1. Mr Peter Nagy (the applicant) was employed by the respondent and sustained a compensable injury to the lumbar spine deemed to have occurred on 5 April 2018.
2. The applicant claims lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act).
3. The matter was listed for arbitration hearing on 4 November 2025 when Mr Morgan of counsel appeared for the applicant and Mr Goodman of counsel appeared for the respondent. The following documents were admitted by consent:

(a) Application to Resolve a Dispute and attachments;

(b) Reply and attachments, and

(c) respondent's Application to Lodge Additional Documents attaching a further report.

1. There was no request to call oral evidence.
2. Counsel were advised that material that was not the subject of express submission would not be considered. There was no objection to this course.

1. The application originally pleaded injury against the second respondent. At the preliminary conference there was an award in favour of the second respondent. The first respondent then withdrew its defences based on ss 15 and/or 16 of the 1987 Act.
2. The respondent accepted that the applicant suffered injury to the lumbar spine in the course of employment with the respondent deemed to have occurred on 5 April 2018.
3. The respondent accepted that the applicant aggravated his diabetes as a result of the accepted lumbar spine injury.
4. The only liability issue is whether the respiratory (sleep disorder) condition results from the accepted work injury.
5. The applicant contended that the sleep disorder arose from four separate causes, they being:

(a) weight gain

(b) back pain;

(c) narcotic relief, and

(d) sleep arousal from pain.

1. The respondent initially submitted that the only issue was whether the applicant suffered weight gain causatively related to the lumbar spine injury.

1. The applicant provided a statement noting that since the accident he had been very sedentary and inactive and spent most of his time at home resting. He also stated that his injuries made it difficult for him to sleep at night and that he had consulted Dr Freiberg.[1]

1. Dr Freiberg, consultant physician, provided a report dated 31 July 2023.[2] Following a sleep study the doctor opined that the applicant had severe truncation and fragmentation and sleep disorder due to the combination of insomnia due to pain and the development of sleep disordered breathing mostly while lying on his back. The doctor opined that weight gain and alcoholic analgesics before retiring can increase the potential for severe sleep apnoea.
2. Dr Freiberg provided a further report dated 13 December 2023.[3] The doctor noted that the applicant's weight had increased to 92kg or a 7% total body weight increase which was a consequence of the immobility from the workplace injury.
3. The doctor noted that since the workplace injury sleep duration varied between one to three hours, the applicant wakes constantly because of pain and from a choking sensation.

Dr Freiberg opined that the applicant had developed severe sleep apnoea due to weight gain, use of narcotic analgesia before retiring and shift in body position during sleep to the supine position. 4. In a report of whole person impairment, Dr Freiberg applied Table 13-4 of the American Medical Association's Guides to the Evaluation of Permanent Impairment (AMA 5) and assessed the applicant as falling within class 2 impairment.

1. Dr Clive Chappell, ear, nose and throat surgeon, was qualified by the applicant and provided a report dated 9 August 2024.[4] The doctor opined that the applicant was snoring due to the collapse of the tongue into the oropharynx and hypopharynx caused by the applicant lying on the his back in a site supine position and not due to the nasal airway. Dr Chappell opined that the applicant adopted the sleeping position due to pain.
2. Dr Chappell assessed the applicant is within class 2 of table 13-4 of AMA 4.

1. Dr Ken Howison was qualified by the respondent and provided a report dated

15 January 2025.[5] Dr Howison noted that there was no ear, nose or throat cause for the applicant's obstructive sleep apnoea and that the condition was due to weight gain. 2. Dr Howison opined that maximum medical improvement had not been achieved as further weight loss would improve the applicant's sleep apnoea.[6]

1. Dr Dimitri, respiratory and sleep physician, was qualified by the respondent and provided a series of reports.
2. In a report dated 6 March 2024[7] the doctor noted a history that chronic pain had disturbed the applicant's sleep causing sleep fragmentation and insomnia. The doctor could not verify whether there had been a 6kg weight gain as reported to him.
3. Dr Dimitri opined that the applicant had sleep apnoea in the supine position based on the sleep studies finding contained in the report of Dr Freiberg. The doctor also opined that the applicant had insomnia due to his chronic pain.
4. In a further report dated 14 June 2024[8] Dr Dimitri again requested the original diagnostic sleep study report.
5. Dr Dimitri provided a further report dated 29 January 2025.[9] The doctor then reviewed the sleep study and opined that it showed severe obstructive sleep apnoea with one-quarter of the night spent supine. The apnoea hypopnoea index in the supine position was described as severe.
6. Dr Dimitri opined that there were several spontaneous arousals throughout the night, some of which were due to chronic pain. The doctor was unable to express an opinion of whether the severe sleep apnoea was due to weight gain because there was no "objective evidence" to support the alleged increased in weight.

