1. On 10 November 2025 Ante Bogdanovic, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Christopher Grainge, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) concerning sleep arousal disorder on 13 October 2025. Mr Bogdanovic was also assessed by Medical Assessor Tim Anderson, in respect of physical injuries he suffered with the respondent. The two assessments were combined in the consolidated MAC. The assessment of Medical Assessor Anderson has not been challenged.
2. The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
   • the assessment was made on the basis of incorrect criteria, and
   • the MAC contains a demonstrable error.
3. The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
4. 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.
5. 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).

1. Mr Bogdanovic was employed by the respondent as a concreter. His working career has always been heavy, with history of work in bricklaying and gyprocking, before moving into concreting. The work of a concreter, as one would expect, is heavy. He suffered injuries in the form of "nature and conditions" to his right and left knees, his right shoulder, and a consequential condition in his lumbar spine.
2. He also claims he developed a sleep disorder as a consequence of the above injuries. It is that consequential condition that is the subject of this Medical Appeal and much of the disputation that precedes this determination. The s 78 notice issued by the respondent on 16 April 2025 sets out the relevant issues in dispute in connection with the appellant's claimed sleep condition, including the lack of assessment by an ear, nose and throat specialist (which was cured), whether there is a neurological basis to Mr Bogdanovic's sleep condition, and the exclusion of conditions associated with chronic pain.
3. The appellant commenced proceedings in the Commission, which ultimately came before a member. On 28 April 2025, the liability disputes were resolved by consent through the issue of consent orders. Those orders set out some procedural aspects, including the filing of relevant additional documents. The medical dispute was remitted to the President for referral to a Medical Assessor, with the relevant body system/part being referred as "sleep and arousal disorder and sleep apnoea". Leave to apply was also granted concerning the orders and the form of referral, no doubt foreshadowing potential concerns about the nature of the referral for a sleep disorder.
4. The following notations were included in the consent orders:

"A. The Respondent maintains the legal arguments in relation to the sleep and arousal disorder in its dispute notice of 16 April 2025. > > B. The Respondent does not concede any neurological injury. > > C. The parties agree that nothing in these consent orders prevent the Respondent from raising a dispute/point of law arising from these orders and/or the Medical Assessment Certificate in relation to the sleep and arousal disorders as argued in the dispute notice of 16 April 2025 or appealing the Medical Assessment Certificate on the grounds referred to in section 327 of the Workplace Injury Management and Workers Compensation Act 1998."

5. The matter was then referred to two Medical Assessors, as set out above. The relevant body part referred, for the purpose of this appeal (noting the comments in Skates concerning the true nature of a medical dispute), was "Sleep and arousal disorder and sleep apnoea". The appellant appeals against the non-lead MAC of Medical Assessor Grainge, who assessed 0% for that condition.

1. 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.
2. As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because no re-examination was requested and the Appeal Panel are satisfied that there is sufficient information available in the MAC and supporting information to determine the dispute.

1. 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.

1. The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.

1. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
2. In summary, the appellant raises four grounds of appeal (under both the concepts of "incorrect criteria" and "demonstrable error"), being:

(a) The Medical Assessor exceeded his jurisdiction by making findings as to the existence of obstructive sleep apnoea and insomnia;

(b) The Medical Assessor failed to assess impairment due to obstructive sleep apnoea in accordance with Table 13-4 of AMA 5;

(c) The Medical Assessor failed to assess impairment due to insomnia in accordance with Table 13-4 of AMA 5, and

(d) The Medical Assessor's reasons for assessing impairment for obstructive sleep apnoea and/or insomnia were unlawful.

(a) The Medical Assessor did not exceed his jurisdiction;

(b) The Medical Assessor was entitled to assess as he did, and in any event, the appellant does not meet the criteria for an assessment of sleep apnoea;

(c) Insomnia due to chronic pain is not assessable, and in any event the appellant does not meet the criteria for an assessment of insomnia, and

(d) There is no demonstrable error in the assessment.

