Payments Clearing Association as head of IT. He had been in the job for three years.

2. In May 2020, he made an unfair dismissal claim. He was eventually medically retired due to pain and tiredness. He has not worked since apart from attempting three to four days in late 2021 in a friend's company, but he had been unable to sustain this due to his symptoms.

Pre-accident medical history

1. Mr Nassou underwent left anterior cruciate ligament and medial meniscectomy left knee on 22 December 2009.

2. He had tonsillectomy and adenoidectomy in childhood.

3. He said prior to the accident he was diagnosed with obstructive sleep apnoea. This was in 2013, and at that time he weighed about 130kg.

4. In 2014/15, he visited respiratory physician Dr Frieberg and underwent a Multiple Sleep Latency Test (MSLT) for excessive daytime sleepiness. The MSLT measures how quickly a patient falls asleep during the day and narcolepsy was diagnosed. He was prescribed regular modafinil (non-amphetamine CNS stimulant) and as required, dexamphetamine (CNS stimulant).

5. He said by 2015/16, he was experiencing bouts of "extreme tiredness". He returned to
   Dr Frieberg and cataplexy was diagnosed. At this point he was prescribed an SSRI, likely Lexapro. He said his symptoms had improved. He was taking dexamphetamine as required and regular Modafinil and Lexapro.

6. In 2016, he underwent a gastric sleeve procedure, at that stage he weighed about 160kg. He said he lost significant amounts of weight following the procedure, partially due to the surgery and partially due to the fact he was exercising more and watching his diet. He went down to 89kg and then stabilised at around 92kg.

7. By mid-2018, polysomnogram demonstrated mild sleep-disordered breathing and by August 2019 he no longer required CPAP. He said at that stage his weight was 98kg.

8. When asked about his weight historically, he said this had never been an issue until he married in 2009. He said prior to this he had been playing football regularly and was making his own meals. After marrying he had undertaken further IT studies, played less sport and was involved in raising his children (currently aged 3-14 years). He also volunteered that his wife was a very good cook.

9. He said his weight had been up and down due to lifestyle factors.

10. He maintained prior to the accident his sleep apnoea was well controlled due to the fact that his weight was within reasonable limits, and he was not requiring the use of a CPAP machine although he had a diagnosis of narcolepsy and cataplexy.

History of the accident

1. On 25 March 2020 Mr Nassou was on his way home with his two children in the car, one in the front and one in the rear, and they all had their seatbelts fastened. He was driving in a westerly direction along Milperra Road towards Liverpool at about 70kmph.

2. The collision occurred when another vehicle impacted the right front quarter of his car. He said his car was pushed sideways with the impact. He became tearful when he described the accident. Air bags deployed, and the children were distressed.

3. After the accident he pulled his children out of the car. An ambulance was called as his son was complaining of shortness of breath. However, they declined to travel to the hospital in the ambulance as his wife had arrived by then and she took them all to Bankstown Hospital.

4. Once at the hospital Mr Nassou had imaging of his neck, chest and low back. He said later that day there was bruising and pain over his right lateral ribs and left loin area. He said in the early period after the accident he was thinking more of his son and daughter than himself.

5. He visited his GP the following day and was prescribed Panadeine Forte. He said he would normally see Dr Barlow but he was not available and instead he saw his wife who is also a doctor.

6. Mr Nassou said at the time of the accident he had been working from home due to the COVID-19 epidemic. Therefore, he was able to continue working from home as he was able to rest during the day and because he held a senior position he could extend his working days.

7. Mr Nassou took Panadeine Forte for several months and this then changed to Tramadol.

8. Mr Nassou was referred to pain physician, Dr Yu. Dr Yu prescribed Palexia (Tapentadol). This was commenced about nine months after the accident.

9. In 2022 Mr Nassou visited Dr Frieberg as he was feeling very tired. At that stage he was using Tapentadol, Modafinil and Fluoxetine and possibly Agomelatine.

10. Mr Nassou was referred to psychiatrist, Dr Rastogi about 12 months after the accident as he developed depression. He remembered they had been looking at old videos prior to the accident and this had emphasised the difference in his mood since the accident.

11. He tried Melatonin to help with sleep but felt this made him more tired during the day.

12. In July 2024 his GP prescribed Duloxetine and Lemborexant, but Medical Assessor Gibson understood that neither of these medications had been helpful.

13. Mr Nassou said more recently he had visited Dr Frieberg. Since last year Dr Frieberg had restricted his driving to 30 minutes at a time and he needed to be supervised as he was "too sleepy." He said he had last driven the day before although he added that his psychologist was asking him to make short trips in the car so he could get out of the house.

