Rasho v Sealy of Australia (NSW) Pty Ltd
[2025] NSWPICMP 669
•3 September 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Rasho v Sealy of Australia (NSW) Pty Ltd [2025] NSWPICMP 669 |
| APPELLANT: | Jason Rasho |
| RESPONDENT: | Sealy of Australia (NSW) Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Rachel Homan |
| MEDICAL ASSESSOR: | David Gorman |
| MEDICAL ASSESSOR: | Christopher Oates |
| DATE OF DECISION: | 3 September 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether demonstrable error or incorrect application of criteria arising from failure to consider whether impairment resulting from worker’s consequential obstructive sleep apnoea fell within a Class 1 impairment under the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5) Table 13-4; whether error in Medical Assessor’s (MA) approach to sleep disturbance due to chronic pain and anxiety; Held – MA erred in failing to consider whether a score below 10 on the Epworth Sleepiness Scale resulted in a Class 1 impairment; as the medical dispute concerned only the degree of permanent impairment of the respiratory system due to obstructive sleep apnoea there was no basis on which to assess impairment resulting from pain or psychological symptoms; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 16 September 2024, Jason Rasho (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute in question was assessed by Professor Christopher Grainge a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 20 August 2024.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the 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, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The appellant was employed by Sealy of Australia (NSW) Pty Ltd (the respondent) as a mattress builder/machine operator. The appellant claimed that due to the heavy and repetitive nature of his workload he developed physical injuries including an injury to his lumbar spine. The appellant also claimed to have sustained a consequential obstructive sleep apnoea due to his work injury.
On 28 August 2023, the appellant made a claim for lumpsum compensation pursuant to s 66 of the Workers Compensation Act 1987 relying on assessments made by orthopaedic surgeon, Dr James Bodel and respiratory and sleep medicine physician, Dr David Freiberg.
Liability to pay lump sum compensation was disputed in a notice issued pursuant to s 78 of the 1998 Act on 14 February 2024. The respondent’s insurer relied on medico-legal reports prepared by Dr Frank Machart and Dr Andrew Dimitri. Dr Machart assessed 6% whole person impairment (WPI) at the lumbar spine. Dr Dimitri found that, as the appellant had not been seen and treated by an ear, nose and throat (ENT) surgeon as required by the Guidelines, it was not possible to provide an assessment.
Proceedings were commenced in the Personal Injury Commission (Commission) by lodgement of an Application to Resolve a Dispute on 26 March 2024. Following resolution of a liability dispute in relation to the right upper extremity, Principal Member Harris issued orders by consent on 29 April 2024, referring the matter to a Medical Assessor for assessment of the degree of permanent impairment resulting from injury at the:
(a) lumbar spine, and
(b) respiratory system (obstructive sleep apnoea).
The Commission appointed two Medical Assessors to assess permanent impairment resulting from the injury. Medical Assessor Jonathan Negus, orthopaedic surgeon, was appointed Lead Assessor and assessed assess the “lumbar spine.” Medical Assessor Christopher Grainge, respiratory physician, was appointed Non-Lead Assessor to assess the “respiratory system (obstructive sleep apnoea).”
The Lead Assessor MAC of Medical Assessor Negus and the Non-Lead Assessor MAC of Medical Assessor Christopher Grainge were issued on 20 August 2024. Medical Assessor Negus issued a consolidated MAC, comprising of a combined impairment of 7% WPI for the lumbar spine and 0% WPI for the respiratory system.
It is the Non-Lead Assessor MAC of Medical Assessor Christopher Grainge which is the subject of the current appeal.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that the worker should undergo a further medical examination. The Panel was satisfied that the Medical Assessor had erred by making an assessment on the basis of incorrect criteria. The appellant sought a re-examination in those circumstances and the Appeal Panel agreed that additional information was required in order to resolve the appeal.
Fresh evidence
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant seeks to admit the following evidence:
· report of Dr Shiva Subramanyam dated 2 July 2024.
The appellant submitted that the report and opinion of Dr Subramanyam dated 2 July 2024 ought to be taken into consideration as it outlined inconsistencies and demonstrable errors in the Medical Assessor’s findings relating to the issues of daytime alertness, weight gain and the overall symptomatology of the appellant’s obstructive sleep apnoea. The appellant submitted that the evidence was not available at the time of the Medical Assessor’s assessment.
The respondent opposed the admission of Dr Subramanyam’s report, submitting that it bore little relevance to the issues on appeal. The issues on appeal related to the Medical Assessor’s exercise of his clinical judgment and his ultimate conclusion.