1. More detail of the submissions provided by the parties, and the Appeal Panel's consideration of those submissions, will be provided below.

1. 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. Four grounds of appeal have been raised here, in connection with the Medical Assessor's assessment of obstructive sleep apnoea and sleep disorder. Accordingly the Appeal Panel's consideration of the matter is limited to those issues (per Basten JA in Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304 at [26]):

"Secondly, s 328(2) requires that the review 'is limited to the grounds of appeal on which the appeal is made.' Because the gateway function of the Registrar is satisfied if 'at least one of the grounds' has been made out, it appears that the Appeal Panel is not limited to the ground held by the Registrar to have been made out, but may consider all grounds of appeal raised in the appellant's application. On the other hand, it is clear that the Appeal Panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made."

2. 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.

Ground 1 - the jurisdiction of the Medical Assessor

1. This first ground is particularised as "Dr Grainge exceed his jurisdiction as medical assessor by making findings as to the existence or not of obstructive sleep apnoea and insomnia related to the Injury".
2. The appellant refers to the following commentary in the MAC:

"Mr Bodganovic has not had any injury to the upper airway as part of his leg injury and chronic regional pain syndrome. He has not put any weight on. As such, his underlying obstructive sleep apnoea must be pre-existing and is relatively minor."

3. The appellant also refers to findings made in the MAC that Mr Bogdanovic had not had an injury causing him to increase weight or an upper airway injury, determining that obstructive sleep apnoea present existed prior to the injury. The appellant also refers to the Medical Assessor's commentary on the opinion of Dr Dimitri, and why the Medical Assessor disagreed with the conclusion of insomnia.
4. The appellant submits that the Medical Assessor determined the existence and cause of obstructive sleep apnoea and insomnia, which was not within his jurisdiction. The Medical Assessor was entitled to undertake an inquiry as to the cause of impairment and whether those conditions continued to exist, but the inquiry went beyond that. The appellant refers to the consent orders which support a finding that whether Mr Bogdanovic suffered from sleep apnoea and insomnia were settled.
5. In reply, the respondent submits that the Medical Assessor is entitled to make findings of causation where required pursuant to Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264 (Bindah) and Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79 (Jaffarie). The respondent refers to various parts of the MAC and submits that the comments were made for the purpose of the assessment of whole person impairment, and there is no error.
6. The Appeal Panel agree with the respondent's index contention that questions of causation are not foreign to medical disputes. As submitted, a medical dispute arises as to the degree of impairment "as a result of injury", imparting a causation question into that assessment. That does not entitle a Medical Assessor to make conclusions which arise out of the Commission's exclusive jurisdiction, which extend to whether an injury occurred, whether an employment relationship exists, and the various disentitling provisions. This is made clear in Bindah at [111]:

"It is for the Commission to determine whether a worker has suffered an injury within the meaning of s 4 of the Compensation Act. The Commission must also determine whether there are any disentitling provisions, such that compensation is not payable in respect of that injury."

7. It has also been made clear that there is no "bright line" delineating causation questions that arise in medical disputes (Bindah at [110], Zanardo v Tolevski [2013] NSWCA 449 at [35]). This immediately makes any challenge asserting that the Medical Assessor "exceeded his jurisdiction" difficult to accept.
8. This becomes more apparent when one examines the part of the MAC that the appellant suggests infringe on the jurisdictional issue. The appellant refers to the Medical Assessor's conclusion that Mr Bogdanovic did not have an injury to the upper airway or put any weight on after his accepted injury. Both are factual assertions and correct, consistent with the other evidence. The Medical Assessor determined that sleep apnoea was present before his injury, a finding open to him by virtue of the definition of medical dispute, which includes "whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion". Finally, the appellant refers to the Medical Assessor's commentary on the opinion of Dr Dimitri, rejecting a diagnosis of insomnia due to chronic pain.
9. That latter point requires an analysis of the evidence, as it is, in part, wrapped up in issues arising out of the consent orders issue by the Commission on 28 April 2025, and what the appellant asserts are the effect of those orders. It is clear, from a review of the notations to those orders, that the issue of the sleep and arousal disorder and diagnosis thereof has been specifically and quite forthrightly disputed by the respondent at all material times. Notation A refers the dispute notice of 16 April 2025. Notice B precludes any concession of a neurological injury. Notation C reserves rights (unnecessarily) in respect of the appeal provisions which are presently being exercised by the appellant.
10. The dispute notice of 16 April 2025 is important. It was admitted into the proceedings under the cover of an Application to Lodge Additional Documents. Per Skates v Hills Industries Ltd [2021] NSWCA 142 (Skates), which concerns the nature of a "medical dispute" in the Commission and, the fundamental legal concept is a dispute (per Leeming JA at [48]):