Current treatment

1. Mr Nassou uses his CPAP machine four hours per night.

2. He remains under the care of his GP Dr Barlow and his respiratory physician, Dr Frieberg.

3. Mr Nassou ceased Dexamphetamine in 2022 as it was worsening his symptoms of anxiety and post-traumatic stress disorder. He continues to take Modafinil as required and, in fact, had taken two prior to attending the examination. He uses Fluoxetine 20mg per day. He takes Agomelatine 25mg at night. He takes Atenolol 50mg daily for blood pressure and he has been using this for 18 months. He uses a Norspan patch 40mcg/hr. He takes Prochlorperazine at times for nausea but has not taken this for very long. He has Meloxicam 200mg as required. He also takes Diazepam 5mg as required and had taken 10mg prior to the examination.

Activities and restrictions

1. Mr Nassou uses a CPAP four hours a night and said that he has 32 apnoeas. He has nightmares. He goes to bed at 10.00pm, wakes at 2.30am in pain and has difficulty getting back to sleep as he is anxious, so sometimes he just tries to read a book.

2. He feels fatigued all day. Mr Nassou spends a lot of time in his room watching television, playing PlayStation and occasionally reading a book. He supervises his daughter doing the cooking. He sometimes takes his kids to the park, but he remains very worried about a flare-up of his neck or back pain.

3. He said his wife works two days a week as a primary school teacher but hopes to move into preschool teaching.

4. Mr Nassou said finances are very tight.

5. He doesn’t consume alcohol or use any recreational substances.

6. Mr Nassou said that he has had some issues at home recently. His wife sleeps in the same bed, but he said there has been no physical relationship for two years. His mood has been very low. There has been talk of separation, although the family intervened and advised against this.

Physical examination

1. Mr Nassou had a stocky build. He was 184cm tall and weighed 113kg. His BMI was 33.4 placing him in the obese range.

2. On examination of the chest, there was no shortness of breath or cyanosis.  Auscultation revealed normal breath sounds and no adventitious sounds. There were no peripheral stigmata of respiratory disease. Heart sounds were dual. There were no signs of cardiac failure. The Epworth Sleepiness Score on examination by Medical Assessor Gibson was 20/24.

DIAGNOSIS AND CAUSATION

1. Mr Nassou contends he has developed obstructive sleep apnoea requiring CPAP therapy due to weight gain following the accident contributing to daytime hypersomnolence.

2. The Panel accepts Mr Nassou suffers from obstructive sleep apnoea.

3. More difficult is the question of causation.

4. In general Epworth Sleepiness Scale scores can be interpreted as follows:

   ·        0 – 5 lower normal daytime sleepiness;

   ·        6 -10 higher normal daytime sleepiness;

   ·        11 – 12 mild excessive daytime sleepiness;

   ·        13 – 15 moderate excessive daytime sleepiness, and

   ·        16 – 24 severe excessive daytime sleepiness. 

5. The Panel notes as of 2 August 2019, some seven months prior to the accident Mr Nassou scored 13/24 on the Epworth Sleepiness Scale, which indicates he was suffering from moderate excessive daytime sleepiness.

6. On 28 June 2023 Dr Freiberg reported Mr Nassou scored 15/24 on the Epworth Sleepiness Scale, and on 19 December 2023 he scored 17/24 on the Epworth Sleepiness Scale.  On
   9 February 2024 Medical Assessor Grainge reported Mr Nassou scored 18/24 on the Epworth Sleepiness Scale and on examination by Medical Assessor Gibson on
   24 January 2025 he scored 20/24.

7. The Panel notes the claimant’s weight as recorded in medical records is as follows:

Date	Weight	Source record
25 June 2013	135kg	Dr Freiberg’s BMI report
5 April 2016	151kg	Dr David Martin
16 May 2016	151kg	Dr David Martin, Operation Report
20 July 2016	126.5kg	Dr Ticehurst
4 May 2018	97kg	Dr Freiberg’s BMI report
19 May 2018	97kg	Sleep study
2 August 2019	98kg	Dr Freiberg’s report dated 27 January 2024
30 March 2020	105kg	Dr Jangwal report
8 November 2021	109kg	Dr Cao clinical notes
10 February 2022	105kg	Dr Cao clinical notes
24 February 2022	100kg	Dr Cao clinical notes
3 March 2022	99kg	Dr Cao clinical notes
18 March 2022	98kg	Dr Cao clinical notes
26 April 2022	93kg	Dr Cao clinical notes
19 June 2023	104kg	Dr Cao clinical notes
28 June 2023	107kg	Dr Freiberg’s BMI report
3 October 2023	107kg	Sleep study
19 December 2023	105kg	Dr Freiberg’s BMI report
9 February 2024	111kg	Medical Assessor Grainge
21 June 2024	116kg	Dr Freiberg’s BMI report
29 June 2024	116kg	Dr Cao clinical notes
2 July 2024	114kg	Dr Cao clinical notes
21 September 2024	112kg	Dr Cao clinical notes
10 October 2024	111kg	Dr Cao clinical notes
20 January 2025	110kg 113kg	Dr Cao clinical notes Dr Freiberg’s BMI report
24 January 2025	113kg	Medical Assessor Gibson
4 February 2025	111kg	Dr Cao clinical notes

