1. Mr Agamemnon Ypermachou (the appellant) sustained injury on 8 August 1995 in the course of his employment with PMK Pty Ltd (the appellant).
2. The appellant served a claim based on a series of reports seeking compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) and an assessment of the degree of permanent impairment pursuant to s 39 of the 1987 Act.
3. The appellant commenced proceedings in the Personal Injury Commission (the Commission) as a medical dispute had arisen following the exchange of relevant correspondence.
4. In detailed reasons delivered on 19 August 2024 Member Burge made the following orders:[1]

(i) The applicant suffered injury to his back, neck and left leg at or above the knee in the course of his employment with the respondent on 8 August 1995.

(ii) As a result of the injury referred to in [1], the applicant suffered consequential conditions to his left arm at or above the elbow and right leg at or above the knee and a consequential respiratory condition by way of obstructive sleep apnoea.

(iii) Both matters are remitted to the President for a referral to a Medical Assessor in relation to the following:

Body systems referred: neck, back, left leg at or above the knee including below the knee, left arm at or above the elbow (consequential condition) and right leg at or below the knee (consequential condition)

Method of assessment: whole person impairment (to determine threshold dispute)

Body systems referred: cervical spine, lumbar spine, respiratory system (obstructive sleep apnoea) (consequential condition), left upper extremity (elbow) (consequential condition) and right lower extremity (ankle) (consequential condition).

1. There was no appeal from these orders.
2. The medical assessment was referred to two Medical Assessors due to the need to assess distinct and various body systems. Medical Assessor Grainge assessed whole person impairment (WPI) for the respiratory system at 3%.
3. Medical Assessor Anderson assessed all other body parts and issued a medical assessment certificate dated 13 December 2024 (the MAC) containing the following assessments:

1. Medical Assessor Anderson issued a combined medical assessment certificate assessing overall impairment at 19% (combined certificate).

1. On 18 December 2024 the appellant lodged an Application to Appeal Against the Decision of both Medical Assessors.
2. The appellant relied on the grounds of appeal under s 327(3) of the 1998 Act that the assessment of Medical Assessor Grainge was made on the basis of incorrect criteria, and that both Medical assessment certificates contained demonstrable errors.
3. The respondent filed a Notice of Opposition to Appeal Against a Decision of the Medical Assessor. The respondent denied that there was relevant error in the medical assessments.
4. The delegate of the President was satisfied that a ground of appeal has been made out for both medical assessments and referred the application to appeal to a Medical Appeal Panel.
5. The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment.
6. The appellant requested that he be re-examined for the purposes of the appeal. There is long standing authorities which are summarised by Chen J in Finnegan v Komatsu Forklift Australia Pty Ltd[2] that absent error, there is no right for the worker to be re-examined.
7. For the reasons provided we are not satisfied that the appellant has established that the medical assessment certificates contain a demonstrable error or that the assessments were made on the basis of incorrect criteria.

1. Medical Assessor Grainge issued a medical assessment certificate dated 13 December 2024 assessing whole person impairment of the "respiratory system (obstructive sleep apnoea)" and described as a consequential condition. The Medical Assessor assessed the impairment at 3% based on the following reasons. Medical Assessor Grainge stated:[3]

"I note the Determination from the Personal Injury Commission Workers Compensation Division dated 19 August 2024 determining that the Applicant's sleep apnoea is causally linked to the work based accident in 1995. Currently, Mr Ypermachou has a requirement to use CPAP therapy set at 14.5cm per hour and hence, has a 3% whole person impairment due to the effects of treatment. He has an Epworth Sleepiness Score of 12, despite well controlled apnoea hypopnea on his CPAP therapy. Mr Ypermachou has been diagnosed with idiopathic hypersomnolence and has been on armodafinil for many years and is on cariprazine, a medication known to cause daytime sedation, which he is taking for his schizophrenia. Given he has well controlled apnoea hypopnea on CPAP therapy, his sleep apnoea is not contributing to his daytime somnolence, rather that this is being caused by his idiopathic hypersomnolence, which is not related to the work based accident and also contributed to by his need for sedating medication secondary to his mental health. As such, Mr Ypermachou does not have ongoing permanent impairment due to his obstructive sleep apnoea but does warrant an award due to his ongoing requirement to use CPAP therapy."

