Lachlan Shire Council v Stanley

DETERMINATION OF APPEAL PANEL
CITATION:	Lachlan Shire Council v Stanley [2025] NSWPICMP 765
APPELLANT:	Lachlan Shire Council
RESPONDENT:	Jammie Michael Stanley
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	John Garvey
MEDICAL ASSESSOR:	Christopher Grainge
DATE OF DECISION:	3 October 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); appellant appealed against medical assessments of two Medical Assessor’s (MA); one assessment relates to the respondent’s upper and lower gastrointestinal tact and the other to the impairment the respondent has due to a respiratory-sleep disorder from his injury; whether MA correctly classified the respondent’s impairment of his upper gastrointestinal tract by reference to the criteria of Table 6-3 of the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5); whether MA erred by assessing the respondent had a permanent impairment due to symptoms in his lower gastrointestinal tract; whether the respondent’s sleep disorder was a primary sleep disorder following neurological injury and if not whether the MA erred by assessing the respondent had a permanent impairment from the consequential sleep disorder he had from his injury; Held – the MA’s rating of the respondent’s permanent impairment of his upper gastrointestinal tract was correctly done by reference to the criteria of Table 6-3 of AMA 5 and involved no error; the MA erred by assessing the respondent had permanent impairment due his lower gastrointestinal tract; the respondent’s injury was in part a neurological injury; the respondent’s sleep disorder is not a primary consequence of his neurological injury but rather is secondary to the pain he suffers from his neurological injury and cannot be rated for impairment under Table 13.4 of AMA 5; MAC revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

