Adams v Wadesley
[2018] VSC 304
•7 June 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2017 01564
| ALAN ADAMS | Plaintiff |
| v | |
| DR JANE WADESLEY AND OTHERS (according to the attached Schedule) | Defendants |
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JUDGE: | IERODIACONOU AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 April 2018 |
DATE OF JUDGMENT: | 7 June 2018 |
CASE MAY BE CITED AS: | Adams v Wadesley |
MEDIUM NEUTRAL CITATION: | [2018] VSC 304 |
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ADMINISTRATIVE LAW – Judicial Review – Medical Panel – Jurisdictional Error – Failure to assess impairment pursuant to Wrongs Act 1958 pt VBA – Failure to assess aggravation of pre-existing injury as a potentially compensable injury – Failure of statutory duty – Decision quashed – Chua v Lowthian [2009] VSC 582 – Wrongs Act 1958 pt VBA, ss 28LL, 28LWE, 28LZG.
ADMINISTRATIVE LAW – Judicial Review – Interpretation of AMA Guides – Applicable Principles – Classes of Hernia-related Impairment – Grammatical Construction – Contextual Approach – Relevant United States authority – Requirement of a palpable defect – Heinz Co Australia Ltd v Kotzman [2009] VSC 311 – Wrongs Act 1958 ss 28LB, 28LH.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Harper | Arnold Thomas & Becker |
| No appearance for the First, Second and Third Defendants | ||
| For the Fourth and Fifth Defendants | Mr J Noonan QC with Mr B Jellis | Lander & Rogers |
TABLE OF CONTENTS
Application.......................................................................................................................................... 1
Grounds of judicial review............................................................................................................... 2
Background......................................................................................................................................... 3
1... Did the Medical Panel misconstrue or misapply the Guides by failing to assess the degree of impairment arising from an injury diagnosed as failed hernia repair with post herniorrhaphy pain syndrome?...................................................................................................................................... 5
Mr Adams’ submissions..................................................................................................... 5
Albury Wodonga Health’s submissions.......................................................................... 6
Principles.............................................................................................................................. 7
Analysis................................................................................................................................. 7
2... Did the Panel misconstrue or misapply the Guides by failing to apply criterion 3 in class 2 of table 7 as a stand-alone criterion?......................................................................................................... 10
Mr Adams’ submissions................................................................................................... 11
Albury Wodonga Health’s submissions........................................................................ 12
Principles............................................................................................................................ 12
Analysis............................................................................................................................... 17
3... Did the Panel fail to assess aggravation of a pre-existing injury as a potentially compensable injury?........................................................................................................................................................ 19
Mr Adams’ submissions................................................................................................... 19
Albury Wodonga Health’s submissions........................................................................ 20
Principles............................................................................................................................ 21
Analysis............................................................................................................................... 23
Conclusion......................................................................................................................................... 29
HER HONOUR:
Application
Mr Adams seeks orders quashing the determination made by a Medical Panel constituted by the first to third defendants on 8 March 2017.[1] The Medical Panel determined that the degree of impairment resulting from his claimed injury did not satisfy the threshold level prescribed in the Wrongs Act 1958. The injury claimed by Mr Adams is said to arise from an inguinal hernia repair procedure on 7 February 2014 performed by the fifth defendant, general surgeon Dr Heinrich Schwalb.
[1]Medical Panel, ‘Certificate of Determination’, Re: Mr Alan Adams, No M117/0117, 8 March 2017 (‘Certificate of Determination’): Exhibit WVK–10 to the affidavit of Wendy Victoria Kleyn affirmed on 16 February 2018 (‘the Kleyn affidavit’); see also Medical Panel, ‘Reasons for Determination’, Re: Mr Alan Adams, No M117/0117, 8 March 2017 (‘Reasons for Determination’): exhibit WVK–11 to the Kleyn affidavit.
Mr Adams has commenced proceedings in the County Court of Victoria seeking damages against Dr Schwalb and Albury Wodonga Health. Albury Wodonga Health is alleged to be the employer or principal of Dr Schwalb and is the fourth defendant in this proceeding. The effect of the Medical Panel determination is that Mr Adams cannot maintain a claim for non-economic damages in the County Court proceedings.
I find the Medical Panel fell into jurisdictional error. I will make orders setting aside its determination and remitting the medical question for redetermination according to law.
The real issues in dispute arising from the grounds of judicial review are as follows.
1.Did the Medical Panel misconstrue or misapply the Guides to the Evaluation of Permanent Impairment[2] by failing to assess the degree of impairment arising from an injury diagnosed as failed hernia repair with post herniorrhaphy pain syndrome?
The answer to this question is no.
2.Did the Medical Panel misconstrue or misapply the Guides by failing to apply criterion 3 in class 2 of table 7 (Classes of Hernia-related Impairment) as a stand-alone criterion?
That is, by construing criterion 3 as one that should be read with criterion 1 and which therefore required a ‘palpable defect’.
The answer to this question is no.
3.Did the Panel fail to assess aggravation of a pre-existing injury as a potentially compensable injury?
That is, was the Panel required to assess aggravation of the plaintiff’s pre-existing osteoarthritis of the left hip consequent to the hernia repair as a potentially compensable injury?
The answer to this question is yes.
[2]American Medical Association, Guides to the Evaluation of Permanent Impairment (AMA, 4th ed, 1995) (‘the Guides’).
The only active contradictors are Dr Schwalb and Albury Wodonga Health. For convenience, I shall refer to them collectively as ‘Albury Wodonga Health’.
Grounds of judicial review
Both Mr Adams and Albury Wodonga Health made written and oral submissions.[3] Mr Adams pursues three grounds of review.[4] Ground 1 concerns a failure to apply or adhere to the requirements of the Guides and /or misconstruing or misapplying them. Ground 1 gives rise to the first two issues above. I find no error of law in respect of Ground 1 upon consideration of those issues.
[3]The written submissions are the Plaintiff’s Outline of Further Submissions dated 16 February 2018; Further Submissions of the Fourth and Fifth Defendants dated 6 April 2018.
[4]Amended originating motion filed on 23 March 2018. At trial, only the three further grounds were pursued and not the initial grounds.
Ground 2 concerns the failure to assess impairment in accordance with pt VBA of the Wrongs Act. It gives rise to the third issue above. I find there is jurisdictional error in respect of this ground 2.
Ground 3 is consequential to ground 2. It concerns failure to take into account a relevant consideration, namely, the aggravation of the pre-existing osteoarthritis as a potentially compensable injury. I find there is jurisdictional error in respect of this ground.
Background
Mr Adams received a certificate from an occupational physician assessing his impairment pursuant to the Wrongs Act. The Certificate of Assessment of Degree of Impairment Arising from Stabilised Injury, signed by Dr Rowe,[5] states that he examined Mr Adams on 19 March 2015 and is satisfied that ‘the degree of impairment resulting from this person’s injury is more than 5%’.[6] The brief description of injury assessed by Dr Rowe is stated to be: ‘Failed hernia repair with post herniorraphy pain syndrome’.
