The Personal Injury Commission (Commission) determines:

1. That the accepted back injury materially contributed to the applicant experiencing an epileptic seizure in June 2022.
2. That the applicant sustained a consequential condition in the form of an aggravation of the pre-existing epileptic condition as a result of the pain caused by the accepted back injury.
3. I remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows:

Body systems / parts: lumbar spine, and nervous system (consequential condition).

1. The documents to be reviewed by the Medical Assessor are:

(a) Application to Resolve a Dispute and attached documents, and

(b) Reply and attached documents.

A brief statement is attached setting out the Commission's reasons for the determination.

1. Andrew Self (the applicant) lodged an Application to Resolve a Dispute (ARD) with the Personal Injury Commission (Commission) on 30 September 2025. The applicant alleges that he sustained injury to his lumbar spine on 25 October 2021 whilst in the course of his employment with Sydney Trains (the respondent). The injury to the lumbar spine is accepted and not in dispute.
2. The applicant alleges that the pain resulting from the accepted injury to his lumbar spine has aggravated his pre-existing epilepsy condition. The aggravation of the epileptic condition is claimed as a consequential/secondary condition. The respondent disputes the alleged consequential/secondary condition in the form of an aggravation of the pre-existing epileptic condition.
3. The applicant claims compensation pursuant to s 66 of the Workers Compensation Act 1987 (1987 Act) for permanent impairment of the lumbar spine and nervous system.
4. At the time of the pleaded injury the applicant was employed by the respondent as an electrical trainer. On 25 October 2021 he was required to undertake a COVID-19 test at work. Whilst in the course of attending the test he slipped on a step and fell landing on his left buttock sustaining injury to his back. As a result of the injury the applicant on

5 August 2022 underwent an L4/5 microdiscectomy at the hands of Dr Prakash Damodaran, neurosurgeon.

1. It is not disputed that the applicant sustained the alleged injury to his lumbar spine.
2. The respondent disputes that the applicant has suffered a consequential or secondary condition in the form of an aggravation of pre-existing epilepsy/seizure condition as a result of the accepted injury to his lumbar spine.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

1. The matter was listed for conciliation conference/arbitration hearing before me on

17 December 2025. Mr Djordje Pecelj, counsel, instructed by Carroll & O'Dea Lawyers appeared for the applicant, who was present. Mr Thomas Murray, solicitor from Integroe Lawyers, appeared for the respondent. The proceedings were conducted on TEAMS. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

1. The following documents were in evidence before the Commission and considered in making this determination:

(a) ARD and attached documents, and

(b) Reply and attached documents.

1. It is not in dispute that the applicant sustained injury to his lumbar spine on 25 October 2021 as alleged. The applicant alleges that the accepted injury to his lumbar spine has caused an aggravation of his pre-existing epilepsy condition. The applicant claims the alleged aggravation of the epileptic condition is a consequential/secondary condition.
2. There is no dispute between the parties and on the evidence that the applicant had a pre-existing epileptic condition with seizures. The existence of the condition is supported by the medical evidence which reveals a history of intermittent epileptic seizures prior

25 October 2021. The applicant appears to have experienced his first seizure in or about 1999 with the applicant being initially diagnosed with epilepsy by Professor Ernest Sommerville. 3. It is the applicant's case that the pain caused by the accepted back injury negatively impacted upon his sleep which materially contributed to him suffering seizures. 4. There is no dispute between the parties and on the evidence that sleep deprivation can be a trigger for epileptic seizures. There is also no dispute between the parties and on the evidence that sleep deprivation is a significant trigger/precipitant of seizures for the applicant. 5. The applicant bears the onus of proof. The applicant does not have to prove an injury for the purposes of s 4 of the 1987 Act.[1] What the applicant has to prove, applying the commonsense test of causation, is that the pain caused by the accepted back injury has materially contributed to the epileptic condition.[2] The back injury does not have to be the only, or even a substantial cause.[3] A contribution is material if it plays some part, even if only a minor part, in contributing to the relevant consequence.[4] 6. It is not enough for the applicant to simply prove that his sleep has been affected by the pain as the alleged consequential condition is not impairment of sleep but rather aggravation of the epileptic condition. There is no dispute among the expert neurologists retained by both parties, Dr Ron Granot by the applicant and Dr David Williams by the respondent, that any aggravation of the epileptic condition caused by pain would only be temporary with the aggravation ceasing when the pain ceases to cause or contribute to sleep deprivation. 7. As it is not alleged that the pain has caused a direct and ongoing aggravation of the seizure condition, but rather that the pain leads to sleep deprivation which acts as a trigger for a seizure, it is necessary in my view to look at the circumstances of the individual seizures suffered by the applicant following the back injury. 8. The first question to be considered is whether the seizures which the applicant has experienced since sustaining the accepted back injury have been caused or contributed to by sleep deprivation.