Lachlan Shire Council, the appellant, employed Jammie Michael Stanley, the respondent, as a plant operator and labourer. While working for the appellant on 17 February 2015, the respondent suffered an injury to his lumbar spine.
On 24 June 2022 the respondent’s solicitors wrote to the appellant’s insurer advising it that the respondent claimed compensation for permanent impairment from the respondent’s injury. The respondent’s solicitors advised in their correspondence that the respondent’s permanent impairment was of the order of 35% whole person impairment (WPI). The respondent’s solicitors provided the insurer with reports of Associate Professor Nigel Hope dated 17 March 2017, Dr David Freiberg dated 25 February 2022 and Dr Anthony Greenberg dated 16 June 2022 to support the respondent’s claim.
Associate Professor Nigel Hope is an orthopaedic surgeon, who assessed the respondent had 7% WPI resulting from the respondent’s injury insofar as his injury affected his lumbar spine. Associate Professor Hope diagnosed the respondent’s injury, insofar as it related to his lumbar spine, is “lumbar spine permanent aggravation of L4/5/S1 degenerative discopathy”.
Dr David Freiberg is a consultant physician in respiratory and sleep medicine. He assessed the respondent had 20% WPI “from a sleep perspective”. Dr Frieberg advised in his report that the respondent’s “sleep and arousal disorder is multi-factorial but all these factors relate to his workplace injury”. Those multiple factors included chronic pain that the respondent experienced, medications he took for his chronic pain, which Dr Frieberg advised are sedating and respiratory suppressants, and reflux that the respondent experienced as a consequence of bariatric surgery he had to manage weight gain from his work injury.
The Appeal Panel notes that in prior contested proceedings in the Workers Compensation Commission, Senior Arbitrator Bamber found that the respondent “sustained a consequential condition of weight gain as a result of the agreed lumbar spine injury sustained in the course of his employment with the [appellant] on 17 February 2014”. Dr Michael Donavan had recommended bariatric surgery for the respondent and Senior Arbitrator Bamber also found that this surgery is reasonably necessary treatment for the respondent as a result of the injury the respondent suffered on 17 February 2014.
The Appeal Panel further notes that in December 2020 Dr Donavan performed that surgery on the respondent.
Dr Anthony Greenberg is a general and gastro-intestinal surgeon. He assessed that as a result of the respondent’s injury, the respondent had 10% WPI relating to his upper gastrointestinal tract and 3% WPI relating to his lower gastrointestinal tract, which combined to 13% WPI. Dr Greenberg advised that the respondent’s bariatric surgery was successful but he also advised that it had come “with a significant trade off”. Dr Greenberg described the respondent had developed refractory gastro -oesophageal reflux disease and that the surgery had restricted the respondent to eating semi solid foods and liquids while he adjusted to the confines of a gastric sleeve that had been implanted. Dr Greenberg also advised that the respondent had symptoms of severe constipation which was caused by the respondent taking MS Contin and Panadeine Forte to manage the pain from his injury.
Dr Greenberg further advised that the respondent had medication induced gastrointestinal motility disorder that was unlikely to resolve while the respondent required ongoing pain relief.
The permanent impairment that Associate Professor Hope, Dr Frieberg and Dr Greenberg respectively assessed the respondent had from his injury combined, in accordance with the Combined Values Chart detailed at pages 604 to 606 of the American Medical Association Guides to the evaluation of permanent impairment, 5^th ed (AMA 5), combines to 35% WPI.
On 16 November 2022 the appellant’s insurer wrote to the respondent notifying him that it disputed he was entitled to compensation for permanent impairment. The reasons the insurer advised the respondent for this decision were, in substance, that it did not accept his upper and lower gastrointestinal conditions resulted from his injury to his lumbar spine, that his sleep disruption is not a diagnosable pathological or medical condition that attracts an entitlement to compensation; that his mild sleep apnoea did not result from his injury, and that he did not have an assessable level of permanent impairment from his “alleged consequential condition of sleep disruption”.
The insurer also advised the respondent in its correspondence that it had considered several documents in deciding to dispute his claim for compensation, which it listed in its letter under the heading “documents relevant to the decision”. The most significant of these were a report of orthopaedic surgeon Dr John Bosanquet dated from 2014, who assessed the degree of the respondent’s permanent impairment relating to his lumbar spine is 5% WPI, a report of occupational physician Professor Ehrlich dated 15 January 2015, who also assessed the degree of the respondent’s permanent impairment relating to his lumbar spine is 5% WPI, a report of Dr Siddarth Sethi dated 27 August 2022, whom the Appeal Panel notes is a medical officer in general medicine, gastroenterology and hepatology, and who assessed the respondent had no permanent impairment relating to his upper or lower gastrointestinal tract, and respiratory and sleep physician Professor Paul Thomas dated
19 September 2022 who assessed, by reference to Table 13-4 of AMA 5, the respondent had 1% WPI.
