McCann v Arch-System Fabrication Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	McCann v Arch-System Fabrication Pty Ltd [2024] NSWPIC 31
APPLICANT:	Jason McCann
RESPONDENT:	Arch-System Fabrication Pty Limited
SENIOR MEMBER:	Kerry Haddock
DATE OF DECISION:	25 January 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for medical expenses for treatment of consequential condition of sleep disorder as result of accepted injury to lumbar spine; respondent disputed that the applicant had sustained consequential condition of sleep disorder; consideration of Murphy v Allity Management Services Pty Ltd, Kooragang Cement Pty Ltd v Bates, State of NSW v Bishop, and Kumar v Royal Comfort Bedding Pty Ltd; applicant sustained consequential condition of sleep disorder as result of injury to lumbar spine; Held – award for applicant pursuant to section 60 in respect of consequential condition of sleep disorder.
DETERMINATIONS MADE:	The Commission determines: 1. There is an award for the applicant pursuant to s 60 of the Workers Compensation Act 1987 in respect of treatment for sleep disorder.

STATEMENT OF REASONS

BACKGROUND

The applicant, Jason McCann (Mr McCann), was employed by the respondent, Arch-System Fabrication Pty Limited, as a glazier.
On 26 November 2020, the applicant sustained an injury to his lower back when he was moving a box. He has also sustained a secondary psychological condition; and claims to have sustained secondary sleep disorder.
On 27 September 2022, the respondent’s insurer, Insurance and Care NSW (icare) issued the applicant with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
Icare disputed ongoing liability for the applicant’s injury, “as the original workplace injury has now resolved.” Liability for weekly payments was disputed on the basis that the applicant did not have total or partial incapacity for work resulting from the injury; and for medical or related treatment expenses, as they were not reasonably necessary as a result of the injury.
By letter to icare dated 7 June 2023, the applicant’s solicitors made on his behalf a claim for weekly benefits from 18 November 2022 to date and continuing; and a claim for medical expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act).
The letter referred to a denial of liability for psychological injury and sleep disorder injury.
The applicant’s claim for medical expenses included costs associated with sleep specialist consultations, sleep study tests, and the need for a CPAP (continuous positive airway pressure) machine and CPAP therapy.
By letter to icare dated 21 July 2023, the applicant’s solicitors made on his behalf a claim for costs associated with psychological and psychiatric treatment and pharmacotherapy treatment of his “primary psychological injury”.
The applicant’s solicitors requested that icare review the claim, and also consider his claim for medical expenses associated with his sleep disorder condition.
On 31 July 2023, EML issued the applicant with a notice pursuant to s 287A of the 1998 Act, having reviewed icare’s decision.
EML advised that the decision dated 27 September 2022 was maintained. The review had addressed the dispute for liability with respect to the injury to the applicant’s lumbar spine.
EML noted that the applicant had made claims for the cost of treatment associated with a sleep disorder condition and for psychological treatment. It requested that he liaise with the EML claims team to obtain a determination in response to the letters of claim dated 7 June 2023 and 21 July 2023.
On 25 September 2023, icare issued the applicant with a further notice pursuant to s 78 of the 1998 Act.
Icare disputed that the applicant had sustained consequential conditions, either a psychological condition or sleep disorder, as a result of the injury to his lumbar spine on 26 November 2020.
The applicant lodged an Application to Resolve a Dispute (the Application) on 29 August 2023.
The applicant claimed that on 26 November 2020, he was required to move a box containing a glass pane and suffered injury to his lower back; psychological injury; and a consequential sleep disorder condition.
The applicant claimed weekly benefits from 18 November 2022 to 16 August 2023. He also claimed the sum of $1,148.40, which he had paid for a sleep study test and treatment relating to consequential sleep disorder condition; and future medical expenses of $21,900.
The applicant’s claim for future medical expenses included the costs of a CPAP machine; psychiatric treatment; a multi-disciplinary hospital-based pain program; occupational therapist assessment of functional capacity; medication; GP (general practitioner) prescriptions and reviews; physiotherapy; and hydrotherapy.
The respondent lodged its Reply on 20 September 2023.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant has suffered a consequential condition in the nature of sleep disorder, and
(b) whether treatment for sleep disorder is reasonably necessary as a result of injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)

The matter was listed for in person conciliation/arbitration hearing on 30 November 2023. Mr Stanton of counsel, instructed by Mr Bechara, appeared for the applicant, who was present. Mr Schonell of counsel, instructed by Mr Todesco, appeared for the respondent. Ms Isaacs of EML also attended.
The parties were able to agree on a resolution of almost all the matters in dispute and I am grateful for the way in which they approached the negotiations in a genuine attempt to resolve the dispute.
The matter on which the parties were unable to agree was whether the applicant has sustained consequential sleep disorder.
Consent orders were entered in respect of the matters on which the parties had agreed. Due to the time taken in conciliation, it was not possible to hear submissions on the remaining issue. A direction was therefore made for the provision of written submissions, and the parties were advised that at the conclusion of the time allowed, that issue would be determined “on the papers”.
The parties have now lodged submissions in accordance with the direction.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)     Application and attached documents;
(b)     Reply and attached documents;
(c)     Application to Admit Late Documents dated 22 September 2023 and attached documents, filed by the applicant;
(d)     Application to Admit Late Documents dated 24 November 2023 and attached documents, filed by the respondent, and
(e)     Application to Admit Late Documents dated 23 January 2024 and attached documents, filed by the applicant (originally dated 28 November 2023, and which had been provided to the respondent, filed at my request).
The Application to Admit Late Documents dated 24 November 2023 attached the dispute notice dated 25 September 2023, which I had directed at the preliminary conference on 28 September 2023 be filed. The other evidence attached is no longer relevant, given the agreement between the parties on the issues it addressed. The applicant has not objected to the evidence being admitted, and I therefore formally admit it.

