Verma v SM Couriers Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Verma v SM Couriers Pty Ltd [2025] NSWPICMP 532
APPELLANT:	Rahul Verma
RESPONDENT:	SM Couriers Pty Ltd
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Drew Dixon
MEDICAL ASSESSOR:	Peter Honeyman
DATE OF DECISION:	22 July 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); assessment by Lead Assessor of the respiratory system (sleep disorder) and assessment by Non Lead Assessor of orthopaedic injuries; first appeal against assessment of the sleep disorder and the one half deduction made pursuant to section 323; Appeal Panel found that the Lead Assessor erred in not providing reasons as to how the preexisting condition contributed to the current impairment; second appeal against assessment of activities of daily living (ADL) by Non Lead Assessor; Appeal Panel satisfied that the assessment of 1% for ADL was inconsistent with the history obtained by the Non Lead Assessor and other evidence; assessment of ADL made on basis of incorrect criteria; Held – MAC revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 19 September 2024 Rahul Verma (the appellant) lodged two Applications to Appeal Against the Decision of a Medical Assessor.
Two Medical Assessors had been appointed to assess the whole person impairment (WPI) of the appellant, resulting from an injury on 24 November 2020. Dr Robert Kuru, orthopaedic surgeon, was appointed as Non-Lead Medical Assessor (Medical Assessor Kuru) to assess the lumbar spine. Professor Christopher Grainge, respiratory physician, was appointed as Lead Medical Assessor (the Lead Assessor) to assess the respiratory system.
The Non-Lead Assessor Medical Assessment Certificate (MAC) of Medical Assessor Kuru was issued on 9 September 2024. Medical Assessor Kuru assessed 6% WPI in respect of the lumbar spine injury.
The Lead Assessor issued a consolidated MAC on 9 September 2024, assessing 11% WPI comprising of 5% WPI in respect of the respiratory system and 6% WPI in respect of the lumbar spine.
The appellant has appealed against the MAC of Lead Assessor dated 9 September 2024 (M1-W23073/24) and against the MAC of Medical Assessor Kuru dated 4 July 2024 (M2-W23073/24).
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 MAC of the Medical Assessor Kuru.
The delegate referred the appeals to the Medical Appeal Panel (Appeal Panel) for determination with the Appeal Panel to deal with both of the appeals concurrently (M1-W23073/24 and M2-W23073/24).
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

The appellant lodged an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (Commission) dated 26 July 2024 in which he claimed an amount of $38,355.50 in respect of 15% whole person impairment (WPI) of the lumbar spine and respiratory system as a result of the injury on 24 November 2020.
As noted above, the Commission appointed two Medical Assessors to assess WPI resulting from injury on 24 November 2020.
In the Referral for Assessment of Permanent Impairment to Medical Assessor dated
24 July 2024, the Lead Assessor was directed to assess the respiratory system, and Medical Assessor Kuru was directed to assess the lumbar spine.
The Lead Assessor examined the appellant on 16 August 2024 and assessed 10% WPI of the respiratory system. The Lead Assessor then deducted one half for pre-existing condition which resulted in an assessment of 5% WPI of the respiratory system. Medical Assessor Kuru examined the appellant on 16 August 2024 and assessed 6% of the lumbar spine. The total WPI, as a result of the injury on 24 November 2020, was 11%.

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 the appellant 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 Assessor for the original medical assessment and has taken them into account in making this determination.

Medical Assessment Certificate

The parts of the medical certificates 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- W23073/24

(a) Ground 1: s 323 of the 1998 Act - The Lead Assessor has incorrectly applied the criteria with respect to the s 323 deduction applied. The MAC contains a demonstrable error and/or was based on incorrect criteria for the following reasons:
(i)the Lead Assessor did not assess the appellant in accordance with the Guidelines;
(ii)the Lead Assessor failed to reconcile his own findings with respect to his conclusions;
(iii)the Lead Assessor did not adequately set out his findings or did not adequately explain his findings, and
(iv)the Lead Assessor did not adequately expose his reasoning.