The Appeal Panel notes that Dr Sethi advised in his report that he diagnosed the appellant had gastro-oesophageal reflux disease, irritable bowel disease and haemorrhoids but he considered that all of these conditions had developed independently of the respondent’s employment and work injury and the treatment the respondent had received for his work injury. The Appeal Panel also notes that Professor Thomas advised the insurer that the respondent had mild obstructive sleep apnoea but he considered that this was unrelated to the respondent’s back injury. Professor Thomas also advised that any disturbance of the respondent’s sleep is related to gastro-oesophageal reflux disease and possibly to pain from his lower back injury.
On 5 July 2024 the respondent instituted proceedings in the Personal Injury Commission (Commission) seeking the Commission determine his claim for compensation for permanent impairment. The matter was referred to a Member of the Commission, namely Ms Diana Benk, to determine whether the respondent’s lower gastrointestinal, his upper gastrointestinal conditions and his sleep disorder were the result of his lumbar spine injury. On 1 October 2024 the Commission issued a Certificate of Determination recording Member Benk’s determination that the respondent suffered a condition to his upper and lower gastrointestinal tract and a sleep disorder as a result of his lumbar spine injury on
17 February 2014. In a Statement of Reasons that Member Benk published for her determination she said the following at [43] and [44]:
“Initially I was persuaded by the opinion of Dr Thomas who suggested that the sleep difficulties arose out of a combination of symptoms arising from the lumbar spine and gastrointestinal tract and therefore do not attract an assessment with reference to the
impairment tables, as this could possibly allow for a duplication in assessments. This is
entirely correct, however overall, such matters ultimately become the province of
consideration by a Medical Assessor.
My role is confined to assessing whether the evidence sufficiently establishes that any sleep disorder results from the accepted lumbar spine injury.”[1]
[1] Stanley v Lachlan Shire Council [2024] NSWPIC 542
Following Member Benk’s determination, a delegate of the President of the Commission issued a referral to Medical Assessor Tim Anderson and Medical Assessor Peter Honeyman requiring them to assess the degree of the respondent’s permanent impairment from his injury. Medical Assessor Anderson was appointed as the non-lead assessor to assess the degree of the respondent’s permanent impairment relating to his lumbar spine and his upper gastrointestinal tract and lower gastrointestinal tract. Medical Assessor Honeyman was appointed as the lead assessor to assess the degree of the respondent’s permanent impairment relating to his “respiratory-sleep disorder”, and to consolidate in a Medical Assessment Certificate issued pursuant to s325 of the Workplace Injury Management andWorkers Compensation Act 1998 (the 1998 Act) his assessment of the respondent’s permanent impairment relating to “respiratory-sleep disorder” and Medical Assessor Anderson’s assessment of the respondent’s impairment relating to the respondent’s lumbar spine.
Both Medical Assessors issued Medical Assessment Certificates on 2 June 2025 with respect to the matters that had been respectively referred to them. In the Medical Assessment Certificate (MAC) that Medical Assessor Anderson issued he certified that he assessed the degree of the respondent’s permanent impairment relating to the respondent’s lumbar spine is 11% WPI. He had assessed the respondent’s overall impairment relating to his lumbar spine is 12% WPI but he found a proportion of the respondent’s permanent impairment from his injury is due to a pre-existing condition, which he identified as minor degenerative change, and he made a one-tenth deduction under s 323(1) of the 1998 Act for the proportion of the respondent’s impairment that he considered was due to that pre-existing condition, and hence this assessment that the degree of the respondent’s permanent impairment resulting from his injury relating to his lumbar spine is 11% WPI.
Medical Assessor Anderson also certified that he assessed the respondent had 12% WPI relating to his upper digestive system and 3% WPI relating to his lower digestive system. He also made a deduction under s 323(1) for a proportion of that permanent impairment of the respondent he considered was due to the respondent’s pre-existing degenerative condition in the respondent’s lumbar spine. Hence he certified that he assessed that as a result of the respondent’s injury the respondent had 11% WPI relating to his upper digestive system and 3% WPI relating to his lower digestive system.
In the MAC Medical Assessor Honeyman issued certified, he assessed the respondent had a degree of permanent impairment of 15% WPI relating to his respiratory-sleep disorder. He also consolidated in the MAC he issued his assessment with the assessment Medical Assessor Anderson made such that he certified that the degree of the respondent’s permanent impairment from his injury, incorporating all body parts and systems, is 34% WPI.
The Appeal Panel observes, merely for the sake of completeness as nothing hinges on this, that Medical Assessor Anderson recorded in the certificate he issued that the date of the respondent’s injury is “12/03/20 (deemed)”. That is an obvious error given that the respondent’s injury occurred on 17 February 2014. In the consolidated MAC Medical Assessor Honeyman issued, that error of Medical Assessor Anderson regarding the date of the respondent’s injury had been corrected, such that it is therein recorded as
17 February 2014.
The appellant has appealed against the medical assessments both Medical Assessors made. The appellant relies on the following grounds of appeal under s 327(3) of the 1998 Act:
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
1 March 2021 (the Guidelines) and the AMA 5.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the respondent to undergo a further medical examination. This is because the material before the Appeal Panel is sufficient for it to determine the appeal.

