1. Mr Winmill (the appellant) was employed with the respondent and sustained a lumbar spine injury in the employ of MWR Transport Pty Ltd (the respondent) on 18 June 2020 whilst lifting a Chep pallet (the work injury).
2. Mr Winmill filed an Application to Resolve a Dispute (Application) seeking compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) based on impairment of the lumbar spine and respiratory system.
3. The claim for permanent impairment of the respiratory system was based on the report of

Dr David Freiberg dated 22 May 2024.[1] Dr Freiberg assessed chronic insomnia due to pain, assessed impairment under Table 13-4 of American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). The doctor also diagnosed mild obstructive sleep apnoea due to sleeping in the supine position.[2] 4. The respondent did not raise any liability issues. In a letter dated 22 January 2025 the respondent made a counteroffer under s 66 of the 1987 Act relying on the reports of Professor Thomas and Dr Bentivoglio.[3] 5. Professor Thomas was qualified by the respondent and provided a report dated

16 August 2024.[4] The doctor noted that the sleep study reported by Dr Freiberg, showed a very mild obstructive sleep apnoea. He also noted that the appellant was unable to get comfortable and sleep in any position. Professor Thomas assessed impairment at 5% based on documented insomnia. 6. The s 66 claim was referred to a Medical Assessor as the respondent raised no liability issues. The referral to the Medical Assessor specified the body parts as the lumbar spine and respiratory system.[5]

1. The medical dispute was assessed by Medical Assessor Crocker who issued a Medical Assessment Certificate dated 21 July 2025 (MAC).[6]
2. The Medical Assessor noted that the appellant experienced frequent pain extending across the low back on a daily basis described as moderate to severe with pain down the legs and a burning sensation in the feet and ankles.
3. Under the heading of "Social activities/ADL", the Medical Assessor recorded the following:

"With respect to activities of daily living, Mr Winmill reports that he endeavours to go to bed at approximately 8.30pm and wakes up after approximately one hour. He then is awake for an extended period. He finds that there continues to be sleep disruption as a consequence of pain affecting the back and lower limbs. He finds that he 'tosses and turns' throughout the night.

He indicated that his wife has not commented upon him snoring. He has not reportedly been observed having apnoeas through the night. He indicates, however, that his wife undertakes shift work inclusive of that through the night and that a separate room is utilised for sleeping.

Mr Winmill finds that he needs to vary his seated and standing postures.

He reports difficulty if having to walk on inclined surfaces as a consequence of back-related symptoms.

He comments that ascending and descending stairs is 'shocking' in relation to back pain.

He endeavours to assist with household chores with difficulty. If attempting tasks such as vacuuming, this would be undertaken over separate days.

He reports that he has a garden/lawn in the front and rear of his premises. He attempts to use a light battery-operated mower and whipper snipper. Discomfort is experienced with these tasks.

He reports that he is independent in relation to aspects of personal care but commented that he will generally sit when putting on trousers."

1. Physical examination findings included a bare weight of 90 kg with a height of 180 cm with a BMI calculated at 27.8. The appellant had lost 24 kg as a consequence of walking and dietary restriction. There was no obstruction of the upper airway and no abnormality of the oropharynx. Respiratory system examination was normal.
2. The appellant's responses to the Epworth Sleepiness Scale were 8 and the STOP BANG questionnaire (screening for obstructive sleep apnoea) was a score of 4.
3. The Medical Assessor concluded that the clinical presentation showed a "mild syndrome of obstructive sleep apnoea". In term of consistency, the Medical Assessor noted:[7]

"Mr Winmill presented with a straightforward and undemonstrative manner. There were nil overt features of embellishment upon the history or augmentation on the physical examination. As such, it is considered that consistency was present."

1. The Medical Assessor assessed the lumbar spine as DRE Category II and allowed a further 2% for the "negative impacts upon the activities of daily living". This resulted in an assessment of 7% whole person impairment (WPI) for the lumbar spine.
2. In assessing the WPI of the respiratory system, the Medical Assessor stated:[8]

"When taking into account Table 13-4 (pg 317) of AMA5, it is considered that Class 1, ie 1-9% whole person impairment, is applicable to Mr Winmill's case pertaining to the diagnosis of obstructive sleep apnoea of a mild degree. It is estimated that a 6% whole person impairment is applicable."