[5]Exhibit WVK–4 to the Kleyn affidavit.
[6]There appears to be a typographical error because the examination is stated to be on 19 March 2015 but the Certificate is dated 15 March 2015.
The Claimant Prescribed Information Form (‘CPI form’) (pursuant to s 28LT(2) of the Wrongs Act) in respect of Mr Adams is dated 16 November 2016.[7] On the CPI form, Mr Adams asserts that Dr Schwalb is a proper respondent to the claim for the following reasons.
The Claimant consulted Dr Schwalb on 21 October 2013, who examined the Claimant and recommended surgical inguinal hernia repair surgery. Dr Schwalb did not advise the Claimant of the risk of chronic pain following surgery during this consultation.
[7]Exhibit WVK–5 to the Kleyn affidavit.
On the CPI form Mr Adams asserts that Albury Wodonga Health is a proper respondent to the claim for the following reasons.
The Claimant’s injuries arose out of medical treatment provided by the staff, servants and/or agents of the Respondents. The Claimant underwent surgery on 7 February 2014, at the hospital, as a public patient. He now suffers from post herniorraphy pain syndrome.
The incident is described on the CPI form as having occurred on 7 February 2014 at Wodonga Hospital, and is then described as follows.
The damages for complications arising from an inguinal hernia and groin injury that occurred in August 2013 and was treated on 7 February 2014 by left inguinal hernia repair with mesh.
On the CPI form, the injury to Mr Adams is stated to be: ‘Failed hernia repair with post herniorraphy pain syndrome’. Mr Adams outlines the following categories of loss allegedly suffered by him as a result of the injury:
(i) pain and suffering;
(ii) loss of amenity of life;
(iii) loss of enjoyment of life.
Mr Adams states on the CPI form that he relies on a report by Dr Rowe dated 19 March 2015, and then lists a number of health professionals from whom he has received treatment in respect of the alleged injury.
The letter dated 17 January 2017 referring the medical question to the convenor of medical panels is from the solicitors for Dr Schwalb and Albury Wodonga Health.[8] In the referral letter, it is stated that Albury Wodonga Health dispute that Mr Adams suffers from a permanent physical impairment which satisfies the threshold as defined by s 28LB of the Wrongs Act. The medical question referred to the Panel in relation to Dr Rowe’s Certificate of Assessment is as follows.
Does the degree of impairment resulting from the physical injury to the claimant alleged in the claim satisfy the threshold?
[8]Exhibit WVK–6 to the Kleyn affidavit.
The letter attached a Form 5 ‘Notice of Referral of Medical Question to Medical Panels’.[9]
[9]Ibid.
The Certificate of Determination of the Medical Panel pursuant to s 28LZG(2)(a) of the Wrongs Act provides the following answer to the medical question.
The Panel determined that the degree of whole person impairment resulting from the physical injury to the claimant alleged in the claim does not satisfy the threshold level.[10]
[10]Exhibit WVK–10 to the Kleyn affidavit.
The Medical Panel provided Reasons for Determination.
Turning now to the first issue.
1. Did the Medical Panel misconstrue or misapply the Guides by failing to assess the degree of impairment arising from an injury diagnosed as failed hernia repair with post herniorrhaphy pain syndrome?
Mr Adams’ submissions
Mr Adams submits that Dr Rowe identified the injury as failed hernia repair with post herniorrhaphy pain syndrome,[11] and this is acknowledged by the Panel. However, the Panel did not assess that injury or classify it. It did not accept what Dr Rowe said, but rather reframed the injury as ‘persistent pain in the left groin following left inguinal hernia repair’, but with ‘no evidence of nerve involvement or significant local tenderness’. It identified that as a potentially compensable injury.
[11]Plaintiff’s Outline of Further Submissions dated 16 February 2018.
Mr Adams submits that the Panel then proceeded to assess the degree of impairment resulting from that injury using section 10.9 of chapter 10 of the Guides. Despite reframing the injury in the manner above, it applied the section of the Guides identified by Dr Rowe and concluded that it was not appropriate to use that section of the Guides.
Mr Adams submits that the conclusion that section 10.9 of the Guides was not appropriate was based on the finding that there was no defect in Mr Adams’ abdominal wall. The Panel stated that the use of table 7 in section 10.9 required that there be a ‘palpable defect in the supporting structures of the abdominal wall and a slight protrusion at the site of the defect with increase intra‑abdominal pressure; readily reducible’. As there was no defect in the abdominal wall and no local protrusion, the Panel concluded that the use of the Guides was not appropriate. However, the impairment falls to be assessed under section 10.9 of chapter 10, being hernia-related impairment. It falls within criterion 3 of class 2 as: ‘[f]requent discomfort, precluding heavy lifting, but not hampering normal activity’.
Mr Adams submits that having identified the potentially compensable injury as ‘persistent pain in the left groin following left inguinal hernia repair’, the Panel was bound to assess the impairment resulting from the injury in accordance with the Guides. It identified section 10.9 of the Guides for application and then declined to use the section on the erroneous basis that a ‘palpable defect’ had to be present before table 7 had application. By misconstruing table 7 in this way, the Panel misapplied the Guides and thereby committed jurisdictional error.
Alternatively, Mr Adams submits the Panel should have said that table 7 applied, although there was no palpable defect, because there was one previously.
Albury Wodonga Health’s submissions
Albury Wodonga Health submits that the medical question referred to the Panel, as defined in s 28LWE of the Wrongs Act, is: does the degree of impairment resulting from the physical injury to the claimant alleged in the claim satisfy the threshold? The medical question ultimately to be determined was whether or not the degree of impairment resulting from the injury to the plaintiff alleged in the claim satisfies the threshold level. The Panel correctly identified the claimed injury as a ‘[f]ailed hernia repair with post herniorraphy pain syndrome’. The Panel found no current evidence of a hernia. It conducted a physical examination of Mr Adams and found no palpable defect.
Albury Wodonga Health say that as required by s 28LH of the Wrongs Act, the Panel assessed the impairment from the claimed injury in accordance with the Guides. The Panel noted Dr Rowe’s conclusion and assessed whether there was any impairment in relation to a hernia in accordance with section 10.9 of the Guides. It found no defect in the abdominal wall and no local protrusion, and concluded the use of that section of the Guides was not appropriate. Further, it: assessed whether there was an impairment in relation to peripheral nerve injuries and found none; noted the definition of ‘pain’ in chapter 15 of the Guides is excluded pursuant to s 28LB of the Wrongs Act; and assessed the impairment for scarring in accordance with sections 13.4 and 13.5 of the Guides.
Principles
The relevant principles on interpreting the Guides are substantially agreed between the parties. In HJ Heinz Co Australia Ltd v Kotzman,[12] Kyrou J (as he then was) provides a set of general principles for interpreting the Guides and then outlines how the medical panel should give effect to the legislative obligation to assess injuries in accordance with the Guides. Although applied in the context of the Accident Compensation Act 1985, these principles are equally applicable to the Wrongs Act.[13]
The interpretation of the Guides is a question of law. The determination of a level of impairment is a question of fact.