EVIDENCE

The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.

THE MEDICAL ASSESSMENT CERTIFICATES

Medical Assessor Anderson

The appellant has raised no issue with Medical Assessor Anderson’s assessment of the degree of permanent impairment the respondent has relating to his lumbar spine. The appellant challenges the assessment Medical Assessor Anderson made of the respondent’s impairment relating to his gastrointestinal tract and lower gastrointestinal tract and the assessment Medical Assessor Honeyman made of the respondent’s permanent impairment relating to respiratory-sleeping disorder.
The history Medical Assessor Anderson detailed in the MAC that he issued, relevant to his assessment of the degree of the respondent’s permanent impairment relating to his gastrointestinal tract, includes that following the respondent injuring his lumbar spine he developed gross excess weight that ultimately led to his having laparoscopic surgery on
3 December 2020. The history Medical Assessor Anderson detailed also includes that whilst that surgery resulted in the respondent losing weight, it also resulted in the respondent developing severe reflux and associated vomiting.
The history Medical Assessor Anderson detailed includes that the respondent suffered deterioration of his low back condition following his injury that ultimately resulted in his being referred to a pain management physician and a spinal cord stimulator being inserted in September 2017. Medical Assessor Anderson noted that the medications the respondent takes to manage his pain includes opiates. Medical Assessor Anderson recorded that the respondent has developed severe constipation and has blood in his stools, which are hard. Medical Assessor Anderson noted that there is no history of the respondent having had a gastroscopy or a colonoscopy.
Medical Assessor Anderson found from his physical examination of the respondent that the respondent is 1.79m in height with a weight of 98kg. Medical Assessor Anderson recorded that he found the respondent’s abdomen was soft and that the respondent experienced discomfort in his mid-upper quadrant. Medical Assessor Anderson found there was a lot of tenderness in the respondent’s mid upper quadrant of his abdomen. Medical Assessor Anderson recorded that he detected no masses in the respondent’s abdomen and that the respondent’s bowel sounds were present and normal.
Medical Assessor Anderson noted that there were no recent radiological investigations available but that previous reports demonstrated the respondent had lower lumbar degenerative changes and discogenic pathology at the L5/S1 articulation.
Medical Assessor Anderson provided the following explanation for his assessment that the respondent’s overall impairment with respect to his upper digestive system is 12% WPI and lower digestive system is 3% WPI:
“Upper Digestive System. This is addressed in AMA 5 Page 121, Table 6-03. Mr Stanley is in Class II where there is provision of a whole person impairment ranging between 10% and 24%. He continues to have symptoms and signs of upper digestive tract disease and he also has anatomic loss or alteration due to the gastric sleeve procedure. He needs modification of his diet with appropriate medication. There has never been any particular difficulty with maintaining his weight and if anything, he is still trying to lose weight. With this fairly wide bracket ranging from 10% to 24%, 12% is selected as being appropriate.
Lower Digestive System. This is addressed in AMA 5 Page 128, Table 6-04. Mr Stanley is assessed in Class I of this table where he continues to have signs and symptoms of colonic or rectal disease. The whole person impairment range is from 0% through to 9%. 3% is selected as appropriate.”

Medical Assessor Honeyman

Medical Assessor Honeyman noted within the history he detailed in the MAC he issued that the respondent suffered severe reflux following his gastric surgery and “that the reflux wakes him at night and further adds to his difficulties sleeping”. Medical Assessor Honeyman also noted that the respondent reported that his back pain in combination with his vomiting prevents him sleeping. Medical Assessor Honeyman noted that the respondent reported a history of normal sleep before his injury, but now he regularly sleeps until 11.00am because of poor sleep and feels tired most of the time.
Medical Assessor Honeyman noted that the respondent reported he does not fall to sleep while watching TV if the show he is watching is about hunting and fishing. Medical Assessor Honeyman opined that the history he obtained suggested the respondent had “tiredness but not doziness during his limited activities of daily living”.
Medical Assessor Honeyman noted the respondent lives on a 40-acre property on which he runs a farm, but he does not engage in any active work on his farm. Medical Assessor Honeyman also noted that the respondent reported an inability to be able to do any housework or active work.

Medical Assessor Honeyman noted that respiratory and sleep physician Dr George Hamor had conducted sleep study on 16 December 2021, the conclusion of which was “mild OSA AHI 11/hr worse in supine sleep”. Medical Assessor Honeyman also referred to the assessments that both Dr Frieberg and Professor Thomas made.
Medical Assessor Honeyman summarised the respondent’s injury as being “sleep fragmentation with day time sleepiness consequential to oesophageal gastric reflux and back pain”. Medical Assessor Honeyman noted that the respondent’s tiredness is compounded by medication.
Medical Assessor Honeyman explained that he assessed the respondent’s impairment by reference to the criteria of Table 13-4 of AMA 5. He considered the respondent met the criteria of class 2 of that Table because the respondent had reduced daytime alertness and interference with some activities of daily living. Medical Assessor Honeyman explained that the respondent’s drowsiness is consequential to his history of reflux and back pain. Medical Assessor Honeyman noted that the respondent’s medication adds to his daytime drowsiness.
Medical Assessor Honeyman noted both Professor Thomas and Dr Frieberg expressed the view that the respondent’s sleep disturbance is not primary but due to interruptions to his sleep due to back pain and severe reflux. Medical Assessor Honeyman said that:
“We have a well-accepted concept of consequential conditions. The reflux causes fragmented sleep with associated tiredness. Therefore, in my opinion, it can be assessed.”