1. The Medical Assessor noted the opinion of Dr Freiberg who assessed a Class 2 impairment under Table 13-4 with the sleep study showing severe insomnia due to pain.
2. In respect of the opinion of Professor Thomas, the Medical Assessor stated:

"I have also had the opportunity of reviewing the medical report (16.8.24) prepared by Professor Paul Thomas, Respiratory and Sleep Physician of Sydney. It has been indicated above that it was professor Thoas' view that the finding of the sleep study was consistent with one of mild obstructive sleep apnoea. In relation to the opinion of Dr Freiberg, Professor Thomas has outlined the following:

'Overall, and based purely on the history and sleep study synopsis provided by Dr Freiberg, it would appear that he has a degree of insomnia and fragmented sleep secondary to chronic low back pain. He finds it hard to find a comfortable position in which to sleep and therefore has chronically interrupted sleep.'

Later in his report, Professor Thomas highlights that the assessment necessitates one pertaining to sleep apnoea and primary sleep disorders, not for pain or other reasons. In this regard, I am in agreement with the views of Professor Thomas."

1. The Medical Assessor found no assessable pre-existing condition and assessed overall impairment at 13%.

1. On 18 August 2025 the appellant lodged an Application to Appeal Against the Decision of the Medical Assessor. The grounds of appeal were that the MAC contained a demonstrable error, and the assessment was made on the basis of incorrect criteria.
2. The appellant requested a re-examination.
3. The respondent filed a Notice of Opposition to Appeal Against a Decision of the Medical Assessor denying relevant error. It also accepted that the appeal could be decided based on the documents before the Appeal Panel.
4. The delegate of the President was satisfied that a ground of appeal has been made out and referred the application to appeal to a Medical Appeal Panel.[9]
5. The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and the parties' submissions on the appeal.
6. We are required to only address the subject matter of the ground of appeal. In Queanbeyan Racing Club Ltd v Burton[10] Basten JA stated:[11]

"The Appeal Panel was correct in the present case to address the subject matter of the ground of appeal, set aside the medical assessment certificate and issue another certificate including the amended assessments and the original unchallenged assessment. In doing so it neither purported to reassess the unchallenged finding nor to adopt the medical assessors' reasoning with respect to that finding; neither course was part of its statutory function."

1. The appellant's grounds of appeal were that the assessment was made on the basis of incorrect criteria, and the certificate contains a demonstrable error. There was no ground of appeal alleging error in the lumbar spine assessment.
2. The appellant identified certain background matters. They were:

(a) injury to the lumbar spine on 18 June 2020 and its sequelae was accepted by the respondent;

(b) the appellant developed sleep disruption as a consequence of back pain;

(c) the appellant remained in chronic pain despite treatment, and

(d) sleep apnoea had been accepted as a consequential condition.

1. The appellant referred to the opinion of Dr Freiberg who concluded that the appellant suffered severe insomnia and assessed impairment as Class 2 under Table 13-4 of AMA 5 "on the basis that the appellant was suffering from reduced daytime alertness and his sleepiness interfered with the ability to perform some activities of daily living". Dr Freiberg concluded that the sleep study showed severe insomnia due to pain.
2. The appellant referred to s 13.3c of AMA 5 as providing the method for evaluating and assessing sleep and arousal disorders and noted that the Guidelines also state that the clinician can evaluate sleepiness with the Epworth Sleepiness Scale which assessed the likelihood of dozing in different situations. It was noted that the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed

1 March 2021 (the Guidelines) suggested a score of 10/24 was equal to excessive sleepiness or Class 2 impairment. 3. The appellant referred to the opinion of Professor Thomas who also considered that the sleep disturbance was secondary to chronic back pain. The doctor opined that the impairment assessment is due to sleep disorders and sleep apnoea and not for the underlying pain condition. 4. The appellant noted the examination findings by the Medical Assessor recording an 8 on the Epworth Scale and 4 on the STOP/BANG questionnaire. The latter questionnaire was described as a screening tool seeking information as to whether the person snores loudly, whether they feel tired, fatigued or sleepy during the daytime and whether the individual has been observed to stop breathing during sleep. It also seeks information about a person's body mass index and agent neck circumference. The Medical Assessor recorded that there was no evidence of snoring and no evidence of stopping breathing during sleep. 5. The Medical Assessor noted evidence of sleep disruption and extended periods of wakefulness. 6. The appellant submitted that the Medical Assessor did not record any evidence about how the sleep disruption affected the activities of daily living (ADLs) and did not provide the responses to the Epworth sleepiness questionnaire. It noted that the Epworth scale responses demonstrate how the sleep disruption affects the ADLs and are critical to the assessment required in accordance with Table 13-4. 7. The appellant submitted that a score of 10/24 is considered to amount to "excessive sleepiness" and qualify for Class 2 assessment under Table 13-4. This formed the basis of the Class 2 assessment provided by Dr Freiberg. 8. The Medical Assessor noted the findings of Professor Thomas which were compatible with very mild obstructive sleep apnoea and the results of these tests were consistent with this diagnosis. The Medical Assessor assessed Class 1 of Table 13-4. 9. The appellant noted that there is very little difference between assessment of Class 1 and Class 2 in Table 13-4 and the difference was whether the injured worker could perform "most activities of daily living" (Class 1) or "some activities of daily living" (Class 2). 10. The appellant submitted that the certificate "did not provide any insight" into the difference between the assessment of the respective classes. He noted that the rationale for the assessment aligned with that provided by Professor Thomas who assessed 6% WPI because "a degree of insomnia and fragmented sleep" which was "secondary to chronic low back pain". 11. The appellant submitted that the reasoning and adoption of Professor Thomas was incorrect because:

(a) the sleep disorder/sleep apnoea was an accepted consequential condition resulting from the accepted lumbar spine injury;

the task is to assess impairment resulting from the sleep disorder/sleep apnoea. The work injury is not chronic pain but the lumbar spine injury which has resulted in the appellant's difficulty in finding a comfortable sleeping position;

(b) the error is treating the cause of the sleep apnoea as the chronic pain and not due to the work injury itself;

(c) Professor Thomas erred by reducing the assessment by referring to Chapter 17 of the Guidelines. The relevant chapter is Chapter 8 of the Guidelines, particularly cls 8.8 - 8.10 and Table 13-4 of AMA 5, and

(d) there was error by the Medical Assessor in assessing the condition based on Chapter 17.

1. This appellant submitted that the demonstrable errors and assessment made on incorrect criteria were:

(a) failing to elicit evidence as to how the ADLs have been impacted by the sleep apnoea and apply the correct criteria in the assessment in accordance with table 13-4;

(b) treating the work injury as being chronic pain rather than the sleep disorder resulting from the work injury;

(c) adopting Professor Thomas' reasoning which is wrong for the reasons set out above and has led the Medical Assessor to apply incorrect criteria, and

(d) failing to provide adequate reasons for the assessment of 6% WPI for the respiratory system.

1. The respondent opposed the appeal and otherwise submitted that no re-examination was required because the Medical Assessor had "set out sufficient details regarding the examination".
2. The respondent submitted that the MAC has to be read as a whole and the Medical Assessor noted the following impacts on the ADLs:

(a) continues to undertake occasional fishing;

(b) endeavours to assist with household chores with difficulty;

(c) when attempting tasks like vacuuming, these are undertaken over separate days;

(d) attempts to use a light-battery operated mower and whipper snipper, and

(e) is independent in relation to aspects of personal care.