(b)    A deduction can only be made if the pre-existing condition, abnormality or injury has contributed to the level of permanent impairment assessed. The deduction must not be at odds with the available evidence. (See Vitaz v Westform (NSW) Pty Limited, Cole v Wenaline Pty Ltd [2010] NSWSC 78, Marks v Secretary, Department of Communities and Justice [2021] NSWSC 306 and [2021] NSWSC 616, Ryder v Sundance Bakehouse [2015] NSWSC 526).
(c)    The Lead Assessor at 11 (b) in the MAC stated that the deductible proportion is 50% due to the appellant’s overall mild obstructive sleep apnoea (OSA) at the time of assessment with his only very mild weight gain following the work injury. The Lead Assessor at 11(a) states that previously undiagnosed obstructive sleep apnoea is a relevant condition.
(d)    There were no complaints made by the appellant to any treater at any time prior to the subject injury with respect to sleep disturbance or obstructive sleep apnoea. There was no sleep study conducted nor review by a respiratory specialist prior to the subject date of injury.
(e)    The Lead Assessor did not take a history of any pre-existing symptoms relating to sleep and arousal disorder. He noted that the appellant’s weight was between 80kg and 83kg at the time of the work accident, consistent with the appellant’s statement.
(f)    It is accepted that the sleep disorder is secondary to the weight gain which occurred secondary to the lumbar spine injury sustained. The weight gain was evidenced by the appellant’s statement, the before and after photographs, and the clinical records. There is no available evidence that would support an inference of a pre-existing contributing factor to the current sleep disorder assessed by the Lead Assessor.
(g)    The Lead Assessor did not have at the time of the assessment, and did not refer to any evidence which would qualify the Lead Assessor’s opinion that the appellant had pre-existing OSA. The Lead Assessor engaged in undertaking a retrospective diagnosis, which is inappropriate and invalid, as there is no evidence to support even an inference. He does not attempt to explain how the alleged pre-existing OSA, which is disputed, contributed to the level of impairment assessed.
(h)    Dr David Freiberg and Dr Dimitri did not find any pre-existing contributing factors to his diagnosed sleep disorder. This deduction cannot stand absent evidence that there was any pre-existing condition that existed and contributed to the current sleep disorder.
(i)    There is no evidence for a deduction under s 323 of the 1989 Act, and the Lead Assessor has not satisfied the authority of Fire & Rescue NSW v Clinen [2013] NSWSC 629 because he has not explained how a previous injury or condition contributes to the current impairment.
(j)    For a deduction to be properly made under s 323 there must be evidence that there is a preexisting injury, condition or abnormality and that this element contributes to the impairment and “assumption will not suffice”.
(k)    In summary, the Lead Assessor has applied the incorrect criteria when he made a 50% deduction pursuant to s 323. A correct application of the legal principles would have resulted in no deduction. Alternatively, at the most, a 1/10th deduction could be made, although even a 1/10th deduction would be excessive in the circumstances.
(l)    Demonstrable error – In Western Sydney Local Health District v Chan where at [13] Adams J found that AMS was bound, following the High Court authority of Wingfoot Australia Pty Ltd v Kocak, to set out in a statement of reasons the actual path of reasoning by which he arrived at his opinion. It is in this respect that a demonstrable error has also been shown.
(m)     The Appeal Panel should revoke the MAC.
Appeal 2 – M2 – W23073/24 - Assessment of Activities of Daily Living (ADL)
(n)    Medical Assessor Kuru has incorrectly applied the criteria with respect to the ADL impairment assessed.
(o)    Medical Assessor Kuru at page 5 of the MAC reports on ADL: “I disagree, however, with the assessment of 3% for restriction of activities of daily living and have assessed 1%”. There is no explanation from Medical Assessor Kuru as to why he assessed only 1% for ADL and why he disagreed with Dr Porteous assessment of 3%.
(p)    Clause 4.35 of the Guidelines does not require the worker to be unable to undertake personal care activities such as dressing, washing, toileting and shaving. The Guidelines only require that the worker’s ability to undertake the former tasks ‘has been affected’. The word ‘affected’, taking its ordinary meaning, is to be influenced or impaired by an external factor.
(q)    At page 2 of the MAC, Medical Assessor Kuru recognises some of the appellant’s disabilities, under heading ‘current symptoms’, noting: “He has pain in his lower back particularly when sitting. Bending is limited to 30 minutes. Walking is limited to 15-20 minutes before he develops back pain. Mr Verma says recently he came into the Sydney Aquarium and was only able to last 30- 40 minutes due to increasing pain and he needed a stick to continue walking”.
(r)    Noting that the only reference to disability is the above extract, one would infer that the appellant’s ability to ability to manage personal care, household tasks has been affected adversely.
(s)    Indeed, cl 4.34 of the Guidelines for the 2% ADL descriptors, refers to climbing stair or walking reasonable distances. Medical Assessor Kuru reported that the appellant’s walking is limited to 15-20 mins before he develops back pain. With reference to Medical Assessor Kuru’s own reporting, the appellant should have at least been scored at 2% for ADL.
(t)    Although, the appellant attends to his own personal care, his capacity to do so has indeed been affected by the subject injuries. In paragraphs 47 to 50 of the appellant’s statement dated 20 October 2021 he reports that his ability to attend to personal care has been affected and is restricted with usual household tasks, such as cooking, vacuuming and making beds, or tasks of equal magnitude, such as shopping, climbing stairs or walking reasonable distances. Medical Assessor Kuru should have assessed 3% WPI for ADL.
(u)    Medical Assessor Kuru is required to set out in a statement of reasons the actual path of reasoning by which he arrived at his opinion. It is in this respect that a demonstrable error has also been shown.
(v)    The Appeal Panel should revoke the MAC and issue a new MAC with a finding the appellant has 3% ADL plus 5% for DRE II assessment of lumbar spine, amounting to 8% WPI.