Oral evidence

There was no application to call oral evidence or cross-examine any witness.

FINDINGS AND REASONS

Evidence of applicant, Jason McCann

Mr McCann’s statement is dated 31 July 2023. Much of his evidence is no longer relevant, given the parties’ agreement on most of the matters in dispute.
On 26 November 2020, he was moving a box that contained a pane of glass. The box weighed 70kg.
While he was manoeuvring the box, he felt a “pop” in his lower back, and experienced significant and sharp pain.
He could not move and was taken to the emergency department at St Vincent’s Hospital.
He continued to have pain in his lower back, radiating to his buttock. The chronic pain and stress related to his claim had aggravated his mental health disorder.
He had not taken any medication prior to his back injury. He was prescribed Tramadol, Lyrica, and Mobic for his back pain.
Despite efforts for rehabilitation, there was not much improvement for a year. This was reviewed by an IME (independent medical examiner) from the insurer, and he was told he needed to re-train.
He had started working as an assistant real estate agent but was not earning enough to afford medical costs. He still had no means to afford them.
He had mild lumbar back pain in early 2019. However, it had not caused major trouble. He was able to keep working without the pain during this time.
He had paid for his sleep study tests and treatment to date. He required a CPAP machine for sleep therapy treatment.
He had difficulty sleeping due to pain and discomfort. He usually had disturbed sleep and often woke due to pain. He could not sleep for more than five hours and woke constantly because of pain. He sometimes woke from restless leg movements. He felt tired during the day from lack of sleep.
Prior to his injury, he was self-sufficient and responsible for all household duties. He had been living with his girlfriend and carried out all day-to-day chores, including washing, cleaning, laundry, making beds and shopping. He relied on his girlfriend only for cooking. Before his injury, his girlfriend cooked, and he undertook all cleaning duties.
He still tried to walk his two dogs, but could not walk for long periods, or play with them.
He used to go to the gym five days a week but could no longer do that.
He had stopped taking Lyrica as it contributed to his weight gain. He had put on 20kg to 22kg since the accident.
He was restricted in his ability to attend the gym.

Medical evidence

Much of the medical evidence is also no longer relevant, given the remaining matter in dispute.