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
The appellant’s submissions with respect to Medical Assessor Anderson’s assessment of the respondent’s gastrointestinal tract included that the Medical Assessor erred by rating the respondent’s impairment under Table 6-3 of AMA 5 as Class 2. The appellant noted that when explaining his assessment the Medical Assessor observed that the respondent was obese and that he had reported having experienced difficulty maintaining his weight and that he was trying to lose weight. The appellant submitted that the criteria for a Class 2 impairment required that the respondent have a “weight loss below desirable weight but does not exceed 10%”. The appellant submitted that the respondent was required to meet that criterion in order to be assessed as Class 2, and this because of the use of the conjunctive “and” between the several criteria for a Class 2 impairment. The appellant submitted that because the respondent is obese, he is in excess of the desirable weight and hence does not meet all the criteria for a Class 2 rating.
The appellant submitted that Medical Assessor Anderson erred by assessing the respondent has 3% WPI relating to his lower gastrointestinal tract. The Appeal Panel notes that in its submissions the appellant referred to Medical Assessor Anderson having relied on Table 6-3 to make his assessment, but that seems to be a typographical error on the part of the appellant, in that the appellant also referred to page 128 of AMA 5 which contains Table 6-4 and which in fact is the table Medical Assessor Anderson used to make his assessment of the respondent’s impairment of the respondent’s lower intestinal tract.
The appellant submitted that the respondent did not meet the criteria specified for a Class 1 rating and consequently Medical Assessor Anderson was wrong to rate the respondent’s impairment as such. The appellant referred to paragraph 16.9 of the Guidelines which instructs that constipation is a symptom and not a sign and is generally reversible and that a 0% WPI applies to constipation. The appellant submitted that the respondent’s constipation is due to his taking medication and, in accordance with paragraph 16.9 of the Guidelines, Medical Assessor Anderson ought to have rated the respondent’s impairment as 0%.
The appellant further submitted that paragraph 16.9 also stipulates that an assessment of colorectal disease and anal disorder requires a report of a treating doctor or family doctor which includes a proper physical examination with rectal examination if appropriate and a full endoscopy report. The paragraph also stipulates that failure to provide a report may result in 0% WPI. The appellant submitted that the respondent had not undergone any investigation for his gastrointestinal condition and without a clinical examination of the respondent Medical Assessor Anderson ought to have assessed his impairment with respect to his lower gastrointestinal tract as 0% WPI.
The appellant submitted that Medical Assessor Honeyman was wrong to rate the respondent as having an impairment due to a sleep disorder. The appellant submitted that a rating of impairment due to a sleep and arousal order can only be made by reference to Table 13-4 of AMA 5 if the disorder is a primary disorder that follows a neurological injury. The appellant submitted that is a consequence of paragraphs 5.1 and 5.10 of the Guidelines and also Chapter 13 of AMA 5. The appellant submitted that the respondent’s sleep disorder is a consequence of the respondent’s lumbar pain and reflux and not the result of a neurological injury and hence Table 13-4 cannot be used to make a rating of the respondent’s impairment due to his sleep disorder.
In the alternative the appellant submitted that the Medical Assessor did not obtain a history regarding the effects of the respondent’s sleep disorder on his activities of daily living that is sufficient to distinguish whether the respondent’s impairment ought to be rated by reference to the criteria in Table 13-4 for a Class 1 impairment or a Class 2 impairment.
In reply, the respondent submitted that Medical Assessor Anderson was correct to rate his impairment relating to his upper gastrointestinal tract by reference to the criteria in Table 6-3 of AMA 5 for a Class 2 impairment. The respondent submitted that he does not maintain his weight at a desirable level and consequently Medical Assessor Anderson could not rate his impairment as meeting the criteria for a Class 1 impairment. The respondent referred to an instruction within section 6.1c of AMA 5 that relates to the consideration of a desirable weight, specifically:
“For an obese person, the usual pre-impairment weight may not be as physiologically desirable as the current weight. Thus, the examiner should use his or her clinical judgment when assessing the relevant importance of weight loss.”
The respondent submitted, in substance, that due to his injury he could not maintain a desirable weight and this ultimately necessitated his having laparoscopic gastric sleeve surgery.
The respondent submitted that he has signs and symptoms in excess of the criteria in Table 6-3 for a Class 1 impairment and that Medical Assessor Anderson was entitled to use his clinical judgment to decide into which class within Table 6-3 he was to be assessed.
The respondent submitted that Medical Assessor Anderson made no error by rating his impairment by reference to the criteria for a Class 1 impairment in Table 6-4 of AMA 5. The respondent noted that Medical Assessor Anderson found that he has gastrointestinal dysfunction of his lower tract and that his gastrointestinal condition is partly caused by his use of opiate-based medication. The respondent observed that Medical Assessor Anderson noted that “he continues to have signs and symptoms of colonic or renal [sic: rectal] disease”. The respondent submitted that he has a myriad of lower digestive tract symptoms. The respondent detailed several parts of the evidence that he submitted supports that.
The respondent submitted that it is not mandatory that there be a report of a treating doctor or family doctor for him to be assessed as having an impairment of the lower gastrointestinal tract, since paragraph 16.9 of the Guidelines only stipulates that failure to provide such a report may result in 0% WPI.
The respondent submitted that Medical Assessor Honeyman referred to the sleep study report that Dr Hamor provided as well as reports of Dr Frieberg, both of which made reference to the Epsworth Sleepiness Scale. The respondent submitted that consequently the appellant is incorrect to contend that Medical Assessor Honeyman did not have regard to this scale. The appellant submitted also that AMA 5 does not mandate the use of this scale.
The respondent referred to many parts of the evidence that revealed he had radicular symptoms. The respondent also referred to the findings of Medical Assessor Anderson that he had irritation of the L4 and S1 nerve roots and a reduced ankle reflex and pain radiating down his legs that was suggestive of an irritation of the L4 nerve root. The respondent referred to a passage within section 13.1 of AMA 5 wherein it is stated that “a permanent neurological impairment is anatomic, physiological or functional abnormality or loss that remains after maximum improvement”. The respondent referred to his laparoscopic gastric banding resulting in his having a permanent anatomic loss and physiological and functional abnormality.
The respondent submitted that based on section 13.1 of AMA 5 he has a permanent neurological impairment.
The respondent submitted that his sleep disturbance results from an injury to his lumbar spine and his consequential gastrointestinal condition which has given rise to a permanent pathological change and a permanent neurological impairment.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons.