The respondent’s submissions include the following:

Appeal 1 - M1- W23073/24

(a)    As against the Lead Assessor’s assessment, the clinical records of Lane Street Medical Centre indicate that on 3 April 2020, some seven months prior to the workplace injury, the appellant had four to five hours of sleep for six months and that he has “disturbed sleep”. This contradicts the appellant’s submissions that there were absolutely no complaints made by the appellant to any treater at any time prior to the subject injury with respect to sleep disturbance or OSA.
(b)    The appellant also submits at paragraph 24 that his sleep disorder is secondary to weight gain which occurred secondary to the lumbar spine injury. Again, the clinical notes from Lane Street Medical Centre confirm that on 3 April 2020 his weight was recorded by Dr Bandari at 98.6kg, with a BMI of 30.6.
(c)    In his statement, the appellant refers to his weight gain since injury and relies on ‘before and after’ photographs to evidence same. These photographs cannot be properly verified as evidence of weight gain given the lack of subjective evidence as to the date each photograph was taken. The clinical note entry of 3 April 2020 is the only verifiable evidence of his pre-injury weight and does not support the appellant’s assertions as to post-injury weight gain, causative of his OSA. Notably, at the time of the examination with the Lead Assessor, the appellant’s weight was recorded at 96kg, indicating a decrease in weight, post injury.
(d)    The appellant submits that the Lead Assessor did not attempt to explain how the alleged pre-existing OSA, contributed to the level of impairment assessed. The Lead Assessor is not required to elaborate or give lengthy reasoning, in keeping with Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247.
(e)    The Lead Assessor opined that the appellant most likely had a previous undiagnosed OSA noting that his current findings were only of very mild OSA and very mild weight gain, following the work-based accident.
(f)    The fact that the Lead Assessor states this was an undiagnosed condition would account for the absence of investigation. Neither Dr Frieberg nor Dr Dimitri found a pre-existing condition that contributed to the current sleep disorder, but proper consideration was not given to the clinical notes by either IME. The clinical notes factually evidenced prior sleep and weight issues; both of which were impliedly causative of his condition noting that the sleep study undertaken post injury did not demonstrate any significant OSA and the Lead Assessor considered the appellant to be over-rating his Epworth Sleepiness assessment.
(g)    For a s 323 deduction to be made, there must be evidence of a pre-existing injury, condition or abnormality and this must contribute to the impairment. There is evidence of a pre-existing condition; namely sleep disturbance and obesity and these conditions contribute to the impairment suffered.
(h)    If this submission is not accepted, the statutory s 323 deduction of 10% ought to have apply in light of the evidence of pre-existing conditions.

Appeal 2 – M2- W23073/24
(i)    The appellant asserts that Medical Assessor Kuru has erred in his finding of 1% to account for the impact of his injury on his ability to perform ADL and that a 3% ought to have been given, based on the opinion of Dr Porteous. The appellant submits there is no explanation from Medical Assessor Kuru as to why he assessed only 1% for ADL’s or why he disagreed with Dr Porteous assessment of 3%. This submission is factually incorrect, as Medical Assessor Kuru gives the following account under the heading “social activities/ADL”: “Mr Verma previously enjoyed going to the gym and walking. He is now reluctant to socialise due to his back pain.”
(j)    In his report of 20 June 2024 Dr Powell records: “Mr Verma confirmed he does have capacity to undertake tasks of personal hygiene and grooming without assistance.” The appellant has therefore conceded that he can attend to personal care without assistance, such that a 3% uplift for ADLs is not supported.
(k)    The appellant submits that noting the only reference to disability is Dr Porteous’ report of 3 April 2023, one would infer that the appellant’s ability to manage personal care, household tasks has been affected adversely. This inference cannot be drawn. The appellant is attempting to cavil the clinical judgement of the Non-lead Assessor See: The UGL Rail Services Pty Ltd (formerly United Group Rail Services Pty Ltd) v Attard [2016] NSWSC 911.
(l)    Whilst the history taken by Medical Assessor Kuru on the day of examination is clearly different to that taken by Dr Porteous, he has reasoned his allowance, which correlates with a 1% increase to the base impairment rating.
(m)     As asserted above, Medical Assessor Kuru is not obliged to elaborate or give lengthy reasoning. The assessment has therefore been made on correct criteria.
(n)    Medical Assessor Kuru has appropriately applied 1% for the ADL’s based on the evidence at hand, the history given to him, and his assessment of the appellant.
(o)    There is sufficient evidence and detail in the MACs for the s 323 deduction to stand and for the 1% allowance for ADL to be made such that there is no apparent error in the MACs.
(p)    The appellant has not established the threshold for either a demonstrable error or incorrect criteria. The assessments were made correctly with respect to the Guidelines and both MACs ought to be confirmed.

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.
The Appeal Panel has reviewed the MACs and evidence in this matter.

Appeal 1 – M1-W23073/24

Ground 1 assessment of impairment with respect to the sleep disorder and application of s 323 deduction

The appellant submits that the Lead Assessor incorrectly applied the criteria with respect to the s 323 deduction. The appellant argued that the Lead Assessor has not explained how a previous injury or condition contributes to the current impairment. Further, the appellant submits that for a deduction to be properly made under s 323 there must be evidence that there is a preexisting injury, condition or abnormality and that this element contributes to the impairment and “assumption will not suffice”.