The admission of fresh evidence on appeal was considered by Deputy President Fleming in Ross v Zurich Workers Compensation Insurance (Ross). In Ross, the Deputy President stated:
“A number of authorities have considered the tests at common law for the introduction of fresh evidence in appellate proceedings before the Courts. The relevant tests are firstly, that the evidence which is sought to be admitted on appeal was not available to the Appellant at the time of the original proceedings or could not have been discovered at that time with reasonable diligence, and secondly that the evidence is of such probative value that it is reasonably clear that it would change the outcome of the case (Wollongong Corporation v Cowan [1955] HCA 16; (1955) 93 CLR 435; McCann v Parsons [1954] HCA 70; (1954) 93 CLR 418; Orr v Holmes (1948) [1948] HCA 16; 76 CLR 632). These tests are addressed to the underlying principle of the need for finality in litigation and the importance of the ability of the successful party to rely on the outcome of the litigation. They are also addressed to the fundamental demands of fairness and justice in the instant case.”
In Orr v Holmes (1948) 76 CLR, at pp 640-642 the relevant principles were summarised as follows:
"… new trials will not be granted because of fresh evidence unless it places such a different complexion upon the case that a reversal of the former result ought certainly to ensue. The fact which the new evidence tends to prove, if it does not itself form part of the issue, must be well nigh decisive of the state of facts upon which the issue depends. The evidence must be so persuasive of the existence of the fact it tends to prove that a finding to the contrary, if it had been given, would, upon the materials before the court, appear to have been improbable if not unreasonable.”
It has been established that evidence should not be admitted by a Medical Appeal Panel unless it is of “substantive prima facie probative value.” In Lukacevic v Coates Hire Operation Pty Ltd [2011] NSWCA 112 at [78] Hodgson JA said:
“...in my opinion it would be reasonable for an AP not to admit evidence raising such a dispute unless that evidence had substantial prima facie probative value, in terms of its particularity, plausibility and/or independent support. Otherwise, simply by raising such a dispute, going to a matter relevant to the correctness of the certificate, a worker could put the AP in a position where it had to have a further medical examination conducted by one of its members. I do not think this would be in accord with the policy of the WIM Act.”
Dr Subramanyam is a respiratory and sleep specialist who was asked to review the appellant’s obstructive sleep apnoea by the appellant’s general practitioner (GP).
Dr Subramanyam reported that the appellant had been unable to lose weight in the context of his chronic back pain. The appellant reported ongoing issues with snoring despite treatment with a nasal spray and interrupted sleep. A treatment plan was formulated.Dr Subramanyam’s report was prepared on 7 July 2024, which was after the Medical Assessor’s examination took place but before the MAC was issued. The Appeal Panel accepts that the report was not available and could not reasonably have been obtained before the medical assessment.
The report does not, however, change the complexion of the evidence that was referred to the Medical Assessor. That evidence, which included the reports of Dr Freiberg and
Dr Dimitri, as well as treating evidence, referred to the appellant’s snoring, weight and interrupted sleep. Dr Subramanyam’s report does not suggest any material developments or significant changes in the appellant’s condition.The Appeal Panel does not accept that the report contains evidence of such probative value that it ought to be admitted. The Appeal Panel determines that the report of
Dr Subramanyam should not be received on the appeal.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
On 14 November 2022, the appellant’s GP, Dr John Zeyad Abraham, noted that the appellant was snoring at night and referred him for a sleep study.
Poor sleep was also noted by another GP seen by the appellant, Dr Milad Youkhana, in late 2022. On 7 June 2023, Dr Youkhana noted that the appellant had been sleeping well since he commenced CBD oil treatment.
The appellant underwent a sleep study on 8 June 2023. Respiratory and sleep specialist,
Dr Michael Keller, diagnosed obstructive sleep apnoea, severe in supine sleep.On 21 July 2023, Dr Youkhana noted:
“Has recently seen Respiratory Physician - and has had Sleep study with confirmed
OSA - AHI: 24.6Jason reported weight gain, since the injury, as he has not been as active
his current weight is 82 kg, BMI: 30
Reports increase snoring lately-daytime tiredness.
Under specialist care.”
The appellant’s independent expert, Dr Freiberg, prepared a medico-legal report on
18 August 2023. Dr Freiberg noted that the appellant was 34 years old at the time of his examination. The appellant had smoked a packet of cigarettes a day from the age of 25 until 31 and now vaped.The appellant reported having lung function tests by his respiratory and sleep specialist but was not told that there was any abnormality or offered treatment. The appellant did not complain of significant nasal symptomatology but had been given a nose spray by his respiratory and sleep specialist as a treatment intervention for his sleep disordered breathing when he refused other interventions. Dr Frieberg noted that the applicant was offered a mandibular advancement device and a CPAP device by his treating respiratory and sleep specialist but refused these treatment interventions stating he has such a struggle to sleep because of his pain and anxiety that he could not contemplate using any respiratory support device.