Marrickville Medical Centre

The records date from November 2016. It is not my intention to refer to every entry.
On 14 April 2019, Dr Samuel Freedman recorded “prolapsed discs”. The reason for the applicant’s visit was “sciatica.” He was on 50mg of Pregabalin, which was increased to 75mg on a trial basis.
On 16 April 2019, Dr Geoffrey Peng recorded that the applicant had “Sciatica lumbar disc prolapse with nerve impingement.”. The lumbar discs identified were L3/4, L4/5, and L5/S1.
On 28 November 2020, Dr Peng recorded that the applicant had twisted his low back when heavy lifting a few days ago. It was still very painful. He had gone to the ED (emergency department). There was no radiation (but he also recorded radiation to the buttock).
Dr Peng ordered an X-ray of the applicant’s lumbar spine and prescribed Endone and Tramadol.
On 1 December 2020, Dr Peng recorded the reason for the visit as sciatica. The applicant was still sore on the low back. Dr Peng suggested a CT scan.
On 3 December 2020, Dr Peng recorded that the reason for the visit was sciatica lumbar disc prolapse with nerve impingement. The applicant was to try a cortisone injection.
On 7 December 2020, Dr Neil Rajanayagam recorded that the applicant had back pain, “hurt at work”.
On 10 December 2020, Dr Peng again recorded that the applicant had sciatica lumbar disc prolapse with nerve impingement.
On 7 January 2021, Dr Peng recorded that the applicant was improving and suggested light duties.
On 11 January 2021, Dr Anamika Chowdhury recorded that the applicant went to work, but had to stop due to pain. He had run out of Tramadol. He was to follow up with Dr Peng for WorkCover review.
On 12 January 2021, Dr Peng recorded increasing low back sciatica, and referred the applicant to neurosurgeon Dr Omprakash Damodaran.
On 23 January 2021, Dr Peng recorded that the applicant still had pain, “on waiting list still”. He provided referrals to Dr James Van Gelder and Dr Mark Winder.
On 10 February 2021, Dr Peng recorded that the applicant saw the neurosurgeon and was to have MRI tomorrow.
On 8 March 2021, Dr Abdur Rashid Alamgir recorded that the applicant was still unable to work. He was having physiotherapy and would start hydrotherapy from tomorrow.
On 8 April 2021, Dr Peng recorded that the applicant’s low back pain improved “but twisted again”. He might need to consider different work.
On 29 June 2021, Dr Peng recorded that the applicant’s back pain was improving. He had completed stage 5 and was happy to progress to stage 6.
On 24 August 2021, Dr Peng recorded that the applicant could increase work to 3.5 days per week.
On 22 September 2021, Dr Peng recorded a call from the WorkCover case manager. The applicant “not work for 6 weeks”. He had requested to stay on 3.5 days a week.
On 19 October 2021, Dr Peng recorded that the applicant “had relapse couple weeks ago”. He suggested modified duties “as per new recovery plan”.
On 2 November 2021, Dr Peng recorded:
“Poor sleep. No early morning awakening. Normal self-esteem. Depressed mood, Anxious. Stress at work. No relationship problems. Financial problems. No recent bereavement. Irritability. No irrational fears. Panic attacks. No compulsive behaviours. No delusions. No auditory hallucinations. No visual hallucinations. No suicidal thoughts. No suicide attempts. No substance abuse.”
The reason for the applicant’s visit was recorded as anxiety/depression and workers compensation. Dr Peng also recorded insomnia, low mood and that the applicant was not able to concentrate.
On 30 November 2021, Dr Peng recorded that the applicant was to have repeat MRI of his low back. If there were no major changes, he would have a CT lumbar cortisone injection, or otherwise neurosurgeon review. He was to consider a new role in the long term. He had five to six months to complete his real estate studies.
On 10 December 2021, Dr Peng recorded that the applicant was a bit better “but still very painful on back.” They discussed the MRI result and office duties were suggested. Dr Peng noted “cortisone injection.”
On 13 April 2022, Dr Joseph D’Silva recorded that the applicant had high levels of anxiety and panic attacks. He had disruptive and insufficient sleep. “Tosses and turns in bed. Wakes up often during the night. Racing thoughts. Feels extremely tired and emotionally drained all the time”.
The symptoms of the applicant’s panic attacks were recorded as racing heart, shortness of breath, breathlessness, increased heartbeat, trembling of hands, excessive sweating, dizziness, and blurred vision.
On 3 September 2022, Dr Peng recorded increasing low back pain. “Request for CT guided cortisone injection again.”
On 13 September 2022, Dr Peng recorded that the applicant had had one injection, “but pain not better”.
On 15 September 2022, Dr Peng reviewed the independent orthopaedic specialist report. “Agree with the report”. He would discuss it with the applicant at his following WorkCover review.
On 30 November 2022, Dr Peng recorded anxiety/depression. The applicant was not under WorkCover anymore. “New work happy”. The applicant had increasing low mood and anxiety.
Under the heading “psychiatric”, Dr Peng recorded, among other things, normal sleep and no early morning awakening. The same was recorded on 5 January 2023.
Dr Peng referred the applicant to Dr David Freiberg on 17 March 2023.
On 17 March 2023, Dr Peng recorded that the applicant suffered from insomnia due to stress and snoring. He complained of being tired during the day. He was to have a sleep study and be reviewed after.
Dr Peng reported to the applicant’s solicitors on 2 July 2023.
Dr Peng recorded a consistent history of the injury.
The applicant had recently reported to Dr Peng that his low back pain had been bothering him a lot, especially at night when he slept. It was causing insomnia and he felt daytime tiredness. He still complained of low mood, anxious [sic] and flash back of the past trauma.
The applicant’s diagnoses were lumbar spine bulge [at] L4-5 with nerve impingement and anxiety/depression disorder, PTSD (post-traumatic stress disorder).

Dr Omprakash Damodaran - neurosurgeon

Dr Damodaran reported to Dr Peng in an undated report, but in which he referred to having reviewed the applicant on 3 February 2021. He referred the applicant for MRI, which took place on 11 February 2021, so the report was obviously prepared between those dates.
Dr Damodaran recorded a consistent history of the injury.
The applicant had been on multiple different pain management regimens. His pain had largely improved but was still fairly severe. There was bilateral leg pain, but it did not radiate below the back of the knee.
The applicant was taking Tramadol, Meloxicam, Lyrica, and Endep. He had tried one cortisone injection, with minimal improvement. He had not had any red flags. He was very keen to return to work, and initially tried some light duties, which he could not tolerate.
Dr Damodaran diagnosed discogenic back pain from an L4/5 disc prolapse. He referred the applicant for lumbar spine MRI and to Dr Tram Anh Bui for hydrotherapy and rehabilitation. He was hopeful the applicant’s symptoms would improve with conservative management.
Dr Damodaran was to see the applicant again after the MRI, but there are no further reports from him.

Dr Paul Robinson – orthopaedic surgeon

Dr Robinson was qualified by the respondent and reported on 9 September 2022.
Dr Robinson recorded a consistent history of the injury and the applicant’s treatment.
The applicant stated that he had pain on an intermittent basis. It varied with any activity, increasing with bending and lifting, and pain passed now into the left leg, to the knee. There was no radiation into the foot or toes. There was no paraesthesia.
The applicant had been ordered a soft brace that gave support to his spine. There had been a recent “flare up” of pain with no precipitating cause.
There was no lifting, bending, or twisting required in the applicant’s position as an assistant to a real estate agent and he found it very satisfactory. He undertook housework as required, which did not involve bending and lifting. He was unable to bend to load a dishwasher or crouch to the ground. He had two dogs that he found difficult to feed.
The applicant weighed 70kg and was of slim build.
Dr Robinson noted that the applicant complained of low back pain which he related to an incident in November 2020. He had a similar episode six years ago, which settled with conservative measures, and he stated he had no problems in the ensuing period.
The applicant had imaging that suggested a swelling at one of the lumbar discs, which settled in subsequent investigations. Dr Robinson did not believe he required further investigation and/or intervention. This was consistent with Dr Damodaran’s opinion.
Dr Robinson opined that the applicant’s problems were related to an underlying constitutional weakness of his spine, which should settle with conservative measures. The injury was consistent with the onset of back pain and the symptoms that occurred, together with the radiological findings.
Dr Robinson believed the applicant’s symptoms were greater than would be expected, following the treatment and time elapsed, and there may be some psychological overlay. The exacerbation should have ceased, and the applicant was having problems related to the natural history of irritation of the disc.
Dr Robinson opined that the applicant could now return to pre-injury duties, or those that did not involve heavy lifting. He was having excessive analgesia, which should be decreased, and was not consistent with the examination and/or symptoms.