1. The applicant' weight recorded at various times was:

1. In December 2023 Dr Freiberg record the applicant's weight at 92kg.[22]
2. In March 2024 Dr Gothelf recorded the applicant's weight at 94kg.[23]

1. The submissions have been recorded. The evidence referred by counsel has been summarised above.
2. The applicant contended that the causes of the sleep disorder were weight gain giving rise to sleep apnoea, pain causing the applicant to sleep in the supine position (on his back), narcotic intake and sleep arousal due to pain.
3. The applicant noted that there was no contradictory evidence on three of the causes for the applicant's sleep disorder. Accordingly, it was submitted that there was no liability issue for determination and the assessment of permanent impairment for the sleep disorder must be referred to a Medical Assessor. The applicant submitted that once there is a finding of a sleep disorder consequential to the work injury then how it occurs is a matter for the Medical Assessor. He also submitted that it was a matter for the Medical Assessor to assess the "various contributions" without specifying how this was achieved and/or relevant in the assessment process.
4. The applicant submitted that this was the course undertaken in four Members' decisions which should be followed as a matter of comity.
5. The respondent disputed that there was weight gain but otherwise did not address the other causes save as to submit at one point that the incorrect history of weight gain contaminated the various medical opinions on the other causes. In an unexplained submission, the respondent submitted that none of the evidence could be accepted because the history relating to weight gain should not be accepted. Ultimately and inconsistently the respondent stated that it did not contest the other causes and stated that it could not put anything further.
6. The respondent detailed the clinical records which showed a weight of around 90kg at the time of the deemed date of injury. It submitted that the weight fluctuated and dropped over time in 2022 when the clinical records of the general practioner cease. The respondent submitted that the issue of weight gain be determined at a prior time because that was when the opinions were proffered.
7. The respondent referred to the history recorded by Dr Howison that the pre-injury weight was 84kg and this had increased to 100kg was plainly wrong.
8. The various opinions are based on the applicant's history of pre-accident weight of 85kg which was incorrect. Accordingly, the opinions based on sleep apnoea caused by weight gain was based on an incorrect history and could not be accepted.
9. The respondent submitted that the weight gain be determined at the time when the doctors assessed the applicant.
10. The applicant in response noted Dr Gothelf's record in March 2024 that the applicant's weight was 94kg. It noted that the claim was based on heavy work over a period of time deemed to have occurred on 5 April 2018.

1. A brief statement is required for the reasons for determination.[24] The applicant bears the onus of proof on the balance of probabilities.[25]

Finding concerning weight gain and sleep apnoea

1. I accept the respondent's submission that the applicant's weight at the time of the deemed date of injury was around 90kg and that his weight was probably greater than that over the prior years including a weight of approximately 100kg in January 2015. The applicant's submission that the injury was based on heavy lifting over a period of time does not assist his case because his weight was heavier in the period prior to the deemed date of injury.
2. Based on the clinical records I am not persuaded that there was an increase in weight from 2018 to 2022. The clinical records show a slight decrease in weight from 2018 to 2022.
3. Dr Freiberg measured the weight in late 2023 at 92kg. Dr Gothelf recorded the applicant's weight in March 2024 at 94kg. I was not referred to any other records which detailed the applicant's weight after March 2024.
4. The medical evidence establishes that an increase in body mass index above a healthy level is related to sleep apnoea. This is accepted by the respiratory physicians. The issue, identified by Dr Dimitri (who could not see objective evidence of weight gain) and the basis for the respondent's argument is that there was no weight gain and the applicant failed in establishing, on this aspect, that there was a causal connection between the work injury and the sleep disorder.
5. There is a real issue whether the applicant's weight has increased at all and, whether any part of the sleep apnoea due to increased body mass is attributed to the work injury. However, for the following reasons I decline to make findings on this issue. The findings are unnecessary and would not bind the Medical Assessor.

Findings of causation between work injury and sleep disorder

1. I accept the applicant's submission that the medical evidence establishes that the applicant's sleep disorder is materially contributed to by pain, the use of narcotic analgesia and sleeping in the supine position.
2. Dr Freiberg explained and related narcotic analgesic to sleep apnoea. There was no contradictory opinion.
3. Both Dr Chappell and Dr Dimitri related the applicant's sleep apnoea at least in part to sleeping in the supine position. The relationship between sleeping in that position and back pain explains the causal link between the accepted work injury and the sleep disorder.