1. Medical Assessor Anderson assessed various body parts. The relevant findings and reasons of Medical Assessor Anderson are discussed in relation to the specific ground of appeal.

1. We set out a number of principles prior to addressing the grounds of appeal.
2. We are required to only address the subject matter of the ground of appeal. In Queanbeyan Racing Club Ltd v Burton[4] Basten JA stated:[5]

"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 subject matter of the grounds of appeal are not precisely pleaded and numbered. The grounds are identified and discussed later in these reasons.
2. The assessment of permanent impairment in respect of compensation pursuant to s 66 of the 1987 Act in respect of injuries occurring between 1 July 1987 and before 1 January 2002 is undertaken in accordance with the Table of Disabilities. The basis of assessment under the Table of Disabilities is significantly different from assessment of whole person impairment pursuant to the fourth edition guidelines and AMA 5.
3. For injuries occurring prior to 1 January 2002 the former s 65 of the 1987 Act defined a loss "in relation to a thing" to mean the loss of that thing or the permanent loss of use, or of the efficient use, of that thing". Section 66 provided lump sum compensation for a worker "who has suffered the loss of a thing mentioned in the Table to this Division",
4. The relevant table (referred to the Table of Disabilities) was contained in s 73 of the 1987 Act. The table provided relevant maximum assessments. An assessment was made under

s 66 by multiplying a proportion of the loss of use of a thing under the Table by the maximum assessment for that "thing". For example, the maximum loss of efficient use of the dominant arm was 80%. An assessment was made as to the proportion of the loss of efficient use of the dominant arm and that percentage was multiplied by 80% to assess the

s 66 compensation in accordance with a set rate. 5. There was no loss of an injury in the Table related to sleep apnoea. 6. 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 guidelines).[6] The fourth edition guidelines adopt the fifth edition of the American Medical Association's Guides to the Evaluation of Permanent Impairment (AMA 5). Where there is any difference between AMA 5 and the fourth edition guidelines, the fourth edition guidelines prevail.[7] 7. Whilst the appellant's entitlements for s 66 compensation is determined under the Table of Disabilities, any present entitlement to weekly compensation after a period of five years

(s 39) or other potential benefits must be assessed by way of whole person impairment. That is why the appellant was required to be assessed both under the Table of Disabilities and for whole person impairment. 8. The Medical Assessor determines the extent of the loss that results from injury. In Haroun v Rail Corporation of NSW:[8]

"The scheme of the two Acts is to ensure that the degree of permanent impairment that results from an injury, and any contribution to the worker's total impairment that is due to an earlier injury or pre-existing condition are assessed under and in accordance with Part 7 of the 1998 Act and not otherwise."

1. Similar observations were made by Emmet JA in Bindah v Carter Holt Harvey Wood Products Australia Pty Ltd.[9]
2. The grounds of appeal, with one exception, assert that the medical assessment certificate contains a demonstrable error. The Appeal Panel can analyse the evidence when determining whether the certificate contains a demonstrable error: Vannini v Worldwide Demolitions Pty Ltd.[10] 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".[11]
3. An error is not demonstrable "merely because the Panel disagrees with the opinion of the approved medical specialist".[12] The Court otherwise noted that how the reasoning may be shown to be wrong "depends on what the reasoning is about".[13]

