The Application in this matter included "sleep disorder condition" in the injury description.
The Response to application for medical assessment dated 4 February 2025 noted that the body parts to be assessed were as follows:" The plaintiff pleads injuries to his head, face, a mandibular fracture, bite distortion and associated dysfunction, facial disfigurement, nerve damage in the jaw region, loss and damage to teeth, sleep disorder condition and psychological sequalae."
In a letter dated 13 September 2024, Ms Lahia of McCabes, solicitors for the respondent, wrote:

In these circumstances, a medical dispute now exists between the parties, we consider there is no basis to continue to prosecute these proceedings until the medical dispute is resolved and the plaintiff undergoes an independent assessment.

Accordingly, the matter ought to be referred to the Personal Injury Commissioned for assessment in accordance with s26D of the Civil Liability Act 2002 (NSW)."

The Referral for Assessment of Permanent Impairment to Medical Assessor dated

31 January 2025 listed the following body parts: "Respiratory system, ENT related structures and psychological". 2. Under "History relating to the Injury", Medical Assessor Grainge noted that following his release from incarceration on or around 26 July 2020 that the appellant was able to present for formal medical review and on 27 July 2020 he had an open reduction and internal fixation of his fractured mandible. Medical Assessor Grainge noted that the appellant described having sleep difficulties from immediately following the injury with immediate hypervigilance and nightmares and flashbacks regarding the events. 3. Medical Assessor Grainge noted:

"Prior to the assault, Mr Modica described that he had a normal sleep pattern, retiring to bed between 21:30 hours and 22:00 hours. He would get to sleep with about 10 minutes latency, wake up 2 or 3 times overnight to use the bathroom and have a short latency returning to sleep. He would generally be up in the morning between 06:00am and 07:00am. He had not had any snoring or witnessed apneas noted to him. He had never seen a Sleep Physician or consulted his General Practitioner for sleep issues and he self estimated his weight at about 95kg-98kg.

Mr Modica has apparently been diagnosed with post-traumatic stress disorder following the assault".

Under "Present treatment" Medical Assessor Grainge noted:

Paracetamol 2 tables 2 or 3 times daily, as required.

Under "Present Symptoms" Medical Assessor Grainge noted:

"From a sleep point of view, Mr Modica states he now retires to bed between 21:30 hours and 22:30 hours and has a prolonged latency of 1-2 hours. He still wakes overnight 2 or 3 times to use the bathroom and has a prolonged latency in returning to sleep. He describes the cause of this latency as intrusive memories, nightmares, hypervigilance and realistic disturbing flashbacks of his assault. He generally rises around 04:00 hours to 05:00 hours feeling that he has not had a good night's sleep but there have been no reports of snoring or witnessed apneas. He self-estimated his weight at 120kg today.

I note his Epworth sleepiness score was 1 today, only scoring 1 point for lying down to rest in the afternoon when circumstances permit".

On examination Medical Assessor Grainge noted that the appellant was 198cm tall, weighing 99kg, and he had a Mallampati Class 2 airway. Medical Assessor Grainge found that there was notably poor dentition and jaw mal-occlusion.
Under "Details and Dates of Special Investigations" Medical Assessor Grainge noted:

"On 07/10/2021 Mr Modica underwent a diagnostic polysomnogram. This recorded that his sleep latency was 87 minutes with a total sleep time of 350 minutes. It noted 28 awakenings and 6 arousals per hour. It recorded an apnea-hypopnea index of 7.5/hour indicating mild obstructive sleep apnea."

Under "Summary of injuries and diagnoses" Medical Assessor Grainge wrote:

"Mr Modica has sleep difficulties and sleep fragmentation secondary to his underlying posttraumatic stress disorder but does not have a primary sleep disorder."

On page 5 of his MAC, Medical Assessor Grainge wrote:

"Dr Freiberg is in error when he then goes onto extrapolate that an Epworth sleepiness score of less than 10 implies a Class I impairment. An Epworth sleepiness score of less than 10 is generally accepted to be normal and certainly in Mr Modica's case where he has a normal Epworth sleepiness score of 1, this is absolutely normal. As such, normal daytime sleepiness cannot give rise to an impairment and hence there is zero whole person impairment".

In the MAC of Medical Assessor Hong issued on 3 March 2025, a history was taken of the appellant suffering from _"_pain ... in his neck, head, and jaw, and he has problems with dribbling and loss of facial sensation". Dr Hong under "Present symptoms reported: "Mr Modica reported chronically disrupted sleep due to pain, generally only sleeps 2 hours. He has frequent nightmares related to being assaulted. He said his sleep is the main psychological problem. He sleeps during the day too...He is preoccupied by constant pain". Dr Hong reported that the appellant told him at the end of his assessment that "he has a lot of pain...".
Dr Freiberg, in a report dated 17 June 2023, under "History of Injury" wrote:

"On the 14th July 2022 Mr Modica was making a telephone call and he was allegedly assaulted by another inmate at Parklea Correction Centre causing him to have serious injury in particular he suffered multiple facial fractures including to his jaw. He required surgical intervention for this.