1. The respondent submitted that there is no relevant provision in AMA 5 or the Guidelines that list the ADLs are considered. This submission is incorrect for reasons outlined later.
2. The respondent submitted that it is a matter of clinical judgment whether a person falls within Class 1 or Class 2 of Table 13-4. Furthermore, the Medical Assessor is to assess impairment on the day of the examination (cl 1.6(a) of the Guidelines) and is not bound to accept other opinions.
3. The respondent noted that it would be inappropriate for the Medical Assessor to accept the assessment of Dr Freiberg who found an Epworth Sleepiness Scale of 12/24 whereas the Medical Assessor found the score of 8/24 at the time of the assessment which was some 13 months after Dr Freiberg assessment.
4. The respondent submitted that "it would not be possible" for the Medical Assessor to distinguish between the effects on the ADLs from the lumbar spine injury and the sleep disorder.
5. The respondent submitted that any error does not fall within the meaning of "incorrect criteria" or "demonstrable error".
6. In relation to the appellant's submission that there was error in treating the injuries as chronic pain rather than the sleep disorder, the respondent submitted that the Medical Assessor clearly set out in the MAC that the medical assessment was for the respiratory system applying Chapter 8 of the Guidelines, chapter 13 of the AMA 5 and Table 13-4.
7. The respondent submitted that the Medical Assessor did not refer to Chapter 17 of the Guidelines. The Medical Assessor also stated that he agreed with the opinion of Professor Thomas that the assessment pertained to sleep apnoea and primary sleep disorder and not for pain or other reasons. This approach is consistent with applying Table 13-4 of AMA 5.
8. The respondent submitted that this ground does not fall within the meaning of incorrect criteria for demonstrable error.
9. The respondent submitted that the expressed agreement with Professor Thomas' opinion was that the assessment of WPI was based on the diagnosis of sleep apnoea and not on the impacts of pain on the appellant's sleep. This was the correct approach, and no error is shown.
10. The respondent noted that a Class 1 assessment in Table 13-4 provides a range of between 1% and 9%. It noted the test in Class 1 and that the MAC should be read as a whole and referred to the findings how the ADLs were impacted, the findings in the Epworth Sleepiness Scale questionnaire and STOP/BANG questionnaire.
11. The respondent submitted that there is no specific test concerning how a particular percentage was met, and the conclusion was a matter of professional opinion and expertise to determine the assessment within the scale.

1. The assessment of WPI is undertaken in accordance with the Guidelines.[14] The Guidelines adopt the AMA 5. Where there is any difference between AMA 5 and the Guidelines, the Guidelines prevail.[15]
2. Given the submissions, it is necessary to set out the relevant provisions concerning the assessment of obstructive sleep apnoea (Chapter 5 of AMA 5 and Chapter 8 of the Guidelines) and the assessment of sleep and arousal disorders under the central and peripheral nervous system (Chapter 13.3c of AMA 5 and cl 5.10 of the Guidelines).
3. There are two different body systems that can be used to assess a sleep disorder. They are distinct. The submissions in part have confused the different body systems.
4. The claim was referred for assessment under the respiratory system for obstructive sleep apnoea and not under the nervous system. An assessment for arousal and sleep disorders under the nervous system is a "primary sleep disorder following neurological injury" (cl 5.10 of the Guidelines).
5. Obstructive sleep apnoea is discussed in section 5.6 under the Respiratory System in AMA 5. Obstructive sleep apnoea causes "intermittent, repetitive occlusions of the upper airway during sleep, when the pharyngeal muscles are relaxed". A principle cause of obstructive sleep apnoea is obesity.
6. Clauses 8.8 to 8.10 of the Guidelines apply to obstructive sleep apnoea. Relevantly they provide:

(a) section 5.6 of AMA 5 should be read with section 11.4 (Ear, nose and throat) and section 13.3c (neurological/arousal and sleep) (cl 8.8 of the Guidelines);

(b) before an assessment can be made, the worker "must have appropriate assessment and treatment by an ear, nose and throat surgeon and a respiratory physician who specialises in sleep disorders" (cl 8.9 of the Guidelines), and

(c) the degree of permanent impairment due to sleep apnoea should be calculated by reference to Table 13-4 of AMA 5.

