Southern Stainless Steel Pty Ltd v Amos
[2024] NSWPICMP 822
•3 December 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Southern Stainless Steel Pty Ltd v Amos [2024] NSWPICMP 822 |
| APPELLANT: | Southern Stainless Steel Pty Ltd |
| RESPONDENT: | Grant Amos |
| APPEAL PANEL | |
| MEMBER: | Carolyn Rimmer |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Gregory Kaufman |
| DATE OF DECISION: | 3 December 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; worker referred to Lead Assessor for assessment of a sleep disorder, non-lead assessor for assessment of lumbar spine and a second non-lead assessor for assessment of the skin (psoriasis); worker conceded that Lead Assessor incorrectly applied the combined values chart and assessment of impairment for sleep disorder is 12% whole person impairment (WPI) not 13% WPI; appellant submitted that Lead Assessor failed to consider the evidence before him and make a deduction pursuant to section 323 for a pre-existing condition; Panel held that failure to consider reports of respiratory physicians, including Home Polysomnography Sleep Study, and clinical notes in the two years prior to the work injury when considering whether to make a deduction under section 323 was a demonstrable error; Panel determined that a deduction of one half should be made for a pre-existing condition; worker conceded that there was a typographical error and the correct DRE category for the lumbar spine was DRE II; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 1 August 2024 Southern Stainless Steel Pty Ltd (the appellant) lodged two Applications to Appeal Against the Decision of a Medical Assessor.
Three medical assessors had been appointed to assess the whole person impairment (WPI) of the respondent worker, Grant Amos (Mr Amos), resulting from an injury on
22 September 2020. Dr Jonathan Negus, Orthopaedic Surgeon, was appointed as Non-Lead Medical Assessor (Medical Assessor Negus) to assess the lumbar spine. Dr John Giles, Plastic and Reconstructive Surgeon, was appointed as Non-Lead Medical Assessor (Medical Assessor Giles) to assess the skin/TEMSKI (psoriasis). Professor Christopher Grainge, Respiratory Physician, was appointed as Lead Medical Assessor (the Lead Assessor) to assess the respiratory system (obstructive sleep apnoea).The Non-Lead Assessor Medical Assessment Certificates (MAC) of Medical Assessor Giles and Medical Assessor Negus were issued on 4 July 2024. Medical Assessor Giles assessed 8% WPI in respect of the skin injury. Medical Assessor Negus assessed 7% WPI in respect of the lumbar spine injury.
The Lead Assessor issued a consolidated MAC on 4 July 2024, assessing 26% WPI comprising of 13% WPI in respect of the respiratory system, 7% WPI in respect of the lumbar spine and 8% WPI in respect of the skin.
The appellant has appealed against the MAC of Lead Assessor dated 4 July 2024 (M1-W12/24) and the MAC of Medical Assessor Negus dated 4 July 2024 (M2-W12/24).
The appellant in both appeals 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 in the Lead MAC of the Lead Assessor and in the non-lead MAC of the Medical Assessor Negus.
The delegate referred the appeals to the Medical Appeal Panel (Appeal Panel) for determination with the Appeal Panel to deal with both of Southern Stainless Steel Pty Ltd appeals (M1-W12/24 and M2-W12/24).
The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 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 lodged an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (Commission) on 22 December 2023 in which he claimed an amount of $143,750 in respect of 41% whole person impairment (WPI) of the lumbar spine, left lower extremity, right lower extremity, respiratory system and TEMSKI/scarring as a result of the injury on 22 September 2020.
In a Direction for Production Order (DPO) dated 14 February 2024, Member Homan made orders including the following:
“6. The matter is remitted to the President for referral to a Medical Assessor for assessment as follows:
Date of injury: 22 September 2020
Body parts / systems: Lumbar spine
Respiratory system (obstructive sleep apnoea) - consequential
Skin / TEMSKI (psoriasis) consequential
Method: Whole Person Impairment.”
As noted above, the Commission appointed three Medical Assessors to assess WPI resulting from injury on 22 September 2020.
In the Referral for Assessment of Permanent Impairment to Medical Assessor dated
26 March 2024, the Lead Assessor was directed to assess the respiratory system, Medical Assessor Negus was directed to assess the lumbar spine and Medical Assessor Giles was directed to assess “skin – TEMSKI – psoriasis”.The Lead Assessor examined Mr Amos on 31 May 2024 and assessed 13% WPI of the respiratory system. Medical Assessor Negus examined Mr Amos on 1 May 2024 and assessed 13% WPI of the 7% of the lumbar spine. Medical Assessor Giles examined
Mr Amos on 1 May 2024 and assessed 8% WPI of the skin. The total WPI, as a result of the injury on 22 September 2020, was 26%.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for Mr Amos to undergo a further medical examination because there was sufficient information upon which to make a determination.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessors for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessors that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
The appellant’s submissions include the following:
Appeal 1 - M1- W12/24
(a) Ground 1 - The MAC of the Lead Assessor contains calculation errors in terms of the assessment of WPI applicable to the consequential obstructive sleep apnoea condition, which affected the final assessment of WPI.