Dr Dimitri's explanation is clear and unrelated to the issue of weight gain because the doctor was not convinced that this had occurred. 4. Dr Dimitri also noted that part of the sleep disorder was due to chronic pain. 5. The requirement that an expert identify the facts and reasoning to support the opinion are based on settled principles including Australian Securities and Investments Commission v Rich,[26] Paric v John Holland (Constructions) Pty Ltd (Paric)[27] and Rule 73 of the Personal Injury Commission Rules 2021. Ultimately the acceptability of opinion is "a matter of weight not admissibility": Hancock v East Coast Timber Products Pty Limited.[28] 6. The respondent's tentative submission that no doctor's opinion on any issue could be accepted because of an incorrect history of weight gain is rejected. Accepting the respondent's submission that there are errors with respect to the history of weight gain recorded by some of the doctors, there is no logical basis between an error in recording an incorrect weight and the explanation by the various doctors of the other causes for the applicant's sleep disorder. 7. The principles of whether a condition was consequential to the accepted work injuries were discussed by Kirby P (as his Honour then was) in Kooragang Cement Pty Ltd v Bates.[29] Whilst the principle is not without criticism[30] it is frequently cited and applied in what has unfortunately become known as consequential condition cases. I say unfortunately because those words do not appear in the worker compensation legislation, and some associated principles have developed in the absence of a proper legal foundation. 8. In this case the applicant has a sleep disorder condition caused by the accepted work injury due to at least the three causes discussed earlier in these Reasons.

Role of the Member in the medical dispute for the assessment of a sleep disorder

1. The applicant submitted that a finding that he suffered from a sleep disorder caused by the injury was sufficient for the medical assessment to be referred to a Medical Assessor. He submitted, based on four Members' decisions and the principle of comity that the work injury caused a sleep disorder and there was no further issue for determination.
2. The respondent did not address the applicant's submission.

The relevant provisions of AMA 5 and the fourth edition Guidelines

1. The assessment of permanent impairment is undertaken in accordance with the fourth edition of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, Fourth Edition (fourth edition Guidelines).[31] The fourth edition guidelines adopt the fifth edition of the AMA 5. Where there is any difference between AMA 5 and the fourth edition guidelines, the fourth edition Guidelines prevail.[32]
2. Section 13.3c of AMA 5 applied to sleep and arousal disorders and is contained in the nervous system chapter of AMA 5.
3. Paragraph 5.10 of the fourth edition Guidelines refers to the assessment of arousal and sleep disorders in Section 13.3c of AMA 5 and states that this "refers to assessment of primary sleep disorders following neurological injury".
4. There is no suggestion in the various reports that the applicant suffered a neurological injury causing a sleep disorder.
5. The assessment of obstructive sleep apnoea is contained in section 5.6 of AMA 5 within the Chapter relating to the respiratory condition. Relevantly the section provides:

"A diagnosis of obstructive sleep apnoea is confirmed by nocturnal polysomnography in an accredited sleep laboratory. Once the diagnosis has been established, prescribed continuous positive airway pressure (CPAP) through a nasal device for use during sleep to maintain upper airway patency. Weight loss is the most effective means of long-term management and a possible cure for obstructive sleep apnoea if a lower body mass index can be maintained."

1. Paragraphs 8.8 to 8.10 of the fourth edition Guidelines clarifies section 5.6 of AMA 5 and relevantly provides:
   • before permanent impairment is assessed the worker must be properly assessed and treated by an ear, nose and throat surgeon and a respiratory physician who specialises in sleep disorders, and
   • the degree of permanent impairment due to sleep apnoea should be calculated with reference to AMA 5 Table 13-4.
2. Clause 1.12 of the fourth edition Guidelines otherwise notes that "conditions associated with chronic pain should be assessed on the basis of the underlying condition and not on the basis of the chronic pain".