It has been said that to the extent that an Act requires determinations of impairment to be made in accordance with the Guides, the Guides has the force of law and is a legislative document.
However, the Guides is, as its title suggests, a guide. It was written by expert medical practitioners and not by statutory draftspeople, and should not be overlaid with legalistic — or a lawyer’s precise — interpretation. It is of paramount importance to be faithful to the Guides’ plain words. The Guides should not be interpreted as if it was a statute.
The use of the Guides is designed to promote precision, certainty and consistency. Its purpose is to make as objective as possible the process of estimating impairment by reference to sufficient medical and non-medical information to justify the estimate.[14]
[12][2009] VSC 311 (‘Heinz’). See also, Saddington v Kotzman [2013] VSC 196, [21]–[27] (Kyrou J) (‘Saddington’).
[13]As noted in Saddington [2013] VSC 196, [21] (Kyrou J).
[14]Heinz [2009] VSC 311, [24]-[28] (citations omitted).
In Victorian WorkCover Authority v Elsdon,[15] Bongiorno JA and Dixon AJA approved the legal principles governing construction of the Guides as set out in Heinz.[16]
[15](2013) 42 VR 434 (‘Elsdon’).
[16]Ibid 446 [49].
Analysis
The Panel concluded that Mr Adams ‘is suffering from persistent pain in the left groin following left inguinal repair’ and identified that as a potentially compensable injury.[17] However, this did not have the consequence that it failed to assess the claimed injury of ‘failed hernia repair with post herniorraphy pain syndrome’. The Reasons for Determination plainly indicate that the Panel did so.
[17]Reasons for Determination, 9.
The Panel noted from the referral document that the claimant underwent an inguinal hernia repair on 7 February 2014 (‘the incident’). The Panel also noted that, as a result of the incident, the claimant alleges that he sustained injuries described as ‘failed hernia repair with post herniorraphy pain syndrome’.
The Panel also noted the Certificate of Assessment prepared by Dr James Rowe dated 19 March 2015 identifies the injury assessed as ‘failed hernia repair with post herniorraphy pain syndrome’.
…
The Panel considered the current diagnosis with respect to his left groin pain and in particular the claimed injury of ‘failed hernia repair with post herniorraphy pain syndrome’.
The Panel concluded that there is no current evidence of a recurrent left inguinal hernia, based on its own clinical examination on 6 February 2017 and the result of a post‑operative inguinal ultrasound dated 27 March 2014.
…
The Panel also assessed whether there was any impairment in relation to his hernia in accordance with Section 10.9 of Chapter Ten. The Panel noted that the claimant has no palpable defect in supporting structures of the abdominal wall and no swelling in the inguinal region. The Panel then determined the appropriate level of whole person impairment, applicable for the claimant’s hernia when assessed pursuant to Table 7 of Chapter Ten of the Guides.
The Panel also assessed whether there was any impairment in relation to peripheral nerve injuries pursuant to section 3.2k of Chapter Three. The Panel noted that there was no demonstrable sensory deficit in the region of any particular peripheral nerve found at the Panel’s examination on 6 February 2017. The Panel also noted that the claimant’s pain distribution did not correspond to any particular peripheral nerve, particularly in the region innervated by the ilioinguinal and iliohypogastric nerves, as would be expected in relation to post-herniorraphy pain syndrome.
…
The Panel combined the whole person impairments in accordance with the formula in the Combined Values Chart on page 322 of the Guides and concluded that the whole person impairment resulting from the physical injury to the claimant alleged in the claim is permanent but is not more than 5%.
The Panel noted the report by Dr James Rowe, examining Occupational Physician, 19 March 2015 in which he concluded that the claimant had more than 5% whole person impairment resulting from ‘failed hernia repair with post herniorraphy pain syndrome’. The Panel noted that Dr Rowe states that the claimant’s scar was non tender and there was no recurrence of the hernia. Dr Rowe also states that the claimant had significant restriction of hip movements which were limited and uncomfortable. Dr Rowe also describes a vague change of sensation about the upper and outer aspect of the left thigh.
The Panel noted that Dr Rowe, while stating that ‘it is an unusual assessment as the guides do not specifically address herniorraphy pain’ has assessed impairment using Table 7 of Chapter Ten of the Guides and concluded that the claimant had Whole Person Impairment of greater than 5%. The Panel disagreed with Dr Rowe regarding the method of assessment as the use of this table requires that there be a ‘palpable defect in the supporting structures of the abdominal wall and a slight protrusion at the side of the defect with increased intraabdominal pressure; readily reducible.’ The Panel found that there was no defect in the abdominal wall and no local protrusion and concluded that the use of this section of the Guides is not appropriate in this case. The Panel also noted that Dr Rowe similarly did not find any defect in the abdominal wall in his examination.
Further, the Panel noted that Chapter 15 of the Guides – ‘Pain’ – is excluded from the definition of the AMA Guides pursuant to Section 28LB of the Wrongs Act 1958.
…
The Panel assessed the claimant’s degree of impairment based on the Panel’s current clinical findings at the time of its examination on 6 February 2017 and therefore formed a different opinion to Dr Rowe regarding the level of impairment in this case.[18]
[18]Ibid 2–9 (underline added).
The reasons above indicate that the Panel did assess Mr Adams’ claimed injury in accordance with section 10.9 of the Guides. The Panel then concluded that the “use of this section of the Guides is not appropriate in this case” and explained why with reference to the criteria in the relevant table. I do not agree with Mr Adams’ submission that this means the Panel failed to apply the relevant table at all. The statement about the section of the Guides being “not appropriate” should be read in context with the surrounding sentences and paragraphs. In particular, the Panel stated that it assessed whether there was any hernia in accordance with chapter 10 and specifically explains why Mr Adams’ did not fall within table 7 of chapter 10. That is, because it finds there is no defect in the abdominal wall and no local protrusion.
As evident from its reasons above, the Panel disagreed with Dr Rowe’s method of assessment of the claimed injury regarding the criteria in table 7 of chapter 10. It was not bound to accept Dr Rowe’s method of assessment. It was bound to construe and apply the Guides lawfully. The question of whether or not the Panel did so is considered in the next section.
For completeness, and in response to Mr Adams’ submissions, in the alternative, that he satisfied criterion 1 because he once had a hernia, this must be firmly rejected. In estimating the extent of a person’s impairment, the Guides state that a physician should base their estimate on ‘current findings and evidence’.[19] This is consistent with the wording of table 7 itself, which is in the present tense.
2. Did the Panel misconstrue or misapply the Guides by failing to apply criterion 3 in class 2 of table 7 as a stand-alone criterion?
[19]Guides, above n 2, 2/8.
The central issue in dispute between the parties in respect of this issue is how table 7 is to be interpreted, and whether or not criterion 3 in class 2 is a stand-alone criterion, as contended by Mr Adams. If that is so, then the Medical Panel is in error.