1. The relevant provision of sleep arousal following neurological injury is contained in section 13.3c of AMA 5 which refers to various causes of arousal and sleep disorders. An assessment under this body system can only be made when the primary sleep disorder follows the neurological injury (cl 5.10 of the Guidelines). The provision does not apply when the sleep disorder causes a neurological injury.
2. There is no evidence in this case of a primary sleep disorder following neurological injury. This assessment applies to a neurological injury causing a primary sleep disorder and not when the sleep disorder causes a neurological injury.
3. The evaluation of assessment of sleepiness is referred to in section 13.3c of AMA 5 which notes the application of Epworth Sleepiness Scale. A score of 10/24 equals excessive sleepiness or Class 2 impairment.
4. The assessment of the impairment, whether it is through the respiratory system (obstructive sleep apnoea) or as a neurological injury is undertaken in accordance with Table 13-4 of AMA 5. Table 13-4 relevantly provides:

Class 1: Reduced daytime alertness; individual can perform most activities of daily living.

Class 2: Reduced daytime alertness; interferes with ability to perform some activities of daily living.

Class 3: Reduced daytime alertness; ability to perform activities of daily living is significantly limited.

Class 4: Severe reduction of daytime alertness; individual unable to care for self in any situation or manner.

1. Contrary to the parties' submissions, ADLs are defined in the Glossary and Table 1-2 of AMA 5.[16] Table 1-2 specifies eight activities. They are:
   • - Self care, personal hygiene.
   • - Communication.
   • - Physical activity.
   • - Sensory function.
   • - Nonspecialized hand activities.
   • - Travel.
   • - Sexual function.
   • - Sleep.

Conclusions arising from Application of AMA 5 and the Guidelines

1. As we noted earlier, the claim was pleaded and referred as an assessment under the respiratory system for obstructive sleep apnoea. It was not claimed as a sleep disorder under the neurological chapter.
2. The intermittent use by the appellant in his submissions to "sleep disorder/sleep apnoea" does not correctly describe the claim. The assessment is based on obstructive sleep apnoea.
3. The medical evidence clearly shows that the appellant has a chronic pain condition from the lumbar spine giving rise to a sleep disorder. That is the unanimous opinion of Dr Freiberg, Professor Thomas and the Medical Assessor. Chronic pain of itself is not assessable as a respiratory condition unless it has caused sleep apnoea.
4. The appellant's submissions confuse the concept of sleep disorder with sleep apnoea. There can be significant sleep disorders which arise independently of sleep apnoea. Not all of these conditions are assessable.
5. Examples of a chronic pain condition causing sleep apnoea include through weight gain, use of narcotic analgesia and sleeping in the supine condition. If this occurs, than the injured worker can be assessed for obstructive sleep apnoea.
6. The appellant's submission that the "sleep disorder/sleep apnoea is an accepted consequential condition" mischaracterises the agreement and what was required to be assessed by the Medical Assessor.
7. The matter was referred for assessment of obstructive sleep apnoea. The Medical Assessor is required to assess, pursuant to s 326(1)(a) of the 1987 Act, the "degree of permanent impairment of the worker as a result an injury".
8. There are issues of causation decided by the Medical Assessor when determining the impairment "as a result of an injury". In Jaffarie v Quality Castings Pty Ltd[17] White JA endorsed the earlier observations of Roche DP in that matter that it was desirable to "avoid drawing a distinction between jurisdiction to decide issues of liability and jurisdiction to decide medical issues".[18]
9. The extent to which a liability issue must be determined by a Member or agreed between the parties is unclear.[19] The appellant in his submissions used the words "consequential condition" although those words do not appear in the 1987 Act or the 1998 Act.
10. The appellant correctly submitted that injury is not in issue. That injury was to the lumbar spine. It is also correct that there was no dispute that the parties accepted that the appellant had a sleep disorder. That condition was referred for assessment under the respiratory chapter for obstructive sleep apnoea.
11. The Medical Assessor must assess the injured worker on the day of the assessment (cl 1.6a of the Guidelines). The extent of the degree of impairment of the sleep apnoea as a result of the injury was a matter for the Medical Assessor pursuant to s 326(1)(a) of the 1998 Act. There was no agreement concerning the extent of any obstructive sleep apnoea when the appellant was subsequently assessed by the Medical Assessor.