(b) The Lead Assessor has incorrectly applied the Combined Values Chart of the AMA-5. When correctly calculated, the assessment of impairment would equate to 12% WPI and not 13% WPI as recorded in the MAC. This is an obvious calculation error.
(c) Ground 2 - The Lead Assessor erred in failing to appropriately consider the evidence and apply s 323 of the 1998 Act and make a deduction from his assessment when the evidence before him supported the making of a deduction. The Lead Assessor incorrectly applied s 323 of the 1998 Act in failing to make a deduction for a confirmed pre-existing obstructive sleep apnoea condition.
(d) The material before the Lead Assessor confirmed Mr Amos had been diagnosed with a moderate sleep apnoea condition as of 4 September 2019. This diagnosis was confirmed in a sleep study dated 15 August 2019. Mr Amos was reviewed by Dr Teresa Louie, Respiratory Specialist, who in reports of 7 July 2020 and
25 August 2023 (sic), recorded the ongoing symptoms and adverse effects the sleep apnoea condition was having on Mr Amos’s quality of sleep and functioning.(e) In terms of the application of s 323, Elcheikh v Diamond Formwork (NSW) Pty Ltd (in Liq) [2013] NSWSC 365, referring to Cole v Wenaline Pty Ltd [2010] NSWSC 78 set out three steps for determining whether a deduction should be made pursuant to s 323 of the 1998 Act. The first is to determine the extent of impairment following the work injury. The second is to determine whether a proportion of that impairment is due to a previous injury, or pre-existing condition or abnormality. The final step is to determine the extent or proportion of that contribution.
(f) The material before the Lead Assessor confirmed the presence of a pre-existing obstructive sleep apnoea condition which, according to the treating evidence was impairing Mr Amos’ day-to-day functioning and quality of sleep. In the circumstances, a s 323 deduction should have been made and the Lead Assessor erred in declining to do so.
(g) The MAC of the Lead Assessor discloses demonstrable errors as contemplated by s 327(3)(d) of the 1998 Act.
(h) The Lead Assessor failed to provide adequate reasoning for his ultimate conclusions made in the MAC issued 4 July 2024. A Medical Assessor is required to disclose the actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law (Wingfoot v Australia Partners Pty Ltd v Kocak [2013] HCA 43).
(i) The MAC fails to provide an adequate path of reasoning in relation to the refusal to make a s 323 deduction from the assessment. The reasoning provided by the Lead Assessor in terms of the “Section 323” issue is deficient in terms of the material that was before him.
(j) Both Dr Freiberg and Dr Johnson had elected to make a s 323 deduction. The material of the treating doctors before the Lead Assessor supported and confirmed a diagnosis of a pre-existing obstructive sleep apnoea condition. In the circumstances, the Lead Assessor was required to provide more extensive reasoning as to why he considered a s 323 deduction was not appropriate in the circumstances.
(k) Further, having regard to the Lead Assessor’s failure to address the relevant pre-injury treating material as contained within the appellant’s Application to Admit Late Documents filed 21 March 2024, there is also a demonstrable error. The Lead Assessor failed to take into account relevant material which confirmed a pre-existing and pre-injury diagnosis of obstructive sleep apnoea. There is no commentary by the Lead Assessor in relation to the pre-injury diagnosis of obstructive sleep apnoea condition and the treatment being sought by Mr Amos for this condition.
(l) Having regard to the above, the MAC of the Lead Assessor discloses that the assessment was made on the basis of incorrect criteria and contain demonstrable errors as contemplated by s327(3)(c) and (d) of the 1998 Act.
Appeal 2 – M2 - W12/24
(m) Ground 1 - Medical Assessor Negus provided an assessment of 7% WPI referable to the lumbar spine.
(n) Contained within the MAC of Medical Assessor Negus, there is an obvious error on page 5 and the table of WPI. It is incorrectly recorded in the table that the assessment was in accordance with DRE III, instead of DRE II.
(o) This is an obvious typographical error, however, it should be corrected as the error was reproduced in the consolidated MAC of the Lead Assessor, wherein DRE III is again incorrectly referenced (instead of DRE II).
(p) The Appeal Panel should review and reconsider the matters raised above in respect of the assessment by the Lead Assessor and correct the obvious typographical error in the MAC of Medical Assessor Negus.
The respondent’s submissions include the following:
Appeal 1 - M1- W12/24
(a) Ground 2 - The Lead Assessor turned his attention to the issues in dispute and has provided a very detailed examination and reasoning that is contained within the MAC issued in the proceedings.
(b) In reading the comments by the Lead Assessor in respect of Dr Freiberg’s report of 30 March 2023, and when considering the detailed medical examination and MAC as a whole, it is clearly apparent that the Lead Assessor provided detailed reasoning in respect of any perceived divergence in the documentation and medical evidence provided to him in the Commission’s referral. In Soulemezis v Dudley (Holdings )Pty Ltd (1987) 10 NSWLR 247 it is noted that the reasons provided need not be extensive or provide a detailed explanation of the criteria applied. In Mahenthirarasa v State Rail Authority of NSW & Ors [2007] NSWSC 22 it is noted that a demonstrable error must be one for which there is no information or material to support the finding of the Medical Assessor and that a demonstrable error does not exist where there is merely a difference in opinion.