Under “Present symptoms” the Lead Assessor wrote:
“Regarding Mr Verma’s sleep, he retires to bed around 21:00 hours to 22:00 hours. He has a subjective latency of between 30-40 minutes and feels that he wakes overnight due to back pain and also a feeling of back fragility. His wife complains about his snoring and his self-estimated weight is 97kg.”
Under “Details of any previous or subsequent accidents, injuries or condition” the Lead Assessor wrote:
“Prior to the work based accident, Mr Verma described his sleep as being normal. He stated that he retired to bed around 22:00 hours with a 20 minute latency. He slept through, waking refreshed but no previous history of snoring. He stated his weight was between 80kg and 83kg at the time of the work based accident.”
Under “Findings on Physical Examination”, the Lead Assessor wrote:
“Mr Verma was 96kg in weight and 182cm tall.
He had a Mallampati Class II airway. There were no abnormalities on respiratory or cardiovascular examination with no peripheral stigmata of respiratory disease. Chest expansion, percussion note and breath sounds were all normal.
Heart sounds were dual with no murmurs. The JVP was not visible at 90° and there was no peripheral oedema.”
Under “Details and Dates of Special Investigations”, the Lead Assessor wrote:
“I note that Mr Verma had a polysomnogram performed on 16/10/2023 performed by
Dr Timothy Dinihan. This demonstrated that he had a total time in bed of 470 minutes with a total sleep time of 437 minutes with a sleep efficiency of 93%. He had a sleep latency of 1.5 minutes with a REM latency from sleep onset of 48 minutes. His total apnoea-hypopnea index was 6.2/hour increasing very slightly in REM sleep to 8.6/hour and his total arousal index was 7.3/hour. Mr Verma slept in both supine and both lateral positions.
Note: Sleep architecture was normal but there was sleep fragmentation and periods of wakefulness during the night. The arousal index was normal at 8.4 events/hour of sleep. There was some snoring, flow limitation and scattered RERAs throughout sleep.
Dr Dinihan concluded that the study demonstrated mild obstructive sleep apnoea with minimal associated oxygen desaturation and a trial of therapy with CPAP could be contemplated.
Mr Verma stated to me that he tried CPAP and absolutely could not tolerate it.”
The Lead Assessor made a diagnosis of very mild obstructive sleep apnoea which was only just outside the normal range. He noted that there was also evidence of some minor sleep fragmentation.
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 was no pre-existing impairment but it is likely that Mr Verma has underlying
undiagnosed obstructive sleep apnoea even if he did not have daytime somnolence.
f) If so, please indicate which body part is affected by the pre-existing injury, abnormality or condition.
Respiratory system.”
Under “Reasons for Assessment” the Lead Assessor wrote:
“a) My opinion and assessment of whole person impairment:
10%.
In making that assessment I have taken account of the following matters:
Review of the material provided and a detailed examination of the claimant.
I note Mr Verma’s sleep fragmentation on his sleep study and very mild obstructive sleep apnoea, but his ongoing daytime somnolence with an Epworth Sleepiness Score on the day of assessment of 14. I consider that this would place him at 10% whole person impairment with a 50% reduction for pre-existing obstructive sleep apnoea, giving a final of 5% WPI.
…
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 opinion of Dr David Freiberg dated 18/12/2023. Dr Freiberg notes that Mr Verma’s sleep latency was 48 minutes. He is incorrect in this and appears to have conflated latency to REM sleep with latency to sleep in general which was 1.5 minutes, ie extremely rapid. Other than this, my opinion with Dr David Freiberg essentially is unchanged. Mr Verma had a slightly raised Epworth Sleepiness Score compared to that when he saw Dr Freiberg but considering the discussion I had with Mr Verma, I think he was over-rating his Epworth Sleepiness assessment.”
At Part 11 of the MAC, the Lead Assessor wrote:
“DEDUCTION (IF ANY) FOR THE PROPORTION OF THE IMPAIRMENT THAT IS DUE TO PREVIOUS INJURY OR PRE-EXISTING CONDITION OR ABNORMALITY
a) In my opinion the worker suffers from the following relevant previous injuries,
pre-existing conditions or abnormalities:
(i) Previous undiagnosed obstructive sleep apnoea.
b) The previous injury, pre-existing condition or abnormality directly contributes
to the following matters that were taken into account when assessing the whole
person impairment that results from the injury, being the matters taken into
account in 10a, and in the following ways:
(i)In my opinion, the deductible proportion is 50% due to Mr Verma’s overall mild obstructive sleep apnoea at the time of assessment with his only very mild weight gain following the work based accident”.
The Appeal Panel reviewed the evidence in this matter.
In his statement dated 20 June 2024, the appellant wrote:
“7. Since my injury, I have gained about 12 to 15 kg.
8. Consequently, the weight gain has also caused me to develop difficulties with sleep.
9. Prior to my work injury and subsequent weight gain, I would usually sleep interrupted for 9 hours and would wake up feeling refreshed.
10. However, following my work injury and subsequent weight gain, I now struggle with sleep.
11. More specifically, I also struggle to fall sleep and when I do eventually fall asleep, it is often that I wake up due to the pain in my back.
12. For example, there have been many occasions where after hours of lying in bed, I eventually fall asleep only to just wake up around 2:00am or 3:00am due to my back pain.
13. When this happens, the whole process of lying in bed for hours restarts.
14. It is incredibly frustrating trying to sleep as there is always the risk of me just waking up due to my back pain
15. Due to the above, I do not sleep as much as I did prior to my work injury and I often wake up feeling unrefreshed, fatigued and tired.
16. My wife has even told me that I began to snore shortly following my work injury and subsequent weight gain.”
In a referral to Dr David Freiberg dated 3 August 2023, Dr Muhammad Adnan Qureshi requested an opinion and management of the appellant’s sleep issues “secondary to his recent weight gain. He has had back injury and has not been able to manage with his exercise.”
In a report dated 26 September 2022, Dr Powell noted that the appellant weighed 90kg whereas in his report dated 20 June 2024 Dr Powell noted that the appellant weighed 96kg.
Dr David Freiberg, respiratory and sleep physician, in a report dated 18 December 2023, noted that prior to the workplace injury the appellant’s weight was 82kg or a BMI of 25.
Dr Freiberg wrote:
“His weight has increased to 97 kg or a BMI of 29 as a result of his workplace injury. That is he has gained 18% of his total body weight. His BMI has increased from the upper end of the normal weight range to the upper end of the overweight range.”
On examination Dr Freiberg noted that Mr Amos has a patent nasal air flow, a Mallampati class 1 airway with a grade 1 tonsil and clear lung fields to auscultation. Dr Freiberg referred to a Diagnostic Polysomnogram on 6 October 2023 and reported this sleep study showed frequent awakenings and some arousals as a result of insomnia due to pain. This has resulted in mild daytime hypersomnolence. There was no significant sleep disordered breathing or periodic limb movement requiring treatment intervention. Dr Freiberg reported:
“He had a sleep latency of 48 minutes and a total sleep time of 438 minutes and a sleep efficiency of 93%. He had normal proportions of REM and slow wave sleep.
He had 18 spontaneous awakenings and a spontaneous arousal index of 4/hour. The likely etiology of the spontaneous awakenings and arousals is due to his pain.
He slept most of the night on his side. In this position he had a respiratory disturbance index (RDI) of 6/hour (RDI 5-15 is mild obstructive sleep apnoea). There was no significant oxygen desaturation with this. His arousal index due to respiratory events was 3/hour.”
Dr Freiberg expressed the following opinion:
“Prior to this man's workplace injury he would have an uninterrupted 9 hours sleep. He would wake refreshed. He would not complain of hypersomnolence. He was not known to snore.
Since his workplace injury he continues to sleep on his side, he has gained 18% of his total body weight and his wife reports snoring. However he has not developed significant sleep disordered breathing. His sleep duration has reduced by 20% compared to his reported pre-injury sleep time. He has developed insomnia due to frequent arousals and awakenings due to pain. As a consequence he has developed mild daytime hypersomnolence with an Epworth Sleepiness Score of 9/24. He has reached maximal medical improvement.
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 the above mentioned Guidelines indicates ‘a score of 10/24 on an Epworth Sleepiness Score is equal to excessive sleepiness or a Class 2 Impairment’.
Therefore according to table 13-4 Mr Verma would be a Class 1 Impairment. A Class 1 Impairment is a 1%-9% Impairment of Whole Person due to sleep and arousal disorders.
I would therefore classify Mr Verma as an 8% Impairment of Whole Person due to sleep and arousal disorders.”
Dr Andrew Dimitri, respiratory and sleep physician, in a report dated 8 May 2024, noted that prior to the injury, the appellant’s weight was 82 kg, but now due to immobility, his weight is 97 kg. His height was 180 cm. Dr Dimitri noted that this was a body mass index of 25.3 prior to the injury and his current body mass index was 29.9.
Dr Dimitri wrote:
“Prior to the injury, this patient had normal sleep, sleeping eight hours per night. He
did not have any snoring with witnessed apnoea or nocturnal choking episodes. His
sleep was not broken. He woke up with good energy and had good energy during the day. Prior to the injury, his Epworth score was 7.
Initially after the injury, he had insomnia due to chronic pain. Gradually as he put on
weight after the injury, he started developing snoring, nocturnal choking episodes,
and witnessed apnoea. This was approximately 1.5 years after the injury.
He had a sleep study on the 06th of October 2023. He had a total sleep time of 438
minutes with a sleep efficiency of 93%. He had four spontaneous arousals per hour.
The overall apnoea-hypopnea index was 6 per hour indicating mild obstructive sleep
apnoea.
Because of his sleep fragmentation and insomnia due to chronic pain as well as his
mild obstructive sleep apnoea, his current Epworth score is 18 indicating significant daytime hypersomnolence.
The patient feels that there were two phases after the injury. The initial phase where
he had insomnia due to chronic pain and then the second phase where he also
developed sleep apnoea and his sleep became worse after the development of the
sleep apnoea on the background of already poor sleep because of his chronic pain.”
Dr Dimitri made a diagnosis of insomnia due to chronic pain due to the workplace injury and also the development of sleep apnoea as a result of weight gain due to the workplace injury. He concluded that the appellant had overall mild sleep apnoea. Dr Dimitri wrote: “There was no pre-existing condition”.
Dr Dimitri expressed the opinion that the appellant required further treatment for his mild obstructive sleep apnoea and he was not at maximum medical improvement. Dr Dimitri did provide a “provisional” assessment of WPI as follows:
“Page 317 of the AMA5 guide states an Epworth score of 10/24 is equal to class 2
impairment, which, according to table 13.4, page 317 of the same guidelines, ranges from 10-29% of whole person impairment.
This patient’s Epworth score prior to the injury was 7, and after the injury now is 18.
This comes to change in Epworth score of 11 due to the injury. This would correlate with a WPI of 11% due to sleep and arousal disorder due to his injury.”
The clinical notes of Lane Street Medical Centre include the following entries:
(a) In a clinical entry dated 3 April 2020, Mrs Nishasimran Bandari noted that the appellant was a new patient and his weight was 98.6kg and BMI 30.6. She wrote: “stress – work/personal life ++ ….sleep – good/4-5 hrs since 6 months/disturbed sleep.”
(b) In an entry on the same day, that is, 3 April 2020, Dr Eshwar Madas noted that the appellant’s weight was 88kg and BMI was 27.3. Dr Madas made no reference to any sleep issues.
In a clinical note attached to a report dated 4 December 2020 (less that two weeks after the work injury on 24 November 2020), Dr Bhisham Singh, treating orthopaedic and spine surgeon, after “inspection” noted “He is a slim well-built young man”.
In a report dated 15 September 2021 Dr Andrew Porteous, occupational physician, noted that the appellant weighed 89 kg. However, in a report dated 3 April 2023, Dr Porteous noted that the appellant weighed 96 kg.
In a report dated 28 June 2021 Dr Richard Powell, consultant orthopaedic surgeon, noted that the appellant weighed 79 kg whereas in his report dated 26 September 2022, Dr Powell, noted that the appellant weighed 90 kg. In his report of 20 June 2024, Dr Powell noted that the appellant weighed 96kg.
In a referral dated 3 August 2023, Dr Muhammad Qureshi, general practitioner, referred the appellant to Dr Freiberg for “opinion and management of his sleep issues secondary to his recent weight gain. He has had Back injury and has not been able to manage with his excercises [sic].”
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.
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].”
In Ryder v Sundance Bakehouse [2015] NSWSC 526 Campbell J explained the requirement (emphasis in original),
“What s 323 requires is an inquiry into whether there are other causes, (previous injury, or pre-existing abnormality), of an impairment caused by a work injury. A proportion of the impairment would be due to the pre-existing abnormality (even if that proportion cannot be precisely identified without difficulty or expense) only if it can be said that the preexisting abnormality made a difference to the outcome in terms of the degree of impairment resulting from the work injury. If there is no difference in outcome, that is to say, if the degree of impairment is not greater than it would otherwise have been as a result of the injury, it is impossible to say that a proportion of it is due to the pre-existing abnormality.”
As noted above, the appellant submitted that there was no evidence for a deduction under s 323 and the Lead Assessor had not explained how a previous injury or condition contributes to the current impairment. The appellant argued that for a deduction to be properly made under s 323 there must be evidence that there is a preexisting injury; condition; or abnormality and that this element contributes to the impairment and “assumption will not suffice”.