Has sleep deprivation caused or contributed to the seizures?

1. As previously observed, there is no controversy that sleep deprivation is a recognised trigger for the applicant's seizures.
2. The last seizure which the applicant had prior to sustaining the back injury on

25 October 2021 on the clinical evidence occurred in late 2018.

1. Following the back injury the applicant suffered his first seizure in June 2022. The applicant's general practitioner (GP), Dr Antoun Roufael, whom the applicant telephoned on

28 June 2022 recorded in a clinical record of the attendance that the applicant had been to Gosford Hospital following a fall with the discharge summary of the hospital recording that the applicant had suffered a seizure and that he was not taking his Epilim, Dr Roufael attempted to question the applicant as to why he had not taken his medication having previously reported that he had been however the applicant became aggressive and complained that the medications were inappropriate.[5] 2. The applicant attended on the GP, Dr Gordon Lau, on 30 June 2022 who recorded in the clinical record of the attendance that the applicant had recently suffered a seizure after missing four days of medication.[6] 3. Dr Khaled Alanati, the treating neurologist, reported to Dr Lau on 11 April 2023[7] having reviewed the applicant on that day. Dr Alanati recorded a history that in June 2022 the applicant had presented to hospital following a seizure whilst asleep in the context of sleep deprivation related to lower back pain. Dr Alanati noted that the discharge summary from the emergency department indicated that he was possibly not taking his Valproate although the applicant assured the doctor that he was taking his Epilim and never stopped it. That the applicant had been taking his Epilim is inconsistent with the more contemporaneous history taken by Dr Roufael. 4. The applicant appears to have had two further seizures in January 2023 with Dr Lau recording in a clinical record dated 9 February 2023 that the applicant had two more seizures which were "likely due to fatigue". The applicant reported to Dr Lau that he had been compliant with his medication and his partner vouched for this.[8] Dr Lau in a referral to Dr Yun Hwang on 9 February 2023 recorded that the applicant had experienced a few seizures recently, despite being on medication. The doctor noted that the applicant thought that the long commute to work was making him fatigued and may have been a factor.[9] 5. Dr Alanati in a report to Dr Lau on 11 April 2023 noted that in January, a day after returning to work, the applicant had developed another generalised motor seizure whilst he was asleep which was potentially triggered by sleep deprivation the night before. 6. Dr Alanati reported to Jobfit Health Group on 17 July 2023 that the applicant's last seizure was on the 9 January 2023 at 9.15pm. The doctor reported that it was during sleep and that the trigger was sleep deprivation the night before.[10] 7. The next seizure occurred on 2 June 2024. On 13 June 2024 the applicant consulted Dr Lau. The clinical record of the attendance[11] records that the applicant had two seizures on

2 June 2024, the first in bed at 2.00am and the second at 9.00am. The clinical note contains no opinion or indication as to the trigger for the seizure. 8. The next seizure occurred in late September/early October 2024. On 3 October 2024 the applicant consulted Dr Lau. The clinical record of the consultation relevantly records that the applicant reported a recent seizure. The clinical record records that the applicant had been experiencing sleep difficulties and had been using music to help fall asleep. The clinical record also records that work related stress was a significant contributor to seizure exacerbation. Whilst the clinical record discusses the applicant's chronic back/leg pain it contains no comment that it contributed to the seizure.[12] 9. On 17 October 2024 the applicant consulted Dr Lau. The clinical record of the consultation refers to a seizure but does not expressly identify any particular trigger for the seizure.[13] The seizure referred to appears to be the same seizure which the applicant reported to Dr Lau on 3 October 2024, as Dr Alanati who reported to Dr Lau on 21 October 2024 records that the last seizure had occurred in September 2024.[14] Whilst Dr Alanati does not in his report of