Dr Michael J Atherton – psychiatrist and addiction specialist

Dr Atherton reported to CLIC Law Group Pty Ltd on 28 December 2022. His report appears to have been obtained in connection with criminal charges that were laid against the applicant as a result of an incident after a Christmas party.
The applicant had a long history of mental health issues dating back to his childhood. At about the age of 14 or 15, he was involved in a very serious motorbike accident and received multiple injuries. He “never felt right after that.”
Since that time, the applicant had always struggled with his mood, especially in the winter when he got particularly depressed. He gained weight, around 15kg to 20kg, dramatically after the accident, which may have been related to an increase in his impulsivity or a loss of interest in some previous pursuits. He was also bullied by his peers.
The applicant described a number of lifelong psychiatric obsessions. He had never seen a psychiatrist or psychologist for these. He understood he was irrational, and his thoughts were self-generated, intrusive, and caused significant anxiety.
Around mid-2021, the applicant’s GP noticed he was quite depressed and prescribed anti-depressants, including Endep. Endep is used often for sleep and pain issues. The applicant described symptoms of anxiety, poor concentration, and intermittent poor sleep, as well as extremely low self-esteem and worry for the future.
Prior to the back injury, the applicant had taken no other medication and was not prescribed medication until he entered WorkCover following the injury. He was initially prescribed Tramadol, Lyrica, and Mobic for his pain, and took these intermittently, under the advice of his GP.
The applicant felt aggrieved by the lack of WorkCover support and the failure of his back to improve, leaving him with almost constant pain. He scored his pain as, on average, about 7/10 at rest, but he had bad days and good days, affecting his lower back, lower hip, and left thigh. He believed the pain was caused by a bulging disc causing sciatica.
The applicant acknowledged that he had an issue with alcohol, and the best way of avoiding this was to remain sober. One of the negative outcomes was his tendency to “play the pokies” and this was unpredictable if he was drinking excessively.
The applicant smoked cannabis regularly from the age of 15 to 30, most evenings, and he used the nicotine vape. He stopped smoking cannabis when he met his current partner and had not used since.
Dr Atherton reported that the applicant had chronic pain from his back injury and the possibility of ADHD (Attention Deficit Hyperactivity Disorder).
Dr Atherton diagnosed the applicant with OCD (obsessive compulsive disorder); panic disorder; major depressive disorder; adjustment disorder with depressed mood and anxiety; chronic pain; alcohol use disorder in remission, managed through abstinence; nicotine use disorder; cannabis use disorder in long term remission; and possible ADHD.
At the time of his offending, the applicant was suffering from depressing [sic] with low mood and anxiety caused by his situation, and underlying OCD. He had ongoing chronic pain, leading to disability and loss of functioning.
There was a strong possibility that the applicant may have been suffering the effects of medication. Paroxetine, combined with Endep and Tramadol, are well-known to cause Serotonin Syndrome. Common symptoms are agitation and restlessness; insomnia; confusion; increase in heart rate; blood pressure; and dilated pupils. As it progressed, people could have seizures or coma.
Dr Atherton had advised the applicant’s GP to review his medication. The applicant should also undertake specific management of his pain condition and may benefit from further orthopaedic or neurosurgical review.