Prior to the workplace injury, the appellant had no active medical problems. His weight prior to the injury was 80 kg and was 82 kg with a BMI of 30 at the time of Dr Freiberg’s assessment.
Dr Freiberg reported that prior to the injury:
“A typical nights sleep prior to this man's workplace injury he would sleep an uninterrupted 8 hours in the prone position. This was always his preferred position. His wife would not report snoring. He would wake up refreshed. On reflection he would score 0/24 on an Epworth Sleepiness Score.”
The appellant now reported that on a typical night:
“He sleeps between 4 to 5 hours. He wakes constantly because of pain and anxiety. As a result of his lumbar back injury he finds he can sleep in the preferred prone position for only a small percentage of the night and he spends most of the time on his back. His wife reports snoring and apnoeic episodes and he has left the bedroom as a result of this. He can wake with a choking sensation. He is unrefreshed by his sleep and he feels tired and wired during the day. Some of this is a result of his hyper-agitation from his anxiety. He scores 9/24 on an Epworth Sleepiness Score.”
On examination, Dr Freiberg noted mild nasal air flow obstruction, a Mallampati Class 4 airway without tonsilomegaly, clear lung fields to auscultation, and borderline obesity.
Dr Freiberg referred to the report of the ambulatory diagnostic polysomnogram performed on the 8 June 2023. Dr Freiberg made a diagnosis of severe supine obstructive sleep apnoea and mild apnoea in the non-supine position, commenting:
“As noted in the history above he has only needed to sleep in the supine position as a result of his workplace injury. His sleep is markedly truncated and fragmented due to the combination of his insomnia, his anxiety and the development of positional severe obstructive sleep apnoea.”
Dr Freiberg concluded:
“Mr Rasho would therefore fulfil the category of a Class 1 Impairment. A Class 1 Impairment is a 1%-9% Impairment of Whole Person on table 13-4 of the above mentioned Guidelines. This results in ‘reduced daytime alertness and interferes with the ability to perform some activities of daily living.’
I would therefore classify Mr Rasho as a 9% Impairment of Whole Person due to sleep and arousal disorders. I would add 5% to this because of the long term health implications of his untreated obstructive sleep apnoea. His inability to treat his sleep disordered breathing is a direct consequence of the pain and anxiety he experiences at night as well as the inability to return to his natural prone position in sleep which diminishes his sleep disordered breathing significantly.
I would deduct 3% because of his pre-existing narrow craniofacial features (Mallampati class 4 airway).”
Dr Andrew Dimitri prepared a report for the respondent on 20 December 2023. Dr Dimitri also took a history that prior to the work injury, the appellant had normal restful sleep, sleeping eight hours per night with an Epworth score of 0. The appellant had normal daytime vigilance prior to his injury and his weight was approximately 82kg.
Dr Dimitri noted:
“Prior to his injury, he sleeps prone. Since his injury, he has had to sleep greater periods of the night supine. His current Epworth score is 11 indicating hypersomnolence and he does feel sleepy in passive situations during the day.”
It was noted that the appellant had been prescribed mometasone nasal spray. The appellant’s weight at the time of Dr Dimitri’s assessment was 85kg.
On examination, Dr Dimtiri observed that the oropharynx was crowded with a Mallampati Class 4 airway. The tonsils were Grade I.
Dr Dimitri gave the opinion:
“This patient certainly had pre-existing sleep apnoea as his weight has not changed appreciably since the injury. The symptoms of sleep apnoea are more pronounced now due to the fact that he spends more time supine. In his sleep study, he spent 42% of the night supine. This patient has overall moderate sleep apnoea, which is severe in the supine position and in the mild-moderate range in the non-supine position.”
Dr Dimitri said that he was unable to provide calculation of WPI as the appellant had not been seen by an ENT surgeon.
Medical Assessment Certificate
The Medical Assessor took a history of the injury that was consistent with the evidence before him. It was noted that the appellant developed back pain and right leg pain over time and that radiological investigations demonstrated an L4/5 disc protrusion. The appellant had undergone multiple non-surgical interventions but had developed a chronic pain disorder and psychological disorder.
The appellant was noted to have reported ongoing chronic lower back pain and right leg pain and weakness. It was recorded that the appellant weighed 88kg and estimated his pre-injury weight as between 78-81kg. The appellant was noted to have a Mallampati Class 3 airway.
The MAC recorded:
“He has prolonged latency of several hours and is prevented to getting to sleep by a combination of pain with ongoing back pain and he now finds he has to sleep on his back, as well as anxiety which induces feelings of shortness of breath as well as blurred vision, intrusive thoughts and ‘fear’. Once he gets to sleep, he wakes multiple times a night, sometimes with a choking sensation and he rises around 05:00 hours.”
The Medical Assessor diagnosed positional sleep apnoea, worse whilst supine, and sleep fragmentation secondary to a combination of pain and anxiety.