1. The Panel considers it can rely on the weight recorded by Dr Jungwal of 105kg on
   30 March 2020, five days after the accident as the claimant’s likely weight at the date of accident.

2. The Panel also notes the following history in the 12 months pre-accident:

   ·        on 4 April 2019 Dr John Barlow noted “discuss fogginess”;

   ·        on 2 August 2019 Dr Joseph Lombardo referred Mr Nassou to Dr Frieberg re narcolepsy/cataplexy;

   ·        on 2 August 2019 Dr Freiberg reported Mr Nassou was still tired and lethargic and it was affecting his work;

   ·        on 20 September 2019 Dr Barlow noted “Brain fog ??income protection”;

   ·        on 20 December 2019 Dr Eric Barlow noted “ongoing issues with cataplexy - symptoms fluctuate”, and

   ·        on 5 February 2020 Dr Diane Phillpot noted “slow to react. needs spec care. work getting affected. Reason for visit: Confusion.”

3. Noting Medical Assessor Grainge recorded a weight of 111kg there was an increase of 6kg between the accident and his examination on 9 February 2024 and a further increase of 2kg to 113kg at the time of the examination by Medical Assessor Gibson. However, that is not a complete picture.

4. The claimant’s weight at the time of the accident in March 2020 was 105kg and in his BMI report of 19 December 2023 Dr Freiberg also recorded a weight of 105kg. During that time, he lost some weight, reportedly only weighing 93kg on 26 April 2023 but he gradually regained it. From February 2024 to February 2025 his weight was practically steady at 111kg.

5. The Panel acknowledges there may be some discrepancy in recorded weight due to variations in calibration and type of scales used and amount of clothing worn. Furthermore, indicated weight can vary depending on food and water intake, the time of day, bladder and bowel movements, medication and alcohol. In fact, Dr Freiberg's BMI report of
   19 December 2023 has the claimant's weight at 105kg whilst just seven weeks later on
   9 February 2024 Medical Assessor Grainge reported his weight was 111 kg. The Panel questions the accuracy of these recordings where it is not likely that the claimant gained 6kg in a period of seven weeks.

6. However, the dispute referred for assessment in essence requires the Panel to determine whether there was any significant weight gain following the accident which was caused or materially contributed to by the accident.

7. The Panel considers the opinions of Dr Freiberg and Medical Assessor Grainge were predicated on acceptance of the history provided by Mr Nassou. Medical Assessor Grainge accepted following the accident the claimant gained weight where he found the claimant’s pre-accident weight was 98kg and at the time of his assessment the claimant weighed 111kg. However Medical Assessor Grainge was apparently unaware that Dr Jungwal recorded the claimant’s weight as 105kg just five days after the accident.

8. However, the Panel has reviewed the weight measurements very carefully and, based on the evidence are not convinced the accident has led to any consistent increase in the claimant’s weight, having regard to the fluctuations in his weight since the accident.

1. The Panel notes there was an extensive pre-accident history of prolonged issues with obesity, and multiple sleep disorders requiring treatment. Indeed, the Panel notes the claimant’s pre-operative weight prior to undergoing laparoscopic extended sleeve gastrectomy on 16 May 2016 was 151kg.

2. The Panel also notes that obesity is a chronic disease that presents significant challenges for treatment long term, and that even following surgery regain of 20–25% of the lost weight occurs often.

3. The Panel is not satisfied any impairment of respiratory function due to an increase in body max index was a consequence of injuries caused by the accident.

4. Whilst the Panel accepts an increase in weight and body mass index could have caused or contributed to impairment of respiratory function the Panel is not satisfied on the balance of probabilities that any increase in weight and body mass index post-accident was caused or contributed to by the accident.

5. The Panel finds any respiratory impairment due to an increase in body mass index was not caused by the accident.

6. Where causation has not been established the Panel has not assessed whole person impairment.

CONCLUSION

1. The Panel revokes the certificate of Medical Assessor Christopher Grainge dated
   9 February 2024 and issues a new certificate determining that the following injury was not caused by the accident:

·        respiratory – impairment of respiratory function due to increase in body mass index.