"The paperwork associated with the administration of the legislation seems to have led to a tendency to give to the document comprising the "referral" to an Approved Medical Specialist a greater status than it warrants. The document is important. However, the fundamental legal concept is a dispute. In the absence of a dispute, the worker and the insurer would not need to go to the Commission. An important category of disputes is medical disputes, and the referral of the medical dispute to an Approved Medical Specialist is but an aspect of the statutory scheme to resolve the dispute."

"The dispute between Mr Skates and the insurer was crystallised by the correspondence attached to Mr Skates' application; indeed, it was why the documents setting out both sides' claims were attached. That was the dispute which was referred to the Commission pursuant to s 288. It was a "medical dispute" because the parties had made different claims about the degree of permanent impairment suffered by Mr Skates as a result of the injury. It was therefore apt to be referred for medical assessment. The point of doing so was to resolve the dispute." (Skates at [46])

12. The dispute between the parties, in accordance with the s 78 notice of 16 April 2025, includes the following:

"On the basis of Dr Howison's opinion, we do not agree that you have developed a sleep apnoea condition consequential to your workplace injury. > > ... > > We have not been served with evidence claiming a neurological injury, nor are we aware of any contemporaneous medical evidence provided by your treating practitioners which might indicate that you suffered a neurological injury at the time of, or as a result of, your workplace injury. At no point in time have you claimed nor sought treatment for a neurological injury, and we dispute that any such injury has occurred. Accordingly, we do not agree that you are entitled to permanent impairment compensation for your claimed sleep and arousal disorder given the requirement of SIRA Guideline 5.10."

13. The notice goes on to dispute the existence of a neurological injury as well as Dr Freiberg's characterisation of insomnia as a neurological injury, as well as the interpretation of the Guidelines.
14. It is abundantly clear from an analysis of the evidence that the dispute between the parties, crystalised in the dispute notices and supporting evidence, involved a "results from" question that sits squarely within the jurisdiction of the Medical Assessor. In determining that issue, the Medical Assessor has not exceeded his jurisdiction, has not acted inconsistently with the consent orders issued by the Commission, and has not determined anything within the exclusive jurisdiction of the Commission. The above extends to any determination about "insomnia", which is further raised as ground 3 to the appeal. The Medical Assessor's commentary regarding the existence of insomnia due to pain is a diagnostic conclusion, in disagreement with the conclusion reached by Dr Dimitri. The nature of the referral and the existence of other opinions providing a diagnostic hypothesis does not bind the Medical Assessor, who has proceeded to determine the medical dispute that arose before him, including what results from injury.