Dr David Freiberg – consultant physician, respiratory and sleep medicine

Dr Freiberg reported to Dr Peng first on 28 June 2023.
Dr Freiberg recorded a history that the applicant smoked for 15 years, on average 10 cigarettes a day, stopping seven years ago. He had an MRC (Medical Research Council) dyspnoea score of 2/5. He did not cough or wheeze.
The applicant was not on any regular medications and had no active medical problems prior to a workplace injury on 26 November 2020. He had had physiotherapy, hydrotherapy, and steroid injections. He had chronic pain with an average pain level of 4-5/10. He used prn Paracetamol or Ibuprofen for this. His other medication was Paroxetine for OCD, which was diagnosed in December 2022. He had a history of symptoms suggesting it was present for many years.
Prior to his injury, the applicant weighed 65kg, or a body mass index (BMI) of 21, which was in the low normal range. His weight peaked at 94kg, but he had reduced it to 80kg after stopping Lyrica, which caused weight gain. His present weight was a BMI of 26. This was a 23% increase in his total body weight as a result of his injury and put him in the overweight range.
Prior to the injury, the applicant would typically have an uninterrupted seven hours sleep. He was a side sleeper. He did not snore. He did not have symptoms of periodic limb movement disorder. He would wake refreshed. On reflection, he would score 0/24 on an Epworth Sleepiness Score.
He was now in the bedroom for 8.5 hours. He slept for an average of five hours. He woke constantly because of pain. He could wake from restless leg movements, which his partner reported was recurring. His partner also noted snoring. He did not arouse with a sensation of this. He woke unrefreshed but still tried to sleep on his side. He scored 10/24 on an Epworth Sleepiness Score.
The applicant’s hypersomnolence affected his ability to focus and concentrate during conversations and on the computer at work. He was concerned about long drives. This was affecting his new occupation as an assistant real estate agent.
Clinically, the applicant was overweight, with an overbite, a Mallampati class 3 airway, partial nasal air flow obstruction and clear lung fields to auscultation.
Dr Freiberg enclosed the applicant’s lung function test results. They showed mild borderline airway obstruction without acute reversibility, post bronchodilator more marked in the small airways (MEF) (maximum expiratory flow) and a mild impairment of gas exchange (DLCO) (lung diffusion testing) consistent with the effects of his previous smoking. It was essential that he had ceased this.
Dr Freiberg had arranged for a full diagnostic polysomnogram, to “sort out the degree “of the applicant’s sleep disordered breathing, complicated by his weight gain as a result of the injury, the periodic limb movement disorder that was likely the result of his lumbar spine injury, and the degree of insomnia due to his pain.
Dr Freiberg next reported to Dr Peng on 24 August 2023.
Dr Freiberg enclosed the applicant’s diagnostic polysomnogram. He opined that Mr McCann had borderline moderate sleep apnoea while sleeping on his side. He had an arousal index of 10/hour due to these respiratory events.
Therefore, the applicant had significant truncation and fragmentation of sleep, due to spontaneous awakenings and arousals due to pain, and spontaneous arousals due to borderline moderate sleep disordered breathing.
The applicant was keen to trial a CPAP device, and Dr Freiberg had arranged for a home clinical trial.
To succeed with a simple nasal cushion, the applicant needed improved nasal air flow, as there was bilateral subtotal nasal air flow obstruction. On nasal endoscopy this was due to a left sided septal deviation and very active rhinitis. Dr Freiberg had commenced the applicant on Nasonex at 2 inhalations in each nostril before retiring.
Dr Freiberg was going to check the applicant’s response to the CPAP in two months.
Dr Freiberg’s final report is dated 2 November 2023.
Dr Freiberg reported that the applicant tolerated the CPAP device for on average 49 minutes, and only slept with it for 9% of the time over a two month period.
The applicant reported that his sleep was so disturbed and disrupted from pain that the CPAP only disrupted it further and he would not be able to tolerate it long-term.
Dr Freiberg described for the applicant a mandibular advancement device that he could use as an alternative for his moderate sleep apnoea, but he had just signed a contract with an orthodontist for braces, which prevented the use of such a device. He also did not want any respiratory support devices at night that would disrupt his sleep further.
The applicant’s Epworth Sleepiness Score was 13/24. Dr Freiberg opined that his long term moderate hypersomnolence would persist from his untreated sleep disordered breathing and chronic pain.

Associate Professor Michael Robertson – consultant psychiatrist

A/Prof Robertson was qualified by the applicant and reported on 4 July 2023.
A/Prof Robertson noted that the applicant had experienced psychiatric problems from childhood, and they had been identified by Dr Atherton.
A/Prof Robertson recorded a consistent history of the injury and the applicant’s treatment. He noted that Mr McCann had gained weight due to treatment with pregabalin (Lyrica).
The applicant complained of chronic low back pain, with left and occasional right-sided sciatic radiation to the hip and leg. The pain often woke him. He managed the pain with over-the-counter medications, having previously required opioid medication (Tramadol). He had increased his use of nicotine vapes.
The applicant had previously used alcohol and cannabis to self-medicate his OCD but had resisted using them in the context of his current relationship.
A/Prof Robertson opined that the applicant had a work-related exacerbation of longstanding OCD, due to the workplace injury. There was a likely comorbid adjustment disorder with anxiety and depressed mood. This was in part a secondary psychological injury due to chronic pain.

Dr Andrew Porteous – occupational physician

Dr Porteous was qualified by the applicant and reported on 11 August 2023.
Dr Porteous recorded a consistent history of the injury and the applicant’s treatment.
The applicant had seen a psychologist, which was “on hold”, and two psychiatrists, which had stopped. Physiotherapy was eventually ceased by the insurer, and after eight weeks of hydrotherapy, it was finished. The applicant had recently had a sleep study.
The applicant complained of chronic back pain, at times referred into the left thigh, but sometimes the right. He had disturbed sleep because of the pain.
Dr Porteous recorded that the applicant was an ex-smoker, who used e-cigarettes.
The applicant was 174cm tall and weighed 80kg.
Dr Porteous diagnosed an acute lumbar disc injury and aggravation of pre-existing degenerative change in the lumbar spine, noting the findings on CT scan on 21 March 2019.
Dr Porteous opined that the applicant would require long term pain relief; GP review; attendance at a comprehensive multidisciplinary hospital-based pain program; physiotherapy or hydrotherapy; and assessment by an occupational therapist.
Dr Porteous assessed the applicant with 6% whole person impairment.