Upper gastrointestinal tract

Chapter 16 of the Guidelines requires that an impairment relating to the digestive system is to be assessed by reference to Chapter 6 of AMA 5. Section 6.2 of AMA 5 stipulates that impairments relating to the upper digestive tract are to be assessed by reference to the criteria set out in Table 6-3. The criteria within that table for a Class 1 impairment, as modified by paragraph 16.9 of the Guidelines, are:
“There are symptoms and signs of upper digestive tract disease, or anatomic loss or alteration
and
continuous treatment not required
and
maintains weight at desirable level*
or
no sequelae after surgical procedures
* Refer Tables 6-1 and 6-2”
Table 6-1 and 6-2 provide desirable weights based on heights for men and women.
The criteria for a Class 2 impairment are:
“Symptoms and signs of upper digestive tract disease, or anatomic loss or alteration
and
requires appropriate dietary restrictions and drugs for control of symptoms, signs, or nutritional deficiency
and
weight loss below desirable weight but does not exceed 10%*
* Refer Tables 6-1 and 6-2”
The criteria for a Class 3 impairment are:
“Symptoms and signs of upper digestive tract disease, or anatomic loss or alteration
and
appropriate dietary restrictions and drugs do not completely control symptoms, signs, or nutritional state
or
10%-20% weight loss below desirable weight due to upper digestive tract disorder*
* Refer Tables 6-1 and 6-2”
The evaluation of a worker’s impairment by reference to those criteria in Table 6-3 must be done in accordance with instructions within the text of AMA 5. As the respondent has highlighted in his submission, these include, with respect to the consideration of a worker’s desirable weight, the instruction contained within section 6.1c of AMA 5 that a Medical Assessor should use his or her clinical judgment when assessing the relevant importance of weight loss with respect to an obese person. In this case the respondent is and always has been an obese person. After suffering his injury he became morbidly obese, increasing his weight by 56kg. This necessitated his having laparoscopic surgery when a gastric sleeve was resected, which has enabled him to lose weight gradually to a level that is now slightly less than his pre-injury weight but which is still in excess of a desirable weight for his height.
As the respondent submitted, his signs and symptoms relating to his upper gastrointestinal tract do not squarely fit with the criteria for a Class 1 impairment or a Class 2 impairment, and the Appeal Panel also observes do not squarely fit with a Class 3 impairment. The respondent’s signs and symptoms do not fit with a Class 1 impairment because he requires continuous treatment to manage his symptoms and he has sequelae after a surgical procedure.
The Medical Assessor explained that he rated the respondent’s impairment by refence to the criteria for a Class 2 impairment because the respondent continued to have signs of upper respiratory tract disease and also has anatomic loss and alteration due to his gastric sleeve procedure and has needed to modify his diet with appropriate medication and has always had particular difficulty with maintaining his weight. Bearing in mind the instruction within section 6.1c of AMA 5 that highlights the importance of a Medical Assessor using clinical judgment when evaluating the impairment of the upper gastrointestinal tract of an obese person, it is the Appeal Panel’s view Medical Assessor Anderson has exercised his clinical judgment correctly to correlate the respondent’s signs and symptoms with the criteria for a Class 2. Essentially, the respondent’s signs and symptoms relating to his upper digestive tract best fit the criteria for a Class 2 impairment.
Consequently, the Appeal Panel is of the view that Medical Assessor Anderson made no error with respect to his assessment of the respondent’s impairment relating to his upper gastrointestinal tract. Medical Assessor Anderson applied the correct criteria, and this is because he rated the respondent’s impairment by reference to the criteria set out in section 6-2 of AMA 5 (Table 6-3).