(c) The Lead Assessor was briefed with all relevant documents, evidence, factual, medical, and medical expert reports which were listed in the referral from the Commission. It appears from the MAC that the Lead Assessor provided his assessment having read and considered all evidence put before him in the matter. There is no indication that the Lead Assessor failed to engage with the documents and materials provided and relevant to the issues in dispute in the proceedings. Rather, it appears the Lead Assessor Grainge provided detailed and considered reasoning in the MAC and in relation to his assessment of Mr Amos’ injuries, disabilities, and impairment.
(d) The detailed history of injury, treatment, examination of symptoms, explanation, and comments provided by the Lead Assessor throughout the MAC demonstrate that the Lead Assessor has considered the evidence and documents put to him in the proceedings. Further, the Lead Assessor noted that in making his assessment he took into account: “A thorough history, a comprehensive physical examination, a review of the documentation made available by the Personal Injury Commission with reference to the SIRA Guidelines (2021 and AMA 5”.
(e) In Golijan v Motor Accidents Authority of NSW [2012] NSWSC 1106 it was found that the rules do not give rise to any express obligation on the part of a Medical Assessor to provide, within their reasoning, reference to specific materials or reports. The appellant’s assertion that the Lead Assessor gave no consideration to any prior medical history or asserted prior sleep apnoea condition is unfounded in the circumstances, and it is apparent the Lead Assessor has turned his mind to the issue and provided detailed reasoning in respect of any divergence in opinion.
(f) There is no indication from the MAC that the Lead Assessor failed to consider the issues and give weight to all the materials and evidence put to him and conduct a thorough and well-reasoned investigation in accordance with the rules.
(g) The Lead Assessor was under no obligation to make any deductions in respect of any prior medical history relevant to Mr Amos and that there is no indication that the Lead Assessor failed to engage appropriately with all evidence put to him; or in any way failed to conduct a thorough and well-reasoned assessment of Mr Amos’s permanent impairment and injuries as relevant to his consequential sleep disorder condition. The Lead Assessor provided a correct assessment of Mr Amos and his degree of impairment as relating to his area of expertise as a medical assessor and medical expert doctor, and Mr Amos’ consequential sleep disorder condition injury.
(h) The Lead Assessor made his assessment based on the correct criteria. It is submitted the Lead Assessor provided adequate reasons and based his assessment on his examination, expertise as a specialist doctor and Medical Assessor, and the facts and evidence put before him in the referral from the Commission.
(i) Calculation Errors – Mr Amos has undergone extensive treatment from various specialists and doctors from different specialties since the date of his injury, including injections, radiofrequency ablation, pain programs, radiological investigations, and medications, which clearly establishes that Mr Amos has suffered significant permanent impairment and loss of the use of the body parts which were referred to the Medical Assessors for WPI assessment.
(j) Mr Amos has also attended assessment with various IME doctors, and it is noted that extensive factual, medical, and medical expert evidence has been served in the matter and provided to the Medical Assessors. In the circumstances, there appears to be no indication that the Medical Assessors provided examinations or assessments which are, in anyway, substantially inconsistent with the evidence., It would be highly unlikely that any re-assessment or review by the Appeal Panel would eventuate in a different result than the one already produced in the current proceedings.
(k) Ground 2 - Mr Amos accepts that the MAC of the Lead Assessor contained a miscalculation of the overall WPI in respect of the impairment for sleep and respiratory system injuries. The appropriate recourse in the circumstances is that the WPI as contained within the MAC of the Lead Assessor be re-calculated to correct the inaccuracy with the consent of the parties.
Appeal 2 - M1- W12/24
(l) Mr Amos consents to the correction of any typographical errors identified within the MAC of Medical Assessor Negus. The most appropriate course of action is that any typographical errors identified within the MAC of Medical Assessor Negus be corrected without any referral to the MAP.
(m) Noting the above submissions, the appellant has failed to make out at least one of the grounds identified and pleaded in relation to s 327 of the 1998 Act.
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.
Appeal 1 – M1-W12/24
Ground 1 – calculation errors
The appellant submits that the Lead Assessor incorrectly applied the Combined Values Chart of the AMA-5 and that when correctly calculated, the assessment of impairment would equate to 12% WPI and not 13% WPI as recorded in the MAC. The appellant submits that this is an obvious calculation error.
Mr Amos accepts that the MAC of the Lead Assessor contained a miscalculation of the overall WPI in respect of the impairment for sleep and respiratory system injuries.
The Appeal Panel is satisfied that the Lead Assessor made a calculation error when he applied the Combined Values Chart and that the assessment of the impairment for the sleep disorder is 12% WPI and not 13% WPI as recorded in the MAC.