Table 7. Classes of Hernia-related Impairment.
| Class 1: 0%-9% impairment of the whole person | Class 2: 10%-19% impairment of the whole person | Class 3: 20%-30% impairment of the whole person |
| Palpable defect in supporting structures of abdominal wall; | Palpable defect in supporting structures of abdominal wall; | Palpable defect in supporting structures of abdominal wall; |
| and | and | and |
| Slight protrusion at site of defect with increased abdominal pressure; readily reducible; | Frequent or persistent protrusion at site of defect with increased abdominal pressure; manually reducible; | Persistent, irreducible, or irreparable protrusion at site of defect; |
| or | or | and |
| Occasional mild discomfort at site of defect, but not precluding normal activity. | Frequent discomfort, precluding heavy lifting, but not hampering normal activity. | Limitation in normal activity. |
The effect of the parties’ submissions is that satisfaction of class 2 of table 7, where criterion 3 is engaged, would read as follows for each party.
Mr Adam’s reading
Frequent discomfort, precluding heavy lifting, but not hampering normal activity.
Albury Wodonga Health’s reading
Palpable defect in supporting structures of abdominal wall; and frequent discomfort, precluding heavy lifting, but not hampering normal activity.
Mr Adams’ submissions
Mr Adams submits that criterion 3 is a stand-alone criterion, and that is evident from the following.
(a) The word ‘or’ immediately precedes criterion 3, in comparison with the word ‘and’ that is between criteria 1 and 2.
(b) The commentary below table 7 considers a palpable defect as only one consideration. Imaging can also determine impairment. It states that the ‘[s]ymptoms and signs of abdominal wall impairment’ include discomfort/palpable protrusion or swelling/acute and intense pain, etcetera. Thus, a ‘palpable defect’ may be only one or a number of symptoms and signs of abdominal wall impairment.
(c) The commentary below table 7 states that the ‘[o]bjective procedures useful in establishing impairment by hernias include, but are not limited to’, physical examination or ’imaging by roentgenography or computed tomographic scan’. That imaging is a means of objectively determining abdominal wall impairment/hernia-related impairment and confirms that the existence of a palpable defect is not essential.
(d) The commentary under table 7 states that most hernias of the abdominal wall are amenable to surgical correction. A hernia-related impairment may therefore no longer involve a palpable defect post-surgery.
(e) ‘Frequent discomfort’ is severe enough to support to support criterion 3 being a stand-alone criterion. For example, a hernia may be repaired to remove any palpable defect, but the patient is left with frequent discomfort.[20] Other criteria under class 2 do not make reference to frequent discomfort. This suggests frequent discomfort is sufficiently severe to stand as its own criterion.
[20]Plaintiff’s oral submissions, Transcript, 19 April 2018, 16–17.
Albury Wodonga Health’s submissions
Albury Wodonga Health submits that the proper construction of the Guides is a question of law and the Medical Panel properly construed table 7. Criterion 3 should not be read as a stand-alone criterion for the following reasons.
(a) There is no good reason to depart from the ordinary grammatical construction of criterion 3. The use of ‘or’ between criteria 2 and 3 established a third criterion as an alternative to the nearest antecedent, being criterion 2.
(b) Criterion 3 is premised on satisfaction of criterion 1. Both the first and second criteria refer to the site of the defect. That only makes grammatical sense or is comprehensible if the site of the defect is already identified.
(c) Table 7 deals with ‘hernia-related impairment’ and the need to identify a palpable defect in the structures of the abdominal wall serves the obvious purpose of assisting to establish the existence of a hernia. There is nothing to relate the very general symptom of ‘discomfort’ referred to in criterion 3 to hernia.
(d) Class 3, which sets out the most significant degree of impairment, requires the palpable defect in every case because it is linked by the word ‘and’.
Principles
The glossary to the Guides defines ‘Frequency’ as constituting a sliding scale ranging from ‘intermittent’, to ‘occasional’, to ‘frequent’ and, finally, to ‘constant’. Relevant to class 2 of table 7 is the definition of ‘frequent’, which states that the ‘symptoms and signs have been documented medically to occur between one half and three fourths of the time when the patient is awake’.[21] The definitions of the other entries under ‘Frequency’, which are shown below, are instructive. They demonstrate a graduated nature of the scale of frequency:[22]
a. Intermittent: The symptoms or signs have been documented medically to occur less than one fourth of the time when the patient is awake.
b. Occasional: The symptoms or signs have been documented medically to occur between one fourth and one half of the time when the patient is awake.
c. Frequent: … [see above].
d. Constant: The symptoms and signs occur between three fourths and all of the time when the patient is awake.
[21]Guides, above n 2, 316.
[22]Ibid.
The fact that ‘frequency’ is presented as a ‘sliding scale’ is instructive, given the other indicators showing the evaluative range incorporated into table 7. There is an ‘ascending gradation of conditions specified that [are] necessary to qualify for each, more serious category’.[23] For instance, class 1 refers to ‘occasional mild discomfort’, whereas class 2 refers to ‘frequent discomfort’.
[23]Elsdon (2013) 42 VR 434, 441 [24].
Neither the parties nor the Court could identify any Australian authority concerning the interpretation of table 7 (class 2) of the Guides. Accordingly, it is useful to consider how this table has been interpreted in a United States (‘US’) context given that the Guides are also used for evaluation purposes in that jurisdiction and, in fact, derive from the US.[24] A selection of workers’ compensation cases from different US state jurisdictions follows.
[24]The use of foreign case law by domestic courts is permissible insofar as it is persuasive: see, eg, Tabet v Gett (2010) 240 CLR 537.
The emphasis placed upon criterion 1 is consistent across these US cases and is informative for the purposes of this proceeding. The cases indicate that the requirement of a ‘palpable defect in the abdominal wall’ is mandatory for an assessment to be considered under table 7; thus, failure to find such a defect would render a claimant ineligible for assessment under any of the three classes. For class 2, this suggests the ‘palpable defect’ criterion is a mandatory requirement supplemented by two further criteria posed as alternatives to each other.
Appellant v Respondent[25]
[25]Appeal No 142339, 2014 WL 8187307.
This decision is an appeal to the Texas Division of Workers’ Compensation, from a contested case hearing in which ‘the carrier’ has appealed the hearing officer’s determination that the respondent (claimant) reached the ‘maximum medical improvement (MMI)’ on a particular date, and had an impairment rating of 9%.
In this case, the claimant suffered a hernia whilst ‘breaking free a bolt’. The designated doctor used the Guides to determine an impairment rating (IR) of 9%. He explained the basis of his rating as follows:
As far as an [IR] [the claimant] does have a problem with the frequent discomfort with any heavy lifting but has no limitation in normal activity. He does not have a palpable defect in the abdominal wall … He does not have an occlusion through the defect. As per table 7 on page [10/247 of the AMA Guides], classes of hernia-related impairment, he would probably be a [nine percent] based as per Class I.[26]
[26]Ibid 2.