Dr Abhishek Nagesh – psychiatrist

Dr Nagesh was qualified by the respondent and reported on 24 October 2023.
Dr Nagesh recorded a consistent history of the injury and the applicant’s treatment.
Because of his physical injury, the applicant “alleged that he could not work.” He could not mobilise. He was not able to be active and because of that, “alleged having become depressed”. He became anxious. He was not able to sleep. This led to an increase in appetite. “He gained heaps of weight.” He felt tired, lacked energy and motivation.
With the treatment he had received, the applicant had good days and bad days, with more good, compared to the past. His sleep was still poor, his appetite was better, and energy levels OK. His ability to concentrate remained diminished. He remained in pain at times, which made him anxious.
Dr Nagesh recorded a past history of cannabis abuse, but the applicant stated he had been abstinent for many years.
Dr Nagesh opined that that the applicant’s diagnosed adjustment disorder was in partial remission. He continued to have obsessive compulsive symptoms, but they did not meet the criteria of being called a disorder. The applicant suffered from a secondary psychological condition as a result of the injury.

SUBMISSIONS

The parties have provided written submissions, which I will summarise.

Applicant

The applicant referred to the report of Dr Atherton dated 2022, and the history of weight gain recorded.
The applicant noted the contrast with his evidence of weight gain. He noted that counsel for the respondent had advised he would not submit that the history recorded by Dr Atherton was evidence that contradicted his description of when the weight was gained.
The applicant expressed his appreciation for the respondent’s concession, as it obviated the need for him to seek leave to adduce further evidence as to when the weight was gained.
The applicant relied on the decision of Deputy President Roche in Murphy v Allity Management Services Pty Ltd[1] (at [57]-[58]).
[1] [2015] NSWWCCPD 49 (Murphy).
The applicant submitted he was quite active and worked long hours before the injury. He had a degree of existing low back problems, but they were not particularly restricting. He had described how his low back and associated symptoms restricted his ability to perform a wide range of activities. The need for him to cease performing physical work and pursue the light alternative of assisting an estate agent is an example.
The applicant submitted it was significant that he described putting on 20kg to 22kg since the accident; and his sleep was disturbed and limited by pain, in turn causing fatigue.
The applicant referred to the evidence of Dr Freiberg. He had opined that the applicant suffered from “sleep disordered breathing complicated by his weight gain as a result of his workplace injury”, which warranted the administration of sleep testing and the trial of a CPAP machine.
The applicant submitted that this expert opinion was not contradicted by alternative opinion evidence. He submitted that the Commission would be satisfied and find that the injury on 26 November 2020 had made a material contribution to the reasonable necessity of undertaking sleep test and trialling a CPAP machine. The causally related sequence of events was – back injury; persistent physical symptoms; sleep disturbance; fatigue; and the need to improve that.
The applicant noted that the Application sought reimbursement of $1,148.40, incurred in obtaining treatment. The list was incomplete, as it did not include consultations with Dr Freiberg on 24 August 2023 and 2 November 2023 or the costs of obtaining a CPAP machine for the two month trial period.
The applicant submitted the matter could be dealt with by making a general order requiring the respondent to pay s 60 expenses relating to the treatment of the sleep disorder.

Respondent

The respondent submitted that it was “worth noting” that there are many types of sleep disorder. However, the applicant had particularised his claim as one for sleep apnoea, being a condition where a person’s breathing stops and starts while sleeping.
The respondent submitted that the applicant was 38 years old. “As a matter of common experience, it should be uncontroversial” that he was “either middle aged or fast approaching it”.
The respondent submitted that the applicant was previously a long term smoker, referring to the history obtained by Dr Freiberg. On that history, the applicant would have commenced smoking at about 16. He was also previously a regular smoker of cannabis. He currently used e-cigarettes.
The respondent submitted that it was evident that, at a relatively young age, the applicant was displaying signs of smoking and/or inhalational lung disease. It referred to Dr Freiberg’s evidence of his MRC dyspnoea score and lung function tests.
As regards the injury to the applicant’s lumbar spine, the respondent submitted that the applicant suffered from a constitutional lumbar spine disorder that pre-dated the injury on 26 November 2020. It referred to the investigation evidence, the GPs’ records, Dr Robinson’s report, and Dr Peng’s agreement with Dr Robinson’s opinion.
The respondent submitted that the applicant’s weight had fluctuated since the date of the injury, but “the devil is in the detail as to when this weight was gained and lost”. The evidence, referring to that of Drs Robinson and Porteous, appeared to establish that the applicant’s weight increased to 94kg at some stage after 9 September 2022, before coming down to 80kg by 28 June 2023, when Dr Freiberg recorded a BMI in the slightly overweight range of 26.
The respondent referred to the applicant’s evidence about his sleep disorder. It submitted it was noteworthy that he had provided no evidence in respect of sleep apnoea or his experience of sleep-disordered breathing. His evidence related only to the impact of pain on his sleep. He had provided no evidence as to the approximate time his sleep difficulties commenced.
The respondent referred to the GPs’ clinical notes, submitting that the first reference to poor sleep was on 2 November 2021, about one year after the injury, and one year before Dr Robinson recorded a weight of 70kg. It has referred to other entries in 2022 and 2023.
The respondent submitted that careful consideration needed to be given to the terms of each of Dr Freiberg’s reports. In his report dated 28 June 2023, it was apparent that he made no attempt to differentiate between pain associated with the injury and pain associated with the constitutional disorder.
The respondent submitted that, similarly, Dr Freiberg noted the applicant’s weight gain without engaging with its chronology or cause. He simply offered the “ipse dixit opinion” that that there had been weight gain as a result of the workplace injury, without engaging with how or when this weight was acquired and lost.
The respondent submitted that the sleep history obtained by Dr Freiberg must have come from the applicant because there was no other potential source. The history that the applicant had uninterrupted sleep prior to the injury did not accord with the GPs’ clinical notes, which recorded some sleep issues in April 2022, but none in November 2022.
The respondent submitted that Dr Freiberg proffered no diagnosis or opinion on causation. He identified various potential causes for the applicant’s complaints and recommended further investigations “to investigate and untangle them.”
The respondent submitted that Dr Freiberg’s three reports were short. They provided no real information that assisted in understanding the nature of the sleep conditions from which the applicant suffered, proceeded on a history that appeared to be exclusively provided by the applicant, and suffered from the general shortcomings associated with all short form treating reports.
In respect of gaps in the history, the respondent submitted:
(a)     Dr Freiberg had made no attempt to identify the cause of any pain that caused the applicant to wake. He proceeded on the assumption that the pain was referable to the lumbar injury but was unaware of the underlying constitutional disorder.
(b)     Dr Freiberg had proceeded on the assumption that the applicant’s sleep changed after the date of the injury. However, this was not borne out by the clinical notes.
(c)     Dr Freiberg had made no real attempt to follow the trajectory of the applicant’s weight gain or correlate it with the onset of sleep symptoms.
The respondent submitted that it was otherwise apparent that Dr Freiberg identified two causes for the applicant’s fragmented sleep and spontaneous awakenings and arousals. The first was “pain” and the second was “borderline moderate sleep disordered breathing”, that is, sleep apnoea.
Dr Freiberg attributed the applicant’s pain to the “workplace injury”, but the respondent submitted this opinion suffered from the deficiency outlined at (a) above. He had attributed no cause at all to the sleep apnoea. The closest he came to linking it to the injury was the reference to the proposition that the sleep disordered breathing had been “complicated by his weight gain.”