21 October 2024 specifically discuss the trigger(s) for the seizure, the doctor noted that the applicant struggled with insomnia. 10. Dr Granot, neurologist, provided a forensic report to the applicant dated 29 April 2024. The doctor observed that sleep deprivation is a known and accepted cause for exacerbation of epilepsy. In the opinion of Dr Granot, the seizures which the applicant had experienced since sustaining the accepted back injury seem to be triggered primarily by poor sleep. 11. The report of Dr Granot is problematic with the doctor referring to seizures occurring on

3 April 2021, 11 August 2023, 10 December 2023 and 6 April 2024 none of which dates appear to match with the dates of the seizures in the contemporaneous treating clinical records or the treating specialist reports. 12. Furthermore, as an example of the seizures being triggered by sleep deprivation Dr Granot referred to the most recent seizure being triggered as the applicant needed to reply to a work email, which was under a deadline, threatened he would not be paid and that he did not complete paperwork correctly. The doctor recorded that the applicant had slept poorly related to this for some weeks. 13. The most recent seizure which Dr Granot records is on 6 April 2024 in respect to which, as previously noted, I can find no record in the treating clinical evidence. I can also find no record in the clinical records and treating experts reports of the applicant being sleep deprived as a result of needing to reply to an email at the time of a seizure. Dr Granot does indicate where this history has been taken from. 14. Dr David Williams, neurologist, provided a forensic report to the respondent dated

3 March 2025. Dr Williams observed, as did Dr Granot, that sleep deprivation is a well-recognised precipitant of seizures in patients with epilepsy. Dr Williams observed that the applicant's medical records identify sleep deprivation as "a potent seizure precipitant for his epilepsy." 15. In the opinion of Dr Williams it is likely that the applicant suffered more seizures than he might otherwise have experienced when he was sleeping poorly due to back pain from his accepted injury. In forming his opinion Dr Williams had access to and reviewed in detail the medical reports from Dr Alanati. 16. The applicant in his statement evidence does not describe the circumstances in which the seizures occurred and is of no assistance for present purposes.

1. I am of the view that the weight of the evidence supports that sleep deprivation has contributed to the seizures following the back injury on 25 October 2021.
2. Whilst the applicant appears to have been non-compliant with his medication at the time of the seizure in June 2022 the treating specialists, Dr Alanati, records that the seizure occurred in the context of sleep deprivation. Dr Lau in respect to the seizures in early 2023 records that they were likely due to fatigue and noted that the applicant thought that the long commute to work which made him fatigued may have been a factor whilst Dr Alanati thought that the potential trigger was sleep deprivation the night before.
3. In respect to the two seizures on 2 June 2024 there is simply no opinion or indication recorded in the clinical records as to the potential trigger. Similarly, no trigger is explicitly referred to in the clinical records in respect to the seizure in September 2024 however the clinical records do record that the applicant was experiencing sleep difficulties at the time.
4. Both Dr Williams and Dr Granot accept that sleep deprivation is a seizure trigger for the applicant and in the opinion of Dr Williams, having reviewed the reports of the applicant's treating specialist Dr Alanati, it was likely that the applicant suffered more seizures than he might otherwise have experienced when he was sleeping poorly due to back pain from his injury.
5. Dr Granot is of the opinion that the seizures which the applicant has experienced since sustaining the accepted back injury seem to be triggered primarily by poor sleep. However, as previously noted there is a question over the weight which should be ascribed to

Dr Granot's opinion as the history which the doctor takes of the seizures is inconsistent with the contemporaneous clinical evidence. 6. For the above reasons I find that sleep deprivation has contributed to the applicant's seizures following the back injury on 25 October 2021. 7. The next question to be considered is whether pain from the accepted back injury made a material contribution to sleep deprivation which materially contributed to the applicant experiencing an actual seizure(s).

Has pain from the accepted back injury materially contributed to sleep deprivation which has materially contributed to the applicant experiencing an actual seizure?