The doctor was sent a letter of clarification (LOC), and was asked to make a ‘definite conclusion regarding the claimant’s IR as of the … date of MMI’.[27] He responded as follows:
After careful review ... I have no changes to make to my original assessment of MMI date as [December 13, 2013] statutorily with [nine percent IR]. As stated in my original report .... [The claimant] did have a palpable defect in the abdominal wall [emphasis added], which qualified him a class 1 category with [nine percent] whole person impairment as per table 7 on page [10/247], classes of hernia-related impairment.[28]
[27]Ibid.
[28]Ibid (emphasis in original).
The appeal judges referred to Appeal No 072253-s (outlined below), and stated that: ‘The Appeals Panel has held that the AMA Guides require a palpable defect for an impairment to be awarded for a hernia under Table 7’.[29]
[29]Ibid.
The decision was reversed because the doctor’s ‘narrative and LOC response [were] conflicting as to whether the claimant had a palpable defect in the abdominal wall’ which, according to the judges, was ‘required for an impairment to be awarded for a hernia’ (applying Appeal No 072253-s to the facts).[30]
Hodsdon v WE Aubuchon Hardware and CNA Insurance[31]
[30]Ibid.
[31]2010 WL 3262748.
This is a decision by the Maine Workers’ Compensation Board, which appears to be in response to the employer’s petition for a determination of the extent of the employee’s permanent impairment.
The Board took administrative notice of the Guides.
The doctor, who provided the section 312 report, assessed the employee’s permanent impairment at 27%. The relevant paragraphs are excerpted below.[32]
15.The vast majority of the PI rated by [the s 312 doctor] was derived from Table 7, page 247 of the Guides, ‘Classes of Hernia-related Impairment.’ [The s 312 doctor] opined that since the employee exhibited significant limitations in normal activity, he merited a Class 3 impairment rating, 20% – 30%. He further narrowed it down to 25%.
16.A Class 3 impairment rating, however, also requires 1) a ‘[p]alpable defect in supporting structures of abdominal wall’ and 2) ‘[p]ersistent, irreducible, or irreparable protrusion at site of defect.’ Class 1 and 2 impairments require similar physical findings. The employee exhibited neither of these deficits, as freely admitted by [the s 312 doctor] at this deposition. … [The s 312 doctor] testified that he declined to apply the requirements related to a ‘palpable defect’ or ‘protrusion’ because it would not be fair to the employee.
17.I agree with [the s 312 doctor] that it was correct to use Table 7, page 247 as a starting point for analyzing the employee’s hernia-related injury. [The s 312 doctor], however, cannot pick and choose the parts of the Table he believes are fair and reject those parts he feels are unfair. Rather, the Table as a whole must be examined in order to determine whether it applies to [the employee’s] case. In order to merit a Class 3 impairment all three elements noted in the Table must be met. The conjunction ‘and’ is used to link those elements. Absent one element, Class 3 cannot be used. Indeed, it would appear that the employee would likewise not qualify for either a Class 1 or 2 rating.
18.Without the benefit of a Table 7, Class 3 rating of 25%, the employee’s PI falls well below the threshold of 11.8%. I therefore find and conclude, based upon the above-analysis, that [the s 312 doctor’s] own deposition testimony constitutes clear and convincing contrary evidence to his opinion, as set out in his report, that the employee’s PI is 27% based primarily upon use of Table 7, page 247 of the Guides.
[32]Hodsdon v WE Aubuchon Hardware and CNA Insurance, 2010 WL 3262748, [15]–[18] (citations omitted; emphasis added).
This excerpt explains the relationship between the classes in table 7, and considers the spectrum across which a claim may be evaluated.
Appellant v Respondent[33]
[33]Appeal No 072253-s, 2008 WL 757453.
This decision is an appeal to the Texas Division of Workers’ Compensation, from a contested case hearing in which the claimant was found not to have a valid impairment rating.[34]
[34]The decision has been referred to in a number of other US decisions with respect to the requirement that a claimant must have a ‘palpable defect in the abdominal wall’ for a hernia-related impairment to be found under table 7 of the Guides. See, eg: Appellant v Respondent, Appeal No 111177, 2011 WL 5038904; Appellant v Respondent, Appeal No 142339, 2014 WL 8187307.
In this case, the claimant sustained a double hernia in the course of his employment and underwent two surgical procedures. Initially, he was given a 19% impairment rating under the Guides (class 2 of table 7). The appeal decision held:
According to the AMA Guides, to be placed in Class 2, Table 7 there must be a palpable defect in supporting structures of abdominal wall and: frequent or persistent protrusion at the site of the defect with increased abdominal pressure; manually reducible; or frequent discomfort, precluding heavy lifting, but not hampering normal activity.
Each class listed in Table 7 for rating a hernia-related impairment requires a palpable defect in the supporting structures of the abdominal wall in conjunction with other criteria.[35]
[35]Appellant v Respondent, Appeal No 072253-s, 2008 WL 757453, 1.
The appeal decision agreed with the hearing officer’s position that ‘the AMA Guides did require a palpable defect for an impairment to be awarded for a hernia under Table 7’, to which the appeal judges agreed.[36]
Knapp-Bowen v Equinox Terrace[37]
[36]Ibid.
[37]1998 WL 31748.
This is a decision by the Department of Labor and Industry, in relation to the degree of permanency suffered by the claimant as a result of work-related hernias, and whether she was entitled to ‘permanency benefits’.[38]
[38]Knapp-Bowen v Equinox Terrace, 1998 WL 31748, 2 (‘Knapp-Bowen’).
The relevant paragraphs from the decision applying the Guides are below:[39]
4.Both [medical] experts rely on the AMA Guides, Table 7, for their opinions. That table describes three classes of hernia-related impairments, with permanent whole person ratings which range from 0 to 30 %. Each class requires a ‘palpable defect in the supporting structures of the abdominal wall.’ In addition, class 1, with a 0% to 9% impairment, requires ‘a sight protrusion at site of defect with increased abdominal pressure, readily reducible’ or ‘occasional mild discomfort at site of defect, but not precluding normal activity.’ Class 2, with a 10% to 19% rating, requires the defect and ‘frequent or persistent protrusion at site of defect with increased abdominal pressure, manually reducible’ or ‘frequent discomfort, precluding heavy lifting, but not hampering normal activity.’ AMA Guides to the Evaluation of Permanent Impairment, 4th edition (1995) at 247. The table does not distinguish between pre and postoperative status.
5.A hernia is a defect. Because it is undisputed that claimant had work-related hernias, the threshold criterion for all three classes in Table 7 ‘palpable defect in the supporting structures of the abdominal wall’ has been met. On the left, the defect that began as a work-related hernia and was surgically repaired exists in its present state as the postoperative, palpable materials and lack of tissue on the left side which leaves it vulnerable to recurrence if she lifts. To equate ‘defect’ with ‘protrusion’ would render the class 2 description of ‘protrusion at site of defect’ meaningless.