The respondent submitted that this reference fell well short of establishing causation, and, critically, appeared in a section of the report that expressly referred to the need for further investigations to identify the cause of the reported sleep difficulties. Otherwise, Dr Freiberg’s reports provided no basis for an evaluation of the relative contribution made by pain and sleep apnoea to the applicant’s sleep difficulties. Given the paucity of this evidence, the Commission was simply left to guess.
The respondent submitted that, to discharge his onus, the applicant must actually persuade the Commission that his sleep apnoea is, on the balance of probabilities, a consequential condition. It is well established that his case did not need to be perfect. However, it must be sufficient to satisfy the Commission of the existence of the fact in issue. That is, the tribunal must be moved to feel actual persuasion.[2]
[2] Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246.
Dr Freiberg was unchallenged. The respondent submitted that the Commission was not obliged to accept expert evidence in the absence of expert opinion to the contrary.
The respondent did not take issue with the principles of law referred to in the applicant’s submissions. However, it submitted it was necessary to have careful regard to Kooragang Cement Pty Ltd v Bates[3] and more recent cases that have revisited it, including State of NSW v Bishop.[4]
[3] (1994) 35 NSWLR 452 (Kooragang).
[4] [2014] NSWCA 354 at [20] (Bishop).
The respondent submitted that the various statements of principle in respect of consequential injuries demonstrated that a worker bears the onus of persuading, as a matter of fact, that the claimed secondary injury was caused or materially contributed to by the primary injury.
The respondent submitted that sleep apnoea was widely prevalent, occurring in people who had suffered work injuries and people who had not. It was “common knowledge” that it often affected middle aged and older men. The applicant must persuade the tribunal that his sleep apnoea was caused or materially contributed to by his injury.
The respondent submitted this was not a typical secondary injury, where causation was readily determined by reference to common sense notions of causation. The claim was that a lumbar injury had somehow caused a respiratory disorder. To make good such a claim, it was incumbent on the applicant to adduce compelling expert evidence.
The respondent submitted that the applicant had failed to discharge his onus. Even if it were accepted that Dr Freiberg’s “earlier musings about weight” were relevant to causation, he proceeded on an incomplete history.
The respondent submitted that, plainly, chronic pain does not affect the respiratory system unless it is of such a nature as to affect a person’s breathing while they are awake. It could not be said, as a matter of common sense, or on the basis of Dr Freiberg’s opinion, that the applicant’s chronic pain was a cause of his sleep apnoea.
The respondent submitted that Dr Freiberg accepted the history that the applicant’s pain was all related to the injury. However, that did not assist the applicant’s claim that sleep apnoea is a consequential condition, because it is a separate and unrelated disorder.
The respondent submitted that Dr Freiberg had recorded that the applicant slept on his side prior to the injury and during the sleep study. He continued to sleep in the same position before and after the injury.
The respondent submitted that when regard was had to other possible, if not probable, causes of sleep apnoea, as well as the nature of the condition, being widespread and affecting many men at the applicant’s stage of life, he had much to overcome to prove his sleep apnoea was caused or materially contributed to by his injury. He had failed to do so.
The respondent finally submitted that the claim should be dismissed, and an award entered in its favour.

Applicant in reply

The applicant did not seek to rely on any submissions in reply.