In evaluating permanent impairment, the Medical Assessor stated,
“Mr Rasho’s Epworth Sleepiness Score on the day of assessment was 9. The American Medical Association Guidelines to the Evaluation of Permanent Impairment, 5th Edition, page 4, Table 1-2 indicates ‘A restful nocturnal sleep pattern is essential to activities of daily living.’ The final paragraph on page 317 of those Guidelines indicates ‘A score of 10/24 on an Epworth Sleepiness Score is equal to excessive sleepiness or a Class II impairment.’ Mr Rasho has an Epworth Sleepiness Score of 9 and hence is below the threshold of 10/24 in the Guidelines. Although Mr Rasho does have supine predominant obstructive sleep apnoea and he now has to sleep on his back due to his work-based injury, he is not excessively sleepy during the day. He also has significant sleep fragmentation secondary to back pain and psychiatric issues, but these have been addressed by other Assessors.
As such, with Mr Rasho’s Epworth Sleepiness Score falling in the normal range and his multifactorial sleep fragmentation, I assess that there is 0% whole person impairment due to obstructive sleep apnoea.”
No deduction was made for pre-existing injury, condition or abnormality.
The Medical Assessor considered the report of Dr Freiberg, commenting:
“I note the report from Dr David Freiberg dated 18/08/2023 where Dr Freiberg assessed Mr Rasho as 11% whole person impairment. As part of this assessment,
Dr Freiberg added 5% to his whole person impairment due to the long term health implications of untreated obstructive sleep apnea; this is outside the provision of the Guidelines. He in addition deducted 3% because of pre-existing narrow craniofacial features, however there was no pre-existing impairment and this deduction is inappropriate. Dr Freiberg also classified Mr Rasho as 9% impairment of the whole person due to sleep and arousal disorders when the Guidelines state that a score of 10/24 on an Epworth Sleepiness Score is equal to excessive daytime sleepiness or Class II impairment. As a result of this, Dr Freiberg has extrapolated that a score of 9 or less is equivalent to a Class I impairment, however Class I impairment implies there is an impairment of the whole person and the Epworth Sleepiness Score is recognised to be normal at a score less than 10.In addition, were Mr Rasho to have impairment due to excessive daytime sleepiness, a significant contribution of this would be from his sleep fragmentation secondary to pain and secondary to anxiety, both of which have been separately assessed and dual counting would be inappropriate.”
Further medical examination
Medical Assessor David Gorman of the Appeal Panel conducted an examination of the worker on 26 June 2025 and reported to the Appeal Panel. That report is extracted below.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
In summary, the appellant submits that:
(a) the Medical Assessor failed to utilise proper methodology and Criteria for Rating Impairments due to Sleep and Arousal Disorders as provided in the AMA 5, Table 13-4 and section 13.3c Arousal and Sleep Disorder;
(b) the Medical Assessor failed to have due regard to the lay and medical evidence before him when making his assessment and he failed to adequately disclose a path of his reasoning, and
(c) the Medical Assessor failed to have regard to the appellant’s continuing symptoms of the sleep apnoea in terms of reduced daytime alertness, weight gain, excessive snoring and the appellant’s inability to maintain sleep, or the reported sleep arousals difficulties.
The appellant submitted that the Medical Assessor assessed the appellant’s Epworth Sleepiness Score on the day of the assessment at 9 but thereafter failed to the adequately assign the sleepiness score in the appropriate Class 1 Impairment under Table 13-4 Criteria for Rating Impairments due to Sleep and Arousal Disorder. In doing so, the Medical Assessor erred in failing to assess the appellant in accordance with the Guidelines. The appellant submitted that on the basis of the diagnosis of an obstructive sleep apnoea and an Epworth Sleepiness Score of 9, the Medical Assessor should have assessed the appellant as being in the upper range of the Class 1.
The appellant submitted that it had been accepted that he had sustained a consequential obstructive sleep apnoea condition as a result of his lumbar spine injury. The Medical Assessor found that any respiratory impairment due to excessive daytime sleepiness was significantly contributed to by sleep fragmentation secondary to pain and anxiety. The appellant submitted that this determination was not open to the Medical Assessor.
The appellant submitted that the Medical Assessor failed to have regard to the evidence of ongoing symptoms, weight gain and difficulties sleeping in the expert evidence and the treating report from lung and sleep specialist, Dr Shiva Subramanyam, dated 2 July 2024. The appellant submitted that the report of Dr Subramanyam was additional relevant information that was not available to the appellant at the time of the medical assessment and could not reasonably have been obtained by the appellant before the medical assessment.
In opposing the appeal, the respondent submitted that there was no error in the Medical Assessor assigning 0% WPI as there was no evidence before him that the appellant had been assessed and received treatment by an ENT surgeon, thereby satisfying the requirement of cl 8.9 of the SIRA Guidelines.