1. In the respondent's submission the evidence does not satisfactorily deal with the test of "material contribution".
2. In the respondent's submission the clinical evidence reveals that the applicant's sleep issues are long standing and existed prior to the accepted back injury. That the applicant had suffered seizures in association with sleep difficulties for years prior to sustaining the accepted back injury. That the applicant's pre-existing sleep issues were not associated with pain but rather arose for a variety of reasons.
3. In my view the evidence supports that the applicant had sleep difficulties which were not related to pain prior to sustaining the accepted back injury but arose for a variety of reasons. I therefore accept the respondent's submission that the applicant had difficulties with sleep and suffered seizures in association with his sleep difficulties which arose for a variety of reasons and not as result of pain prior to sustaining the accepted back injury.
4. On 7 June 2011 the applicant consulted the GP, Dr Sook Fun Soo. The clinical record of the consultation relevantly records that the applicant had been suffering with intermittent headaches for six weeks, that he had not been sleeping, been "stressed about work", "trying to function as father" and at risk of epilepsy from sleep. The clinical record records a diagnosis of insomnia.[15]
5. On 11 October 2011 the applicant consulted Dr Soo. The clinical record of the consultation records that the applicant had suffered a seizure the day before following sleep disturbance from daylight saving. The doctor noted that it had been two years since the last seizure.[16]
6. On 3 April 2012 the applicant consulted Dr Soo. The clinical record of the consultation records that the applicant had been experiencing difficulty falling asleep at night and had been sleepy during the day however he had not experienced any further seizures.[17]
7. On 15 June 2012 the applicant consulted Dr Soo. The clinical record of the consultation records that the applicant experienced a seizure the week prior on a background of family issues and problems at work with the applicant waking up to five times a night.[18]
8. On 21 May 2013 the applicant consulted Dr Soo. The clinical record of the consultation relevantly records that the applicant had been discharged from hospital with epilepsy. The doctor referred the applicant for sleep to ResMed.[19]
9. On 19 March 2014 the applicant consulted Dr Soo. The clinical record of the consultation records that the applicant had suffered a seizure triggered by bright lights.[20]
10. On 13 November 2016 Dr Soo noted that the applicant had been seizure free since September 2014.[21]
11. On 3 September 2018 the applicant consulted Dr Soo. The clinical record of the consultation records that the applicant had suffered a seizure the week prior secondary to fatigue from a new work program and being sent to remote locations on his own in motels which he felt very uncomfortable with.[22]
12. In the respondent's submission in a context where there are established issues concerning sleep prior to the accepted injury one would have expected some attempt by the medical experts to distinguish between the sleep issues that existed prior to the back injury and those that emerged post injury. That in the respondent's submission would be a fundamental element in any assessment of causation. In the respondent submission that does not occur in Dr Granot's report and Dr Granot simply assumes that there is an assumption that the sleep issues have simply emerged as at the date of the work injury and that they are the precipitant of the subsequent aggravation of the epilepsy.
13. I do not accept that evidence distinguishing between the sleep issues that existed prior to the back injury and those that emerged post injury is required. That the applicant has had issues with sleep both before and after his accepted back injury is apparent on the evidence. The circumstances that have impacted on the applicant's sleep prior to the accepted back injury are diverse in nature including stress related to work, stress related to family issues, daylight saving, insomnia, travelling and staying away from home for work.
14. The test is whether the pain arising from the back injury has materially contributed to the applicant experiencing the seizures. That is a matter of whether the pain has materially contributed to the applicant suffering from sleep deprivation which has caused or contributed in a material way to the applicant suffering a seizure or seizures. It is not enough for the applicant to prove that his sleep has been affected by the pain as the alleged consequential condition is not impairment of sleep but rather aggravation of the epileptic condition.
15. In the respondent submission there are a plethora of potential causes for the applicant's sleep issues which do not form part of this claim. Those potential causes include sleep apnoea and psychological issues.
16. The clinical evidence indicates that the applicant suffers from sleep apnoea which is a recognised sleep disorder. Dr Alanati reported to Dr Lau on 11 April 2023 noting as part of the applicant's medical background obstructive sleep apnoea. Dr Williams also notes the diagnosis of sleep apnoea in his report of 3 March 2025. In the respondent's submission the sleep apnoea has not been addressed by any expert except for Dr Williams.
17. In my view the impact of the sleep apnoea on the applicant's sleep is not dealt with by any of the medical experts in any meaningful way. Dr Williams simply refers to it as a potential cause of sleep deprivation. There is no discussion in the evidence as to its actual impact on the applicant's sleep or the effectiveness of any treatment. There are no sleep studies in evidence.
18. The respondent also submitted that there are repeated references in the clinical records to psychological issues negatively impacting the applicant's sleep. That it had been recommended that the applicant be reviewed by a psychiatrist which on the evidence does not appear to have occurred.
19. Dr Granot is of the opinion that psychological issues have negatively impacted on the applicant's sleep. In the opinion of Dr Granot there is "no dispute that pain consequent to the work injury and psychological factors are causally related to the increased seizures".[23]