Ground 2 – assessment of impairment with respect to the sleep disorder and failure to apply s 323
The appellant submits that the Lead Assessor erred in failing to appropriately consider the evidence and apply s 323 of the 1998 Act and thereafter, make a deduction from his assessment when the evidence supported the making of a deduction. The appellant submitted that the Lead Assessor failed to provide an adequate path of reasoning for his decision not to make a s 323 deduction from his assessment.
Under “Present symptoms” the Lead Assessor wrote:
“In terms of current sleep, Mr Amos retires to bed around 21:30 hours to 22:30 hours. He has variable latency depending on what he described as his stress levels which can be from 30-60 minutes. He uses his CPAP nightly and usually wakes in the early morning around 03:00 hours or 04:00 hours and from then until he rises at around 08:00 hours has restless sleep. He mentioned that the restlessness was due to rumination regarding especially financial issues and there was no mention of pain as a significant contributor to his disrupted sleep. Whilst he is using CPAP, he has no issues with snoring or witnessed apneas”.
Under “Details of any previous or subsequent accidents, injuries or condition”, the Lead Assessor wrote:
“Prior to Mr Amos’ work-based injury, he would generally retire to bed around 21:00 hours and have a less than 30 minutes sleep latency. He does not recall waking overnight but usually get up (sic) around 06:00 hours for work. He recalls feeling waking refreshed. He had no complaints regarding snoring or any witnessed apneas. His self-reported weight prior to his work-based accident was around 86kg”.
Under “Findings on Physical Examination”, the Lead Assessor wrote:
“Mr Amos was 173cm tall, weighing 91kg.
He had a Mallampati Class III airway. There were no peripheral stigmata of respiratory disease. Chest expansion, percussion note and breath sounds were all normal.
Heart sounds were dual with no murmurs. JVP was not visible at 90° and there was no peripheral oedema.
Mr Amos’ Epworth Sleepiness Score was 14. Of note, when he initially completed the questionnaire he self-scored as 21, but it was apparent that Mr Amos was interpreting the dozing question in the scale as feeling sleepy rather than actually falling asleep and when this was explained, he re-completed the questionnaire, getting a score of 14. Mr Amos gave a good history of dozing or sleeping most afternoons, falling asleep on trains or as a passenger in cars”.
Under “Details and Dates of Special Investigations”. The Lead Assessor wrote:
“On 26/09/2022, Mr Amos underwent a diagnostic sleep study. He slept for 301 minutes. Sleep latency was 31.5 minutes. REM latency was prolonged. Sleep efficiency was 65% and REM sleep was reduced at 9%. His respiratory disturbance index was 45 with 11% of sleep time spent below oxygen saturations of 90%.
On 24/10/2022, Mr Amos underwent a CPAP titration study and 10cm water CPAP reduced his respiratory disturbance index from 45/hour to 3/hour and also normalised his oxygen saturations. Despite his CPAP therapy, his sleep efficiency was still only 60% with ongoing spontaneous arousals recorded”.
The Lead Assessor made a diagnosis of obstructive sleep apnoea on treatment.
Under “Evaluation of Permanent Impairment”, the Lead Assessor wrote:
“e) Is any proportion of loss of efficient use or impairment or whole person
impairment, due to a pre-existing injury, abnormality or condition?
There is no pre-existing impairment.
f) If so, please indicate which body part is affected by the pre-existing injury,
abnormality or condition.
Not applicable.”
Under “Reasons for Assessment” the Lead Assessor wrote:
“a) My opinion and assessment of whole person impairment:
Respiratory system (obstructive sleep apnoea): 13%.
In making that assessment I have taken account of the following matters:
A thorough history, a comprehensive physical examination, a review of the
documentation made available by the Personal Injury Commission with reference to the SIRA Guidelines (2021) and AMA-5.
b) An explanation of my calculations (if applicable):
Mr Amos has an Epworth Sleepiness Score of 14 and is using nocturnal CPAP. His ongoing daytime somnolence is interfering with his activities of daily living to a degree and as sated (Sic) in the American Medical Association Guidelines to the Evaluation of Permanent Impairment, 5th Edition ‘A score of 10/24 on the Epworth Sleepiness Score is equal to excessive sleepiness or Class II impairment’. The Guidelines also state that “A Class II impairment is a 10% -29% impairment of the whole person due to sleep and arousal disorders”. Mr Amos’ symptoms are at the lower end of the Class II range and would award 10% whole person impairment due to his sleep and arousal disorder.
In addition, he is dependent on nocturnal CPAP therapy which is moderately intrusive and he will require ongoing. Hence, there is an adjustment of 2% for ongoing treatment.
c) My brief comments regarding the other medical opinions and findings submitted
by the parties and, where applicable, the reasons why my opinion differs:
I note the report of Dr David Freiberg dated 30/03/2023 where he states that Mr Amos has a 25% impairment of the whole person due to sleep and arousal disorders. Of note, on that day of assessment, Mr Amos had an Epworth Sleepiness Score of 23. As above, I noted that Mr Amos’ interpretation of the Epworth Sleepiness Score was initially in error and it does not appear that Dr Freiberg recognised this.
