Pollard v Toll Helicopters NSW

DETERMINATION OF APPEAL PANEL
CITATION:	Pollard v Toll Helicopters NSW [2024] NSWPICMP 466
APPELLANT:	Christopher Malcolm Pollard
RESPONDENT:	Toll Helicopters NSW
APPEAL PANEL
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	Richard Haber
MEDICAL ASSESSOR:	Gregory Kaufman
DATE OF DECISION:	5 June 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; worker kicked in larynx during underwater training; consent orders in respect of assessment of nervous system (sleep and arousal disorder) respiratory disorder and ear, nose and throat (laryngeal disorder); referral to two Medical Assessors did not accurately reflect consent orders; first Medical Assessor in time assessed sleep but said that worker’s breathing disorder was laryngeal dysfunction to be assessed by lead assessor (ear, nose, and throat surgeon); second Medical Assessor assessed by reference to voice and deglutition; appeal only in respect of sleep and respiratory disorders; Skates v Hills Industries Ltd cited; American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed applied for assessment of nervous system and respiratory system; section 323 deduction; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 15 March 2024 Christopher Malcolm Pollard lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Mark Burns and Medical Assessor Brian Williams. Medical Assessor Williams issued a Medical Assessment Certificate (MAC) as lead Medical Assessor on 16 February 2024.
The appeal is in respect of Medical Assessor Burns’ assessment only. Mr Pollard relies on the grounds of appeal under s 327(3)(c) and (d) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) that:
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The President’s delegate was satisfied that, on the face of the application, that the ground of appeal in s 327(3)(d) was made out. We conducted a review of the original medical assessment, limited to the grounds 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 American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

On 18 October 2018 Mr Pollard was providing in helicopter underwater escape training and training in emergency breathing systems and post-ejection sea survival in the course of his employment with Toll Helicopters NSW (Toll). He was injured when one of the participants panicked and accidentally kicked him in the throat. Whilst in hospital, he suffered a deep venous thrombosis (DVT) and pulmonary embolism.
Mr Pollard claimed permanent impairment compensation for 66% whole person impairment (WPI) comprised of impairment in respect of his respiratory system, sleep and arousal disorders and ear, nose and throat and related structures.
With the assistance of a Member of the Personal Injury Commission (Commission), the parties agreed that the referral to the Medical Assessors should be in respect of nervous system (sleep and arousal disorder), respiratory disorder and ear, nose and throat related functions (larynx disorder). It was agreed that the reports of Dr Howison, ear, nose and throat surgeon, who had provided an assessment for Mr Pollard, should not be sent to the Medical Assessor.
The referral form prepared by the Commission was less detailed than the form of referral agreed by the parties. Medical Assessor Williams was asked to assess Mr Pollard’s “ENT related structures” and Medical Assessor Burns was asked to assess the “nervous system and respiratory system”.
Medical Assessor Burns examined Mr Pollard on 13 December 2023. For the nervous system, he assessed 15% WPI in respect of sleep apnoea, deducting one-third under s 323 of the 1998 Act. For the respiratory system, he assessed 0% WPI on the basis that Mr Pollard’s exertional shortness of breath was a result of laryngeal disorder.
Medical Assessor Williams assessed Mr Pollard on 31 January 2024. He assessed 11% WPI in respect of speech impairment and 10% in respect of deglutition and prepared a MAC as lead assessor, combining those assessments with 10% WPI assessed by Dr Burns to reach 27%. There is no appeal with respect to Medical Assessor Williams’ own assessments.

PRELIMINARY REVIEW

We 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, we determined that it was not necessary for Mr Pollard to undergo a further medical examination because Medical Assessor Burns’ assessment was open to him and does not disclose error.