Dr Granot was of the opinion that a psychiatric review may be of benefit, to optimise sleep and minimise exacerbation of epilepsy from this perspective.[24] 20. There are repeated references in the clinical records to the applicant's mental health and psychological and psychiatric input. 21. In my view the evidence reveals a number of potential causes for the applicant to suffer sleep deprivation. As there are multiple potential causes for the applicant to suffer sleep deprivation it is necessary in my view to look at the circumstances surrounding each seizure which the applicant has suffered since the back injury to determine whether the pain from the accepted back injury has materially contributed to the seizure. 22. In the respondent's submission the fact that the applicant experienced seizures relatively frequently associated with sleep issues prior to the work injury creates a difficult hurdle in respect to causation. 23. Dr Hanka Laue-Gizzi, staff specialist in neurology, Comprehensive Epilepsy Service Prince of Wales Hospital reported on 2 December 2014[25] that the typical precipitants for the applicant's seizures were sleep deprivation and alcohol. The doctor recorded that the applicant had three seizures in 2014, three in 2013 and one in 2012 with the longest seizure interval being about three years between seizures. 24. Dr Laue-Gizzi reported on 13 November 2017[26] that the applicant's last seizure had been in September 2014 and reported on 12 November 2018[27] that the applicant had a seizure on

5 January 2018. The applicant's last seizure prior to the back injury occurred in August/September 2018.[28] 25. In the respondent's submission the evidence does not support the submission by the applicant that there had been an increase in the frequency of the seizures following the accepted back injury. In the respondent's submission the seizures were not a dormant issue. They were an issue that arose periodically associated with various stressors and fatigue. 26. Dr Granot in his report of 29 April 2024 observed that the applicant's seizures had increased markedly following the accepted back injury with seizures occurring two to three times per year rather than one every two to three years. 27. In the opinion of Dr Williams as sleep deprivation is a potent seizure precipitant for the applicant it was highly likely that he had more seizures during the time he slept poorly due to his back injury than would otherwise have occurred 28. In my view it is not clear that the applicant has had an increase in the number and frequency of his seizures following the accepted back injury. There was certainly an extended period of no seizures prior to the back injury being sustained, however such extended periods of no seizure activity had occurred previously. Furthermore, the first seizure did not occur until over six months after the back injury. The frequency of seizures prior to the back injury fluctuated and the fluctuations which occurred after the back injury are not dissimilar to those that occurred prior to the back injury. 29. In my view no conclusion can be drawn just from the rate at which the seizures occurred following the back injury, as to the pain caused by the back injury being a material contributor to the seizures. 30. I now turn to a consideration of the individual post back injury seizures. 31. It is the applicant's evidence in a statement made on 12 September 2023 that following the fall on 25 October 2021 the pain in his back and in particular the pain into his left leg and buttock never went away and that he subsequently consulted a GP. It is the applicant's evidence that during this period his sleep was "...very poor and I was in a fair amount of distress..."[29] The applicant was subsequently referred for an MRI and came to a microdiscectomy in August 2022 at the hands of Dr Damodaran. It is the applicant's evidence that following the surgery he continued to have a significant burning sensation in his buttocks and into the back of his legs particularly the left and had noticed a constant urge to urinate. It is the applicant's evidence in his further statement dated 12 May 2025 that since the injury he has had very disrupted sleep because of his pain. 32. Whilst it is the applicant's evidence that his sleep was "very poor", at least initially following the back injury being sustained, and that since suffering the back injury his sleep has been very disrupted because of the pain, I accept the submission by the respondent that the applicant provides no meaningful evidence as to the nature of the pain, as to how that pain affects/disrupts his sleep and as to the severity of the impact on his sleep. 33. Significantly the applicant also provides no statement evidence as to the circumstances in which he suffered each seizure following the accepted back injury. In particular he provides no statement evidence as to whether he was sleep deprived at the time that the seizures occurred and if so, what had caused that sleep deprivation. 