Dr Freiberg also deducts 5% because Mr Amos had a pre-existing narrow upper airway and was known to intermittently snore, however Mr Amos did not have a pre-existing impairment and therefore this is inappropriate.
Dr Freiberg did not take into account an adjustment for treatment.”
The Appeal Panel reviewed the evidence in this matter.
Dr David Freiberg, Respiratory and Sleep Physician, in a report dated 30 March 2023, noted that on a typical night sleep prior to his injury Mr Amos would sleep on either his side or his back. He wrote:
“He would have an uninterrupted 8 hours sleep. His wife would occasionally hear snoring but no apnoeic episodes. He would wake refreshed. On reflection he would score 3/24 on an Epworth Sleepiness Score. There were no features to suggest periodic limb movement disorder. As a result of his workplace injury he sleeps more on his back. He retires at 8 pm and he takes approximately 30 minutes to fall asleep. He can then sleep between 1 and 3 hours before he wakes. He can wake from pain. He can wake from choking episodes. He can wake from restless leg movements. He reports he is in the bedroom for 11 hours but he sleeps on average 3 to 4 hours. He is unrefreshed by his sleep. He scores 15/24 on an Epworth Sleepiness Score. He reports his hypersomnolence affects his activities of daily living in his ability such as undertake house work or concentrate during a conversation. He is concerned his hypersomnolence affects his driving. He does not believe that he will be able to return to work with the persistent hypersomnolence he experiences.
On examination Dr Freiberg noted that Mr Amos had a Mallampati class 4 airway, mild nasal air flow obstruction and clear lung fields to auscultation and was borderline obese.
Dr Freiberg referred to a Diagnostic Polysomnogram on 29 September 2022 and reported this sleep study showed severe sleep truncation and fragmentation due to chronic pain and the development of severe sleep disordered breathing from upper airway obstruction and hypoventilation. Dr Freiberg considered that the latter has been precipitated by his workplace injury because of the need to sleep in the supine position and the use of respiratory suppressant medication (Lyrica) and muscle relaxant medication (Norflex). He noted that reflecting the progression of his sleep disordered breathing was that his wife now reported frequent snoring and apnoeic episodes, and his Epworth Sleepiness Score increased from 3/24 to 15/24. Dr Freiberg noted that increase was from the normal range to the moderately severely hypersomnolent range.Dr Freiberg noted that prior to the workplace injury Mr Amos had a congenitally narrow upper airway which was Mallampati class 4. Dr Freiberg wrote:
“However he was a side sleeper. He would have an uninterrupted 8 hours sleep. His wife reported only occasional snoring and no apnoeic episodes. He would wake refreshed and he scored 3/24 on an Epworth Sleepiness Score.
With the need to sleep more in the supine position from his back injury and the respiratory suppressants and muscle relaxant medications this man progressed to severe sleep apnoea as described by his wife and objectively measured on a Diagnostic Sleep Study. His sleep was severely fragmented with a combination of awakenings due to pain and arousals due to respiratory events.
The sleep disordered breathing was effectively treated but his sleep duration remained at approximately 50% of the pre-injury sleep time and his Epworth Sleepiness Score remained markedly elevated at 23/24”.
Dr Freiberg assessed Mr Amos as a Class 2 Impairment on an Epworth Sleepiness Score. Dr Freiberg wrote:
“With an Epworth Sleepiness Score of 23/24 this would affect Mr Amos's ability to effectively function in the home or workplace and it would have significant implications for his ability to drive safely. I would therefore classify him as a 25% Impairment of Whole Person due to sleep and arousal disorders. I would deduct 5% because he had a pre-existing narrow upper airway (Mallampati Class 4) and was known to intermittently snore. I would therefore classify him as a 20% Impairment of Whole Person due to sleep and arousal disorders”.
Dr Anthony Johnson, Respiratory and Sleep Physician, in a report dated 28 August 2023, noted that prior to the injury, Mr Amos did snore, and his wife had commented that he stopped breathing occasionally. Dr Johnson wrote:
“He slept for eight hours usually on either side and had an uninterrupted sleep. He would usually get up about 7am. He was not excessively tired during the day. Subsequent to his Injury he has had problems with sleep and now goes to bed about 9pm, has some trouble initiating sleep and has to sleep on his back or right side; he is not able to sleep on his left due to pain. He wakes a few times over night, he thinks predominantly due to pain. He gets up at 7am. He commenced CPAP treatment after seeing a sleep physician Dr Freiberg in 2022. He initially had a nasal mask. He has recently changed that to a full face mask and finds it improved. He does sleep for about 6 hours on his CPAP he estimates, and he is not snoring on the CPAP. He is in the same bed as his wife. He is quite restless still and his pain wakes him up. When he wakes up he feels tired and is tired during the day. If he sits and watches TV he will fall asleep. He drives short distances only due to his back pain. If he had to drive further, he thinks tiredness may affect him. He does fall asleep as a passenger. He has not fallen asleep talking to someone. He does have more restless sleep than prior to the injury.