EVIDENCE

We have all the documents that were sent to the Medical Assessors and have taken them into account in making this determination.
The parts of the MAC that are relevant to the appeal are set out below.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary, and in submissions prepared by Mr Tanner of counsel, Mr Pollard submitted that there was no dispute that the laryngeal injury resulted in “sleep and breathing disorders” and said that Medical Assessor Burns misunderstood his statutory task. He said that Medical Assessor Burns’ misdirection acknowledged the causal relationship between the respiratory disorder and his laryngeal injury and that Medical Assessor Burns was required to assess it in the same way as Mr Pollard’s sleep disorder.
Mr Tanner also said that Medical Assessor Burns unreasonably dismissed evidence “recorded by St Vincent’s Hospital” when he said:
“With respect to the exercise test carried out at St Vincent’s Hospital this was cut short due to laryngeal spasm and his inability to breath [sic – breathe] due to the larynx not due to his lungs. I do not believe that this test is valid and therefore cannot be used to assess lung function.”
Mr Tanner noted the comments of Dr Havryk in the report and said he would not have recorded data regarding Mr Pollard’s respiratory capacity if the test was, “as Dr Burns asserts not valid”. He noted that Medical Assessor Burns is not a respiratory physician and that Dr Frieberg (who is) accepted the results. Mr Tanner submitted that if Medical Assessor Burns did not consider “that the St Vincent’s data was sufficient”, it was open to him to decline to make an assessment until the degree of permanent impairment was fully ascertainable.
With respect to the assessment of the nervous system for sleep apnoea, Mr Tanner submitted that Medical Assessor Burns erred in making a deduction under s 323 on the basis of pre-existing obesity and laryngeal restriction, because the laryngeal restriction was a consequence of the injury. He said that the deduction of one-third was arbitrary and that the Medical Assessor filed to explain how any underlying condition contributed to Mr Pollard’s degree of impairment, referring to Cole v Wenaline Pty Ltd[1] (Cole), Ryder v Sundance Bakehouse (Ryder)[2] and Fardell v Clinton Industries Pty Ltd.[3]
[1] [2010] NSWSC78.
[2] [2015] NSWSC 526.
[3] [2022] NSWSC 111.
The relief sought by Mr Pollard was that the certificates of both Medical Assessors be revoked.
In reply, and in submissions prepared by Mr Barter of counsel, Toll submitted that it was not contemplated by the parties or the Commission when the consent orders were made that two Medical Assessors would be appointed and that the relative responsibilities of the Medical Assessors were not recorded. Mr Barter said that the contributions to the appeal made by both doctors should be examined, though the question of whether or not Medical Assessor Williams failed to give an appropriate impairment of laryngeal impairment is not addressed by Mr Pollard’s submissions. Mr Barter said that, for the reasons set out in the MAC, Medical Assessor Burns believed the impairment arising from the laryngeal injury was to be addressed by Medical Assessor Williams as the appropriately qualified specialist.
Mr Barter submitted that Medical Assessor Burns identified the source of Mr Pollard’s breathing restrictions (and to some extent his sleep apnoea) as symptoms of the laryngeal impairment more appropriate measured by an ear, nose and throat surgeon.
With respect to the s 323 deduction, Mr Barter said it was clear that Medical Assessor Burns did not suggest that sleep apnoea preceded the injury but that Mr Pollard was obese before the injury and that obesity contributed to sleep apnoea. He said that the Medical Assessor set out the matters taken into account in making the deduction.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is 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[4] the Court of Appeal held that an Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
[4] [2006] NSWCA 284.
In Queanbeyan Racing Club Ltd v Burton[5] the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. We have only considered and resolved those grounds specifically raised by the appeal.
[5] [2021] NSWCA 304 at [26].
We observe that the referral to the Medical Assessors prepared by the Commission was manifestly inadequate and failed to reflect the consent orders agreed to by the parties. It is the Commission’s practice to send the referral to both parties for comment before the file is sent to the Medical Assessor or Assessors. Some of the issues on this appeal would probably have been avoided if the parties had sought that the referral be amended to reflect the agreement in the consent orders. Toll said it was not contemplated by the parties that two medical assessors would be appointed, but it was clear from the draft referral, that that was the case. The opportunity that the parties had to clarify the terms of the referral, and to bring it into line with the consent orders was not taken.
If the referral is correct, a Medical Assessor is appropriately guided as to the matters in dispute. In Skates v Hills Industries Ltd[6](Skates), Leeming JA said:
“The paperwork associated with the administration of the legislation seems to have led to a tendency to give to the document comprising the ‘referral’ to an Approved Medical Specialist a greater status than it warrants. The document is important. However, the fundamental legal concept is a dispute.”
[6] [2021] NSWCA 142 at [48].
In Skates, Leeming JA said that in most cases, the dispute will be defined by competing claims. In this case, with the assistance of a Member of the Commission, the competing claims set out in the medical reports had been reduced to clear consent orders which formed part of the file. The Medical Assessor’s obligation to read the file extends to reading and comprehending the consent orders. We are satisfied that Medical Assessor Burns did that.

The medical evidence

Before discussing the MAC, it is appropriate that we consider the medical evidence in the file because a review of that evidence highlights the difference between lung function (measured by reference to the respiratory system) and the breathlessness suffered by Mr Pollard as a result of the injury to his larynx.
Mr Pollard was required to undergo annual testing to ensure he was fit for the specialised demands of his role. The file contains the results of Diving Medical Examinations undertaken by Dr Rosenthal in 2016, 2017 and 2018, the latter being only two weeks before the injury. Dr Freiberg and Medical Assessor Burns commented on the lung function test components of those results.
