Merlo v Everly Howison Pty Ltd - [2025] NSWPIC 236

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Merlo v Everly Howison Pty Ltd [2025] NSWPIC 236
APPLICANT:	Merlo
RESPONDENT:	Everly Howison Pty Ltd
MEMBER:	Diana Benk
DATE OF DECISION:	29 May 2025
CATCHWORDS:	Workplace Injury Management and Workers Compensation Act 1998; respondent accepted applicant suffered an injury to his lumbar spine but disputed his claim for a sleep disorder maintaining the diagnosis arose solely from a pain response and not a respiratory disorder making the claim invalid; applicant maintained the claim was valid as the medical evidence demonstrated the sleep disorder was a combination of pain and the use of medications which resulted in respiratory suppression; submitted determination and interpretation of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 5th edition (AMA 5) was the exclusive domain of Medical Assessors; Held – the sleep disorder condition is a consequential condition arising from the accepted lumbar spine injury; the cause of the sleep disorder is multifactorial and not solely arising from pain; a medical dispute exists and the claim for the lumbar spinal impairment and consequential sleep condition is to be referred to a Medical Assessor.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant has made a valid claim for lump sum compensation. 2. The matter is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: Date of injury: 24 November 2021. Body systems/parts: lumbar spine, scarring and respiratory system (obstructive sleep apnoea). Method of assessment: whole person impairment. 3. The documents to be referred to the Medical Assessor are: (a) the Application to Resolve a Dispute and attached documents; (b) the Reply and attached documents; (c) the Application to Lodge Additional Documents lodged by the applicant on 18 February 2025 and 11 March 2025, and (d) the Application to Lodge Additional Documents lodged by the respondent on 24 March 2025.

STATEMENT OF REASONS

BACKGROUND

Michael Merlo (the applicant) claims 41% whole person impairment arising out of injuries sustained in the workplace with Everly Howison Pty Ltd (the respondent) relating to his lumbar spine, scarring and a consequential sleep disorder (obstructive sleep apnoea).
The respondent accepts the claims made in relation to the lumbar spine and scarring are valid and capable of referral to a Medical Assessor but submits the obstructive sleep apnoea claim is invalid because the assessment has been made solely on the basis of chronic pain and not due to any impairment of the respiratory system. As the assessment is flawed, it submits the claim is invalid and seeks an award.
The matter ultimately proceeded to conciliation/arbitration followed by timetabled written submissions. Mr Stanton of counsel instructed by Mr Bechara represented the applicant.
Mr Perry of counsel instructed by Ms Whiting represented the respondent.
In the course of my decision making I had regard to the documents attached to the Application to Resolve a Dispute (ARD), the Reply and the Applications to Lodge Additional Documents filed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Merlo v Everly Howison Pty Ltd

Details

AGLC: Merlo v Everly Howison Pty Ltd [2025] NSWPIC 236
Case: [2025] NSWPIC 236
Decision Date: 29 May 2025

CaseChat Overview and Summary

In the matter of Merlo v Everly Howison Pty Ltd, the applicant, Merlo, sought compensation for a workplace injury sustained during his employment with the respondent, Everly Howison Pty Ltd. The dispute centred around whether Merlo's sleep disorder was a valid consequential injury stemming from his lumbar spine injury, as accepted by the respondent, or if it arose solely from a pain response, a contention the respondent maintained. This case was heard and determined by the Industrial Relations Commission of Queensland.

The primary legal issue before the court was whether Merlo's sleep disorder could be considered a valid consequential injury to his lumbar spine injury, and if the diagnosis was valid under the applicable legislation. The court was required to assess the evidence and determine the interpretation and application of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 5th edition (AMA 5) in relation to the claim.

The court found that the sleep disorder was a consequential condition arising from the accepted lumbar spine injury. It was determined that the cause of the sleep disorder was multifactorial and not solely due to pain. The court held that there existed a medical dispute regarding the precise nature and cause of the sleep disorder, which necessitated referral to a Medical Assessor for a detailed evaluation. Consequently, the claim for both the lumbar spinal impairment and the consequential sleep condition was to be referred to a Medical Assessor for further assessment.

The court’s final orders directed that the claim for the lumbar spinal impairment and the consequential sleep disorder condition be referred to a Medical Assessor for detailed evaluation and determination in accordance with the AMA 5. This decision ensured that the complexities of the medical evidence and the interpretation of the AMA 5 were appropriately addressed by an expert in the field.

Orders