1. These observations lead into our discussion of two of the grounds of appeal which we do not accept. Those grounds are:

(a) treating the work injury as being chronic pain rather than the sleep disorder resulting from the work injury, and

(b) adopting Professor Thomas' reasoning which is wrong for the reasons set out above and has led the Medical Assessor to applying incorrect criteria.

1. Whilst unclear, these grounds appear to be that the MAC contained demonstrable errors. An Appeal Panel can analyse the evidence when determining whether the certificate contains a demonstrable error: Vannini v Worldwide Demolitions Pty Ltd.[20] In Vannini Gleeson JA observed that, consistent with the observations of Basten JA in Mahenthirarasa v State Rail Authority of New South Wales, a "demonstrable error must be apparent in findings of fact or reasoning contained in the medical assessment certificate, although the error may be established in part by reference to materials that were before the approved medical specialist".[21]
2. The submissions do not address where the Medical Assessor "treated" the work injury as being chronic pain.
3. The Medical Assessor noted that the appellant suffered a lumbar spine injury on

18 June 2020 with present symptoms including moderate to severe low back pain on a daily basis. A specific finding was made that this involved a disc injury at L3/4 without neurological dysfunction or radiculopathy.[22] 4. The Medical Assessor assessed the degree of permanent impairment of the lumbar spine at 7% which included an allowance for the effects on the ADLs (see cl 4.33 - 4.35 of the Guidelines). 5. An allowance of 2% for the effects of daily living from the lumbar spine is made where the worker is restricted with usual household tasks and effects from sporting and recreational activities due to the lumbar spine injury. 6. The Medical Assessor found that there was a mild degree of obstructive sleep apnoea and correctly, consistent with the nature of the claim under the Respiratory chapter, referred to Chapter 8 of the Guidelines and proceeded to assess the appellant under Table 13-4 of AMA 5. This was entirely correct (see cl 8.10 of the Guidelines). 7. The Medical Assessor found that there was chronic pain caused by the accepted lumbar spine injury and this was contributing to insomnia. That conclusion was inevitable given the medical opinion and the appellant's evidence to the same effect. 8. There was no error, let alone demonstrable error, in the manner in which the Medical Assessor described the original work injury, his chronic pain and the subsequent cause of obstructive sleep apnoea. 9. The Medical Assessor proceeded to assess the respiratory condition in accordance with Chapter 8 of the Guidelines and Table 13-4 of AMA 5. This was entirely consistent with the appellant's claim, the referral and the condition. The Medical Assessor concluded that the appellant was assessed at Class 1 under Table 13-4 and assessed 6% WPI. 10. Contrary to the appellant's submission, the Medical Assessor did not assess the impairment under Chapter 17 of AMA 5. 11. Later in the MAC under the heading pertaining to other medical opinions, the Medical Assessor stated:

"Later in his report, Professor Thomas highlights that the assessment necessitates one pertaining to sleep apnoea and primary sleep disorders, not for pain or other reasons. In this regard, I am in agreement with the views of Professor Thomas."

1. These comments did not affect the conclusions reached by the Medical Assessor in the MAC when assessing impairment for the obstructive sleep apnoea under Table 13-4. Even if there was an error in approving Professor Thomas' view, it was not material to the outcome and not a demonstrable error. In respect of the meaning of demonstrable, error alone is not sufficient, and an error must be material.[23]
2. Further, the reference in the above passage that the assessment was for either sleep apnoea and primary sleep disorder reflects the different pathways for assessment of sleep disorders (to use a generic term) under either the respiratory system (obstructive sleep apnoea) or the nervous system. The assessment under the nervous system, by reason of cl 5.10 of the Guidelines, is for "primary sleep disorders following neurological injury". Whilst there may be elements of pain in such an assessment, the Medical Assessor correctly identified that the assessment is either for obstructive sleep apnoea or a primary sleep disorder following neurological injury. The latter did not arise in this case because no claim was made by the appellant based on a neurological injury nor is there any evidence of a neurological injury.