1. The appellant submitted that Medical Assessor Grainge was required to "utilise the Table of Disabilities" as a method of assessment "in respect of the appellant's consequential obstructive sleep apnoea".
2. The respondent correctly noted the orders of Member Burge referred to the appellant's consequential obstructive sleep apnoea was to be assessed by way of whole person impairment to determine the threshold dispute. It also noted that the Table of Disabilities "does not address obstructive sleep apnoea condition".
3. The appellant claimed compensation pursuant to s 66 by letter dated 21 December 2023.[14] That letter did not reference a table of disabilities claim for obstructive sleep apnoea or anything associated or similar to that condition.
4. The extent of the medical dispute is not limited to the terms of the referral and is crystallized by the documents exchanged between the parties: Skates v Hills Industries Ltd[15] and Scone Race Club Ltd v Cottom.[16]
5. The appellant did not refer to any medical report making a claim under the Table of Disabilities. Dr Charles New, orthopaedic surgeon did not make an assessment for obstructive sleep disorder when he assessed other body parts. However, that omission is understandable given this body system is outside his relevant expertise.
6. Dr Anup Desai in a report dated 23 January 2019 noted that "sleep disorders are not covered" under the Table of Maims.[17] We otherwise could not identify a medical report assessing a claim under the Table of Disabilities for the obstructive sleep condition and the appellant did not refer to an assessment in his submissions.
7. There was no claim under the Table of Disabilities and no basis to assess a sleep disorder condition pursuant to s 66 of the 1987 Act for injuries occurring prior to 1 January 2002.
8. There is no application of incorrect criteria in accordance with the discussion by the Court of Appeal in Campbelltown City Council v Vegan.[18] This ground is rejected.

1. The appellant asserts that the medical assessment contains a demonstrable error because Medical Assessor Grainge stated that the appellant recalled that he had symptoms from around 2010 when the appellant in his statement dated 4 June 2009 stated that he had difficulty sleeping.
2. The respondent submitted that the Medical Assessor relied on the appellant's recollection during the assessment, and this is not a "demonstrable error and certainly does not diminish the validity of the MAC".
3. The respondent submitted that the temporal onset of the appellant's sleep apnoea is irrelevant to the assessment of impairment.
4. The Medical Assessor stated:[19]

"Regarding his sleep, Mr Ypermachou recalls that he had symptoms from around 2010, initially with difficulties initiating sleep but his partner at the time noted that he was having problems with increasing snoring on a background of social snoring but then witnessed apnoeas. These symptoms led to him being referred to a Respiratory Physician, Dr Con Archis, who started reviewing him in 2011 and is indeed seeing him until now. Dr Archis organised for a sleep study to be performed. Of note, in Dr Archis's review on 5 September 2011 recollection, he weighed approximately 80kg at the time of his accident. He recalls this, as he was weighed for a martial arts competition approximately two or three years prior to the injury. Of note, Mr Ypermachou had not had any prior sleep issues, recalls sleeping for eight hours a night with no snoring or witnessed apnoeas.".

1. In his statement dated 4 June 2009 the appellant noted that he "had difficulty sleeping".[20]
2. We do not accept that the history recorded by the Medical Assessor that the sleep apnoea condition arose "around 2010" in the circumstances that the appellant had difficulty sleeping existed in 2009 is an error. When assessing the condition in 2024, the reference to "around 2010" is entirely consistent with the condition occurring in 2009.
3. The impairment is assessed at the time of the examination. In the circumstances where the sleep apnoea condition arose as a result of the original injury, the variation of the date from 2009 to "around 2010" is an insignificant inconsistency.
4. There is no error let alone a demonstrable error. This ground is rejected.