The respondent submitted that any score under 10 on the Epworth Sleepiness Scale is recognised as “normal” therefore, presumably not giving rise to an “impairment.”
The respondent submitted that the Medical Assessor found that there were a number of conditions contributing to the appellant’s reported sleep disturbance. The Medical Assessor provided a diagnosis of positional sleep apnoea and sleep fragmentation secondary to a combination of pain and anxiety. The terms of the referral only permitted assessment of permanent impairment resulting from the consequential obstructive sleep apnoea condition. This was said to consistent with consistent with the clinical records available, which recorded on 24 June 2021 that the appellant reported finding it hard to sleep due to anxiety. The respondent referred to the decision of a Motor Accidents Medical Review Panel in Bucca v QBE Insurance (Australia) Ltd.[1]
[1] [2024] NSWSC 1099.
The respondent submitted that the Medical Assessor was obliged to conduct a clinical assessment of the appellant as he presented on the day of the assessment taking into account the claimant’s relevant medical history and all available relevant medical information.
The respondent submitted that weight gain was irrelevant to the Medical Assessor’s task. There was no “error” in “disallowing” an assessment of permanent impairment due to the contribution from other factors such as chronic pain anxiety.
The respondent submitted that the “additional information” bore little relevance to the issues on appeal. The issue on appeal related to the exercise of the Medical Assessor’s clinical judgment. The respondent submitted that the additional material should not be admitted into evidence.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. 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.
Error
In Pitsonis v Registrar of the Workers Compensation Commission [2008] NSWCA 88 the Court considered the expression “incorrect criteria” in s 327(3)(c) of the 1987 Act, and stated:
“The expression ‘incorrect criteria’ is undefined in the Act. In Campbelltown City Council v Vegan [2004] NSWSC 1129, Wood CJ at CL referred (at [58]) to a statement in the minister’s Second Reading speech to the effect that s327(3)(c) was designed to cover circumstances where the Guides themselves had been incorrectly applied. His Honour observed (at [59]) that this tended to suggest that the ‘criteria’ upon which assessment is to be based are to be found in any relevant guides including guides issues by WorkCover. At [60] his Honour observed that this view drew support from the requirement in s322(1) that the assessment is to be made ‘in accordance with the WorkCover Guidelines.’
The Chief Judge’s decision went on appeal to this Court (Campbelltown City Council v Vegan (2006) 67 NSWLR 372, [2006] NSWCA 284). Basten JA, with whose reasons McColl JA agreed said (at 391[95]) that, while it was arguable that factual errors made by an approved medical specialist, as recorded in the Certificate, may be ‘demonstrable errors’ within s327(3)(d), they would not usually satisfy the ‘incorrect criteria’ ground. His Honour observed that the latter ground:
‘must refer to such matters as the tests set out in the Guidelines, where they are applicable.’
I agree.”
The concept of “demonstrable error” in s 327(3)(d) of the 1998 Act was discussed at length in Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324 (Vannini) (Gleeson JA with Macfarlan JA and Barrett AJA agreeing) from [76] to [92]. The Court concluded:
“That a demonstrable error must be apparent in findings of fact or reasoning contained in the medical assessment certificate, although the error may be established in part by reference to materials that were before the approved medical specialist, is consistent with the tentative remarks of Basten JA in Mahenthirarasa v State Rail Authority of New South Wales.”
The appellant asserts an error in the Medical Assessor’s application of criteria for the assessment of sleep apnoea. In particular, having found that the appellant’s Epworth Sleepiness Score on the day of assessment was 9/24, the appellant submitted that the Medical Assessor should have considered whether a Class 1 impairment of 1 to 9% WPI under AMA 5 Table 13-4 was appropriate.
The NSW workers compensation guidelines for the evaluation of permanent impairment provide guidelines for the assessment of obstructive sleep apnoea as follows:
“8.8 This section needs to be read in conjunction with AMA 5 sections 11.4 (p 259) and 13.3c (p 317).
8.9 Before permanent impairment can be assessed, the person must have appropriate assessment and treatment by an ear, nose and throat surgeon and a respiratory physician who specialises in sleep disorders.
8.10 The degree of permanent impairment due to sleep apnoea should be calculated with reference to AMA5 Table 13-4 (p 317).”
Section 13.3c provides that the clinician can evaluate sleepiness with the Epworth Sleepiness Scale and states:
“A score of 10/24 is equal to excessive sleepiness, or class 2 impairment….See Table 13-4 for impairment due to sleep and arousal disorders.”
Table 13-4 provides that a Class 1 impairment of 1%-9% impairment of the whole person applies where there is:
“Reduced daytime alertness; sleep pattern such that individual can perform most activities of daily living.”