Grounds 2 and 4 - the assessment of obstructive sleep apnoea

1. The second ground of appeal is that the Medical Assessor "failed to assess the Appellant's impairment related to obstructive sleep apnoea in accordance with Table 13-4 of AMA5". Ground 4 is that the Medical Assessor "provided unlawful reasons for assessing 0% WPI".
2. Given the issues raised overlap, the Appeal Panel will deal with these two grounds together.
3. The appellant submits that at no stage was an assessment undertaken in accordance with Table 13-4 of AMA 5, consistent with order 5 of the consent orders that the appellant suffered from obstructive sleep apnoea resulting from injury. The appellant refers to the Medical Assessor's finding of an Epworth Sleepiness Score of 10, which based on AMA 5 places Mr Bogdanovic in class 2, with a range from 10% to 29% whole person impairment. Whilst the Medical Assessor comments that the sleep apnoea was present prior to the work injury, he proceeds not to make a deduction, meaning that he has not correctly applied Table 13-4 of AMA 5.
4. In reply, the respondent submits that the consent orders had the effect of referring the worker to a Medical Assessor for an assessment of whole person impairment in respect of "sleep and arousal disorder and sleep apnoea", and the findings made by the Medical Assessor mean that it was not appropriate for the Medical Assessor to undertake an assessment pursuant to Table 13-4 of AMA 5. The respondent refers to cll 6.6 and 8.9 of the Guidelines and the assessment of Dr Howison, ear, nose and throat surgeon, who opined that Mr Bogdanovic did not have sleep apnoea.
5. The Appeal Panel have commented upon the consent orders above. On a prima facie basis, the Appeal Panel accept that the consent orders do no more than refer the worker to a Medical Assessor to assess the medical dispute that has arisen between the parties. Consistent with Skates, that medical dispute is underpinned by the dispute notice and the material exchanged prior to the proceedings in the Commission. Consent orders to not bind Medical Assessors as to aspects within their jurisdiction, including how the Guidelines are applied. As indicated above, this includes questions of causation which are not foreign to medical disputes. The consent orders do not bind the Medical Assessor in terms of his application of the Guidelines or AMA 5. The Medical Assessor has not approached the consent orders, or his role, incorrectly.
6. Ground 4 raises a reasons ground as "unlawful reasons" (which probably means insufficient reasons". Of particular relevance is the reference to 10(a) of the MAC where the Medical Assessor states: "As such, Mr Bodganovic has mild supine positional obstructive sleep apnoea, which is not sufficient to lead to whole person impairment." The respondent submits that the Medical Assessor has provided adequate reasons for his assessment, and that having found mild supine obstructive sleep apnoea, then it was not necessary for him to undertake an assessment pursuant to Table 13-4.
7. Although presented as a reasons ground, the appellant raises a fundamental issue with the assessment undertaken by the Medical Assessor. That is in respect of the finding that Mr Bogdanovic has "mild supine positional obstructive sleep apnoea", which is followed by the conclusion that this is "not sufficient to lead to whole person impairment". Earlier in the MAC, on page 4, the Medical Assessor makes a diagnosis of "mild positional obstructive sleep apnoea".
8. It is correct that the Guidelines require the involvement of an ear, nose and throat specialist. Per cll 6.6 and 6.7 of the Guidelines:

"6.6 In regard to sleep apnoea (third paragraph of AMA5 Section 11.4a, p 259), a sleep study and an examination by an ear, nose and throat specialist is mandatory before assessment by an approved assessor. > > 6.7 The assessment of sleep apnoea is addressed in AMA5 Section 5.6 (p 105) and assessors should refer to this chapter, as well as paragraphs 8.8 - 8.10 in Chapter 8 of the Guidelines."

"8.8 This section needs to be read in conjunction with AMA5 sections 11.4 (p 259) and 13.3c (p 317). > > 8.9 Before permanent impairment can be assessed, the person must have appropriate assessment and treatment by an ear, nose and throat surgeon and a respiratory physician who specialises in sleep disorders. > > 8.10 The degree of permanent impairment due to sleep apnoea should be calculated with reference to AMA5 Table 13-4 (p 317)."