1. The appellant submitted that Medical Assessor Anderson incorrectly reported the MRI scan of the lumbo-sacral spine dated 30 March 2016 when he only referred to a "posterior bulge at L5/S1 deviated towards the left". The appellant noted the MRI scan also referred to mild foraminal narrowing and a small foraminal bulge at L4/5 and minor foraminal narrowing on the right at L3/4 with no significant major impingement
2. The appellant submitted that this was a factual error noting the disc bulges at L3/4 and L4/5 "affected the validity of the MAC".
3. The respondent submitted that the matter of the MRI report of the lumbosacral spine dated 30 March 2016 was "open to MA Anderson's interpretation" and the failure to refer to the disc bulges at L3/4 and L4/5 "does not mean that he fell into factual error".
4. It is unclear from the submission whether this ground of appeal relates to the assessment under the Table of Disabilities and/or whole person impairment.
5. The Medical Assessor referred to various MRI scans of the lumbosacral spine dated

27 December 2007, 30 March 2016, 18 December 2017 and 19 April 2022. These scans were described by the Medical Assessor as identifying a posterior bulge or protrusion at L5/S1 which deviated to the left.[21] 6. The Medical Assessor examination findings on the lumbosacral spine were:[22]

"Back. Pain was located throughout the lumbar spine with associated tenderness. The spinal curvatures were normal. There was no scoliosis or muscle spasm. On forward flexion he could only reach his lower thighs with a McRae-Wright movement of 3cm. This is stiff. 5cm is the lower limit of normal. Extension was minimal. Lateral flexion and rotation to each side were reduced to half the normal range."

1. Neurological examination of the left lower limb noted slightly reduced sensation at L4, slightly greater on the lateral side (S1) and to the greatest extent over the anterior of the foot (L5). Straight leg assessment noted full range on the right with reduced on the left side with an increasing sciatic stretch sign.
2. For the assessment under the table of disabilities the Medical Assessor stated:[23]

"Back. Mr Ypermachou continues to have quite severe dysfunction of his lower back, which curtails many of his activities. Discogenic pathology has been identified at the L5/S1 articulation. 20% is therefore appropriate."

1. For the assessment of whole person impairment, the Medical Assessor stated:[24]

"Lumbar Spine. Mr Ypermachou has radiculopathy of the left leg. This places him into DRE III in Table 15-03 on Page 384 of AMA 5. This provides a whole person impairment ranging between 10% and 13%, depending on the activities of daily living. For this, he would attract a further 2%, giving 12%."

1. Based on the examination findings and the assessment of permanent impairment that the Medical Assessor found radiculopathy resulting from the L5/S1 disc. We note that this conclusion was identical to that found by Dr New who diagnosed lumbar spondylosis at L5/S1 with left sided radiculopathy in the L5 and S1 nerve root distributions.[25] Dr New also referred to the MRI scan of the lumbar spine dated 30 March 2016 as showing "Dehydration L5/S1 disc/lumbar spondylosis. Left lateral stenosis."[26]
2. Similarly, Dr New assessed the appellant's lumbar spine at DRE category III due to radiculopathy and assessed the "loss of efficient use of the back at 40% under the table of disabilities.[27]
3. The MRI scan of the lumbar spine dated 30 March 2016 concentrated on the degenerate disc at L5/S1 with left S1 nerve root impingement. There was discussion of mild narrowing at L4/5 with mild contact at L4/5 and minor foraminal narrowing at L3/4 with no significant impingement.
4. The MRI scan of the lumbar spine dated 18 December 2017 noted a clinical history of "chronic L5/S1 degenerative disc disease and commented on the "small left sided disc protrusion at L5/S1 abutting the left S1 nerve root".[28] Minor pathology was noted at L4/5 and L3/4 was described as "intact"
5. The MRI scan of the lumbar spine dated 23 February 2018 described the L3/4 level as showing a mild posterior annulus bulge, no canal or foraminal compromise and facet joints unremarkable. The L4/5 disc was described as a posterior disc bulge with very mild facet joint changes, no canal stenosis and the foramina appear patent. The L5/S1 disc showed a broad-based posterior disc bulge with a left paracentral annulus tear that abuts the left S1 nerve root. The radiologist noted in his conclusion the L5/S1 disc impinging the left S1 nerved root.
6. A few matters are noted from the MRI scans. First, the L3/4 disc is basically healthy with minor changes noted on one scan. Secondly, the most serious and consistent pathology is at L5/S1 where the Medical Assessor also made clinical findings on the left S1 nerve root consistent with pathology relevant to the L5/S1 disc.
7. The Medical Assessor has described various scans for various parts of the body. He has, in shorthand version described the relevant pathology in the lumbar spine which is at the L5/S1 disc. The L3/4 disc is basically normal and the L4/5 shows only minor changes.
8. The appellant could not be assessed greater than DRE category III for the lumbar spine because the requirements for assessment under category IV or V are not met.[29] The appellant was assessed at his highest potential category for permanent impairment of the lumbar spine. The suggestion that the failure to assess the other levels had no possible relevance for assessment of whole person impairment.
9. The Medical Assessor assessed the appellant at 20% under the table of disabilities referencing the "severe dysfunction in the lower back and discogenic pathology at the L5/S1 articulation".
10. We do not accept that the medical assessment contains a demonstrable error under the table of disabilities by failing to refer to basically normal pathology at L3/4 and minor pathology at L4/5. The Medical Assessor referenced the relevant pathology in the lower back at L5/S1 which was probably responsible for most of the lower back symptoms and the cause of the radiculopathy.
11. This ground is rejected.