34. In my view the evidence supports that the applicant did have significant discomfort and pain following the injury with a significant improvement but ongoing symptoms following the surgery in August 2022. 35. Dr Granot, neurologist, who provided a forensic report to the applicant dated 29 April 2024 records that the applicant felt that the operation was "very successful" as the excruciating pain reduced by 80%. However, the pain worsened markedly after a fall four days post operation and then gradually improved with allied health input, rated 4/10 at baseline, but increases with activity to 5/10 and will remain this level. In bed, he notes the pain improves in certain positions. 36. Of particular relevance Dr Granot recorded that the applicant had initial insomnia due to back pain after activity perhaps one to two times per week. 37. Dr Stephen Rimmer, orthopaedic surgeon, who provided a forensic report to the respondent dated 20 January 2025 records that the applicant reported that his lumbar spine was uncomfortable "like a knuckle pushing into it" and also described a fizzing sensation radiating to the left foot. Associate Professor (A/Prof) Courtenay, orthopaedic surgeon, who provided a forensic report to the applicant dated 18 March 2024 records that the applicant had persisting pain. 38. The contemporaneous treating clinical evidence in my view supports that the applicant was in significant pain and discomfort following sustaining the back injury on 25 October 2021 and prior to the L4/5 microdiscectomy on 5 August 2022. 39. On 23 November 2021 the applicant consulted the GP, Dr Antoun Roufael. The clinical record of the consultation records that following the fall on 25 October 2021 the applicant had experienced severe back pain which didn't improve, and which was getting more severe with marked limitation of movement.[30] 40. On 30 November 2021 the applicant consulted Dr Roufael. The clinical record of the consultation records that the applicant was complaining of severe back pain which radiated to his left hip.[31] On 30 November 2021 Dr Roufael referred the applicant to Dr Damodaran for opinion and management of low back pain with radiculopathy.[32] 41. On 14 June 2022 the applicant consulted Dr Roufael. The clinical record of the consultation relevantly records that the applicant complained of a severe flare of his back pain and that his left lower limb was painful. Dr Roufael noted that the applicant was unable to be examined due to the severity of his pain and his inability to lie down on a bed. Dr Roufael provided a prescription for the painkiller Panadeine forte.[33] 42. On 18 June 2022 Dr Damodaran reported to the respondent a diagnoses of a large L4/5 disc prolapse with severe back and leg pain as a result of the work injury.[34] Also on 18 June 2022 Dr Damodaran reported to Dr Roufael observing that over time the back and leg pain had progressed to the point that the applicant was unable to walk without the assistance of a walking stick. The doctor noted that the pain had been "fairly severe".[35] 43. On 20 June 2022 the applicant consulted Dr Roufael. The clinical record of the consultation records that the applicant complained of a severe flare of his back pain and weakness in his left lower limb. He also reported some urinary problems. Dr Roufael observed that the applicant's pain was barely controlled with pain management. During the consultation pain management was discussed with the applicant and he was provided with a further prescription for Panadeine and given a trial of low dose Endep.[36] 44. Dr Lau in a Certificate of Capacity dated 5 July 2022 recorded that the applicant had severe lower back pain which was getting worse with marked limitation of movement.[37] 45. It is during this period, in June 2022, that the applicant experiences his first seizure following the accepted back injury. Following the seizure the applicant attended Gosford Hospital.

Dr Roufael in his clinical record of 28 June 2022 noted that the hospital discharge summary recorded that the applicant had suffered a seizure and that he was not taking his Epilim.[38]

Dr Lau on 30 June 2022 also recorded that the applicant had suffered the seizure after missing four days of medication. 46. Dr Alanati the applicant's treating specialist reported to Dr Lau on 11 April 2023[39] having reviewed the applicant that day. Dr Alanati recorded a history that in June 2022 the applicant had presented to hospital following a seizure whilst asleep in the context of sleep deprivation related to lower back pain. Dr Alanati noted that the discharge summary from the emergency department indicated that he was possibly not taking his Valproate although the applicant assured the doctor that he was taking his Epilim and never stopped it. That the applicant had been taking his Epilim is inconsistent with the more contemporaneous history taken by