An example of a Class 1 impairment is found at example 13-17 on p 318 of AMA 5 which refers to an individual with a diagnosis of obstructive sleep apnoea following an injury which renders him unable to exercise, leading to a weight gain of 20.25 kg and daytime somnolence. The individual is able to complete most necessary work but works less efficiently and cannot take on new projects. This was said to give rise to 9% WPI.
The Medical Assessor in the present case referred to the sentence in the final paragraph on page 317 indicating that a score of 10/24 on the Epworth Sleepiness Scale was equal to a Class 2 impairment as establishing a “threshold.” As the appellant had an Epworth Sleepiness Score of 9, the Medical Assessor found he fell below the “threshold of 10/24 in the Guidelines.”
The Appeal Panel finds that on a proper reading of AMA 5 Section 13.3c, as a whole, the sentence referred to by the Medical Assessor does not establish a “threshold.” It is clear that in circumstances where a worker has an Epworth Sleepiness Scale score below 10, consideration must still be given to whether there is a Class 1 impairment. The Medical Assessor did not turn his mind to this and, as a result, the assessment was made on the basis of incorrect criteria or is affected by demonstrable error.
Although the Appeal Panel accepts that a score below 10 on the Epworth Sleepiness Scale is regarded as being in the “normal range”, the appellant had a diagnosis of obstructive sleep apnoea and the Guidelines required the Medical Assessor to consider whether there was a Class 1 impairment.
The Appeal Panel further accepts that in order to consider whether a Class 1 impairment existed, the Medical Assessor was obliged to consider the effect of the appellant’s obstructive sleep apnoea on his activities of daily living. Due to the approach taken by the Medical Assessor to section 13.3c and Table 13-4, the history pertaining to such matters recorded in the MAC was inadequate. As a result, the Appeal Panel considered that a
re-examination of the appellant was necessary.
Sleep disturbance due to pain and anxiety
The Appeal Panel notes that the appellant’s submissions also take issue with the Medical Assessor’s comments suggesting that the appellant had significant sleep fragmentation secondary to back pain and psychiatric issues, but these had been addressed by other Assessors.
The Appeal Panel agrees that the Medical Assessor incorrectly assumed that the appellant’s psychological symptoms had been assessed by another Assessor. The only matters referred for assessment were the lumbar spine (assessed by Medical Assessor Negus) and the respiratory system (obstructive sleep apnoea).
The Appeal Panel does not agree, however, that there was any error in suggesting that consideration of sleep fragmentation or daytime somnolence caused by back pain and anxiety ought to be excluded.
Paragraph 1.12 of the NSW workers compensation guidelines for the evaluation of permanent impairment excludes the assessment of impairment under AMA 5 Chapter 18 due to chronic pain except in relation to complex regional pain syndrome (CRPS):
“Conditions associated with chronic pain should be assessed on the basis of the underlying diagnosed condition, and not on the basis of the chronic pain. Where pain is commonly associated with a condition, an allowance is made in the degree of impairment assigned in the Guidelines.”
The Appeal Panel also notes that s 65A (2) of the 1987 Act provides:
“In assessing the degree of permanent impairment that results from a physical injury or primary psychological injury, no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury.”
The medical dispute referred to the Medical Assessor concerned only the degree of permanent impairment of the “respiratory system” resulting from the accepted consequential obstructive sleep apnoea condition. There was no basis for the Medical Assessor to assess impairment resulting from other causes, such as back pain and psychological symptoms.
Appropriate assessment and treatment by an ENT surgeon and a respiratory physician
The respondent has drawn attention to paragraph 8.9 of the NSW workers compensation guidelines for the evaluation of permanent impairment, which relevantly provides that before permanent impairment can be assessed, the worker must have appropriate assessment and treatment by an ENT surgeon and a respiratory physician who specialises in sleep disorders.
The respondent also noted that Dr Dimitri indicated in his report that he was unable to provide calculation of WPI as the appellant had not been seen by an ENT surgeon.
The evidence indicates that the appellant underwent an overnight sleep study performed on 8 June 2023 by Dr Michael Keller a specialist in respiratory and sleep medicine. The appellant slept for 271 minutes with a spontaneous arousal index of four per hour. In the supine position, his respiratory disturbance index was 40 per hour. In the non-supine, it was
14 per hour. His overall arousal index due to respiratory events was nine per hour. As a result of these special investigations, Dr Keller diagnosed moderate obstructive sleep apnoea, severe in supine sleep.The history recorded by Dr Freiberg was that the appellant also had lung function tests by his respiratory and sleep specialist and he was not told that there was any abnormality or offered treatment. Dr Freiberg noted that the appellant did not complain of significant nasal symptomatology, but he had been given a nose spray by his respiratory and sleep specialist as a treatment intervention for his sleep disordered breathing when he refused other interventions. A similar history was recorded by Dr Dimitri.