6.Once we find a defect, the question becomes whether claimant’s symptoms put her in any of the three classes in Table 7. The examples provided in 10.9 are instructive. In a case for which a 0% impairment was determined, it was noted that the patient had a slight incisional hernia with no pain and no significant risk of complication. In this case, claimant has frequent discomfort and a clear risk of recurrence if she exceeds lifting restrictions. A 10% impairment was found in a man who had a unilateral enlarged protrusion and declined a surgical repair, but was willing to accept the preclusion of heavy lifting and the risk of a possible complication. In this case, claimant had bilateral hernias, the preclusion of heavy lifting, risk of possible future complications, as well as a postoperative defect.
[39]Ibid 3 (emphasis added).
Analysis
The title of table 7 – ‘Classes of Hernia-related Impairment’ – should be taken into account when construing it. So much is not in dispute. Turning now to my findings.
I find that criterion 3 in class 2 of table 7 should not be interpreted as a stand-alone criterion for the following reasons.
The ordinary grammatical construction of class 2 supports the reading of it as requiring satisfaction of criterion 1. That is, satisfaction of criterion 1 is mandatory. Criterion 1 is followed by the word ‘and’. To meet class 2, it is also mandatory that either criterion 2 or criterion 3 be satisfied. This is demonstrated by the use of ‘or’ between criteria 2 and 3.
I am reinforced in this construction by the US authorities cited above. They consider criterion 1 to be a mandatory requirement, supplemented by either criteria 2 or 3.
The substance of class 2 may plainly be read and understood in the manner above. That is, this is not the situation where the content is nonsensical. Criterion 1 is capable of being read with either criteria 2 or 3.
On the other hand, if criterion 3 was to be read as a stand-alone criterion, there is nothing to relate the general symptom of ‘discomfort’ to a hernia. One is left to fall back to the table heading to assume it even relates to a hernia. In comparison, reading criterion 1 with criterion 3 provides a more specific context.
Further, the other two classes in table 7 are arranged in such a manner as to suggest an escalation in symptoms and discomfort, which is confirmed by the progressive level of impairment reflected in the class headings. Each class has a baseline sign of impairment which is then supplemented by further criteria. Criteria 2 and 3 in the first two classes indicate that either a visual indicator should be present (ie, a protrusion), or that the person will be experiencing a particular level of discomfort which still enables some level of normal activity. However, class 3 requires that both are present — the protrusion in addition to a limitation in normal activity — presumably because it is the class associated with the more severe level of impairment. The characterisation of criterion 3 of class 2 as a stand-alone criterion is not consistent with the progressive nature of the classes.
For completeness, I will make reference to some of Mr Adams’ submissions which I do not accept.
Mr Adams submits that criterion 3 of class 2 is sufficiently severe enough to stand on its own because the other criteria do not refer to ‘frequent discomfort’. I do not agree. As discussed above, the table must be read in context as an escalation in symptoms and discomfort.
In response to Mr Adams’ reliance on the brief commentary accompanying table 7, I find that it is not particularly useful for interpreting the different classes. It simply provides a summary of possible symptoms and signs of abdominal wall impairment, without differentiating by class.
The example provided for class 2 is also not particularly useful, although the description of the person’s symptoms includes expressions reminiscent of those contained in criteria 2 and 3, namely:
Expressions relevant to criterion 2:
· ‘a recurring protrusion in the right inguinal area when he strained or exerted increased intra-abdominal pressure’;
· ‘but could be easily and painlessly reduced’.
Expression relevant to criterion 3:
· ‘was willing to accept the preclusion of heavy lifting’.
Further, it is well accepted that: ‘If there is any inconsistency between the text in the Guides and an example which seeks to illustrate what is said in the text, the text will prevail’.[40]
[40]Heinz [2009] VSC 311, [28] (Kyrou J).
I make a final observation. The many and varied tables within the Guides are not of assistance in construing table 7 because there is no consistent construction that would shed light on the issues in dispute.
3. Did the Panel fail to assess aggravation of a pre-existing injury as a potentially compensable injury?
Mr Adams’ submissions
Mr Adams submits that the Medical Panel correctly identified the incident as the hernia repair surgery on 7 February 2014. That is the incident to which the claim for damages relates. The Panel identified persistent pain in the left groin following left inguinal repair as a potentially compensable injury. It identified a further injury regarding the left hip. Whilst it is correct that the left hip osteoarthritis is not a potentially compensable injury per se, an aggravation of it is. Therefore the Panel should have gone and assessed the impairment flowing from it. It did not and therefore failed in its statutory duty to do so. Section 28LL of the Wrongs Act required the Panel to take into account all impairments resulting from injuries arising out of the same incident.
As the Panel noted, Mr Adams was in a severely worse situation following the surgery. His daily activities were being impaired.
The Panel was obliged to consider the Prescribed Information, which includes a description of the incident.
The Panel concluded that because the osteoarthritis was unrelated and pre-existing, it did not need to do an assessment. However, because it had identified Mr Adams’ osteoarthritis as an aggravation injury it needed to assess it pursuant to s 28LL(1) of the Wrongs Act.
Alternatively, the Panel should have said the claim does not include an aggravation injury and therefore it is not compensable.
The Panel must go beyond what is being sought in the Prescribed Information for compensation.[41]
[41]Plaintiff’s oral submissions, Transcript, 19 April 2018, 34–5.
The Panel’s conclusion that there was no evidence of any unrelated impairment leads to the conclusion that Mr Adams’ current impairment relates to the incident.
Albury Wodonga Health’s submissions
Albury Wodonga Health submits that the Medical Panel considered and then made findings of fact regarding the hip function. It found that: a) Mr Adams was suffering from severe dysfunction of the left hip; b) the hip dysfunction was due to pre-existing constitutional osteoarthritis; and c) the hip dysfunction was not related to the claimed injury. These are findings of fact and unimpeachable on judicial review.[42]
[42]Defendant’s oral submissions, Transcript, 19 April 2018, 69–70.
It is accepted that the Panel can go beyond the referral certificate and that is what they did.
The impairment from the hip is not relevant because it is not identified as part of a compensable injury.
Whilst the Panel undoubtedly used infelicitous language when it referred to no evidence of any unrelated impairment playing a part in the claimant’s current impairment, this must be considered in the context of the reasons as a whole and what is, and is not, identified as a compensable injury. The Panel had found that the osteoarthritis was pre-existing and unrelated. This finding was dealing with the specific issue of whether it is necessary to disregard any pre-existing impairment for s 28LL(3). Having found that there was ‘no additional impairment resulting from physical injury’ alleged in the claim, it is unnecessary to disregard any pre-existing impairment. It was open to the Panel to conclude that the hip injury was pre-existing and unrelated, and therefore not required to be considered as an aggravation injury.
The Panel had no obligation to identify osteoarthritis as an aggravation injury nor was that the claimed injury. It is not obliged to assess impairment ‘at large’. The Panel identified the potentially compensable injury as persistent pain in the left groin following left inguinal hernia repair, but with no evidence of nerve involvement or significant local tenderness. Mr Adams’ contention that the Panel is bound to have regard to severe dysfunction of the left hip as an aggravation injury is simply seeking merits review.