10. The appellant complied with that requirement by relying on the report of Dr Howison. It is also correct, as the respondent submits, that Dr Howison rejects the presence of obstructive sleep apnoea. However, the Guidelines do not provide that any finding of an ear, nose and throat specialist is binding on the Medical Assessor. Rather, they require that an examination take place.
11. In present circumstances, the appellant has complied with the Guidelines. Likewise, the Medical Assessor has considered that material as part of his assessment. His diagnosis of positional obstructive sleep apnoea is not inconsistent with the Guidelines. The Appeal Panel are unable to find any prohibition or exclusion of positional obstructive sleep apnoea as an available method to allow an assessment of permanent impairment. In making that diagnosis and then proceeding to allow no whole person impairment as it is "mild" and "not sufficient to lead to whole person impairment", the Medical Assessor has made his assessment on the basis of incorrect criteria. It is also accepted, to the extent necessary, that the reasons are insufficient as the Medical Assessor has not explained why or how the Guidelines allow for the conclusion he has reached on finding sleep apnoea present (albeit as positional obstructive sleep apnoea).
12. The Appeal Panel are of the view that positional obstructive sleep apnoea is obstructive sleep apnoea for the purpose of the Guidelines, and can be assessed in accordance with Table 13-4. The Appeal Panel are also satisfied that the diagnosis made was appropriate in the circumstances of the case.
13. The appellant asserts that Mr Bogdanovic should be assessed as class 2 under Table 13-4 of AMA 5, based on the Epworth Sleepiness Score of 10. For a number of reasons, the Appeal Panel does not agree with that conclusion.
14. The first is based on the Guidelines and how they interact with AMA 5. The Guidelines take precedence over AMA 5 (cl 1.1). Clause 8.8 of the Guidelines provides that the section "needs to be read in conjunction with... 13.3c". Clause 8.10 provides that impairment due to sleep apnoea "should be calculated with reference to AMA 5 Table 13-4". Understood together, those to clauses provide that cl 13.3c (which is an introductory or summary paragraph before Table 13-4) must be read, but Table 13-4 must be applied when assessing impairment.
15. This is important, because, as the appellant points out, 13.3c of the Guidelines provides:

"The clinician can evaluate sleepiness with the Epworth Sleepiness Scale... > > A score of 10/24 is equal to excessive sleepiness, or class 2 impairment".

16. The Appeal Panel's view is that the commentary in 13.3c is guidance only, and does not override the criteria in Table 13-4 to assess impairment. The Epworth Sleepiness Scale is a self-reported set of criteria that can vary greatly between different assessments. As much can be seen factually in the present case, with the Medical Assessor assessing 10, Dr Frieberg assessing 7, and Dr Dimitri assessing 14. What is consistent is the impact of Mr Bogdanovic's sleep apnoea in terms of the impact on his activities of daily living.
17. Activities of daily living are paramount in the criteria in Table 13-4, appearing across all 4 classes. Activities of daily living are defined in Table 1-2 of AMA 5, covering the following activities:

(a) Sel care, personal hygiene;

(b) Communication;

(c) Physical activity;

(d) Sensory function;

(e) Nonspecialised hand activities;

(f) Travel;

(g) Sexual function, and

(h) Sleep.

1. The only category in Table 1-2 that has any concrete evidence of restriction from his obstructive sleep apnoea is Mr Bogdanovic's sleep.
2. The criteria for class 2 impairment in Table 13-4 is "reduced daytime alertness; interferes with ability to perform some activities of daily living". Some, by virtue of the common and plain grammatical meaning of the word, implies more than one. That is, Mr Bogdanovic does not have a restriction in "some" activities of daily living, he has a restriction in one activity of daily living.
3. The criteria for class 1 impairment in Table 13-4 is "reduced daytime alertness; sleep pattern such that individual can perform most activities of daily living". Given the only identified restriction in Mr Bogdanovic's activities of daily living is sleep, the criteria for class 1 are satisfied and this is the appropriate assessment. The above restriction must also be considered in the context of the results of the polysomnography, which were relatively normal.
4. Accordingly, the Appeal Panel determine that Mr Bogdanovic qualifies for class 1 impairment under Table 13-4.
5. The assessment of impairment must then come within the range from 1-9% whole person impairment. Based on Mr Bogdanovic's symptoms, the impact on his activities of daily living (of sleep), and using the clinical judgement of the medical members of the Appeal Panel, Mr Bogdanovic fits in the middle of the range. An assessment of 5% whole person impairment is appropriate.
6. The other issue that must be considered is whether a deduction pursuant to s 323 is appropriate in the circumstances. The Medical Assessor alludes to this on page 4 of the MAC, noting:

"Mr Bodganovic has not had any injury to the upper airway as part of his leg injury and chronic regional pain syndrome. He has not put any weight on. As such, his underlying obstructive sleep apnoea must be pre-existing and is relatively minor."