Dr Johnson noted that Mr Amos was excessively tired during the day and assessed his Epworth sleepiness scale to be 13/24. Dr Johnson considered that based on the history Mr Amos was likely to have had sleep apnoea prior to his injury, Dr Johnson noted that since the injury Mr Amos had to have more sleep time on his back and had also been on medications that can worsen sleep apnoea. He noted that Mr Amos had been treated with CPAP and had quite a good response. Dr Johnson considered that Mr Amos was restricted in what he could do during the day due to daytime sleepiness, and estimated his WPI using the AMA 5, to be in Class II, with reduced daytime alertness and interference with the ability to perform some activities of daily living. Dr Johnson estimated WPI to be 16%.
Dr Johnson thought that it was likely Mr Amos had preexisting sleep apnoea, so applied a discount of 6% due to pre-existing sleep apnoea, which resulted in the whole person impairment due to the sleep and arousal disorder rising from his injury, being 10%.
In a report dated 5 January 2024, Dr Johnson noted that he had reviewed the report of Dr Bentivoglio dated 27 June 2023. He noted that Dr Bentivoglio had expressed the opinion that the injury sustained to the lumbar spine on 22 September 2020 had completely resolved.
Dr Johnson, therefore, reduced his assessment of WPI from 10% to 6% WPI.The Appeal Panel noted that the Lead Assessor, Dr Freiberg and Dr Johnson made no reference to any of the reports or clinical notes made by treating doctors prior to the injury on 22 September 2020.
Professor David Barnes, Consultant respiratory and sleep disorder physician, in a Home Polysomnography Sleep Study report dated 15 August 2019 wrote:
“Grant Amos’ overnight diagnostic sleep study showed fragmented sleep architecture with normal sleep efficiency. Sleep latency was long. Normal quantities of REM were observed and sleep was predominantly observed in supine position.
The sleep study shows moderate obstructive sleep apnea. This consisted of a Respiratory Disturbance Index (RDI) of 17.9/hr [normal<5/hr]. The overall Apnea Hypopnea Index (AHI) was 17.8/hr. Obstructive apneas were predominantly seen in supine sleep.
Respiratory events were associated with mild oxygen desaturation, an oxygen nadir of 89.0% and the desaturating event Index was recorded at 13.5/h1·.Snoring was severe”.
Professor Barnes noted that Mr Amos reported normal levels of sleepiness as noted on his Epworth Sleepiness Score (8/24). Professor Barnes diagnosed moderate OSA and recommended weight reduction, CPAP or both.
In a report dated 7 July 2020, Dr Teresa Louie, Staff Specialist – Locum in the Department of Respiratory Medicine at Sutherland Hospital, noted that Mr Amos had been referred to the Clinic for a review of his moderate obstructive sleep apnoea. She wrote:
“Grant's diagnostic sleep study shows moderate obstructive sleep apnoea with a total apnoea-hypopnoea Index of 17.8 per hour and nadir oxygen saturation to 89%, His supine AHI was 21 per hour, versus nonuple AHI of 9 per hour and he spent 72% of his total sleep time in the supine position. His Epworth Sleepiness Score today is 8 which is normal.
I advised ongoing weight loss, reducing his alcohol Intake as well as strategies to avoid supine sleep. Treatment options from ears, nose and throat review, mandibular advancement splint and nocturnal CPAP therapy was also discussed in detail”.In a report dated 5 August 2020, Dr Corinna Pan, Staff Specialist – Locum in the Department of Respiratory Medicine at Sutherland Hospital, noted that Mr Amos was obviously still having symptoms of choking and waking up feeling unrefreshed and had not lost any weight. She recommended for him to trial sleeping on the lateral side with positional device in place and to lose weight and cut down on his smoking.
The clinical notes of Bethany Medical Centre included the following entries:
(a) On 30 July 2019, Dr Autumn Chien noted that Mr Amos had attended for a mental health care plan and wrote: “Poor sleep, early morning wakening…”
(b) On 7 August 2019, Dr Chien noted that Mr Amos was seen by a psychologist and “was suggested a sleep study suspected sleep apnoea…” Dr Chien completed a referral to ResSleep and noted “AllQ completed.”
(c) In an entry dated 4 September 2019, Dr Muneeb Ahmed Syed noted that “other issues waking up a night unable to get back to sleep, needs something to help with sleep; melatonin ineffective. Sleep study done result discussed, moderate OSA, referral provided for CPAP trial.”
(d) In an entry dated 18 March 2020, Dr Chien noted “poor sleep at night tiredness lethargy suggested to see resp clinic TSH for CPAP mod OSA”.
(e) In an entry dated 27 May 2020, Dr Chien noted “pt awaiting resp clinic review re: OSA appt in July.”
A ResSleep Referral form was completed by Dr Chien on 7 August 2019 for referral of Mr Amos for a home sleep study and sleep physician consultation. In this form, screening questions in an ESS questionnaire were answered. These answers described Mr Amos as having:
(i) a moderate chance (2) of dozing off when was watching television and when lying down in the afternoon to rest;
(ii) a slight chance (1) of dozing off when in a car stopped for a few minutes in traffic;
(iii) a high chance (3) of dozing off when a passenger in a car for an hour without a break, and
1. no chance (0) of dozing off when sitting and reading, or when sitting inactive in a public space, or when sitting and talking to someone or when sitting quietly after a lunch without alcohol.