Principles
The relevant principles were common ground between the parties. Part VBA of the Wrongs Act is applicable.
Section 28LB provides definitions for pt VBA of the Wrongs Act, including, relevantly, a definition of ‘injury’ that includes ‘aggravation, acceleration or recurrence of an injury or disease’.
Section 28LB defines the ‘medical question’ in relation to a claim for damages to mean:
a question as to whether the degree of impairment resulting from injury to the claimant alleged in the claim satisfies the threshold level
Section 28LB provides that an ‘impairment’ means permanent impairment.
Section 28LL requires all injuries arising from the same incident to be included in the one assessment while unrelated injuries or causes are to be disregarded:
(1)If a person has more than one impairment resulting from injuries which arose out of the same incident, all of those impairments must be included in the one assessment.
(2)For the purposes of this Part, impairments, other than psychiatric impairments, resulting from injuries which arose out of the same incident are to be assessed together using the combination tables in the AMA Guides or the methods prescribed for the purposes of this Part.
(3)For the purposes of this Part, impairments from unrelated injuries or causes are to be disregarded in making an assessment.
Section 28LZG(1) requires a Medical Panel to make an assessment of the degree of impairment in accordance with div 3 of pt VBA of the Wrongs Act. Relevantly, s 28LH(1)(a) requires a Medical Panel to assess the degree of impairment in accordance with the Guides.
The parties agree that Medical Panel can go beyond the certificate of referral.
The Panel made specific reference to the principles in Chua v Newman-Morris[43] in its reasons. In that case, Emerton J held:
[43][2009] VSC 582.
Most importantly, the medical question itself required the Panel to assess whether the degree of impairment resulting from ‘the injury alleged in the claim’ satisfied the threshold level. The injury alleged in the claim is not coextensive with the injury ‘at large’.
This analysis is consistent with s 28LL of the Wrongs Act, which concerns the assessment of injuries arising out of the same ‘incident’. Injuries arising from the one incident must be included in the one assessment. Conversely, impairments from unrelated injuries or causes are to be disregarded in making an assessment.
The brief statement of the Court of Appeal in Nguyen & Anor v Lu to the effect that the judge is not to determine matters of causation in an application as to whether injury is significant injury under s 28LZN(2)(b) of the Wrongs Act does not seem to me to affect this analysis.
In Melbourne Health v Lloyd, Pagone J had to decide a similar question arising from a medical panel determination under Part VBA of the Wrongs Act. In that case, the claimant suffered from an hereditary condition which had not been treated properly.
In this context, Pagone J made the following important observations about the operation of Part VBA:
• The question referred to the medical panel must identify an injury capable of being maintained as a liability;
• It is important, if not essential, that there be an identity between the injury determined by the medical panel and that in respect of which a claim for noneconomic loss is made.
In other words, the injury that is considered by the Panel must be referrable to the fault of another person whose conduct the complainant complains of. Pagone J observed that this does not carry with it the conclusion that the medical panel is required to answer questions of causation and fault. Rather, its role is to determine something about the nature of the injury to permit a category of compensation to be sought in appropriate form.[44]
[44]Ibid [39]–[43] (citations omitted).
In Chua v Lowthian,[45] Osborn J held that a panel must first identify a potentially compensable injury and then assess whether that injury caused a threshold level of impairment.[46]
[45][2011] VSC 468.
[46]Ibid [59].
Analysis
I find that the Panel did identify a potentially compensable injury, being an aggravation of Mr Adams’ left hip osteoarthritis and failed to assess it in accordance with ss 28LZG(1) and 28LH(1)(a) of the Wrongs Act. I so find for the following reasons.
First, the Panel makes specific reference to the left hip arthritis, and the severe pain in Mr Adams’ left hip and left leg, in the history given by him, its own findings upon examination of Mr Adams, and its consideration of other medical reports. This is not a situation of there being an ‘injury at large’. Importantly, the history given by Mr Adams, and recounted in the Reasons for Determination, indicates that the left hip arthritis worsened after the incident, being the left inguinal repair procedure on 7 February 2014. He describes it having a very serious impact on his day-to-day life. This history was not contradicted.
The Reasons for Determination includes the following:
The claimant told the Panel that he had previously had pain in his left hip for about 10 years, which had been attributed to arthritis, but he described his previous hip pain as an ache only and mentioned that the previous hip pain had a different character from this new pain.[47]
He said that when the groin and left leg pain did not improve, he tried to get back to see his surgeon but he was told that no appointment was available. He said that he attended the Emergency Department at Wodonga Hospital on at least 2 occasions for review during this period. He said that, at the hospital, they diagnosed a nerve entrapment syndrome and prescribed Lyrica although this did not help and made him feel unwell.
The Panel noted a visit dated 25 March 2014 to the Emergency Department at Wodonga Hospital in the Referral material. At this visit, the clinical notes indicated that the claimant presented with left hip pain referred to his knee which was worse on ambulation. The possibility of an obturator nerve impingement was raised by the assessing doctor, who advised the claimant to cease walking 2–3km per day.
The claimant said he eventually got an appointment to see Dr Schwalb in early April 2014 and Dr Schwalb told him that he did not think the claimant had nerve damage or that the problem related to the hernia repair and recommended ongoing exercise. The claimant said that he had an EMG performed in April 2014 which did not show any damage to the obturator nerve.
…
The claimant described constant pain in the left leg radiating from the front of his left groin, towards the midline, down the front of his leg into his left knee, and that this pain has been persistent since the time of the surgery. He describes a tender area on the inside of his groin but there is no lump in his groin. He said that he has intermittent pain in his left testicle.
He describes his pain as throbbing with a burning knife-like character. He said that he does not notice any difference in the intensity of his pain between the start of the day and the end of the day although he feels very tired at the end of the day and often needs to have a sleep when he gets home after the exercise. He said that his left leg sometimes gives way when walking.
He said that, his pain has been significantly worse since December 2016, when he woke up with severe pain down the entire left leg. He said that his pain now extends below the knee as far at the outer aspect of his left ankle and has not improved since December 2016. He said that there was no further injury and he just woke up with this pain.
He said that the pain in his left leg and groin increases with walking and he can’t run at all. He said that he can’t bend over to pick up things and he has difficulty dressing. He said that he now needs to wear slip-on trousers and he can’t pull on tighter clothes, such as jeans, without getting severe groin pain. He said that he sits down to put on his shoes and socks now but he is independent in dressing. He gets assistance from friends with housework and gardening. He said that he can’t kneel or squat. He said that the pain interrupts his sleep but he can sleep on his left side comfortably.[48]
[47]Mr Adams’ counsel says that Mr Adams believes he did not tell the Panel that he had previously had pain in his leg for about 10 years, however he does not pursue this as a ground of review: Transcript, 19 April 2018, 2.