Lower gastrointestinal tract

Impairment of the lower gastrointestinal tract is done by reference to Table 6-4 of AMA 5 which relates to colonic and rectal disorders:
“Signs and symptoms of colonic or rectal disease infrequent and of brief duration
and
limitation of activities, special diet, or medication not required
and
no systemic manifestations present, and weight and nutritional state can be maintained at desirable level
or
no sequelae after surgical procedures”
Paragraph 16.9 of the Guidelines provides an instruction that constipation is an effect of analgesics and is to be treated as a symptom for which an assessment of 0% WPI is to apply.
The Appeal Panel does not accept the respondent’s submission to the effect that his gastric sleeve procedure resulted in an anatomic loss or an alteration of his lower gastrointestinal tract. That resulted in an anatomical loss and alteration of his stomach which is part of the upper gastrointestinal tract. It did not cause any anatomic loss or alteration of his lower gastrointestinal tract.
Medical Assessor Anderson’s examination of the respondent’s abdomen was unremarkable. That is, Medical Assessor Anderson found the respondent’s abdomen to be soft with no masses and normal bowel sounds being present. Whilst Medical Assessor Anderson reasoned that the respondent met the criteria for a Class 1 impairment because he continued to have signs and symptoms of colonic or rectal disease, he did not detail what those signs were. He did not record any findings of any signs from his examination.
Medical Assessor Anderson said that his assessment of the respondent’s gastrointestinal dysfunction for both the upper and lower symptoms is similar to the assessment
Dr Greenberg made, but the Appeal Panel observes that Dr Greenberg’s assessment of the respondent’s impairment of his lower gastrointestinal tract seems to be based on the respondent having a motility disorder secondary to the respondent taking opiate medication. That is to say, Dr Greenberg’s assessment is based on the respondent having, in substance, constipation. That assessment of Dr Greenberg is inconsistent with the requirement of paragraph 16.9 of the Guidelines which stipulates constipation is to be treated as a symptom, not a sign, in regards to which 0% WPI is to be rated.
In the Appeal Panel’s view, Medical Assessor Anderson erred by finding the respondent had both signs and symptoms. The respondent certainly had symptoms in the form of constipation that results in him having bloody and hard stools, but he has no signs of lower gastrointestinal tract disorder.
That error on the part Medical Assessor Anderson is such that the MAC contains a demonstrable error.