Dr Roufael and seemingly Dr Lau. 47. Whilst the applicant may not have been compliant with his medication, which on Dr Williams evidence (which I accept) increased the seizure risk regardless of sleep deprivation, in my view the evidence supports that the pain arising from the accepted back injury materially contributed to the seizure which occurred in June 2022. 48. The clinical evidence supports that the applicant was in significant pain and discomfort as a result of the back injury. The pain was such that Dr Roufael was unable to examine the applicant on 14 June 2022 and the applicant was unable to lie on a bed. Consistent with the clinical evidence it is the applicant's evidence that during this period his sleep was "very poor". It is also consistent with Dr Alanati reporting to Dr Lau on 11 April 2023 that the seizure occurred in the context of sleep deprivation related to lower back pain. It is also consistent with the opinion of Dr Williams that there was a high likelihood that the applicant would have had more seizures during the time he slept poorly due to his back injury than otherwise would have occurred. The back injury does not have to be the only, or even a substantial cause.[40] 49. Similarly, whilst Dr Williams and Dr Granot agreed that it is difficult to separate the applicant's pain from other potential causes of sleep disturbance, including stress, anxiety and sleep disordered breathing. The back injury does not have to be the only, or even a substantial cause. 50. I am reasonably satisfied that pain from the back injury materially contributed to the seizure.[41] I therefore find that the accepted back injury caused an aggravation of the pre-existing epileptic condition and that the applicant sustained a consequential condition as a result of the pain caused by the accepted back injury. 51. Following the back surgery Dr Damodaran in a report to Dr Roufael dated 19 October 2022 observed that the applicant's radicular pain had improved following surgery however he had ongoing intermittent back pain.[42] 52. The applicant consulted Dr Lau on 3 November 2022. The clinical record of the attendance records that the applicant had travelled to work at Petersham twice and got overwhelmed by the travel. His back pain flared as the travel took him three hours to get home and he was exhausted by same. For the two days prior to the appointment the applicant had working from Gosford with 20 minutes travel.[43] 53. The applicant consulted Dr Lau on 17 November 2022. The clinical record of the attendance records that the week prior the applicant had been required to lie flat on his back for four hours following heart ablation surgery which made his back sore.[44] Dr Lau on

15 December 2022 recorded that the applicant "definitely appear to be doing better."[45] On

12 January 2023 Dr Lau noted that the applicant had been back at work that week and had done "OK" with the travel.[46] 54. On 9 February 2023 the applicant consulted Dr Lau. The clinical record of the consultation records that the applicant had experienced two seizures likely due to fatigue. The applicant reported that he was not coping with his return to work. The applicant reported that he had been compliant with his medications and his partner vouched for him also. Significantly

Dr Lau also recorded that the applicant reported that his back was getting better and that his pain was generally good unless he had a seizure.[47] 55. Dr Lau referred the applicant to Dr Yun Hwang on 9 February 2023. Dr Lau noted in the referral that the applicant thought that the long commute to work which was causing fatigue may have been a factor in the seizure.[48] 56. Dr Alanati in his report to Dr Lau of 11 April 2023 records that in January, a day after the applicant returned to work, he developed a seizure whilst he was asleep which was potentially triggered by sleep deprivation the night before. 57. Whilst it is the applicant's statement evidence that his sleep has since sustaining the back injury been very disrupted because of the pain, there is nothing to suggest in the clinical evidence that the applicant was either suffering from significant pain at the time of the seizure(s) in January/February 2023 or that his back pain had negatively impacted upon his sleep prior to the seizure. 58. Whilst Dr Alanati records that the seizure was potentially triggered by sleep deprivation the night before there is no evidence as to the cause of that sleep deprivation. In my view the evidence indicates that the applicant may have been fatigued as a result of the long commute for work rather than any sleep deprivation caused by the accepted back injury. 59. I am not reasonably satisfied that the pain caused by the accepted back injury materially contributed to the seizure(s) which the applicant experienced in January/February 2023. The applicant has not discharged his onus of proof in respect to establishing that pain caused by the accepted back injury materially contributed to the seizure(s) which the applicant experienced in January/February 2023. 60. The applicant's next and last seizure appears to have occurred on 2 June 2024 when the applicant experienced two seizures as noted by Dr Lau in his clinical record of 13 June 2024. There is no evidence from the applicant as to the circumstances surrounding the seizure. The clinical record of Dr Lau of 13 June 2024 also contains no opinion or information as to the cause of the seizure. 61. I am not reasonably satisfied that the pain caused by the accepted back injury materially contributed to the seizure(s) which the applicant experienced on 2 June 2024. The applicant has not discharged his onus of proof in respect to establishing that pain caused by the accepted back injury materially contributed to the seizures which the applicant experienced on 2 June 2024. 62. The applicant's next seizure occurred in late September/early October 2024. On