Member decisions referenced by applicant and issue of comity

1. The applicant referenced four Members' decisions as supporting its position. I do not accept that there is comity in the decisions, and they do not necessary support the applicant's position.
2. In Merlo v Everly Howison Pty Ltd[33] the Member held that the causes of the sleep disorder were multifactorial and included insomnia from chronic pain, the use of multiple respiratory suppressant medications and psychological changes in the form of central sensitisation. In those circumstances the Member found there was a "valid claim" and referred the matter for assessment.
3. In Roukos v Flight Centre Travel Group Ltd[34] the Member found that the sleep disorder arose from insomnia due to pain and mild periodic limb movement disorder caused by nerve damage to the lumbar spine and anti-depressant Endep medication. The referral was based on sleep disorder under the nervous system.
4. In Fabian v Poletech Pty Ltd[35] the Member found that there was sleep fragmentation due to pain caused by the work injury. The respondent's dispute notice took issue with the application of the assessment based on AMA 5 and the Guidelines. However, no issue was taken that it was a matter for the Medical Assessor "to consider and assess permanent impairment having regard to the applicability or otherwise of any relevant provisions of the Guidelines and the Guides".[36]
5. In each of these cases there was a finding of the specific cause of the sleep disorder. The cases do not support the broad proposition submitted by the applicant's counsel.
6. The final decision is Horish v S.M.A. Motors Pty Ltd[37] where the issue was described as whether the applicant had made "a valid claim for lump sum compensation for a consequential condition in the respiratory system." The Member described the issue as involving the respective role of the Commission (Member) and consequential role of the Medical Assessor where there is a lump sum claim for the respiratory system.
7. The Member provided a detailed summary of the requirements of making a claim for permanent impairment compensation. After a consideration of the worker's expert that the applicant suffered from insomnia, the Member concluded that a valid claim for lump sum compensation had been made.

Relevant statutory provisions and Court of Appeal authorities

1. Section 326(1) provides that various assessments in a medical assessment certificate "are conclusively presumed to be correct". For present purposes it is sufficient to refer to paragraphs (a) and (b) of sub-section 326(1) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) which provides:

"(1) An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court or the Commission with which the certificate is concerned -

(a) the degree of permanent impairment of the worker as a result of an injury,

(b) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality,"

1. Various Court of Appeal decisions have distinguished between liability disputes decided by Members (formerly arbitrators) and medical disputes determined by Medical Assessors (formerly approved medical specialist).
2. In State of New South Wales v Bishop[38] the employer accepted that the worker suffered an injury in 2004. The liability issue was whether there was a casual connection between the 2004 accepted work injury to the spine and the leg giving way in 2011 resulting in a further leg injury. The Arbitrator did not accept the causal connection between the work injury and the fall in 2011. That finding was overturned by the Deputy President who found in favour of the worker.
3. The reasons of the Court of Appeal accepted that the Arbitrator's finding was a determination on liability. Basten JA described "the question of causation was purely a question of fact for the arbitrator".[39] Emmett JA (with whom Gleeson JA agreed) accepted that the question of causation was a matter of the Arbitrator.[40]
4. The issue of the exclusive jurisdiction of the Medical Assessor was discussed by the Court of Appeal in Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine.[41] The worker had made earlier claims for compensation which had been resolved with a consent finding that she had "fully recovered" from the effects of a psychological injury.
5. The worker subsequently made a claim for lump sum compensation. The employer contended that it had the benefit of an issue estoppel.
6. Meagher JA (with whom Leeming and Simpson JJA agreed) approved the broad construction of liability upheld by Emmet JA (Ward JA agreeing) in Bindah v Carter Holt:

"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. It is also the function of the Commission to determine by whom any compensation is payable. Jurisdiction is conferred on the Commission by s 105 of the Management Act. However, that jurisdiction is subject to the restriction contained in s 65(3) of the Compensation Act, which precludes the Commission from awarding permanent impairment compensation if there is a dispute about the degree of impairment, unless the degree of impairment has been assessed by an approved medical specialist. The fact that a medical dispute includes a dispute as to the degree of permanent impairment of a worker as a result of an injury is consistent with the entitling provision of s 66 of the Compensation Act in conferring an entitlement to receive compensation if the worker receives an injury that results in permanent impairment. The degree of permanent impairment that results from an injury is to be assessed as provided in Pt 7 of Ch 7." (emphasis in original)

1. Later in the reasons Meagher JA noted that if there was a claim for permanent impairment compensation then the Personal Injury Commission's (Commission) jurisdiction did not permit it to determine that medical dispute by reference to its own findings. His Honour stated:[42]

"Had such a claim been made and had it involved a dispute as to the degree of permanent impairment, the Commission's jurisdiction did not permit it to determine that medical dispute by reference to its own findings; or that by reason of those findings there was no real or bona fide medical dispute. That was so irrespective of whether those findings were made in the course of determining the other claims, or in relation to the claim for lump sum compensation. In either case, if there was a medical dispute, it had to be referred for assessment, and decided by the Commission in accordance with that assessment."