Mr Pollard was treated in intensive care in Liverpool Hospital, where he underwent a tracheotomy. While in hospital, he suffered a DVT and pulmonary embolism.
After he was released from hospital, Mr Pollard was referred by his general practitioner to Dr Jefferson, ear, nose and throat surgeon, who noted on 30 November 2018 that Mr Pollard continued to feel short of breath and tired as a result of the DVT and embolism. Dr Jefferson said:
“I have explained the clinical findings to Christopher. I have indicated that this is really good news from the point view of his laryngeal trauma. I am hopeful that with the course of time the laryngeal function will normalise giving him an adequate airway and voice. The area of arytenoid prolapse may continue to be a problem as I think he has got dislocation of his cartilage. If this does not settle itself it may be an ongoing cause of shortness of breath and may benefit from partial arytenoidectomy.”
Mr Pollard was treated by Prof Wark, respiratory and sleep physician, whom he saw on 21 December 2018. Prof Wark noted that the injury was blunt trauma causing Mr Pollard’s trachea and larynx to be crushed. He suspected that Mr Pollard’s ongoing symptoms of breathlessness were related to laryngeal trauma and that he may be experiencing paradoxical vocal fold movement. He ordered investigations.
On 22 January 2019 Dr Jefferson recorded that Mr Pollard had suffered a slight worsening of his breathlessness and said this was a result of partial obstruction of his airway, laryngoscopy having demonstrated ongoing subluxation of the right arytenoid into the laryngeal inlet. Dr Jefferson proposed further monitoring. On 26 February 2019, Dr Jefferson said:
“He is severely dysphonic and sounds very strained and I think he overdid it with work recently. He is having increasing upper airway obstruction symptoms and sounded extremely strained today.
Repeat endoscopy demonstrates worsening collapse of the right arytenoid completely obstructing his upper airway and although there has been improvement in his vocal cord function, I think he still has a gap on that side and is squeezing a huge amount to try and compensate for his glottic gap.
Given the fact that he is clinically worsening and now quite distressed with this I have recommended examination under anaesthetic, possible medialisation of the right vocal cord and possible laser arytenoidectomy to deal with his upper airway obstruction.”
The surgery was carried out on 1 April 2019. On 11 June 2019 Dr Jefferson referred Mr Pollard to a gastroenterologist and to A/Prof Novakovic, a laryngologist. Dr Jefferson said:
“His recovery has been complicated by compensatory severe muscle tension dysphonia and coughing and choking and aspiration events. There has been a significant degree of anxiety overlay in all of this. This was compounded by prolapse of his arytenoid on the right side that developed progressive airway obstruction resulting in the need for laser arytenoidectorny. Fortunately this resulted in significant improvement in his airway symptoms.”
On 27 August 2019 A/Prof Novakovic diagnosed laryngeal sensory dysfunction/irritable larynx syndrome related to an injury to the upper laryngeal nerve. A superior laryngeal nerve block was performed with immediate improvement in symptoms. A longer-term nerve block was administered on 24 September 2019 and again on 22 October 2019. A/Prof Novakovic undertook exploratory microlaryngoscopy and bilateral vocal fold augmentation in October 2019 and fat injection laryngoplasty to treat symptoms of glottal insufficiency aggravating throat pain in late January 2020.
On 30 March 2020 Mr Pollard consulted A/Prof Novakovic with a significant recurrence of pain in his throat which was diagnosed as neuropathic pain. A further exploratory microlaryngoscopy and laryngeal botox injection took place in April 2020 and A/Prof Novakovic sought approval to repeat the injection under general anaesthetic due to Mr Pollard’s body habitus. By June 2020 Mr Pollard’s laryngeal hypersensitivity had improved but he continued to have chronic pain radiating to his ear, particularly on using his voice. Repeat injections were recommended in July and by September 2020 A/Prof Novakovic noted a dramatic improvement but by October the effects were wearing off. A/Prof Novakovic recommended a series of scheduled treatments at intervals of 12 weeks but by February 2021 there was no significant response. In March 2021 Mr Pollard underwent CT guided local anaesthetic and steroid injection to his right thyrohyoid membrane region.
Prof Wark wrote to Toll on 28 September 2020 and said that Mr Pollard had previously undergone investigations for exertional breathlessness which showed evidence of mild pulmonary hypertension, as a result of the pulmonary embolism. Prof Wark said that the predominant cause of his breathlessness was damage to the larynx. He reviewed Mr Pollard on 26 October 2020 after an exercise stress echocardiograph which showed no evidence of pulmonary hypertension and no evidence that condition was contributing to symptoms of exertional breathlessness. Prof Wark said that his breathlessness is almost certainly directly related to his laryngeal trauma.
Writing to Toll on 4 June 2021, A/Prof Novakovic summarised his recent treatment:
“The current treatment which is being provided to Mr Pollard is aimed at alleviating some of his symptoms of neuropathic pain. He is currently taking amitriptyline 20 mg on a regular basis as a neural modulator. In addition to this he is using medicinal cannabis as necessary as prescribed by his pain specialists.
We believe that Mr Pollard's right superior laryngeal nerve was damaged during the workplace accident and is possibly entrapped in scar tissue. We discussed the possibility of an interventional approach to try and improves the symptoms related to this nerve damage including surgical exploration and release of possible entrapped nerve or section of the superior laryngeal nerve. There are significant risks involved in an open exploration procedure. We have also been exploring the possibility of a pulsed radiofrequency ablation procedure targeting this nerve and Mr Pollard has consulted with Dr Alan Nazha who is an interventional pain specialist familiar with this procedure and feels that it would probably pose less risk than an open exploration procedure. The outcomes of any such intervention would be to reduce his pain, improve his vocal function and stamina and reduce his symptoms of laryngeal dysaesthesia and hypersensitivity and restore his ability to eat normal food. These symptoms are being tracked at each visit via the appropriate patient reported outcome measures. Mr Pollard continues to assess these interventional options and has not yet reached a decision.”