3 October 2024 the applicant consulted Dr Lau. The clinical record of the consultation relevantly records that the applicant reported a recent seizure. The clinical record notes that the applicant had been experiencing sleep difficulties and had been using music to help fall asleep. The clinical record also records that the applicant reported ongoing back pain, leg pain with "effervescence" sensation, stress about work and upcoming meeting and ruminating thoughts about health issues and work situation.[49] There is no observation or comment in the clinical record as to whether the ongoing back and leg pain had impacted the applicant's sleep and if so how and in what way. Whilst the clinical record does identify work related stress as a significant contributor to seizure exacerbation it contains no such observation in respect to the pain associated with the accepted back injury. The applicant does not in these proceedings rely on work related stress as a cause of injury or a cause of the alleged exacerbation of his epilepsy. 63. Dr Alanati in his report of 21 October 2024 noted that the applicant struggled with insomnia but did not specifically discuss the trigger(s) for the seizure. 64. The applicant bears the onus of proof and in my view the applicant has not discharged that onus in respect to establishing that the seizure in September/October 2024 was materially contributed to by the pain caused by the accepted back injury. I am not reasonably satisfied that the pain from the back injury materially contributed to the sleep deprivation which triggered the epilepsy.

1. In the opinion of Dr Williams any aggravation of the epileptic condition caused by pain caused by the back injury has ceased. In the doctor's opinion, an opinion with which

Dr Granot agrees, the effect is temporary and resolves completely with resolution of the sleep deprivation. Dr Granot does not agree with Dr Williams that the aggravation had ceased noting that the applicant has ongoing pain. 2. In the respondent's submission, unlike in the case of an injury as defined by s 4 of the 1987 Act in respect to which the applicant only has to establish that at one point in time an injury has been suffered, in the case of consequential conditions the applicant needs to establish that the injury is ongoing. I do not accept this submission. 3. Section 319 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) defines "medical dispute" to include "(c) the degree of permanent impairment of the worker as a result of an injury" and "(f) whether impairment is permanent". 4. Section 326(1) of the 1998 Act relevantly provides that an "assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct" as to "(a) the degree of permanent impairment of the worker as a result of an injury" and "(d) whether impairment is permanent". 5. Whilst the question of causation is a question of fact for the Member[50] in Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine [2016] NSWCA 213 (Hine) at [54] Meagher JA (Leeming JA and Simpson JA agreeing) said:

"...No claim for lump sum compensation was made. 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. There is a medical dispute as to whether there is an impairment and as to whether any impairment is permanent.
2. In Nagy v Arthur Tzaneros Discretionary Trust & Luke Webber Trust t/as Labour Power & Anor [2025] NSWPIC 609 (Nagy) Principle Member Harris discussed at [80] - [90] concluding at [90] that the scope of the order is in his view entirely up to the Member.

1. I find that the accepted back injury materially contributed to the applicant experiencing an epileptic seizure in June 2022.
2. I find that the applicant sustained a consequential condition in the form of an aggravation of the pre-existing epileptic condition as a result of the pain caused by the accepted back injury.
3. The matter will be remitted to the President for referral to a Medical Assessor for assessment of impairment

[1] Moon v Conmah Pty Limited [2009] NSWWCCPD 134 (Moon).

[2] Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Limited [2013] HCA 10 (Hunt); Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 (Murphy).

[4] Gould v Vaggelas [1984] HCA 68 (Gould).

[41] Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 (Briginshaw).

[50] State of New South Wales v Bishop [2014] NSWCA 354 (Bishop).