1. We accept that there is an error in the application of incorrect criteria in accordance with the discussion by the Court of Appeal in Campbelltown City Council v Vegan.[24] We also accept that there are insufficient reasons which probably amount to a demonstrable error in the assessment. The reasons provided for the assessment of 6% were:

"When taking into account Table 13-4 (pg 317) of AMA5, it is considered that Class 1, ie 1- 9% whole person impairment, as applicable to Mr Winmill's case pertaining to the diagnosis of obstructive sleep apnoea of a mild degree. It is estimated that a 6% whole person impairment is applicable."

1. The Medical Assessor did not refer to all of ADLs in Table 1-2 and has not assessed them based on the effect of the "sleep pattern" (see Table 13-4 of AMA 5).
2. Contrary to the parties' submissions, the various criteria for the effects of the ADLs are contained in Table 1-2 of AMA 5.[25] The use of Table 1-2 to assess the impact on ADLs is confirmed by cl 1.24 of the Guidelines.
3. The Medical Assessor did not address the complete criteria for the effect on ADLs. This could have been done by either providing particulars of the Epworth sleepiness score and/or addressing the criteria in Table 1-2.
4. The respondent correctly submitted that some of the relevant activities were addressed in the MAC. However, the complete list is not set out. Accordingly, the error is the failure to properly address the criteria for the effects on the ADLs by reason of the sleep disorder.
5. The Medical Assessor has a statutory obligation to provide reasons (s 325 of the 1998 Act). Those reasons must be adequate and disclose the reasons sufficient to show the "actual path of reasoning"[26] by which the opinion was formed and in sufficient detail such that an Appeal Panel could determine whether, in the context of the medical appeal provisions under the 1998 Act, either the MAC contained a demonstrable error, or the assessment was made based on incorrect criteria.
6. As it is unclear which ADLs where impacted, we are unable to discern whether there was error in selecting Class 1 and the appropriate percentage within that class. Accordingly, there was a failure to provide adequate reasons in explaining the Class 1 finding and the particular percentage within the Class.
7. We finally note that we reject the respondent's submission that the effect on the ADLs is not limited to the sleep disorder. We reach this conclusion for two reasons. First, the effect of the ADLs due to the lumbar spine has already been assessed under cls 4.34 and 4.35 of the Guidelines. Secondly, the assessment under Table 13-4 is to the relevant sleep and arousal disorder and not to all injuries.

1. The appellant was examined by Medical Assessor Grainge on 10 December 2025 where the Panel was satisfied there was an application of incorrect criteria/demonstrable error, that being the reasons given pertaining to the effects on the ADLs.
2. The examination findings of Medical Assessor Grainge are as follows:

"I spoke to him on the phone from the Sinergy rooms in Sydney on the 10th of December.

Mr. Winmill was generally unaccompanied on the telephone however his wife was in the background. I discussed Mr Winmill's impairment of activities of daily living with him, specifically taking into consideration Tables 13.4 of AMA5 page 317 and table 1.2 of AMA5 page 599. In general terms, Mr. Winmill described his activities of daily living to be limited by his back pain but not by excessive sleepiness. He gave various examples of this, for example packing his dishwasher, mowing lawns and whipper snipping takes him three or four times longer due to back pain. He has a 3 x 3 metre yard at the back of the house and a 5 x 4 m yard at the front of the house. He has to split maintenance of these into different days due to the back pain. He finds standing at a sink washing up difficult because of his back pain and similarly cooking and cutting up vegetables. Prolonged sitting leads to back pain as does prolonged lying down.

I went through with him the domains of activities of daily living using table 1.2 of AMA5. Under the category of self-care Mr Winmill described a shower helps his back pain, but no impairment. Regarding communication he suffers back pain if typing long emails but otherwise he's not concerned regarding this domain. Regarding physical activity, stairs and uneven ground lead to worsening back pain when walking and he can now no longer play golf due to pain when driving a golf ball, driving a golf buggy or bending for balls. He had no issues in the sensory or hands domain. Regarding travel he is only able to drive approximately 60 minutes due to back pain and he's unable to ride a bicycle for the same reason. Regarding sexual activity he described this is non-existent secondary to back pain. Regarding his sleep he describes that his sleep is broken by pain and he wakes with back pain and walks around overnight; there are more details below.