The Medical Assessor recorded that the appellant’s sleep physician had suggested CPAP therapy or a mandibular advancement device. The appellant declined both of those on the basis that they would make him more anxious overnight.
The Appeal Panel accepts that the appellant has had assessment and treatment by a respiratory physician who specialises in sleep disorders.
The Appeal Panel also accepts that there is no report from an ENT surgeon in the materials before the Medical Assessor. The appellant did, however, advise Medical Assessor Gorman that he had seen an ENT surgeon who suggested surgery for septal deviation.The Appeal Panel notes that surgical treatment of the septal deviation is unlikely to change the appellant’s sleep apnoea significantly nor would it change the degree of impairment.
In these circumstances, the Appeal Panel is prepared to accept that the appellant has had appropriate assessment and treatment by relevant specialists as required by paragraph 8.9 of the Guidelines.
Re-examination
The re-examination report of Medical Assessor Gorman found as follows:
“HISTORY
Occupation/Work Duties:
Mr Rasho is a 36 year old man.
He was a Mattress Machine Operator since 2014 up until 2021. He has not worked since he was terminated from this employment.
Onset of symptoms/Sequence of events/Mechanism of injury:
Mr Rasho was working as a Mattress Manufacturing Technician when he initially had problems with his right wrist and developed De Quervain’s tenosynovitis in 2017.
He had surgery for this and recommenced work in a different section of the factory.
In mid 2020, he started noticing back pain which worsened over time. He went on to get investigations which demonstrated an L4/5 disc protrusion.
Initial treatment received:
He had multiple conservative interventions including cortisone injection, oral medication, physio, chiropractic treatment and neurosurgical review which advised surgical intervention would be unhelpful.
Subsequent Progress:
His back pain leading to right leg pain continued.
After alleged bullying he reported that he developed anxiety and panic attacks. Due to panic attacks and anxiety he often has times where he ‘feels as though I am suffocating.’
He was terminated from employment in 2021.
Late in 2022 or early in 2023, Mr Rasho consulted his General Practitioner as he was having problems initiating and maintaining sleep. He was then referred to a Sleep Physician who organised for him to have an overnight sleep study in June 2023.
Mr Rasho had an overnight sleep study performed on 08/06/2023. He slept for 271 minutes with a spontaneous arousal index of 4/hour. In the supine position, his respiratory disturbance index was 40/hour. In the non-supine, it was 14/hour. His overall arousal index due to respiratory events was 9/hour.
The conclusion was that he has mild non-supine obstructive sleep apnoea and severe supine obstructive sleep apnoea.
His Sleep Physician suggested to him that he had obstructive sleep apnoea and suggested CPAP therapy or a mandibular advancement device. Mr Rasho declined both of those on the basis that they would make him more anxious overnight. He had also suggested weight loss, positional cushion therapy and ceasing vaping.
He was not happy with the assessment by Dr Dimitri (the Sleep Physician). He said that ‘I did not feel welcome’ and ‘he treated me badly.’
He has seen an ENT surgeon who suggested surgery for septal deviation. He usually needs to breathe through his mouth. He snores now and says that before stopping work he did not snore.
Current Status:
Mr Rasho describes that he has ongoing chronic lower back pain radiating down both legs.
His right wrist feels ‘altered’ and only causes him occasional pain.
If he shops with his wife he needs to frequently sit down.
He does very little walking. He lies down a lot he says although he reports that this can make his back pain worse – he said that he needs to walk more.
He retires to bed around 10 and 11 pm. He has prolonged latency of several hours and is prevented from getting to sleep by a combination of back pain as well as anxiety which induces feelings of shortness of breath, blurred vision and intrusive thoughts.
Once he gets to sleep, he wakes multiple times a night, sometimes with a choking sensation and he rises around 5am.
He gets 3-5 hours sleep he reports.
He wakes in the morning with back pain, he struggles to get down the stairs because of back pain.
He is restricted in his social activities and his anxiety causes him to restrict his driving.
Present Work Status:
He is on the Disability Support Pension. He is not aware of exactly what conditions were reported in support of him getting the DSP.
Present Activities:
Mr Rasho describes his wife as his carer and she helps him with dressing and activities of daily living due to back pain and leg pain.
His wife does not work. She gets the children ready for school.
Present Treatment:
Azonaire 2 puffs each nostril nocte
THC/CBD oil at night before sleep – costing $150 per month
Mobic daily
Zaldiar (paracetamol and tramadol)
Past Medical History:
He had a cholecystectomy in 2019.
Personal/Social History:
Mr Rasho is married with two daughters aged 2 and 7 years.
He occasionally vapes.
He has alcohol only rarely.