1. The appellant submitted that Medical Assessor Anderson erred by referring to the MRI scan of the left ankle dated 18 December 2018 as opposed to the MRI scan of the right ankle dated 21 December 2018
2. The respondent stated that this was a typographical error and the Medical Assessor later identified the MRI scan of the right ankle dated 12 January 2020 when he summarised as:

"Talar dome and tibial plafond osteo-chondral lesion".

1. The respondent noted that this is the same pathology identified in the MRI scan of the right ankle dated 21 December 2018. It submitted that the Medical Assessor was aware of the pathology in the right ankle and proceeded to make his assessment based on the medical evidence and his expertise.
2. The respondent submitted that there was no connection asserted by the appellant between supposed factual error and the validity of the medical assessment certificate.
3. The ground of appeal does not provide any articulation as to whether the alleged factual error affects the assessment of whole person impairment of the right lower extremity or the assessment of the loss of efficient use of the right leg at or below the knee under the table of disabilities.
4. In relation to the event causing the consequential condition of the right ankle, the Medical Assessor recorded the following history.[30]

"The situation was further complicated on 11/02/18 when he was dropping his son off at his ex-wife's abode. Near the front door was a set of three steps. Unfortunately, he experienced a severe pain down his left leg which resulted in his lack of capacity to maintain his weight on that leg. As a result he fell backwards, coming down onto the ground mostly on his left elbow. In this event he also went over on his right ankle.

Later it was identified that there had been significant ligament disruption of the right ankle. For this, he came under the care of Specialist Foot and Ankle Surgeon, Dr Andrew Wines. Eventually a surgical procedure was conducted in February 2022 but Mr Ypermachou believes that if anything, this made him worse. Ever since this occasion he has experienced pain and numbness in the upper part of the right leg. Apparently, there was also the development of a deep vein thrombosis, which necessitated anticoagulation."

1. There is no suggestion that the Medical Assessor recorded an incorrect history in relation to the event, the injury to the right ankle and the subsequent treatment.
2. The Medical Assessor made the following examination findings on the lower limbs.[31]

"Lower Limbs. He walked with a right-sided limp. The reason for this was due to a recent minor injury to his right little toe while walking in the garden and has nothing to do with the issues of assessment.

He was able to stand on his heels and toes. Squatting was reduced to half the normal range.

The legs were equivalent in length and in circumference at the thighs. The left calf was 1cm less in circumference than the right.

There was a normal and symmetrical range of movement of the hips, knees and ankles.

The right ankle was slightly thickened and was slightly tender anteriorly. The small surgical scars from the procedure in February 2022 had healed very well."