In the “Stop Bang” questionnaire section of the form, the answer “Yes” was given to the following questions “Do you snore loudly (loud enough to be heard through closed doors or your bed partner elbows you for snoring at night?”, “Do you often feel tired, fatigued or sleepy during the day (such as falling asleep during driving or talking to someone)?, and “Has anyone observed you stop breathing or choking/gasping during your sleep?. Under symptoms, the following were marked as appropriate “Snoring, witnessed apneas/nocturnal gasping/choking, daytime lethargy/sleepiness, cognitive impairment, waking with headache, weight gain, restless sleep, insomnia, irritability.”
The Appeal Panel considers that the failure by the Lead Assessor to consider the reports, referral or clinical notes made by treating doctors prior to the injury on 22 September 2020 when addressing the question of whether a deduction should be made under s 323 amounted to a demonstrable error. The Appeal Panel was satisfied that the Lead Assessor was unaware of significant factual matters which needed to be taken into account in determining whether Mr Amos had a pre-existing condition and if so whether that pre-existing condition contributed to his impairment.
The Appeal Panel further considered that in omitting to refer to the reports, referral or clinical notes made by treating doctors prior to the injury on 22 September 2020, the Lead Assessor failed to provide an adequate path of reasoning for his decision not to make a s 323 deduction from his assessment.
The approach to be taken in assessing the s 323 deduction was considered by the Supreme Court in Cole v Wenaline Pty Limited [2010] NSWSC 78 (Cole). Schmidt J said:
“29 ...The section is directed to a situation where there is a pre-existing injury, pre-existing condition or abnormality. For a deduction 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.
30 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 injury. The assessment must have regard to the evidence as to the actual consequences of the earlier injury, pre-existing condition or abnormality. The extent that the later impairment was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in s 323(2), where the required deduction ‘will be difficult or costly to determine (because, for example, of the absence of medical evidence)’. In that case, an assumption is provided for, namely that the deduction ‘is 10% of the impairment'. Even then, that assumption is displaced, if it is at odds with the available evidence.
31 ...That is a matter of fact to be assessed on the evidence led in each case”.
At [38] of Cole, Schmidt said:
“38. 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. Nevertheless, all stages of the statutory exercise must be undertaken in the light of the evidence and without the making of assumptions not provided for by the section.”
In Elcheikh v Diamond Formwork (NSW) Pty Ltd [2013] NSWSC 365Schmidt J referred to her decision in Cole, stating:
“88. Section 323 requires that once the level of impairment which results from a work injury has been established, that a medical specialist must make 'a deduction for any proportion of the impairment that is due to any previous injury'. As discussed in Cole v Wenaline Pty Limited at [29] that requires a conclusion: ‘on the evidence, that the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment'.”
The process for determining impairment and any appropriate s 323 deduction was set out by Garling J in Pereira v Siemens Ltd [2015] NSWSC 1133 at [83]-[90] in a three-stage process being:
“The first step requires a finding of fact that the worker has suffered an injury at work which has resulted in a degree of permanent impairment which has been assessed pursuant to s 322 of the 1998 Act: see Elcheikh at [125].
The second step which needs to be addressed is, assuming such an injury has been sustained and impairment has resulted, what is the extent of that impairment expressed as a percentage of the whole person: see Cole v Wenaline Pty Ltd [2010] NSWSC 78 at [38]; Elcheikh at [126].
The third matter to be addressed is whether the worker had any previous injury, or any pre-existing condition or abnormality. The previous injury does not have to be one in respect of which compensation is payable under the 1998 Act. If the phrase “pre-existing condition or abnormality” is to be relied upon, then such condition or abnormality must be a diagnosable or established clinical entity: Fire & Rescue NSW v Clinen [2013] NSWSC 629.
A finding of the existence of a previous injury can be made without the presence of symptoms, but there must be evidence which demonstrates the existence of that pre-existing condition: Mathew Hall at [31]-[32].
The pre-existing injury or condition must, on the available evidence, have caused or contributed to the assessed whole person impairment: see Matthew Hall at [32]; Cole at [29]-[31]; Elcheikh at [88] and Ryder at [42].
It cannot be assumed that the mere existence of a pre-existing injury means that it has contributed to the current whole person impairment: Clinen at [32]; Cole at [30]; Elcheikh at [91]. What must occur is that there must be an enquiry into whether there are other causes of the whole person impairment which reflect a difference in the degree of impairment: Ryder at [45].”
The Appeal Panel accepts that s 323 of the 1998 Act requires that a deduction be made “for any proportion of the impairment that is due to any previous injury or that is due to any pre- existing condition or abnormality.”