There are no documents from Mr Pollard’s treating practitioners after mid 2021. Mr Pollard has had significant treatment to his larynx. He had little treatment for his lungs after the pulmonary embolism resolved.

Independent medical examiners

Mr Pollard’s solicitors engaged Dr Freiberg, respiratory and sleep physician, who reported for the first time on 27 January 2022. Dr Freiberg noted that Mr Pollard had experienced 8% increase in total bodyweight since the injury which he attributed to his inability to undertake physical activity. His limiting factor is shortness of breath. On examination, Dr Freiberg noted that Mr Pollard was obese with an obvious inspirationally wheeze over his laryngeal area, but his lung fields were clear on auscultation. Dr Freiberg said:
“From a respiratory perspective this man has significant dyspnoea and significant sleep fragmentation, snoring and hypersomnolence all suggesting his laryngeal function is affecting significantly his respiration during the day and at night.
To clarify and quantify this he needs a number of investigations including the following:
1.Detailed lung function tests.
2.Mannitol Bronchial Provocation Test.
3.Supervised diagnostic sleep study in a sleep laboratory.
4.Resting and exercise echocardiogram looking for the degree of residual pulmonary hypertension.
5.A ventilation perfusion lung scan and CT pulmonary angiogram looking for any evidence of chronic pulmonary thrombo embolic disease or a recurrence of this contributing to his dyspnoea. His episode of pulmonary emboli complicated his work related injury.
…
When these investigations are to hand, I will attempt to make a permanent impairment assessment on this man.”
We note that the Guidelines provide in paragraph 8.6 that bronchial challenge testing should not be undertaken for the purpose of the impairment assessment.
Dr Freiberg reported again on 20 August 2022. He said that the “detailed lung function tests showed a normal spirometry with no acute reversibility post bronchodilator.” The bronchial provocation test was negative for bronchial, hyperreactivity or asthma. There was no evidence of acute or residual pulmonary emboli on the CT pulmonary angiogram and a ventilation perfusion lung scan showed no evidence of acute or chronic pulmonary thromboembolic disease. Dr Freiberg said:
“Therefore these 2 scans do not demonstrate any evidence of recurrence of pulmonary thrombo embolic disease off anti coagulation to account for his ongoing dyspnoea.”
Dr Freiberg summarised the results of the diagnostic sleep study and echocardiograms. With respect to the cardiopulmonary exercise test in St Vincent’s Hospital he said:
“This study was terminated also due to the sensation of laryngeal closure and the inability to ventilate. He exercised for 6 minutes and 32 seconds and achieved a peak work rate of 125W (46% of predicted). The patient had a severely reduced aerobic exercise capacity (VO2 1.644 L/min or 44% of predicted). Peak VO2 per kg body weight was 14.3m/kg/min (43% of predicted).
…
Therefore, in summary, there is a severe limitation to aerobic exercise by laryngeal occlusive symptoms.”
Dr Freiberg said:
“I refer to the American Guides to the Evaluation of Permanent Impairment 5th Edition Page 107 Table 5-12 titled Impairment Classification for Respiratory Disorders using Pulmonary Function and Exercise Test Results. The VO2 max of less than 15mL/kg/min is a class 4 impairment or 51%-100% impairment of the whole person. Mr Christopher Pollard's VO2 max was 14.3mL/kg/min. This confirms the extreme limitation to exercise and respiratory function that is consistent with Mr Christopher Pollard's symptoms following the work related accident with severe laryngeal inlet obstruction. He appears to have reached maximal medical improvement in regard to this. I would therefore classify him as a 60% impairment of whole person due to his exercise test result.”
With respect to sleep apnoea, Dr Freiberg said:
“Mr Christopher Pollard appears to have reached maximal medical improvement in regard to his ability to sleep following his work related accident. His diagnostic polysomnogram demonstrated the development of mild sleep disordered breathing of which there was no history to suggest it's presence prior to his work related accident and direct anatomical damage to his upper airway. Added to the mild sleep disordered breathing on a sleep study was significant sleep fragmentation with 29 awakenings on the study and an arousal index of 17/hour. The latter was a mixture of spontaneous arousals most likely due to his pain and laryngeal dryness as well as due to the obstructive breathing and periodic limb movement disorder. The latter could complicate the medications he takes for pain including Melatonin and medical cannabis which is a combination of THC and CBD. Periodic limb movement disorder can occur as a result of his intermittent use of cannabis and Melatonin. Treating the mild sleep apnoea and mild periodic limb movement disorder is unlikely to cause significant clinical benefit. In particular CPAP would likely aggravate further his disrupted sleep.
I would therefore classify Mr Christopher Pollard as a 13% impairment of whole person due to sleep and arousal disorders. 3% should be deducted because he has a mallampati class 3 airway which is pre existing to the then subsequent laryngeal trauma. Also although he has gained weight since his work injury (BMI now 33), prior to his work injury he was borderline obese (BMI 30). Therefore his whole person impairment due to sleep and arousal disorders is 10%.
In summary the respiratory impairment is 60% of whole person and the sleep impairment is 10% of whole person.”
The investigation reports were attached to Dr Freiberg’s report, including the tests reported by Dr Havryk at St Vincent’s Hospital Lung Function Laboratory on 11 August 2022. Interpreting the tests, Dr Havryk said that the total exercise time was approximately six minutes and 32 seconds and that Mr Pollard “terminated exercise due to a reported sensation of laryngeal closure and inability to ventilate.” The conclusion was:
“This 74 year old [sic], obese male patient demonstrated a good effort and a severely reduced aerobic exercise capacity limited by reported laryngeal occlusive symptoms during a ramp cycle exercise test. The patient exhibited hoarseness during conversation and during ventilation on exercise. Cardiopulmonary response has revealed a stroke volume limitation with no respiratory limitation based on ventilatory data. There is also a lack of adequate chronotropic response. Suggest further cardiac investigation.”
Dr Frieberg prepared a further short report dated 28 July 2023, commenting on spirometry undertaken before the injury in 2016, 2017 and 2018, which he said were within normal range. He said that the tests undertaken in January 2022 showed a reduction of 10 percentage points in lung function. He said:
“A 10 percentage point reduction in lung function based on FEV1 and FVC would be a Class 2 Impairment according to table 5-2 on page 107 of these Guidelines. A Class 2 Impairment is a 10%-25% Impairment of Whole Person.
However these same Guidelines also allow for an estimate of VO2 max. The VO2 max of 43% of predicted normal in the cardiopulmonary testing in St Vincent's Hospital would classify Mr Pollard as a Class 4 Impairment or a 60% Impairment of Whole Person.
The VO2 max is a more reliable guide to this man's ventilatory impairment as the FEV1 and FVC do not directly assess upper airway function. Therefore I would make no change to my previous whole person permanent impairment for respiratory disorders using pulmonary function tests and exercise tests of 60% in Mr Pollard.”
Dr Johnson, respiratory and sleep physician, saw Mr Pollard at the request of Toll on 21 February 2023. He undertook lung function tests which placed Mr Pollard in the low normal range. Dr Johnson said:
“He has normal spirometry. He had an exercise test, which side showed some cardiac dysfunction, and his exercise capacity appeared to be limited by his laryngeal obstruction. There were no indications that there was a respiratory problem causing shortness of breath.
…
His current symptoms are predominantly related to his larynx, i.e. shortness of breath, pain, dysphonia and stridor. From a respiratory point of view his pulmonary embolus has resolved. He does have minor atelectasis on his CT but this is unlikely to be causing respiratory symptoms or impairment. He does have mild daytime sleepiness and he has mild sleep apnoea which is likely to be a result of his weight gain, a result of his injury.
Based on the available information, he does not have respiratory impairment or disability arising from the injury. His impairment and disability is due to his larynx and it is beyond my area of expertise to calculate the impairment and disability arising from that.
…
I consider Dr Freiberg used VO2 Max as a measure of his Whole Person Impairment is inappropriate, as I do not believe that his reduction in VO2 Max is due to a respiratory problem. I consider it more likely due to his laryngeal injury. I consider Table 11-6 on page 260 of the AMA Guides (Criteria for Rating Impairment Due to Air Passage Defects) more appropriated to classify his impairment due to the laryngeal injury. Calculation of his impairment due to laryngeal injury is beyond my area of expertise.
I would agree with Dr Freiberg that he does have impairment due to his sleep and arousal disorder. I would agree that he is in Class 2, 10% - 20% impairment of the Whole Person and I would estimate his whole person impairment due to sleep and arousal disorder to be 15%. I would deduct 5% due to his previous mild obesity and likely Mallampati Class 3 airway. Therefore that would give him a Whole Person Impairment due to sleep and arousal disorder at 15% minus 5%, therefore 10%.”
There is no report from an ear, nose and throat surgeon in Mr Pollard’s case. Mr Pollard said in his statement that Toll objected to his reliance on Dr Howison’s report, because he had seen Dr Howison for Toll in 2019. Based on a total assessment of 66% WPI and taking into account that Dr Freiberg assessed 60% WPI, using the combined values tables shows that Dr Howison assessed 5 or 6% WPI. The components of that assessment are not disclosed.
Dr Payten, ear, nose and throat specialist, saw Mr Pollard on behalf of Toll and reported on 21 March 2023. Dr Payten diagnosed dysphonia (difficulty speaking), dysphagia (difficulty swallowing) and odontophagia (painful swallowing). Dr Payten said:
“The diagnosis is blunt trauma to the larynx causing dislocation of the right arytenoid cartilage to which the vocal fold is attached.
There was also damage to the right superior laryngeal nerve and probable development of a neuroma of the superior laryngeal nerve. This nerve supplies sensation to the mucous membrane which lines the interior of the hypopharynx and the larynx above the level of the vocal folds.
Damage to this nerve has resulted in pain in the right side of the pharynx and larynx and a hypersensitive gag reflex which leads to coughing spasms and eventually laryngospasm with stridor. These symptoms are likely to be precipitated by having to raise the voice slightly in order to be heard when in the presence of background noise in a restaurant or similar surroundings. These symptoms are also precipitated by eating dry or hard foods.
The superior laryngeal nerve also supplies motor fibres to the cricothyroid muscle which affects the length of the vocal fold so that weakness of this muscle affects the voice.”
Dr Payten said:
“In addition to the right-sided superior laryngeal nerve injury he had a dislocation of the arytenoid cartilage which caused an airway impairment restricting his ability to exercise by walking more than 150 metres.”
He assessed Mr Pollard as having class III voice impairment and assessed 45% voice impairment or 16% WPI under Table 11-9 of AMA 5. He assessed 12% WPI due to dysphagia and combined those assessments to reach 26% WPI.
In a subsequent report dated 28 April 2023, Dr Payten transposed the figure for dysphonia at 14% and combined his assessment of 24% WPI with 10% assessed by Dr Johnson to reach 32% WPI. The correct figure for 45% voice impairment is 16% WPI and the total should have been 33% WPI. There was no assessment of laryngeal dysfunction in Toll’s case.