1. In respect of radiological investigations, the Medical Assessor referred to an MRI scan of the left ankle dated 21 December 2018 showing a "talar dome osteo-chondral lesion" and an MRI scan of the right ankle dated 12 January 2020 showing identical pathology.
2. The MRI scan of the right ankle dated 21 December 2018 shows an osteochondral lesion of the medial talar dome and low-grade injury of the deltoid ligament.[32] There is no MRI scan of the left ankle at or around that date.
3. Later in his findings the Medical Assessor concluded that there was no loss of movement of the right ankle. The Medical Assessor stated:

"The situation was further complicated in early 2018 when he was visiting his ex-wife's abode to drop off his son. Unfortunately, he experienced a severe pain down his left leg which resulted in instability, thereby causing a fall. He tumbled backwards, coming down painfully on his left elbow and also badly twisting his right ankle. It looks as though the left elbow condition has largely resolved, although he has been left with some minor irritation of the ulnar nerve. There was ligament damage to the right ankle, which eventually resulted in an arthroscopic procedure by Specialist Foot and Ankle Surgeon, Dr Andrew Wines. Unfortunately, this does not seem to have given Mr Ypermachou much improvement, although at this assessment, there was relatively little to demonstrate with the right ankle complex and he continues to have a normal range of movement which was equivalent to the left side."

1. The appellant did not submit that the examination findings showing no loss of movement revealed any error.
2. In respect of the assessment under the table of disabilities for the right leg below the knee, the Medical Assessor stated:

"The right ankle was slightly thickened and painful over the anterior. The underlying pathology has been identified as an osteo-chondral lesion over the talar dome and associated with the tibial plafond. This is not going to get better and if anything, will continue to deteriorate. At this assessment he continues to have pain and tenderness over the anterior of the ankle, which itself was rather thickened. 5% is appropriate."

1. In respect of the assessment for whole person impairment of the right lower extremity, the Medical Assessor stated:

"Similar to the left elbow condition, although Mr Ypermachou does have minor clinical features of the right ankle, this was not of sufficient severity which could identify an assessable whole person impairment. Therefore, this remains at 0%."

1. The reference by the Medical Assessor to the MRI scan of the left ankle was a typographical error. The description of injury, examination findings and diagnosis show that the Medical Assessor was aware that the appellant suffered "an osteo-chondral lesion over the talar dome and associated with the tibial plafond" of the right ankle. His conclusion of the right ankle condition was consistent with what is shown in the MRI scan.
2. Whilst the medical assessment certificate contained a mistake, properly described by the respondent as a typographical error, by incorrectly referencing the MRI scan of the left as opposed to the right ankle, the error had no effect on the outcome of assessment under the table of disabilities or whole person impairment. This is because the conclusion reached by the Medical Assessor on the assessment of the loss of efficient use of the right leg below the knee and the impairment of the right lower extremity were based on the correct pathology to the right ankle as depicted in the MRI scans.
3. This ground is rejected.

1. The appellant submitted that the Medical Assessor failed to provide sufficient reasons with respect to the assessment of impairment under the table of disabilities for the back. He submitted that the Medical Assessor did not provide "some explanation for how he reached his conclusions" and "simply stated that [he] believed [the] assessment yielded a particular rating.
2. The respondent submitted that the Medical Assessor reasons should be read in total and explain the rationale for the determination.
3. The appellant referred to the following reasons provided in the medical assessment certificate.

"Most specialists have identified the back condition in the Table of Disabilities as 20%. Dr Charles New has extended this to 30%, although I believe 20% is more accurate. The left leg is mostly assessed at 15%, although at this assessment I believe 20% is more accurate, although Specialist Neuro-surgeon, Dr Vidyasagar Casikar in his report of 22/02/17 advised 30% at that time for the left leg.

Specialist Orthopaedic Surgeon, Dr Charles New in his three reports of 13/07/17, 26/06/22 and 03/10/23 has fairly high whole person impairments. I was unable to replicate sufficient features to agree with these findings. Again, most specialists have identified the lumbar spine with DRE III with a whole person impairment of 12%, which was the same as my findings."