EXAMINATION
Physical Examination:
His estimated weight on the day of assessment was 87kg he reported.
He stated that in 2020 his weight was 80-82kg.
In 2021, because of anxiety, he had trouble eating and his weight dropped to 79kg. It has gradually increased up to now being 87kg.
Epworth Sleepiness Scale:
Mr Rasho does not fall asleep during the day. He reports that he however ‘zones out’ when he is sitting talking quietly or sitting inactive in a public place. He has not fallen asleep at the traffic lights but has ‘zoned out’ so that he is beeped by traffic behind him.
Accepting that this ‘being zoned out’ is equivalent to ‘nodding off’, he has a score of 9 as he has a slight chance of nodding off while reading, watching TV, sitting inactive, as a passenger in a car, when sitting quietly and while stopped in a car at traffic lights. He has moderate chance of ‘zoning out’ if he lies down to rest.
Summary and Assessment:
Mr Rasho does have a sleep disorder – obstructive sleep apnoea particularly when supine.
He has gained weight following the injury which may have worsened the condition, however, the weight gain is less than 10%. His septal deviation also contributes in that it means that he needs to mouth breathe more often.
His sleep, however, is mainly disturbed by his pain, anxiety and depression.
He does not have excessive daytime sleepiness – his Epworth Sleepiness Scale is only 9 and that is accepting that he never drops off to sleep, only ‘zones out.’
The appellant’s back pain and the psychiatric issues significantly contribute to his sleep disturbance and daytime sleepiness, however, it is not open to me to assess impairment other than impairment of the respiratory system due to obstructive sleep apnoea.
The NSW Workers Compensation Guidelines direct the assessor to use Table 13-4 on page 317 of the AMA 5th Edition Guides. He has a Class 1 impairment (range 1-9%).
For the reasons given above, I assess him at the lower 1/3 of the range (3% WPI).
Review of Assessor Grainge’s assessment:
He also suggested an Epworth Score of 9 and Class impairment. He accepted that he had supine obstructive sleep apnoea but noted sleep fragmentation secondary to back pain and psychiatric issues – this is the same as my assessment. He stated ‘with Mr Rasho’s Epworth Sleepiness Score falling in the normal range and his multifactorial sleep fragmentation, I assess that there is 0% whole person impairment due to obstructive sleep apnoea.’
I believe that 0% in this circumstance is too low - the fact is he now snores and is having sleep disturbance as a result of obstructive sleep apnoea, which has been accepted as causally related to his work injury.”
The Appeal Panel accepts and adopts Medical Assessor Gorman’s re-examination findings.
The Appeal Panel notes that the appellant has submitted that he should be assessed as being in the upper range of the Class 1 and referred to the example of a Class 1 impairment at 13-17 on p 318 of AMA 5. The Appeal Panel considers that the appellant’s circumstances can be distinguished from the example, where there was a more significant weight gain due to injury, no suggestion of sleep disturbance or sleepiness attributable to causes other than obstructive sleep apnoea and sleepiness affecting the worker’s ability to take on new projects
The Appeal Panel notes that although Dr Frieberg also found the appellant had a Class 1 impairment, he added 5% WPI because of the long-term health implications of his untreated obstructive sleep apnoea and the appellant’s inability to treat his sleep disordered breathing due to the pain and anxiety he experiences at night. The Appeal Panel is not satisfied that
Dr Freiberg’s approach was consistent with the Guidelines or the medical dispute referred to the Medical Assessor.The Appeal Panel notes that Dr Dimitri did not provide an assessment of impairment on the understanding that the appellant had not been seen by an ENT surgeon. As indicated above, the Appeal Panel is satisfied that the appellant has been seen by an ENT surgeon.
No submissions were made by the parties with respect to the Medical Assessor’s approach to s 323 of the 1998 Act. The Medical Assessor commented that there was no pre-existing impairment and so no deduction was appropriate. In the circumstances, the Appeal Panel finds no basis to interfere with this aspect of the MAC.
For the reasons above, the Appeal Panel has determined that the Non-Lead Assessor MAC issued on 20 August 2024 by Medical Assessor Grainge and the Consolidated MAC issued by Medical Assessor Negus should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W2505/24 |
Applicant: | Jason Rasho |
Respondent: | Sealy of Australia (NSW) Pty Ltd |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Non-Lead Medical Assessment Certificate of Medical Assessor Grainge and the Consolidated Medical Assessment Certificate of Medical Assessor Negus and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| Lumbar spine | 21/8/20 | Paragraphs 4.34 & 4.35 | DRE – Table 15-3, P.384 | 8 | 1/10 | 7 |
| Respiratory system | 21/8/20 | Chap 13 Table 13.4 | 3 | nil | 3 | |
| Total % WPI (the Combined Table values of all sub-totals) | 10% WPI | |||||
0
9
0