Since that time he has been in chronic pain, he has been anxious and depressed.

He reports an average pain of 8 out of a maximum of 10 on a pain scale. His pain arises from his lower jaw but also his lumbar spine which was also impaired by the assault.

As a result of his injury, his immobility and the medications he uses he has gained 15kgs or 16% of his total bodyweight. His BMI has increased to 28 which is in the mid overweight range.

His medications include Valium 10mg b.d., Endone 5mg b.d. and the anti depressant Zoloft.

For his depression and anxiety he sees a Psychiatrist and a Psychologist. He has been diagnosed with post traumatic stress disorder".

"Prior to this man's injury he had an uninterrupted 8 hours sleep. He would wake refreshed and he would score on reflection 0/24 on an Epworth Sleepiness Scale.

Now Mr Modica takes up to an hour to fall asleep. He would sleep no more than 6 hours. It is a disturbed and disrupted sleep. He can wake from pain. He can wake from nightmares and anxiety. He can wake from restless legs during his sleep. As a result of this he is unrefreshed by his sleep. He may occasionally nap in the afternoon however although he is constantly hypersomnolent he is unable to fall asleep during the day despite his desire to do so because he is in too much pain and too agitated. He feels "tired and wired". Hence his Epworth Sleepiness Scale score is 3/24 and may be an under estimate of his symptoms.

Although Mr Modica is not aware of it, his partner has noted he has snoring and choking episodes in his sleep".

On examination, Dr Freiberg noted that the appellant was an overweight man with a cross bite, a Mallampati class 3 airway, bilateral subtotal nasal airflow obstruction and a left sided septal deviation.
Dr Freiberg considered that the diagnostic polysomnogram on 7 October 2021 showed a truncation and fragmentation of sleep. He expressed the opinion that the fragmentation of sleep was due to a combination of pain, the hyperarousal state of post-traumatic stress disorder, mild sleep disordered breathing and borderline mild periodic limb movement disorder. Dr Freiberg wrote:

"The likely etiology of his mild sleep disordered breathing is his weight gain since his injury, the probable deviated nasal septum as a result of the assault, the respiratory suppressant and muscle relaxant medications (Endone and Valium)."

"Subsequent to his facial and lumbar spine injuries he has gained weight, he has nasal obstruction, he is on a muscle relaxant and respiratory suppressant medication before retiring. He has developed chronic pain and post traumatic stress disorder both of which contribute to arousals and awakenings during sleep....

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 abovementioned Guidelines indicates "a score of 10/24 is equal to excessive sleepiness or a Class 2 Impairment".

Mr Modica would therefore fulfil a Class 1 Impairment of a 1%-9% impairment of whole person according to Table 13-4. This results in reduced daytime alertness and sleep pattern such that the individual can perform most activities of daily living. However because of the hyper-arousal state of this man's post traumatic stress disorder and the chronic pain that he experiences he is unable to fall asleep easily during the day. Therefore the Epworth Sleepiness Scale score is a likely an under-estimate of his impairment from a disturbed and truncated sleep pattern from all the etiologies mentioned above all related to his assault and injury. I would therefore classify him as a 9% impairment of whole person".