1. The first of these paragraphs relates to the assessment under the table of disabilities. The second paragraph relates to the assessment of whole person impairment of the lumbar spine and is irrelevant to the assessment under the Table of disabilities.
2. The medical assessment certificate must be read as a whole. The Medical Assessor provided reasoning of the present back condition (set out at [52] herein) and other reasons concerning the assessment under the Table of Disabilities (set out at [54] herein).
3. 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"[33] 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.
4. We accept that a failure to provide adequate reasons can amount to demonstrable error. However demonstrable error is not shown because the Panel may have reached a different conclusion. This is particularly the case in assessments under the Table of disabilities where there is no specific objective structure for reaching a particular percentage of the maximum assessment.
5. When the entire reasons on this issue are considered, we accept that the Medical Assessor provided sufficient and adequate reasons in assessing the impairment of the back under the Table of disabilities at 20%. This ground is rejected.

1. The appellant referred to the observations made by Medical Assessor Anderson under the heading "General Health" when he stated:[34]

"This seems reasonable, although attention is drawn to the mental health issues, although these currently seem to be under fairly good control."

1. The appellant referred to the appellant's statement dated 30 August 2019 which noted that health had drastically deteriorated due to lack of sleep, Dr New's comment that the appellant had issues with weight loss and Dr Diwan's observation that the appellant looked in distress and was somewhat unhealthy.
2. It was also noted that Medical Assessor Anderson recorded that the appellant frequently used medication for type 2 diabetes.
3. The appellant submitted that the Medical Assessor should have provided sufficient reasons for reaching his conclusion and was demonstrative of error.
4. The respondent noted that the evidence referenced by the appellant was more than five years prior to the medical examination and that this was an exercise of clinical judgement on the day of the examination.
5. This ground is rejected for the following reasons.
6. The submission in support of this ground does not seek to explain how the comment on general health has any bearing on the assessment of whole person impairment or under the Table of disabilities for any of the various body systems. We do not accept that a comment on general health, even if it was wrong, has any bearing on the assessment of impairment.[35] This is particularly so as the comment appears on the medical assessment certificate of Medical Assessor Anderson who was assessing physical injuries other than obstructive sleep apnoea. There is no logical connection between the disputed one-line comment and the various assessments.
7. That conclusion is supported by the detailed reasons provided by the Medical Assessor on the various assessments. Those reasons do not include references to the appellant' general health as a relevant consideration.
8. Further, we acknowledge the force in the respondent's submissions relating to the Medical Assessor's observation based on an examination given years after the evidence relied upon by the appellant under this ground of appeal.
9. We otherwise note that the Medical Assessor only observed that the general health was "reasonable". This is a vague description encompassing a wide range of health conditions and is not inconsistent with the evidence relied upon by the appellant.
10. This ground is rejected.

1. The appellant referred to the conclusion by Medical Assessor Grainge that the sleep apnoea was "well controlled". The Medical Assessor stated:

"As above, Mr Ypermachou's sleep apnoea is well controlled and hence, any current impairment with daytime sleepiness is due to his underlying requirement for analgesics or antipsychotic medication and hence, the 3% whole person impairment only for the effects of therapy."

1. The appellant submitted, given the complicated history and nature of the appellant's injuries, that a more expansive explanation was required.
2. The respondent submitted that the appellant did not refer to the full reasoning provided by the Medical Assessor which included "an extensive review of the medical evidence addressing the Appellant's sleep apnoea condition".[36]
3. The respondent otherwise submitted that the Medical Assessor explained that the daytime sedation was caused by prescribed medication for schizophrenia.
4. We accept, in accordance with our earlier reasons, that a failure to provide adequate reasons may be a demonstrable error. For the following reasons we reject this ground of appeal.
5. The appellant only referred to a portion of the reasons provided by the Medical Assessor.
6. The Medical Assessor provided a history of the onset of the sleep apnoea and the associated treatment noting that the appellant remained on fixed CPAP therapy.
7. The reasons for the assessment of whole person impairment are provided by the Medical Assessor at paragraph 10(a) of the medical assessment certificate and referenced earlier in our reasons.[37]
8. The Medical Assessor then discussed other medical evidence at paragraph 10(c) of the medical assessment certificate. Those reasons were more detailed than that cited by the appellant. The Medical Assessor stated:[38]