The Appeal Panel is satisfied that Mr Amos had a pre-existing condition, namely, obstructive sleep apnoea. The Appeal Panel is satisfied that a proportion of the assessment of impairment of the obstructive sleep apnoea is due to the pre-existing condition. The question to be addressed is what proportion of the impairment assessed by the Medical Assessor is due to that pre-existing condition.
There are significant differences between the histories obtained by the Lead Assessor from Mr Amos concerning sleep prior to his work injury, and the histories given in the above reports, referral and clinical notes made prior to the injury on 22 September 2020. The Appeal Panel considers that the histories obtained in 2019 and in 2020 before the injury are more reliable than the histories obtained by the Lead Assessor or by Dr Freiberg some years later.
The Appeal Panel notes that the answers to the questions in the ResSleep Referral form dated 7 August 2019 provide a good description of the symptoms pre-injury. The assessment of impairment caused by obstructive sleep apnoea is, in a large part, based on symptoms that affect ADLs, including the degree of sleepiness and how that impacts on the quality of life. The Appeal Panel is satisfied that there is evidence of symptoms pre-injury clearly sufficient to cause impairment.
The Appeal Panel, after reviewing the reports, referral or clinical notes made by treating doctors prior to the injury on 22 September 2020, determines that a deduction of one half for pre-existing condition is to be made for the pre-existing condition. The Appeal Panel accepts that the obstructive sleep apnoea was more severe post injury and sleep efficiency had decreased from normal to poor. However, Mr Amos has significant symptomology pre-injury. Mr Amos had consulted his general practitioner about his sleep problems, undergone a sleep study, was diagnosed with moderate obstructive sleep apnoea, had a referral provided for CPAP trial and attended at the Department of Respiratory Medicine at Sutherland Hospital for a review of his moderate obstructive sleep apnoea in the months before the work injury.
The ResSleep Referral form dated 7 August 2019 records that Mr Amos often felt tired, fatigued or sleepy during the day and could doze off when watching television or when a passenger in a car. Mr Amos described irritability, daytime lethargy/sleepiness, insomnia and cognitive impairment, which would affect his daily life and impact on his functioning
The Appeal Panel is satisfied, after considering the evidence, that the pre-existing obstructive sleep apnoea significantly contributed to the assessed whole person impairment symptoms and a deduction of one half is appropriate.
The Appeal Panel finds error in the assessment made by the Lead Assessor in relation to the assessment of the sleep disorder. This ground of appeal is made out.
The Appeal Panel makes a deduction of one half for the pre-existing condition. Therefore, the Appeal Panel assesses 12% WPI for sleep disorder and deducts one half, that is, 6% pursuant to s323 of the 1998 Act. This results in an assessment of 6% WPI for the OSA.
Appeal 2 – M2-W12/24
Ground 1 – typographical errors
The appellant submits that the MAC of Medical Assessor Negus contains an obvious typographical error which requires correction. DRE Category III has been recorded in the WPI table however, from Dr Negus’ assessment, it is evident he had applied DRE Category II. The appellant acknowledges this is an obvious typographical error.
Mr Amos consented to the correction of the typographical errors made by Medical Assessor Negus.
The Appeal Panel agreed with the appellant that Medical Assessor Negus had in the WPI table in his MAC recorded the lumbar spine as DRE III and then assessed it as 7% WPI. In his explanations of his calculations below the Table, Medical Assessor Negus wrote:
“DRE Table 15-3
·DRE II - Non verifiable radiculopathy 5%
ADLs Paragraphs 4.34 & 4.35 Guidelines 4th edition
·Restricted with usual household tasks restricted 2%
5% (DRE) ADDED with 2% (ADLs) = 7%
While he has numbness in the anterolateral thigh (L2/3) he only has radiological evidence of potential nerve compression at the L4/5 and L5/S1 levels. Therefore, I cannot explain the clinical symptom of radiculopathy from the radiology making it non-verifiable.”
Medical Assessor Negus went on to comment that he disagreed with the assessment of DRE III by Dr Andrew Porteous as he could not verify radiculopathy.
The Appeal Panel agree with the appellant that Medical Assessor Negus made a typographical error in the Table of Impairment in the MAC and the injury to the lumbar spine should have been recorded as DRE II and not as DRE III.
For these reasons, the Appeal Panel has determined that the MAC issued on 4 July 2024 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: | W12/24 |
Applicant: | Grant Amos |
Respondent: | Southern Stainless Steel 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 Medical Assessment Certificate of Lead Medical Assessor Christopher Grainge and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| Respiratory | 22/9/2020 | Chapter 5 | Chapter 13. section 13.3 Table 13.4 | 12% | One half | 6% |
| Lumbar spine | 22/9/2020 | Chapter 4 Para 4.34 & 4.35 | Table 15-3 DRE II | 7% | 0 | 7% |
| The Skin | 22/9/2020 | Chapter 14 Pages 73-76 Para 14.1 – 14.11 Table 14.4 | Chapter 8.7 Pages 178-18 Table 8.7 Class 1 | 8% | 0 | 8% |
| Total % WPI (the Combined Table values of all sub-totals) | 19% | |||||
0
5
0