1. This passage is consistent with the applicant's submissions as to the scope of the Commission's power.
2. The Court of Appeal in Jaffarie v Quality Castings Pty Ltd (No 2) emphasised that the jurisdiction was with the Member to determine the nature of the work-related injury.[43] White JA otherwise endorsed the observations of Deputy President Roche in an earlier part of those proceedings[44] that drawing a rigid distinction between jurisdiction to decide issues of liability and jurisdiction to decide medical disputes should be avoided.
3. A difficulty with an acceptance of the continued application of these authorities is that various provisions of the 1987 Act and the 1998 Act, discussed and relevant to the concept of "liability" and the exclusive power of the Medical Assessor (s 65(3) of the 1987 Act) have been repealed.
4. Both s 293(3)(a) and s 321(4)(a) of the 1998 Act which prohibited a referral for medical assessment "where liability is in issue and has not been determined by the Commission" has been repealed. Those provisions were emphasised by the Court of Appeal in the above authorities. Notably s 321A of the 1998 Act (introduced on the repeal of s 321(4)(a)) provided that the regulations may provide that a medical assessment may not be referred for assessment if the dispute concerns permanent impairment of an injured worker "where liability is in issue". However, no regulations have been made in accordance with that provision.
5. Another complicating feature to the above analysis is the repeal of s 65(3) of the 1987 Act[45] which then conferred exclusive jurisdiction on Medical Assessors to determine the degree of permanent impairment where a dispute existed. The repeal of that provision led to the President concluding in Etherton v ISS Properties Services Pty Ltd[46] that a Member could assess permanent impairment compensation.
6. In Etherton the President stated:[47]

"As can be seen, the relevant alteration is that prior to 1 January 2019 the Commission was prohibited, by virtue of the terms of s 65(3) of the 1987 Act, from awarding permanent impairment compensation absent an assessment by an Approved Medical Specialist. That prohibition was removed and the Commission was then empowered to determine such matters itself."

1. The conclusion that a Medical Assessor no longer has exclusive jurisdiction to assess impairment is confirmed by the inclusion of s 321A of the 1998 Act which provides that the Commission may assess the degree of permanent impairment. That provision also commenced on 1 January 2019 when s 65(3) of the 1987 Act was repealed. The Commission includes a Member but does not include a Medical Assessor (see s 8 of the Personal Injury Commission Act, 2020).
2. The repeal of various provisions was not the subject of submission nor was it discussed in the various Member decisions set out above. Given the importance of these provisions central to the reasoning in the various Court of Appeal decisions, particularly the repeal of the exclusive jurisdiction of the Medical Assessors (formerly s 65(3) of the 1987 Act), I do not accept that a Member is restricted from making various findings. Those findings may have binding force, contrary to the determination in Hine.
3. Section 105 of the 1998 Act confers exclusive jurisdiction on the Commission to determine all matters arising under the 1987 Act and the 1998 Act. That jurisdiction is not subject to the carve out previously provided by s 65(3) of the 1987 Act. Accordingly, I accept that a Member may make findings relevant to the assessment of permanent impairment compensation such as the causes of the impairment.
4. As noted previously, s 326 provides that the medical assessment certificate is conclusively presumed to be correct. Findings of causation are part of the medical assessment including "the degree of permanent impairment of the worker as a result of an injury". This suggests that if the claim is referred for a medical assessment, then that portion of the Medical Assessor's decision, causation of impairment as a result of an injury, is conclusively presumed to be correct. This raises the issue of potential inconsistency between a Member and the Medical Assessor on some causation findings.
5. Whilst it is open, it is often impractical that the Commission (Member) assess the degree of permanent impairment (s 321A of the 1998 Act). Indeed, the Guidelines are inconsistent with any examination occurring other than by a Medical Assessor (see for example cl 1.6 and 1.40 of the Guidelines), Examples where a Member has assessed impairment include where the issue is limited to the extent of a deduction under s 323 of the 1998 Act.[48]
6. Accordingly, if a Member decides to remit the claim to a Medical Assessor, then the Medical Assessor's certificate, by virtue of s 326(1)(a) and (b), is conclusive evidence of those matters certified. That conclusive nature of the certificate includes the causes of the impairment.
7. Consistent with these provisions and noting the Commission's (Member) power to make any determination, the scope of the order made is, in my view, entirely up to the Member. The Member could make specific findings such as those made in other sleep disorder cases and urged by the respondent in this matter as to weight gain. However, that finding may result in inconsistency. Alternatively, and to avoid inconsistency, it would be open for the Member to make a general finding that the sleep disorder is caused by the injury, and the Medical Assessor is then required to make appropriate findings of the degree of impairment as a result of an injury and assess the proportion of any pre-existing deduction.
8. In this matter I determine that the applicant must show a sleep disorder that results from an injury (see s 65(1) and s 66 of the 1987 Act) and decline to make a specific finding of weight gain. There are clear reasons supporting the causative link between the injury and the sleep disorder. Having determined to refer the claim following this general finding of causation, it is a matter for the Medical Assessor to correctly apply AMA 5 and the Guidelines in assessing whether there is any permanent impairment as a result of an injury and the issue of any deduction under s 323 of the 1998 Act.