The Appeal Panel considers that while there was evidence of a complaint on 3 April 2020 concerning disturbed sleep this was made in context of the appellant complaining about the various stresses in his life. There was no evidence that any sleep disorder had been identified or treatment given for a sleep disorder.
The Appeal Panel accepts that the appellant gained weight following the injury to his lumbar spine at work on 24 November 2020. On 3 April 2020, Mrs Nishasimran Bandari noted that the appellant’s weight was 98.6kg and BMI 30.6. However, on the same day, that is,
3 April 2020, Dr Eshwar Madas noted that the appellant’s weight was 88kg and BMI was 27.3. Further, Dr Singh on 4 December 2020 described the appellant as a slim well-built young man. The Appeal Panel rejects the respondent’s submission that the clinical note entry of 3 April 2020 by Mrs Bandari is the only verifiable evidence of his pre-injury weight. The Appeal Panel considers that the weight of the evidence supports the appellant’s assertions as to post-injury weight gain, causative of his OSA.
On balance the Appeal Panel considers that the Lead Assessor had not explained how any previous condition contributes to the current impairment. The Lead Assessor did not identify, in our view, evidence that the preexisting condition contributes to the impairment. Further, the Lead Assessor expressed the opinion that there was no pre-existing impairment, but it is likely that Mr Verma has underlying undiagnosed obstructive sleep apnoea even if he did not have daytime somnolence. The Appeal Panel considers that the Lead Assessor failed to explain how that underlying undiagnosed obstructive sleep apnoea caused or contributed to the assessed whole person impairment. The failure to provide adequate reasons was a demonstrable error. This ground of appeal is made out.
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 to make a s 323 deduction of one half from his assessment.
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 first issue to consider is whether the evidence supports the finding made by the Lead Assessor that the appellant had a pre-existing condition, namely, previous undiagnosed obstructive sleep apnoea.
The Appeal Panel is satisfied on balance that the appellant had a pre-existing condition, namely, obstructive sleep apnoea, even though this had not been diagnosed. However, the Appeal Panel is not satisfied that a proportion of the assessment of impairment of the obstructive sleep apnoea is due to the pre-existing undiagnosed condition.
The Appeal Panel, after reviewing the clinical notes made by treating doctors prior to the injury on 24 November 2020, is not satisfied that any problems experienced in April 2020 were caused by sleep apnoea. The Appeal Panel accepts that the obstructive sleep apnoea became evident post injury, and the appellant had sleep fragmentation on his sleep study and very mild obstructive sleep apnoea. There was no symptomology pre-injury.
The Appeal Panel is satisfied, after considering the evidence, that the pre-existing undiagnosed obstructive sleep apnoea did not contribute to the assessed WPI symptoms and therefore no deduction pursuant to s 323 of the 1998 Act should be made.
Therefore, the Appeal Panel assesses 10% WPI for sleep disorder.