The MAC

Medical Assessor Burns considered the medical evidence and the testing organised by Dr Freiberg when taking a history from Mr Pollard. He said:
“I note that Dr Frieberg, Respiratory and Sleep Physician whom he saw as an Independent Medical Examiner on 20 August 2022 arranged for many tests including a sleep test. The diagnostic sleep study was carried out on 27 January 2022. This revealed mild obstructive sleep apnoea. I noted that in the original test it was reported that he had no major episodes of snoring. He reported today that he was unable to use a CPAP machine as the machine made his laryngeal problem worse. For this reason, he has not been given a CPAP machine. He stated that more recently it has been noted though that he has developed some snoring.
He reported that over the last 2 years neither his exertional breathlessness not his obstructive sleep apnoea had improved. In fact, he believes that they may have deteriorated. I noted that Dr Frieberg also organised for more detailed spirometry, which was carried out at the Meredith Respiratory and Sleep Centre on 27 January 2022. His FEV1 was 3.69 litres and his FVC 4.42 litres. Against predicted scores these were both in the mid to high 80% predicted range. I noted that pre-existing spirometry was available for his diving test on 3 October 2018 several weeks before the injury. His FEV1 at the time was 4.2 litres and his FVC was 5.05 litres. If these were considered as a baseline, his FEV1 has dropped by 12% and his FVC has dropped by 12.5%. I also noted that his DLCO single breath diffusion was 27.52, which was 80% of predicted normal. All the above figures when referring to both AMA 5 and his pre-existing level of fitness show that he is still above the lower limit of normal for his respiratory function.”
The lower limits of normal pulmonary function are set out in Tables 5-2b, 5-3b, 5-5b, 5-6b and 5-7b of AMA 5.
Medical Assessor Burns said:
“Additionally, I note that he organised for an Exercise Test that he carried out at St Vincent’s Hospital where the results for FEV1, FVC and oxygen diffusion were again above the lower limit of normal. I did note that the VO2 Max was 14.3 m/kg/min, which was 43% of predicted. This figure though is significantly impacted by the fact that the test had to be stopped early due to an episode of laryngospasm. Therefore, the test is invalid and Paragraph 8.15 of the New South Wales Guidelines states, ‘The pulmonary function test listed in 5 -12 must be performed under standard conditions. Exercise testing is not required on a routine basis’. Taking account of the fact that the test revealed breathlessness, which was associated with his laryngospasm rather than his respiratory function I believe that the tests results are in fact invalid.”
With respect to previous or subsequent conditions, Medical Assessor Burns said:
“Mr Pollard has previously had lap banding done due to obesity. I note that his weight at his medical examination on 3 October 2018 was 106.7kgs with a height of 186cms. This gave him a BMI of 30.85, which places him in the obese category. He was significantly overweight before the current injury. It appears though that his breathing has deteriorated since his injury to the larynx and thus his sleep apnoea has also deteriorated.”
Commenting on Mr Pollard’s present symptoms the Medical Assessor said, with respect to sleep apnoea:
“He normally goes to bed at approximately 9PM at night. He tends to wake up at 11PM with a sore dry throat and again between 2 and 3AM again with a sore dry throat. He has also been noted to be snoring. He has very broken sleep and tends to get up eventually at 6AM.
As noted previously due to his laryngeal problems he cannot use a CPAP machine.”
Describing his physical examination, the Medical Assessor said:
“Mr Pollard was 186cms tall and weighed 128.1kgs. He has put on 20kgs since his injury.
Examination of his chest revealed chest expansion of only 3cms. When he attempted to take a big breath in this caused mild coughing and a degree of tightness in the throat therefore, he was not pushed to do any further chest expansion. His chest was clear with vesicular breath sounds but no evidence at the time of examination of wheeze, crepitation of rhonchi. I noted also that there was no stridor after his one episode of tightness in the throat. He continued to shallow breath throughout the consultation to avoid coughing.”
Summarising the injuries and disabilities, Medical Assessor Burns said:
“Mr Pollard sustained a severe injury to his larynx and has ongoing laryngeal impairment, which is being assessed by another Assessor.
He also had a DVT with pulmonary emboli mostly at the base of the right lung. More recent investigations have revealed no ongoing evidence of chronic pulmonary emboli, but he does have extremely shallow breathing associated with his throat problem. There does not appear to be any substantial pathology in his respiratory system but there has been a decrease in his FEV1 and FVC from his pre-injury levels. Whereas he was previously very fit he is now in the lower end of normal.
Whereas he previously was significantly overweight he has put on a further 20kgs in weight, which has led to the development of obstructive sleep apnoea. Also, the damage done in his larynx has also caused some narrowing of the airways, again bringing on the obstructive sleep apnoea.”
Medical Assessor Burns said:
“With respect to his sleep apnoea an Epworth Sleepiness score of 10/24 or greater would place him in Class 2 of Table 13.4 of AMA 5. This Class is between 10 and 29% whole person impairment. Noting his sleep study results I believe that he would be classified as 15% whole person impairment. I believe though that he has significant obesity prior to the development of his injury in 2018. He also has current degree of laryngeal restriction associated with the injury, which would be assessed by the ENT surgeon. Taking this into account as a partial cause of his obstructive sleep apnoea as well as his previous obesity I believe a one third deduction would be appropriate giving 10% whole person impairment.
With respect to his respiratory function I note that he certainly does have exertional shortness of breath. This though is not associated with his lung function but is associated with his laryngeal injury with laryngeal spasm. When looking at his most recent respiratory laboratory testing it includes the testing done on 27 January 2022 at the Meredith Respiratory and Sleep Centre as well as the preexercise testing done at St Vincent’s Hospital on 28 July 2022. I note that his FEV1 and his FVC are above the lower limit of normal using the Tables in AMA 5 Guides. I also note that his oxygen diffusion is above the lower limit of normal using the same Tables.
Additionally, I note that looking at his pre-existing FEV1 and FVC as a baseline in October 2018 that his current FEV1, FVC would also only be in the high 80% predicted range compared to his previous best effort. Therefore, again this would be considered above the lower limit of normal and would not put him above Class 1 in Table 12-5 of AMA 5.
With respect to the exercise test carried out at St Vincent’s Hospital this was cut short due to laryngeal spasm and his inability to breath due to the larynx not due to his lungs. I do not believe that this test is valid and therefore cannot be used to assess lung function. I therefore believe that his respiratory injury caused by the injury at work would be classified as 0% whole person impairment.”
Commenting on Dr Freiberg’s report, Medical Assessor Burns said:
“With respect to his respiratory function, I note that Dr Frieberg organised a significant number of investigations including a Challenge Test, which the Guidelines states should not be done and an exercise test, which the Guidelines states is rarely needed. Dr Frieberg has decided that the exercise test was a valid test and even though all his normal respiratory parameters were in the lower limit of normal. He has decided that even though the test was stopped for laryngeal problems that the VO2 Max score was valid. I believe that his VO2 Max score was decreased as he was unable to take a deep breath and in fact had laryngospasm for a period where he was not breathing properly. This is totally to do with his throat and is not due to his respiratory system. I cannot therefore agree with Dr Frieberg’s score of 60% whole person impairment.”