Respiratory- sleep disorder

Medical Assessor Honeyman assessed the respondent’s impairment relating to his sleep disorder by reference to the criteria of Table 13-4 of AMA 5. The first sentence of paragraph 5.10 of the Guidelines reads “Assessment of arousal and sleep disorders (AMA5 Section 13.3c, pp 317-319): refers to assessment of primary sleep disorders following neurological injury”. It is necessary therefore that for an assessment of the respondent’s sleep disorder to be done by reference to Table 13-4 of AMA 5, which is within section 13.3c of AMA 5, that his sleep disorder is a primary sleep disorder that followed a neurological injury.
The Appeal Panel does not accept the respondent’s submission to the effect that as a consequence of his having symptoms from his gastrointestinal condition he met the requirements of the definition of permanent neurological impairment provided in Chapter 13 of AMA 5, so as to permit an assessment of his impairment relating to his sleep disorder by reference to the criteria of Table 13-4 of AMA 5. Whilst he might fall within that definition due to his symptoms, it was necessary, as just said, for him to have a primary sleep disorder following a neurological injury for an assessment to be made by reference to the criteria of Table 13-4. The respondent’s gastrointestinal symptoms are not the result of a neurological injury.
As the respondent has submitted, Medical Assessor Anderson found that he has radicular signs from his lumbar spine injury and was suffering radicular pain. Medical Assessor Anderson concluded the respondent has radiculopathy. That finding of Medical Assessor Anderson is not challenged by the appellant. It consequently can be accepted that the respondent has a malfunction of his spinal nerve root which is a spinal nerve injury and partly related as a consequence to his spinal nerve injury.
Hence, the respondent’s sleep disorder is partly related to the radicular pain he suffers from his lumbar spine injury, which is a neurological injury, and partly related to his reflux. However, notwithstanding that the respondent’s sleep disorder is in part due to his lumbar spine injury, which involves a neurological injury, paragraph 5.10 of the Guidelines does not permit an assessment of any impairment relating to the respondent’s sleep disorder to be made by reference to the criteria of Table 13.4 of AMA 5. This is because his sleep disorder is not the primary consequence of his neurological injury, but rather it is secondary to the pain he suffers from the neurological injury.
Chapter 5 of the Guidelines stipulates that Chapter 13 of AMA 5 applies to the assessment of permanent impairment of the nervous system, which includes an assessment of impairment due to arousal and sleep disorders pursuant to Table 13-4 of AMA 5. The criteria of Table 13-4 are subject to the modifications made in Chapter 13 of the Guidelines. Hence, notwithstanding the respondent’s sleep and arousal disorder may have fallen within the definition AMA 5 provides for permanent neurological impairment, that definition cannot permit an assessment of impairment due to arousal and sleep disorder unless the sleep disorder is a primary sleep disorder that follows a neurological injury. Paragraph 5.9 of the Guidelines has modified the definition insofar as it is more extensive.

The Appeal Panel consequently accepts the appellant’s submission to the effect that Medical Assessor Honeyman made an error by assessing the respondent’s impairment due to his sleep disorder by reference to the criteria of Table 13-4 of AMA 5. That error is such that the MAC contains a demonstrable error.
It is unnecessary therefore to consider the appellant’s alternative submission that Medical Assessor Honeyman did not obtain a sufficient history so as to be able to determine whether the respondent’s impairment relating to a sleeping disorder met the criteria for a Class 1 or Class 2 impairment.
The Appeal Panel also notes for completeness that Professor Thomas diagnosed the respondent had mild obstructive sleep apnoea, which is a condition resulting from a respiratory disorder. An assessment of impairment can be made by reference to the criteria of Table 13-4 of AMA 5 for such a condition but only if, in accordance with paragraph 8.9 of the Guidelines, treatment has been received from an ear, nose and throat surgeon and a respiratory physician who specialises in sleep disorders. The respondent has not been treated by an ear, nose and throat surgeon. Further the Appeal Panel is of the view that the respondent’s sleep apnoea is the result of his weight. His weight now is less than what it was at the time of his injury and consequently the mild obstructive sleep apnoea that he now has, given that he has now returned to a weight less than his pre-injury weight, means that his sleep apnoea is not due to his injury.
For these reasons, the Appeal Panel has determined that the MAC issued on 2 June 2025 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W23371/24
Applicant:	Jammie Michael Stanley
Respondent:	Lachlan Shire Council

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Panel revokes the Medical Assessment Certificate of lead Medical Assessor Peter Honeyman, which consolidates the assessment of the matters that were referred to him to assess and the matters that were referred to non-lead Medical Assessor Tim Anderson to assess, and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Table - whole person impairment (WPI)

Body Part or system	Date of Injury	Chapter, page and paragraph number in NSW workers compensation guidelines	Chapter, page, paragraph, figure and table numbers in AMA 5 Guides	% WPI	Proportion of permanent impairment due to pre-existing injury, abnormality or condition	Sub-total/s % WPI (after any deductions in column 6)
Respiratory- sleep disorder	17.02.2014	Chapter 5, paragraph 5.10 Chapter 8, Paragraphs 8.8-8.10	Table 13-4	0%	-	0%
Lumbar spine		Chapter 4	Table 15-3	12%	1/10	11%
Digestive system (upper gastrointestinal tract)		Chapter 16	Table 6-3	12%	1/10	11%
Digestive system (lower gastrointestinal tract)		Chapter 16	Table 6-4	0%	-	0%
Total % WPI (the Combined Table values of all sub-totals)					21%

[2025] NSWPICMP 765

3 October 2025