Appeal 2 – M2-W12/24
Ground 1 – Assessment of ADLs

The appellant submits that Medical Assessor Kuru has incorrectly applied the criteria with respect to the ADL impairment assessed and failed to explain why he assessed only 1% for ADL and why he disagreed with Dr Porteous’ assessment of 3%.
Under “Present symptoms” Medical Assessor Kuru wrote:
“He has pain in his lower back particularly when sitting. Bending is limited to 30 minutes. Walking is limited to 15-20 minutes before he develops back pain. Mr Verma says recently he came into the Sydney Aquarium and was only able to last 30-40 minutes due to increasing pain and he needed a stick to continue walking.”
Under “Details of any previous or subsequent accidents, injuries or condition” Medical Assessor Kuru wrote:
“Mr Verma denies any previous injuries.
General health:
Mr Verma reports his health as otherwise good. He takes no regular medications and has no allergies.
Work history including previous work history if relevant:
Nil relevant.”
Under “Social activities/ADL” Medical Assessor Kuru wrote: “Mr Verma previously enjoyed going to the gym and walking. He is now reluctant to socialise due to his back pain”.
The Appeal Panel noted that Medical Assessor Kuru made a diagnosis of non-specific back pain and assessed 6% WPI. He wrote:
“The lumbar spine is assessed according to AMA-5, page 384, Table 15.3. On the basis of there being a history of injury with pain and restriction of activity, I assess the lumbar spine as DRE Category II (5% whole person impairment).
According to SIRA, page 28, paragraph 4.34, I assess a further 1% for restriction of activities of daily living.”
In commenting on the other medical opinions, Medical Assessor Kuru wrote:
“With respect to the report by Dr Porteous dated 15/09/2021, I am in agreement with the assessment of the lumbar spine as DRE Category II on the basis of there being a history of injury and Mr Verma having subsequent pains. I disagree, however, with the assessment of 3% for restriction of activities of daily living and have assessed 1%.
With respect to the report by Dr Powell dated 04/06/2024, I understand the arguments to make an assessment here of DRE Category I (0% whole person impairment). In the end, Mr Verma has significant, ongoing pain and I assessed him as DRE Category II.”
The Appeal Panel reviewed the evidence.
In a statement dated 20 October 2021 the appellant described having difficulties” tying shoes and putting on socks”. He wrote:
“47. In addition to this, I also continue to struggle outside of employment. Prior to the subject injury, I would frequently attend the gym. Since the subject injury, I no longer attend the gym as I am unafraid that I would aggravate my lower back injury.
48. Additionally, I now rarely contribute to domestic duties at home. Duties that involve\ bending such as unpacking the dishwasher and doing laundry exacerbates my lower back injury. As a result, I avoid doing these duties. Additionally, duties that involve standing such as vacuuming or cooking also exacerbate my lower back injury and as a result, I avoid these duties. Consequently, my wife has had to assume primary responsibility for domestic duties. She spends about over two hours per day undertaking the domestic duties.
…
50. The house that my wife and I live in also has a small garden which I would regularly maintain prior to my injury. Now that I ham (sic) injured, we have had to resort to obtaining commercial assistance for duties such as gardening and maintenance. Due to the recent COVID-19 restrictions, we have not been able to obtain commercial assistance and as a result, our front garden has now been neglected.”
In a statement dated 20 June 2024, the appellant stated that due to his lower back injury, he struggles with mobility and feels as though he is always at risk of aggravating his condition. He stated that as a result of this, he avoids exercising and have even avoided basic tasks such as undertaking domestic duties. He stated that he had difficulties “tying shoes and putting on socks”. He said that he continued to avoid undertaking domestic duties.
In a report dated 15 September 2021, Dr Andrew Porteous, occupational physician, assessed the appellant as DRE category II under Table 15-3 with 5% WPI. Dr Porteous then added a further 3% WPI for interference with ADLs which resulted in an assessment of 8% WPI for the lumbar spine.
Dr Porteous, in his report dated 3 April 2023, wrote:
“He continues to live in the same house, which is a two-bedroom and two-bathroom house with a small garden with tiles downstairs and carpet upstairs. He wears shoes with no laces. He has difficulty putting socks on first in the morning because of back pain. He cannot stand for too long and cannot really do the cooking, cleaning, dishes, washing or the laundry and his wife is doing essentially the majority of that at least two hours a day. They have a small garden, which they neglect and every few months they will pay money to have it tidied up. He used to go to the gym five times a week, but has not been able to do that since the onset of his lumbar back pain.”
Dr Porteous also expressed the opinion that the appellant was restricted from constant or sustained sitting, constant or sustained standing and walking, and heavy lifting, pushing, pulling or carrying, frequent or constant bending, kneeling and crouching.
Dr Richard Powell, consultant orthopaedic surgeon, in a report dated 20 June 2024 under “Activities of Daily Living” wrote:
“●      Mr Verma is married and lives with his wife in a townhouse.
·        He can perform all elements of personal hygiene and grooming.
·        His ability to perform domestic tasks is restricted and these are done primarily
by his wife.
·        He is not involved in general maintenance tasks which are done by his wife
and through an external source.
·        His driving is limited to half an hour.”
Dr Farhan Shahzad, consultant occupational physician, in a report dated 7 April 2023, noted that the appellant was independent with respect to his activities of self-care, such as eating, showering, dressing, toileting and transfers. Dr Shahzad noted that the appellant was receiving paid assistance for general cleaning twice monthly and was unable to perform general maintenance tasks since the work injury.
The interpretation of ADLs is set out in paragraphs 4.33, 4.34 and 4.35 of the Guidelines. Paragraph 4.34 provides that the diagram below is to be used as a guide to determine whether 0%, 1%, 2% or 3% should be added to the bottom of the appropriate impairment range.
Paragraph 4.33 provides:
“Impact of ADL. Tables 15-3, 15-4 and 15-5 of AMA5 give an impairment range for DREs II to V. Within the range, 0%, 1%, 2% or 3% WPI may be assessed using paragraphs 4.34 and 4.35 below. An assessment of the effect of the injury on ADL is not solely dependent on self-reporting, but is an assessment based on all clinical findings and other reports.”
Paragraph 4.34 also provides: “This is only to be added if there is a difference in activity level as recorded and compared to the worker’s status prior to the injury”.
Paragraph 4.35 provides:
“The diagram is to be interpreted as follows: Increase base impairment by:
• 3% WPI if the worker’s capacity to undertake personal care activities such as dressing, washing, toileting and shaving has been affected
• 2% WPI if the worker can manage personal care, but is restricted with usual household tasks, such as cooking, vacuuming and making beds, or tasks of equal magnitude, such as shopping, climbing stairs or walking reasonable distances
• 1% WPI for those able to cope with the above, but unable to get back to previous sporting or recreational activities, such as gardening, running and active hobbies etc.”
The Appeal Panel noted that Medical Assessor Kuru made a diagnosis of non-specific back pain and assessed DRE category II at 5% WPI plus a further 1% WPI for restriction of ADL.
The appellant submits that Medical Assessor Kuru incorrectly applied the criteria with respect to the ADL impairment assessed and failed to explain why he assessed only 1% for ADL and why he disagreed with Dr Porteous’ assessment of 3%.
The Appeal Panel notes that Medical Assessor Kuru reported that the appellant is restricted to 20 minutes of walking. The Appeal Panel considers that this is a restriction in terms of his ability to walk reasonable distances. In absence of any history concerning whether the appellant was restricted in performing usual household tasks, this restriction in walking is a basis for a 2% assessment for ADL, there being a restriction in a task of equal magnitude to the usual household tasks. The Appeal Panel is satisfied that the assessment of 1% for ADL is inconsistent with the history obtained by the Medical Assessor Kuru and also with the statements of the appellant and reports of Dr Porteous, Dr Shazdad and Dr Powell. The Appeal Panel is satisfied that the assessment of 1% for ADL was made on the basis of incorrect criteria.
The Appeal Panel notes that Medical Assessor Kuru did not provide any reasons why his opinion differed in terms of assessment of ADLs from that of Dr Porteous apart from stating that he disagreed with the assessment of 3% for restriction of ADL. A failure to provide adequate reasons is a demonstrable error.
The Appeal Panel is satisfied that the Medical Assessor Kuru erred in assessing ADL and the assessment was made of the basis of incorrect criteria. This ground of appeal is made out.
The Appeal Panel considered the evidence concerning restriction of ADL. While the appellant in his statements and Dr Porteous assessed 3% and included a restriction in the capacity to undertake personal care activities such as dressing, washing, toileting and shaving has been affected, Dr Powell and Dr Shazded reported no restriction in activities of self care. The Appeal Panel does not infer from the clinical findings made by Medical Assessor Kuru (which were not challenged) that the appellant’s ability to manage self care is affected by the injury to his lumbar spine. On balance, the Appeal Panel finds that an assessment of 2% WPI for ADL is appropriate.
In summary the Appeal Panel assessed 10% WPI for sleep disorder and 7% WPI for the lumbar spine. The total WPI, as a result of the injury on 24 November 2020, is 16%.
For these reasons, the Appeal Panel has determined that the MACs 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:	W23073/24
Applicant:	Rahul Verma
Respondent:	SM Couriers 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 the Medical Assessment Certificate of Medical Assessor Kuru 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	24/11/2020	Chapter 5	Chapter 13. section 13.3 Table 13.4	10%	nil	10%
Lumbar spine	24/11/2020	Chapter 4 P 28 Para 4.34 & 4.35	Table 15-3 P384 DRE II	7%	0	7%
Total % WPI (the Combined Table values of all sub-totals)					16%

[2025] NSWPICMP 532

22 July 2025