I specifically went through each of these domains again discussing with him any impact on his activities of daily living due to sleepiness or inappropriate tiredness or the likelihood of falling asleep. He specifically denied any impact on any of these domains due to sleepiness or tiredness. He does however habitually now sleep after his evening meal usually between the hours of 18:30 and 19:00 hours.

Mr. Winmill now retires to bed around 01:00 hours, feeling that he wakes multiple times overnight due to pain and rises permanently from bed around 04:00 hours. From about 14:00 hours he feels that he slows down and is lethargic or lacking in energy, but it does not sleep and describes himself as surprisingly 'uncranky' despite his lack of sleep.

His Epworth Sleepiness score was eight with scores of two, one, zero, zero, two, zero, three, zero. He is currently taking ibuprofen 400 mg approximately eight tablets weekly, but no sedating medication."

1. We repeat the examination findings of the original Medical Assessor as there was no context on those findings.[27] These were otherwise repeated by Medical Assessor Grainge in his examination report when he considered the Epworth Sleepiness score. We repeat the conclusion made by the original Medical Assessor and confirmed by Medical Assessor Grainge that the appellant has a mild obstructive sleep apnoea confirmed by the Epworth Sleepiness score.
2. Based on the history and the clinical examination findings, the appellant was properly assessed as Class 1. We accept that there is some reduced daytime awareness. The effects on ADLs by the sleep pattern, excluding the effects of the back pain (see Table 13-4) show that the appellant can perform most ADLs. The only effect by the disordered sleep pattern to a particular ADL was "sleep" (see Table 1-2 and paragraph 61 herein). We are not satisfied, based on the appellant's history that the sleep disorder "interferes with the ability to perform some activities of daily living" to satisfy a Class 2 grading under Table 13-4.
3. In this respect we reject the respondent's submission that "it would not be possible" for the Medical Assessor to distinguish between the effects on the ADLs from the lumbar spine injury and the sleep disorder. We must assess the impairment based on the criteria in Table 13-4 which requires the effects on the ADLs to be based on the sleep disorder.
4. An assessment of a range within a class involves an evaluative judgment in part informed by the exercise of clinical judgment involving matters of degree and impression. This evaluative decision making is similar to assessing the extent of any deduction under s 323 of the 1998 Act.[28]
5. There is no road map specifying the precise percentage within a Class. The appellant was and is assessed as having a mild obstructive sleep apnoea. The Medical Assessor was generous in allowing upper mid-range of Class 1 given that finding and the extent to which the ADLs were impacted. With some hesitation, having considered the effects on ADLs and the extent of reduced daytime alertness, we reach a similar assessment of 6% although different minds may have awarded something in the lower end of the range of Class 1.

1. We are cognisant that an assessment of obstructive sleep apnoea requires an "appropriate assessment and treatment by an ear, nose and throat surgeon and a respiratory physician who specialises in sleep disorders (cl 8.9 of the Guidelines). There is no evidence that this has occurred. However, there is no ground of appeal contesting this error and we cannot correct it in the absence of a ground of appeal.

1. For these reasons, we have determined that the MAC is confirmed.

[1] Bundle, p 49. The applicant's claim for the lumbar spine was based on reports from Dr New.

[10] [2021] NSWCA 304 (Burton).

[11] At [35], Leeming and McCallum JJA agreeing.

[14] The Guidelines are issued pursuant to s 376 of the Workplace Injury and Workers Compensation Act 1998 (the 1998 Act).

[16] See also cl 1.24 of the Guidelines.

[17] [2018] NSWCA 88 (Jaffarie).

[18] Jaffarie at [80] approving Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79 at [249] (Macfarlan and Leeming JJA at [1] and [30] agreeing).

[19] See the discussion in Nagy v Arthur Tzaneros Discretionary Trust & Luke Webber Trust [2025] NSWPIC 609.

[20] [2018] NSWCA 324 (Vannini) at [90].

[24] [2006] NSWCA 284 at [95], McColl JA agreeing. These comments were approved in Marina Pitsonis v Registrar of the Workers Compensation Commission of New South Wales [2008] NSWCA 88 at [41].

[26] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 at [48].