Though there is no appeal with respect to Medical Assessor William’s decision, it is necessary to briefly consider his MAC. He said that he included a MAC “consolidating the assessment of myself and Dr Mark Burns.” Medical Assessor Williams provided a brief summary of the history. He provided his assessment only with respect to dysphagia and mastication and deglutition. He reviewed he reports of Dr Jefferson and A/Prof Novakovic. He assessed 11% WPI with respect to Mr Pollard’s voice and 10% with respect to swallowing. Though the assessment is made in a similar way to that used by Dr Payten, it was not assessed by reference to laryngeal dysfunction, which is the dispute referred to him.

Consideration

For the reasons set out below, we consider that Medical Assessor Burns did what was asked of him and that his conclusion with respect to s 323 was open to him.
A review of Medical Assessor Williams’ MAC shows that he has made his assessment based on the referral and has not had regard to the nature of the dispute nor to Medical Assessor Burns’ MAC which was prepared before his examination and provided to him. The consent orders made clear that the referral was in respect of larynx dysfunction, though the referral to the Medical Assessor did not. Medical Assessor Burns anticipated in his MAC that Medical Assessor Williams would assess the impairment arising from the laryngeal injury in accordance with the consent orders.

Respiratory system

Chapter 2 of AMA 5 deals with the application of AMA 5 generally and section 2.4 includes:
“Impairments often involve more than one body system or organ system; the same condition may be discussed in more than one chapter. Generally, the organ system where the problems originate or where the dysfunction is greatest is the chapter to be used for evaluating the impairment.”
AMA 5 states in section 11.4 The Nose, Throat, and Related Structures:
“The nasal region includes the external part of the nose, the nasal cavity, and the nasopharynx. The oral region includes the mouth and lips, teeth, temporomandibular joint, tongue, hard and soft palate, region of the palatine tonsil, and oropharynx. The neck and chest region includes the hypopharynx, larynx, trachea, esophagus, and bronchi.
The functions of these structures, and the order in which they will be discussed, are as follows: (1) respiration, (2) mastication and deglutition, (3) olfaction and taste, and (4) speech. Permanent impairment may result from a deviation from normal in any of the above functions, and, because of their close relationship, more than one structure may be involved.
11.4a Respiration
Respiration may be defined as the act or function of breathing, that is, the act by which air is inspired and expired from the lungs. The respiratory mechanism includes the lungs and the air passages; the latter includes the nares, nasal cavities, mouth, pharynx, larynx, trachea, and bronchi.
In this chapter, discussion of permanent impairments related to respiration is limited to defects of the air passages. Refer to Chapter 5 on the respiratory system for a discussion of impairments of the lower airways and lung parenchyma.” (our emphasis)
That is, the act of breathing or respiration is assessed under the criteria for the respiratory system when the breathing impairment arises from an impairment of pulmonary (lung) function.
Table 11-6 of AMA 5 provides the “Criteria for Rating Impairment Due to Air Passage Defects.” Each of the classes examines the extent to which dyspnoea (shortness of breath) occurs at rest, while walking and by exertion. Each class requires that:
“…examination reveals partial obstruction of the oropharynx, laryngopharynx, larynx, upper trachea (to the fourth cartilaginous ring), lower trachea, and/or bronchi.”
As Dr Johnson noted, that was probably the appropriate table for an ear, nose and throat surgeon assessing laryngeal function to apply.
Medical Assessor Burns was asked to assess the respiratory system, which is assessed under a chapter 5 of AMA 5 and chapter 8 of the Guidelines. AMA 5 says in section 5.10 headed Permanent Impairment Due to Respiratory Disorders:
“Table 5-12 lists criteria for estimating the permanent impairment rating due to respiratory disorders, using pulmonary function and exercise test results. Perform spirometry and Dco on each person being evaluated. VO₂max may provide additional information in selected individuals when indicated.
…
The classification system in Table 5-12 considers only pulmonary function measurements for an impairment rating…”
As Medical Assessor Burns pointed out, Mr Pollard’s lung function tests were at the lower end of normal. Though the VO₂max was abnormal, it was not because of the function of Mr Pollard’s lungs. Table 12-5 was inappropriate for the assessment.
A careful reading of Dr Freiberg’s report dated 20 August 2022 shows that he agreed that Mr Pollard’s lung function tests were normal but that the results represented the narrowness of his upper airway. Dr Freiberg confirmed that the exercise test was terminated due to Mr Pollard’s sensation of laryngeal closure and the inability to ventilate. Nonetheless he relied on the VO₂max reading only and used Table 5-12 to assess Mr Pollard. The extract we have set out from AMA 5 at [74] above, shows that was not the appropriate table when the reason for breathlessness was not pulmonary impairment. Table 5-12 did not become relevant solely because of one abnormal component of exercise test results.
Medical Assessor Burns’ MAC shows that he undertook his assessment in accordance with Table 5-12 and chapter 8 of the Guidelines. He made clear that he considered that Mr Pollard had a separate problem with his larynx, which was not part of the respiratory system and therefore not an impairment he was required to assess.
Addressing some of the submissions specifically, we do not agree that Medical Assessor Burns misdirected himself. He was aware of the distinction between breathing and lung function in AMA 5 The various test results show that Mr Pollard does not have a problem with lung function but that he has a significant and genuine problem with breathing due to the condition of his larynx. The submissions prepared for Mr Pollard merge breathing, respiratory disorder and lung function but those are separate concepts, particularly for assessment under AMA 5.
We do not agree that Dr Burns dismissed the results of the exercise test as invalid per se. Dr Freiberg’s report and Dr Havryk’s reports clearly show that the test was undertaken for six minutes and 32 seconds so that, contrary to Mr Pollard’s submissions, Dr Burns did have knowledge of the length of the test. Dr Havryk clearly explained that Mr Pollard terminated the test before its anticipated duration. The time taken for the exercise component of a test will vary but would usually take in the order of 12 minutes. In context, Medical Assessor Burns said that the test is invalid to assess lung function because it was terminated early. He understood and explained that Mr Pollard suffers shortness of breath due to laryngeal spasm.
Medical Assessor Burns anticipated that Medical Assessor Williams would assess Mr Pollard’s impairment due to laryngeal dysfunction. That is what the parties contemplated by the consent orders. The fact that Medical Assessor Williams did not do that does not mean that Medical Assessor Burns’ assessment was in error. Medical Assessor Burns assessed the matters that were referred to him by the consent orders and his assessment of them does not disclose error.