7. Given the assessment of 0% whole person impairment, the Medical Assessor did not make a deduction.
8. In the circumstances of the case, the Appeal Panel are satisfied that Mr Bogdanovic had sleep apnoea, undiagnosed and asymptomatic, prior to his work injury. This was not apparent due to his preference for side sleeping, which is restricted as a result of his work injuries. This must also be considered in the context of the lack of weight gain following injury, which is generally an important contributing factor in the development of sleep apnoea. This condition was pre-existing and must be accounted for pursuant to s 323 of the 1998 Act.
9. In circumstances where it would be difficult or costly to determine the extent of the deduction, s 323(2) applies. A deduction of 1/10th is not at odds with the available evidence and in the view of the Appeal Panel, is appropriate in all of the circumstances. Due to rounding, the figure of 5% is the final outcome.
10. For the reasons above, the MAC will be revoked.

1. This ground is particularised as the Medical Assessor "failed to assess the Appellant's impairment related to insomnia in accordance with Table 13-4 of AMA5". The appellant submits that firstly, no assessment was undertaken in accordance with Table 13-4 of AMA 5. The Medical Assessor was obliged to assess insomnia in accordance with Table 13-4 by virtue of the consent orders. Secondly, the Medical Assessor omitted a diagnosis of insomnia. Reference is made to the conclusion that if Mr Bogdanovic did have insomnia due to pain, that was compensated under the assessment for complex regional pain syndrome.
2. The appellant also raises a series of submissions about cl 5.10 of the Guidelines, requiring a neurological injury before impairment is assessed.
3. The respondent submits that insomnia solely due to chronic pain is not assessable, consistent with Bucca v QBE Insurance (Australia) Ltd [2024] NSWSC 1099 (Bucca). The appellant further submits that for an allowance of a sleep disorder under Table 13-4 of AMA 5, the sleep disorder must be a primary sleep disorder that followed a neurological condition. There has been no neurological injury which would enable an assessment of a primary sleep disorder pursuant to Table 13-4 of AMA 5.
4. The Appeal Panel would firstly point out that consistent with the reasons above, the consent orders do not create a circumstance where the Medical Assessor was bound to find insomnia due to order 5, which refers the dispute for "sleep and arousal disorder and sleep apnoea".
5. Diagnosis plays an important part in the assessment of impairment. A referral of a "sleep and arousal disorder" requires an appropriate consideration of diagnosis, as does any assessment of impairment. Part 13.3c of AMA 5 lists a series of neurologic disorders "associated with daytime sleepiness", going on to provide: "It is expected that the diagnosis of excessive daytime sleepiness has been supported by formal studies in a sleep laboratory". This is to be read in conjunction with cl 5.10 of the Guidelines which refers to "clinically significant disorders of this type". It is thus imperative that an individual has a "disorder" (a diagnosis) to be assessed for permanent impairment. A consent order does not constitute a diagnosis, and this is particular so in the present case where the dispute underpinning the consent orders went specifically to the issue raised on appeal.
6. In the MAC, the Medical Assessor specifically excludes the hypothesis of Dr Dimitri:

"Dr Dimitri also states that Mr Bodganovic has insomnia due to chronic pain. The total arousal index reported on the sleep study of 18 within the normal range does not support this hypothesis."