The appellant submits that Medical Assessor Grainge erred by not assessing the appellant as having a Class 1 level of impairment under Table 13.4 of AMA-5 with a 1/10th deduction under s 323 of the 1998 Act to take into account the contribution to impairment of the appellant's primary psychological condition. The appellant argues that the finding by Medical Assessor Grainge that the appellant did not have a sleep disorder was incompatible with the evidence of Dr Freiberg and Dr Hong and with the findings of the 2001 (sic) diagnostic polysomnogram.
Table 13-4 of AMA 5 sets out the criteria for rating impairment due to sleep and arousal disorders. Class 1 ranges from 0%-9% WPI and class 2 ranges from 10%-29% WPI.
The criteria for Class 1 are: "Reduced daytime alertness, sleep pattern is such that individual can still perform most activities of daily living". The criteria for Class 2 are: "Reduced daytime alertness, interferes with the ability to perform some activities of daily living".
The appellant submits that Medical Assessor Grainge stated on page 3 of his MAC that "there been no reports of snoring or witnessed apneas." The Appeal Panel accepts that this is factually incorrect as Dr Freiberg took a history of the appellant being told by his partner he snored and would choke during his sleep.
The Appeal Panel considers that Medical Assessor Grainge made a demonstrable error in stating that there had been no reports of snoring or witnessed apneas.
This ground of appeal is made out.
Having found error, the Appeal Panel reviewed the matter.
The Appeal Panel was satisfied that the diagnostic polysomnogram on 7 October 2021 showed a mild sleep apnoea. Indeed, Medical Assessor Grainge noted that the diagnostic polysomnogram recorded an apnea-hypopnea index of 7.5/hour indicating mild obstructive sleep apnea.
When the results of the diagnostic polysomnogram on 7 October 2021 are taken into account, together with the weight gain since the injury, the report of snoring and choking during sleep, and the facial injuries, particularly the deviated nasal septum to the left, which would have made the applicant more prone to obstruction, the Appeal Panel does not accept that all of sleep difficulties and sleep fragmentation are secondary to his underlying posttraumatic stress disorder.
The Appeal Panel is satisfied that the appellant does have a primary sleep disorder. The Appeal Panel accepts that the appellant does have insomnia due to post-traumatic stress disorder but is satisfied that he also has mild sleep apnoea, although almost no daytime sleepiness. The Appeal Panel assesses the appellant as Class 1 in Table 13.4 with an assessment of 3% WPI as the appellant has only a mild sleep disorder and it is appropriate to place him in the lower third of the class, taking into account that the post-traumatic stress disorder contributes to arousals and awakenings during sleep.
The Appeal Panel noted that Medical Assessor Grainge expressed the view that Dr Freiberg was in error when he extrapolated that an Epworth sleepiness score of less than 10 implies a Class I impairment. The appellant submits that this is not a correct or accurate reflection of Dr Freiberg's findings.
The Appeal Panel does not accept that Dr Freiberg went onto extrapolate that an Epworth sleepiness score of less than 10 implies a Class I impairment. Dr Freiberg was satisfied that the appellant had mild disordered sleep and was excluding a Class 2 assessment because the appellant did not have a score of 10/24. Dr Freiberg made it clear that he considered that the appellant fulfilled a Class 1 Impairment of a 1%-9% impairment of whole person according to Table 13-4 because his condition resulted in reduced daytime alertness and sleep pattern such that the individual can perform most activities of daily living.
The Appeal Panel notes that the appellant submits that it was not in dispute that the appellant suffered a primary sleep/arousal disorder (or respiratory condition) and therefore not open to the Medical Assessor Grainge to conclude the appellant did not have a primary sleep disorder because his assessment was limited to the terms of the referral and the issues in dispute. The Appeal Panel considers that it is unnecessary to decide this issue given the findings above but notes that this is not a workers compensation dispute but an Application for Assessment by a Medical Assessor for a threshold dispute for offender in custody damages claim (s 26C Civil Liability Act 2002).
The Appeal Panel therefore assessed 3% WPI for sleep disorder. The combined WPI is 13% WPI for ENT related structures and 3% for sleep disorder which totals 16% WPI.
For these reasons, the Appeal Panel has determined that the undated MAC issued by Medical Assessor Grainge and the MAC issued on 21 March 2023 by the Lead Assessor should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

Secretary, Department of Communities and Justice (Corrective Services NSW), Broadspectrum (Australia) Pty Ltd & Management & Training Corporation Pty Ltd t/as MTC Australia

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 Certificates of Lead Medical Assessor Brian Williams and Medical Assessor 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)

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

The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.

Injury Management and Workers Compensation Act 1998

Personal Injury Commission Rules 2021

Modica v Secretary, Department of Communities and Justice (Corrective Services NSW) & Anor [2025] NSWPICMP 646; (27 August 2025)

(a) Medical Assessor Grainge's finding to the effect that the entirety of the appellant's sleep disorder is related to his PTSD condition is a demonstrable error as it is incompatible with the referral made because it was not in dispute that the appellant suffered a primary sleep/arousal disorder (or respiratory condition). It was not in dispute as the respondent served no evidence disputing the appellant had a primary sleep/arousal disorder or respiratory condition. It was not open to the Medical Assessor Grainge to conclude the appellant did not have a primary sleep disorder given his assessment was limited to the terms of the referral and the issues in dispute [Skates v Hills Industries Ltd [2021] NSWCA 142];

(b) it is incompatible with the history of chronic pain following the assault on 14 July 2020. Dr Freiberg noted a history of the appellant being in "chronic pain" since the assault on 14 July 2020;

(c) it is incompatible with the clear history of significant and unresolved symptoms from his various physical injuries, referred to by Dr Freiberg on page 3 of his report;

(d) it is incompatible with Medical Assessor Grainge's reporting that the appellant's "present treatment" included taking four to six paracetamol tablets daily;

(e) it is incompatible with the MAC of Dr Michael Hong issued on 3 March 2025. Dr Hong took a history of the appellant suffering from _"_pain ... in his neck, head, and jaw, and he has problems with dribbling and loss of facial sensation";

(f) it is incompatible with the findings of the 2001 (sic) diagnostic polysomnogram, which confirm the appellant had sleep apnoea;

(g) it is incompatible with the history provided to Dr Freiberg of the appellant, while not being aware he snored, being told by his partner that he would snore and undergo choking episodes in his sleep [page 3 of his report, page 31 of the Application];

(h) Medical Assessor Grainge states on page 3 of his MAC that "there have been no reports of snoring or witnessed apneas" which is factually incorrect as Dr Freiberg took a history of the appellant being told by his partner he snored and would choke during his sleep.