"I note the medical report from Dr Paul Thomas dated 3 May 2024, stating that Mr Ypermachou has obstructive sleep apnoea which is well controlled on CPAP and his daytime somnolence is contributed to from his antipsychotic medication and analgesic medication. Personal Injury Commission I note the report from Dr Dimitri dated 28 July 2023, giving the opinion that Mr Ypermachou has a 23% whole person impairment; as Professor Thomas notes that this opinion is outside the bounds expressed by multiple other Respiratory Specialists including himself and Dr Clarke. I note that Professor Thomas himself places Mr Ypermachou in Class 1 impairment of the whole person with 9% impairment of the whole person due to his daytime somnolence. I agree with this. However, Dr Thomas although stating in the text of his report, attributing this daytime somnolence to the requirement for sedating antipsychotic medication and analgesics, did not adjust the whole person impairment on the basis of this and indeed, did not give an award for the effects of treatment. As above, Mr Ypermachou's sleep apnoea is well controlled and hence, any current impairment with daytime sleepiness is due to his underlying requirement for analgesics or antipsychotic medication and hence, the 3% whole person impairment only for the effects of therapy."

1. The reasoning of the Medical Assessor that the sleep apnoea was well controlled and daytime sleepiness was due to an unrelated condition is therefore based on the Medical Assessor's reasoning that:
   • The appellant's treatment history on CPAP therapy had been consistent over an extended period;
   • The appellant is on medication for treatment of schizophrenia which causes daytime sedation;
   • The appellant has well-controlled apnoea hypopnea on CPAP therapy which is not contributing to daytime somnolence; and
   • This conclusion is consistent with the opinion of Professor Thomas.
2. The Medical Assessor is not required to choose between competing medical opinions and is required to form his or her own opinion: Insurance Australia Group Ltd v Keen[39] and Insurance Australia Ltd v Marsh.[40] Based on this reasoning the Medical Assessor did not associate the daytime somnolence to the related obstructive sleep apnoea. That conclusion meant that the Medical Assessor did not assess the appellant as falling within class 1 of Table 13-4 of AMA 5 and only allowed an impairment of 3% for the effects of treatment pursuant to cl 1.32 of the Guidelines.
3. This ground of appeal is only based on whether there was a failure by the Medical Assessor to provide sufficient or adequate reasons. For these reasons we are not satisfied that this ground is successful.

1. For these reasons, we have determined that both Medical Assessment certificates and the combined medical assessment certificiate are confirmed.

[1] Ypermachou v PMK Pty Ltd [2024] NSWPIC 450.

[2] [2023] NSWSC 38 at [122]- [131].

[4] [2021] NSWCA 304 (Burton).

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

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

[7] Clause 1.1 of the fourth edition guidelines.

[8] [2008] NSWCA 192 Handley JA stated (at [19], McColl JA at [1] and McDougall JA at [24] agreeing).

[9] [2014] NSWCA 264 at [118]

[10] [2018] NSWCA 324 (Vannini) at [90].

[15] [2021] NSWCA 142 (Skates) at [30] per Basten JA and [44]-[50] per Leeming JA

[16] [2024] NSWCA 34 at [47]-[48], [53] applying Skates at [44].

[18] [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].

[27] MAP bundle, p 172, p 175 and p 178

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

[35] Similar comment was made in Stolzenberg v Workers Compensation Nominal Insurer [2025] NSWCA 40 at [46] as a relevant consideration in determining whether there was jurisdictional error.

[36] Respondent's submissions, para 46.

[39] [2021] NSWCA 287 at [40], [41] and [45].

[40] [2022] NSWCA 31 at [11], [21], [64].