SUMMARY

The applicant claims to have sustained the consequential condition of sleep disorder as a result of the accepted injury to his lumbar spine. Contrary to the respondent’s submission, he has not particularised the condition as sleep apnoea. It is pleaded as a “sleep disorder condition.”
Mr McCann does not have to establish that he has sustained a sleep disorder arising out of or in the course of his employment, pursuant to s 4 of the 1987 Act, or that employment was a substantial contributing factor to the condition, pursuant to s 9A of the Act. In accordance with the decision of Deputy President Roche in Kumar v RoyalComfort Bedding Pty Ltd[5] and the cases discussed therein, he need only establish on the balance of probabilities that his consequential condition resulted from the injury to his lumbar spine.
[5] [2012] NSWWCCPD 8.
The respondent did not rely on any medical evidence to refute the applicant’s claim. The applicant, of course, bears the onus. The lack of medical evidence in response to his claim does not necessarily mean the onus has been met.
The respondent referred to Kooragang and Bishop.
In perhaps the most commonly cited passage on causation, Kirby P, as his Honour then was, said in Kooragang:
“The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is now not accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury…is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions.”
In Bishop, Basten JA said (at [20]):
“In the present case, the question of causation was purely a question of fact for the arbitrator. How other courts have dealt with such questions on their own facts will not provide precedents, because they are not statements of legal principle. The statement from Kooragang that ‘the mere passage of time…is not determinative’ is not a legal principle, nor does it give helpful guidance in the present case. The mere passage of time may in some circumstances be determinative; in other circumstances it may be irrelevant. Further, to discuss a ‘link in the chain of causation’ becoming attenuated…may also mislead…Nor are references to ‘commonsense evaluation’ necessarily helpful: certainly in the present circumstances they cannot excuse a failure to address a conflict in the expert medical evidence.”
Having considered the applicant’s evidence, and the medical evidence, particularly that of Dr Freiberg, I am satisfied that the applicant has sustained a consequential condition of sleep disorder as a result of the injury to his lumbar spine on 26 November 2020.
The applicant has given evidence of weight gain, including having stopped taking Lyrica for this reason. He reduced his activities, including going to the gym, and taking long walks with his dogs. He went from performing physical work to a largely sedentary job.
I do not regard the fact that the applicant’s weight appears to have fluctuated, or when the weight was gained or lost, as determinative. I see no reason not to accept his evidence that he gained weight, and it was recorded by several of the practitioners who have treated or examined him. His weight reduced from 94kg to 80kg, and Dr Freiberg recorded that this occurred after he stopped taking Lyrica.
Dr Peng and Dr D’Silva recorded that the applicant had difficulty sleeping. I do not regard it as relevant that the first record of this was in November 2021. There is no evidence of Mr McCann’s sleep having been affected before the injury, and if it was affected by his weight gain, that obviously would not have occurred immediately after the injury, but over a period of time.
I do not accept the submission that Dr Freiberg’s evidence should not be accepted, in part because he proceeded on the assumption that the applicant’s pain was referable to the lumbar injury but was unaware of the underlying constitutional disorder.
The clinical records show no complaints about the applicant’s lumbar spine between April 2019 and the date of the injury, and numerous complaints thereafter. The applicant was also engaged in physical work between April 2019 and November 2020, apparently without difficulty. It is in my view reasonable to accept that the pain he experienced was a result of the injury, not of the constitutional condition.
I also do not accept that Dr Freiberg’s reports do not establish causation.
Dr Freiberg arranged for a full diagnostic polysomnogram, to assess the applicant’s “sleep disordered breathing, complicated by his weight gain as a result of the injury, the periodic limb movement disorder that was likely the result of his lumbar spine injury, and the degree of insomnia due to his pain.” That in my view establishes his opinion on causation, which is uncontradicted.
While I am mindful of the comments of Basten JA in Bishop regarding “commonsense evaluation” not necessarily being helpful, the applicant, in my view, has accurately summarised that the sequence of events was “back injury; persistent physical symptoms; sleep disturbance; fatigue; and the need to improve that.”
The applicant relied on the decision of Deputy President Roche in Murphy.
Roche DP said (at [57]-[58]):
“Moreover, even if the fall at Coles contributed to the need for surgery, that would not necessarily defeat Ms Murphy ’s claim. That is because a condition can have multiple causes (Migge v Wormald Bros Industries Ltd[6] ; Pyrmont Publishing Co Pty Ltd v Peters[7] ; Cluff v Dorahy Bros (Wholesale) Pty Ltd[8]; ACQ Pty Ltd v Cook[9] .The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang) that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman[10]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd.[11])”.
[6] (1973) 47 ALJR 236.
[7] (1972) 46 WCR 27.
[8] (1979) 53 WCR 167.
[9] [2009] HCA 28 at [25] and [27].
[10] [2014] NSWWCCPD 18 at [40]-[55].
[11] (1996) 12 NSWCCR 716.
Even if the applicant’s pain was at least in part due to his constitutional condition, which I do not believe to be the case, he need only establish that the injury materially contributed to the need for him to undergo medical treatment. On my view, the evidence establishes that that is the case.
While the respondent submitted there were “ample other factors” that explained the applicant’s sleep apnoea, there is no expert evidence to support that submission. There is also no evidence that the applicant suffered from sleep-related symptoms before the injury. I have already said that I accept Dr Freiberg’s evidence.
I therefore determine that the applicant has sustained the consequential condition of sleep disorder as a result of the injury to his lumbar spine on 26 November 2020.
The applicant submitted that, should the dispute be determined in his favour, it would be appropriate to make a general order pursuant to s 60 of the 1987 Act for payment of expenses related to treatment of sleep disorder. I accept that submission.
The order is set out in the Certificate of Determination.

[2024] NSWPIC 31

25 January 2024