(i) Medical Assessor Grainge reported the appellant had an Epworth Sleepiness Score of 1. He referred to the findings of Dr David Freiberg (who assessed the appellant as suffering from a Class 1 level of impairment under Table 13.4 of AMA-5, noting table 13.4 provides that a Class 1 level of impairment results in an assessment of between

1-9% WPI) and stated that an Epworth Sleepiness Score of less than 10 was "generally accepted to be normal" and a score of 1, was "absolutely normal" and resulted in 0% WPI as "normal daytime sleepiness cannot give rise to impairment";

(j) Medical Assessor Grainge reported the appellant had a disrupted sleep pattern but considered this was entirely secondary to his underlying PTSD condition. For the reasons noted above, this represents a demonstrable error;

(k) Medical Assessor Grainge made no reference to the impact of the appellant's physical injuries and symptoms on his sleep pattern other than by referring to the report of Dr Freiberg;

(l) Medical Assessor Grainge has misread Dr Freiberg's findings, and this led Medical Assessor Grainge into error. Dr Freiberg does not "imply" a score of less than 10 results in a Class 1 level of impairment. He makes no such statement but rather, refers to the appellant's disturbed sleep (which he considered was caused by both chronic pain and the appellant's PTSD condition), reduced daytime alertness, weight gain, use of medication to treat pain and relax muscles, and difficulties sleeping during the day (again due to the appellant's chronic pain and PTSD condition) as the reasons for his assessment of 9% WPI for the respiratory condition and sleep and arousal disorder. Dr Freiberg also concluded that the combination of the appellant's symptoms likely resulted in a repressed Epworth Sleepiness Score;

(m) Medical Assessor Grainge has failed to consider or address whether the appellant's Epworth Sleepiness Score was repressed. Rather, he has relied on the appellant's Epworth Sleepiness Score as determinative. Specifically, Medical Assessor Grainge considered the Epworth Sleepiness Score was not capable of resulting in assessable WPI. This represents a demonstrable error and the use of incorrect criteria;

(n) having misread Dr Freiberg's findings, Medical Assessor Grainge falls into error by assuming that an Epworth Sleepiness Score of 1 necessarily equates to 0% WPI. Medical Assessor Grainge compounds his error by failing to consider the extent to which the appellant's chronic pain in combination with his PTSD symptoms impact on his capacity to achieve and/or maintain sleep (whether at night or during the day);

(o) with respect to the Epworth Sleepiness Score, it is not controversial that a score of less than 10 is considered "normal". There is nothing in the AMA-5 Guidelines to suggest a score of between 1-9 on the Epworth Sleepiness Scale necessarily equates to 0% WPI;

(p) a Class 1 level of impairment under Table 13.4 applies in cases of "reduced daytime alertness, where a person can perform most activities of daily living." Medical Assessor Grainge has failed to properly consider whether the appellant's mild apnoea-hypopnea index and disrupted sleep pattern has resulted in a class 1 level of impairment under Table 13.4 of AMA-5. Medical Assessor Grainge stated on page 5 of the MAC that the appellant had "a very mild increase in his apnea-hypopnea index". Medical Assessor Grainge failed to explain how such a finding was consistent with his finding that there was "no primary sleep disorder" and the appellant's sleep/respiratory condition was entirely attributable to his PTSD condition. Medical Assessor Grainge also failed to explain how such a finding was consistent with his finding that the appellant did suffer from a "disruption of his sleep pattern". This represents a demonstrable error and the use of incorrect criteria;

(q) Medical Assessor Grainge erred by not assessing the appellant as having a Class 1 level of impairment under Table 13.4 of AMA-5, and

(r) the Appeal Panel should revoke the MAC of Medical Assessor Grainge and issue a new MAC certifying the appellant as having 8% WPI of the respiratory system as well as a new Consolidated MAC certifying the appellant as having a combined 20% WPI of the respiratory system and ENT structures. In the alternative, the appellant submits he should be re-examined by a Medical Assessor who is a member of the Appeal Panel.

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 MAC and the evidence in this matter.

Modica v Secretary, Department of Communities and Justice

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Modica v Secretary, Department of Communities and Justice (Corrective Services NSW) & Anor [2025] NSWPICMP 646; (27 August 2025)