7. That is, the Medical Assessor has relied upon clinical evidence, being the sleep study conducted on Mr Bogdanovic, to exclude the diagnosis of insomnia due to chronic pain. Mr Bogdanovic does not have a sleep and arousal disorder to qualify for an assessment under Table 13-4 of AMA 5 (outside of his positional obstructive sleep apnoea).
8. Two additional comments are required in terms of the assessment undertaken, and the case pleaded by the applicant in the substantive proceedings that now forms part of the appeal before the Appeal Panel.
9. The first is that there are two pathways to an assessment under Table 13-4 of AMA 5, pursuant to the Guidelines. The first is through cl 5.10, the subject of this ground of appeal, which appears in the nervous system chapter. This provides:

"5.10 Assessment of arousal and sleep disorders (AMA5 Section 13.3c, pp 317-319): refers to assessment of primary sleep disorders following neurological injury. The assessor should make ratings of arousal and sleep disorders based on the clinical assessment that would normally have been done for clinically significant disorders of this type (ie sleep studies or similar tests)."

10. The appellant has made submissions regarding this ground concerning the interpretation of the Guidelines.
11. The other pathway is via the respiratory system chapter in the Guidelines, through obstructive sleep apnoea under cll 8.8-8.10 of the Guidelines (referred to above). These clauses are also referenced in cl 6.7 of the Guidelines, noting that the preceding clause requires an "examination by an ear, nose and throat specialist". The Appeal Panel have determined that in the circumstances of the case, an assessment under that pathway, due to positional obstructive sleep apnoea, is appropriate.
12. The Appeal Panel otherwise do not accept the appellant's submissions regarding the construction of cl 5.10 of the Guidelines. The clause is clear. It appears in the nervous system chapter (i.e. how neurological injuries are assessed). Where a neurological injury is assessed, if, as a consequence of that injury, a sleep and arousal disorder follows, then cl 5.10 allows for an assessment of impairment pursuant to Table 13-4 of the Guidelines.
13. Further the Appeal Panel do not accept that the reference to "neurological injury" in cl 5.10 of the Guidelines acknowledges that chronic insomnia is a neurological disorder, thereby allowing an assessment under Table 13-4. The plain words of the clause are clear, and require an assessment o be made of a sleep disorder "that follows" a neurological injury, not a sleep disorder that, over time, involves neurological components (as asserted by Dr Frieberg). The Appeal Panel notes there is significant doubt concerning Dr Frieberg's construction. Regardless, there was no primary neurological injury in the present case.
14. The Appeal Panel agree with the discussion of the construction point in Lachlan Shire Council v Stanley [2025] NSWPICMP 765 and Winmill v MWR Transport Pty Ltd [2025] NSWPICMP 984.
15. It should also be noted here that the construction asserted for by the appellant, in the factual circumstances of the case, would allow the appellant to be assessed under Table 13-4 twice, for the same consequences (poor sleep and the effects on his activities of daily living). The Appeal Panel are of the view that this could potentially lead to double compensation and the two pathways outlined in the Guidelines are intended as separate and distinct methods to be assessed under the appropriate table in AMA 5 on a singular occasion. This would be akin to, for example, the contribution from multiple problems in a limb (structural, nervous, soft tissue) being assessed under range of motion on multiple occasions due to each contributing factor. The issue does not presently arise as Mr Bogdanovic does not have a primary neurological injury that has led to chronic insomnia. Based on his sleep study, he does not have an underlying sleep disorder, other than positional obstructive sleep apnoea.
16. For these reasons, the Appeal Panel has determined that the MAC issued on 13 October 2025 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons, and will include the assessment of Medical Assessor Anderson, who assessed Mr Bogdanovic's whole person impairment arising from his physical injuries.

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act 1998.

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Christopher Grainge and issues this new Medical Assessment Certificate as to the matters set out in the table below:

Chapter, page and paragraph number in NSW workers compensation guidelines

Chapter, page, paragraph, figure and table numbers in AMA 5 Guides

Proportion of permanent impairment due to pre-existing injury, abnormality or condition

Sub-total/s % WPI (after any deductions in column 6)

Chap 2 P 10

P 476 F 16-40

P 477 F 16-43

P 479 F 16-46

Chap 2 P 10

P 476 F 16-40

P 477 F 16-43

P 479 F 16-46

Chap 4 P 24

Chap 3 P 13

Total % WPI (the Combined Table values of all sub-totals)