1. The applicant has established that he has a sleep disorder from his accepted lumbar spine injury. The causes of that condition are multifactorial and include sleeping in the supine position, the use of narcotic medication and pain. There may be, although it is unclear, some weight gain although not as described in the various reports.
2. I will not determine the various particulars of the causes of the obstructive sleep apnoea. In my view it is sufficient that a finding is made that the applicant has established, on the balance of probabilities, that the sleep disorder results from the injury.
3. The assessment of impairment by the Medical Assessor will include whether there has been weight gain caused by the work injury. Based on the respondent's submission of the clinical records, there is a clear argument that a proportion of the explanation for sleep apnoea was pre-existing due to the applicant's pre-injury weight and that there may not be any weight gain caused by injury.
4. As was noted by Basten JA in Skates v Hills Industries Ltd [49] the medical assessment certificate is required to identify specific body part or system together with the "chapter, page and number" in the guidelines or "chapter, page, paragraph, figure and table numbers" in AMA 5.
5. The Application relevantly refers to "consequential respiratory (sleep)" and the system claimed as the "respiratory system". The assessment of whole person impairment by

Dr Frieberg was undertaken by reference to Table 13-4.[50] As noted earlier, the use of Table 13-4 applies to both a sleep disorder from a neurological condition and due to sleep apnoea. The earlier report of Dr Frieberg describes sleep truncation due to chronic pain and sleep apnoea due to sleeping in the supine position, weight gain and use of narcotic analgesia.[51] 6. Accordingly, the relevant body system for this portion of the permanent impairment claim is the respiratory system (obstructive sleep apnoea). 7. The reasons for determination should be forwarded to the Medical Assessor. The Medical Assessor may find some assistance in these Reasons to the weight references in the clinical records which differ from the histories recorded by some of the medical practitioners.

1. The findings and orders are set out in the Certificate of Determination.

[25] Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246 per McDougall J at [44]-[55], McColl and Bell JJA (as their Honours then were) agreeing; Chen v State of New South Wales (No 2) [2016] NSWCA 292 per Leeming JA at [33]-[34]; McColl JA agreeing at [1].

[26] [2005] NSWCA 152; (2005) 218 ALR 764 at [105].

[28] [2011] NSWCA 11; (2011) 80 NSWLR 43 at [83].

[29] (1994) 35 NSWLR 452 at [462], [463]-[464].

[30] See State of New South Wales v Bishop [2014] NSWCA 354 (Bishop) at [19]-[20] per Baten JA.

[31] The fourth edition guidelines are issued pursuant to s 376 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).

[32] Clause 1.1 of the fourth edition guidelines.

[33] [2025] NSWPIC 236.

[34] [2025] NSWPIC 221.

[35] [2025] NSWPIC 141 (Fabian).

[37] [2025] NSWPIC 209 (Horish).

[38] [2014] NSWCA 354 (Bishop) at [20], [90] and [93].

[41] [2016] NSWCA 213 (Hine) (Leeming and Simpson JJA agreeing).

[43] [2018] NSWCA 88 (Jaffarie (No2)) at [80]-[81] per White JA; Macfarlan JA agreeing at [1] and Leeming JA at [30].

[44] Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 78 applied in Jaffarie (No2) at [80].

[45] Act No 62 of 2018 operation la on 1 January 2019.

[46] [2019] NSWWCCPD 53

[48] See for example McKelligott v Gwydir Shire Council [2020 NSWWCC 177; Townsend v Sebastian Consulting & Technical Services Pty Ltd [2020] NSWWCC 153.

[49] [2021] NSWCA 142 at 33.