Sleep and arousal disorders and s 323

Medical Assessor Burns was asked to assess Mr Pollard by reference to the nervous system (sleep and arousal disorder). His assessment of 10% WPI after a deduction under s 323 is identical to that made by Dr Freiberg and Dr Johnson. Both of those doctors and Medical Assessor Burns assessed Mr Pollard in class 2 of Table 13-4 of AMA 5 – Criteria for Rating Impairment Due to Sleep and Arousal Disorders. Class 2 applies where there is “reduced daytime alertness; interferes with ability to perform some activities of daily living. The range of impairment is 10% to 29% WPI. Dr Freiberg assessed Mr Pollard at 13%, at the lower end of the range and deducted 3% (or 23% of the assessment). Dr Johnson assessed 15% and deducted one third.
Table 13.4 of AMA 5 is not only directed to sleep apnoea but to arousal and sleep disorders which:
“…include disorders related to initiating and maintaining sleep or inability to sleep; excessive somnolence, including sleep-induced respiratory impairment; and sleep-wake schedules.
…The Respiratory System (Chapter 5) also discusses impairment as it relates to obstructive sleep apnea.
The clinician can evaluate sleepiness with the Epworth Sleepiness Scale, which assesses the likelihood of dozing (never = 0 to high chance = 3) in different situations: sitting and reading, watching television, sitting in a public place, riding as a passenger for an hour, taking an afternoon nap, sitting and talking to someone, sitting after a nonalcohol lunch, and stopped in traffic in a car. A score of 10/24 is equal to excessive sleepiness, or class 2 impairment. This scale correlates with the multiple sleep latency test (MSLT), which supports pathologic sleep in narcolepsy and idiopathic hypersomnia. See Table 13-4 for impairment due to sleep and arousal disorders.”
Medical Assessor Burns used the Epwoth Sleep Scale as contemplated by that paragraph.
Paragraph 5.6 of AMA 5 deals with Obstructive Sleep Apnea but does not provide any other method of assessing impairment:
“Individuals with obstructive sleep apnea experience intermittent, repetitive occlusions of the upper airway during sleep, when the pharyngeal muscles are relaxed. These occlusion periods produce airflow cessation at the nose and mouth that leads to progressive hypoxia, which then causes arousal from sleep. The affected person awakens briefly and reestablishes airway patency, resuming airflow with a loud snore or snorting sound. Because of recurrent awakenings during the night, there is disrupted sleep architecture, without restful sleep. Symptoms of sleep apnea include a history of loud snoring, unsatisfactory sleep pattern, daytime somnolence, cognitive dysfunction, and hypertension. Between 60% and 90% are obese and may have a large neck circumference. ...”
Chapter 5 of the Guidelines applies to the assessment of the nervous system. Paragraph 5.8 reads:
“AMA5 Chapter 13, on the nervous system, lists many impairments where the range for the associated WPI is 0–9% or 0–14%. Where there is a range of impairment percentages listed, the assessor should nominate an impairment percentage based on the complete clinical circumstances revealed during the consultation, and in relation to all other available information.”
The Medical Assessor is required to apply his clinical judgement. Section 1.5 of AMA 5 includes the following statement which is relevant to the assessment where a range of percentages applies:
“The physician’s judgment, based upon experience, training, skill, thoroughness in clinical evaluation, and ability to apply the Guides criteria as intended, will enable an appropriate and reproducible assessment to be made of clinical impairment. Clinical judgment, combining both the ‘art’ and ‘science’ of medicine, constitutes the essence of medical practice.”
It is also relevant to note that a medical assessor is an administrative decision maker and his reasons are to be considered in that light. In Bojko v ICM Property Service Pty Ltd [7] Handley AJA (with whom the other members of the Court agreed) said that the worker had failed to establish his grounds of appeal because:
“Both involved a hyper-critical approach to the reasons of the Panel which is contrary to authority and ignores the presumption of regularity which attends administrative action. The correct approach is that mandated by the joint judgment in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6, 185 CLR 259, 272 which approved the following statement of principle in a decision of the full Federal Court:
‘… a court should not be concerned with looseness in the language nor with unhappy phrasing of the reasons of an administrative decision-maker. … the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.’"
[7] At [36].
In Cole Schmidt J considered the role of treatment for a previous, well documented, injury. Her Honour said:[8]
“The section is directed to a situation where there is a pre-existing injury, or pre-existing condition or abnormality. For a reduction to be made from what has been assessed to have been the level of impairment which resulted from the later injury in question, a conclusion is required, on the evidence, that the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment.
Section 323 does not permit that assessment to be made on the basis of an assumption or hypothesis, that once a particular injury has occurred, It will always, ‘irrespective of outcome', contribute to the impairment flowing from any subsequent injuries. The assessment must have regard to the evidence as to the actual consequence of the earlier injury, pre-existing condition or abnormality. The extent that the later injury was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in section 323(2), where the required deduction 'will be difficult or costly to determine'.[9]
…
What s 323 required, however, was that the evidence be considered, so that it could be determined, firstly, what the level of impairment after the second injury was. Secondly, whether a proportion of that impairment was due to the first injury. Thirdly, what that proportion was. Undoubtedly in undertaking this exercise, the medical members of an Appeal Panel must utilise their medical judgement, knowledge and experience…”
[8] [2010] NSWSC 78 at [29] and [38].
[9] At [29]-[30].
The reference to clinical judgement is particularly important where the reason for the deduction is not an earlier injury resulting in surgery, as was the case in Cole, but the pre-existing condition of obesity.
In Ryder Campbell J said: [10]
“What s 323 requires is an inquiry into whether there are other causes, (previous injury, or pre-existing abnormality), of an impairment caused by a work injury. A proportion of the impairment would be due to the pre-existing abnormality (even if that proportion cannot be precisely identified without difficulty or expense) only if it can be said that the pre-existing abnormality made a difference to the outcome in terms of the degree of impairment resulting from the work injury. If there is no difference in outcome, that is to say, if the degree of impairment is not greater than it would otherwise have been as a result of the injury, it is impossible to say that a proportion of it is due to the pre-existing abnormality. To put it another way, the Panel must be satisfied that but for the pre-existing abnormality, the degree of impairment resulting from the work injury would not have been as great.”
[10] At [45].
Medical Assessor Burns’ reasons for the assessment and the deduction are set out at section 11(b) of the MAC. He said that the causes of sleep apnoea were laryngeal restriction and obesity. Earlier in the MAC, he referred to previous lap band surgery and Dr Rosenthal’s assessment dated 3 October 2018 and noted that Mr Pollard had a pre-injury body mass index in the obese range. Dr Gibson’s report to Dr Jefferson dated 9 September 2019 confirms that the lap band surgery was undertaken in 2002.
Dr Freiberg obtained a history that Mr Pollard did not snore before the injury but that does not mean that the injury is the sole cause of his sleep disorder. Mr Pollard has put on weight since the injury but he was obese before it. That obesity may have resulted in a sleep disorder with the passage of time.
Taking the principles in Cole and particularly Ryder, into account, the MAC shows that Medical Assessor Burns was satisfied that the pre-existing obesity made a difference to the assessment and warranted a deduction under s 323. In doing so, he was required to exercise his clinical judgement.
Though the reasons are gleaned from a reading of the MAC as a whole, we consider that Medical Assessor Burns has provided adequate reasons to explain the deduction he made.
We note that both Dr Freiberg and Dr Johnson included the shape of Mr Pollard’s airways as a reason for the s 323 deduction. Dr Frieberg observed a Mallampati class 3/4 airway, which was pre-existing, and Dr Johnson a class 3. The purpose of the scale is generally to predict the level of difficulty on a scale of 1 to 5, anticipated in endotracheal intubation and mask ventilation for anaesthesia. The higher the number, the narrower the airway and a higher score corresponds to an increased chance of obstructive sleep apnoea.
The other component of the deduction was the narrowing of the airways as a result of the laryngeal injury which Medical Assessor Burns anticipated would be assessed by Medical Assessor Williams. In doing so he has conveyed that he was alert to the danger of assessing the impairment twice. He noted earlier in his MAC that Mr Pollard was unable to use a continuous positive airway pressure (CPAP) machine to ameliorate his sleep disorder because of the laryngeal injury.
The availability of accurate information as to Mr Pollard’s weight before the injury, coupled with the shape of his airway means that there is evidence to provide a basis for the deduction and that a deduction of one-tenth in accordance with s 323(2) would be at odds with the available evidence.
For these reasons, we have determined that the assessment made by Medical Assessor Burns was open to him. In the absence of an appeal with respect to Medical Assessor Williams’ assessment, the MAC issued on 16 February 2024 should be confirmed.

[2024] NSWPICMP 466

5 June 2024