[48]Reasons for Determination, 3–6 (underline added).
The Panel made the following findings which include reference to Mr Adams’ left hip osteoarthritis and acute pain on all movements of the left hip.
The range of movement of the hips was examined. There was some reduction of range of rotation of the right hip but without pain. Internal rotation of the left hip was markedly restricted and resulted in severe left leg pain which reproduced his left leg and groin pain. The full range of movement of the left hip was not tested due to acute pain on all movements of the left hip resulting in the severe left leg pain.
The Panel reviewed relevant imaging and reports:
·X-ray both hips … The Panel viewed these films and concluded that there was severe bilateral hip osteoarthritis with sclerosis, joint narrowing and subcortical cysts affecting the left hip more than the right.
·CT pelvis and MRI left hip … The Panel viewed these films and considered that they were consistent with bilateral hip osteoarthritis.
…
·The Panel noted a report of an X-ray left hip … which states ‘The joint space is narrowed and there is subarticular cyst formation and mild bony sclerosis consistent with moderate osteoarthritic change. No destructive bony lesion or soft tissue calcification is present.’[49]
[49]Ibid 7–8 (underline added).
In its consideration of information relevant to Mr Adams’ left groin pain diagnosis, the Medical Panel noted the uncontradicted history given by Mr Adams that the pain had worsened since the hernia surgery. It referred to its findings of pain in his left leg and groin during its examination, and it referred to medical opinion about the left groin pain being caused by the left hip osteoarthritis.
·The claimant has complained of persistent pain in his left groin and left upper leg, although now extending down to his left ankle for the last 2 months, since his left hernia repair was performed on 7 February 2014.
·The Panel noted the claimant’s description of his pain as throbbing with a burning knife-like character and that the pain was much worse on activity such as walking, dressing and movement generally.
·The Panel noted that he does not complain of symptoms of local groin tenderness and has no difficulty wearing clothes due to pressure on the scar although he does comment that pulling on tight clothing, such as jeans, results in groin pain.
…
·The Panel also noted that the claimant had marked pain on movement of the left hip during its examination which caused acute pain in his left groin and leg in a similar distribution to his current pain. The Panel also noted his history that his left groin and left leg pain is worse on activity especially walking.
·The Panel also noted that reports from two of his treating practitioners namely Mr Schwalb, his treating surgeon … and Dr Malcolm Hogg, his pain management specialist at the Royal Melbourne Hospital … have mentioned that they considered that the claimant’s left hip osteoarthritis is contributing to his left groin pain.[50]
[50]Ibid 8–9 (underline added).
Pursuant to s 28LL(3) of the Wrongs Act, the Panel is to disregard impairments from unrelated causes or injuries when making an assessment.
The Panel’s conclusions included a factual finding that the severe left hip osteoarthritis predated the hernia surgery and was not caused by it. The Panel found it was an unrelated condition.
The Panel, on the basis of the claimant’s history, the materials provided with the referral, its examination findings and collective expertise and experience, considers that the claimant is suffering from persistent pain in the left groin following left inguinal hernia repair but with no evidence of nerve involvement or significant local tenderness which the Panel considers is ‘referrable to the fault of another person whose conduct the complainant complains of’.’
Accordingly the Panel concluded that the claimant is suffering from persistent pain in the left groin following left inguinal hernia repair but with no evidence of nerve involvement or significant local tenderness, which the Panel identifies as a potentially compensable injury.
The Panel also concluded that the claimant is suffering from severe dysfunction of the left hip due to pre-existing constitutional osteoarthritis of the left hip which the Panel considers is not referable to the fault of another person whose conduct the complainant complains of, and the Panel does not identify as a potentially compensable injury.
…
The Panel noted that the claimant suffered the original groin injury in August 2013 and that this resulted in persistent groin pain from the date of the injury. The Panel noted that this pain had improved somewhat before the hernia surgery but had not completely resolved. The Panel also noted that he had pre‑existing left hip osteoarthritis and that he gave a history of aching in his left groin even before the injury in August 2013, although the claimant indicated that his hip arthritis caused him only minor problems in the past. The Panel noted that there was a suggestion of a muscle strain in the left groin on the original ultrasound in September 2013 and that considered that this muscle strain also constituted a pre-existing condition.[51]
[51]Ibid 9–10, 12 (underline added).
However, the Panel then made a finding about Mr Adams’ current presentation.
While the Panel concluded that the claimant’s current presentation of left groin and leg pain largely relates to his left hip osteoarthritis and that this constitutes a pre-existing and unrelated condition, the Panel considers that there is no evidence of any unrelated impairment that is playing a part in the claimant’s current impairment and which the Panel is required to disregard in accordance with Section 28LL(3) of the Act.[52]
[52]Ibid 12 (underline added).
The Panel’s conclusion (underlined above) that there is no evidence of any unrelated impairment playing a part in Mr Adams’ current impairment leads to the following conclusion: any impairment playing a part in Mr Adam’s current impairment must be related. It does not fall within s 28LL(3) of the Wrongs Act that requires it to be disregarded. I do not accept Albury Wodonga Health’s submission that this is merely infelicitous language. The words must be given their plain meaning.
This leads to the next point.
Second, whilst the Panel concluded that it did not need to take into account the pre‑existing and unrelated left hip osteoarthritis, it did not consider whether the left hip osteoarthritis it had identified should be assessed as an aggravation injury. The words of Rush J in Wilson v Liquorland Australia Pty Ltd[53] (‘Wilson’), are particularly apt:
[T]he Panel disregarded not the pre-existing impairment, but rather, impairment resulting from the Incident caused by the aggravation of pre-existing [condition] … that the Panel says should be disregarded.[54]
[53][2014] VSC 545.
[54]Ibid [23].
As in Wilson, the history taken by the Panel from Mr Adams was not contradicted. In that case, Rush J did ‘not accept that an impairment arising from an aggravation of a pre-existing… degeneration can be said to be an impairment from an unrelated cause. In my opinion, s 28LL(3) of the [Wrongs Act] cannot be interpreted as permitting an injury and impairment in fact caused by the Incident to be disregarded’.[55] In that case also, the Panel did not use the word ‘aggravation’ and Rush J held that did not alter what was the only logical explanation for its finding.[56]
[55]Ibid [29].
[56]Ibid [32].
For completeness, I do not consider the issue contended by Albury Wodonga Health arises, namely a collision between the Panel’s finding of pre‑existing and unrelated left hip osteoarthritis and Mr Adams’ assertion of a current impairment due to a related injury. That is not the issue here. The issue is that there was no assessment of whether there was an aggravation injury.
Given the above, namely the failure to consider whether or not there was an aggravation injury to assess, I also reject Albury Wodonga Health’s submission that the failure to assess the aggravation raises issues of merits review rather than an error in law. Having identified a potentially compensable injury, the Panel was bound to assess it.
By failing to assess the aggravation in accordance with ss 28LZG(1) and 28LH(1)(a) of the Wrongs Act, the Panel failed in its statutory duty. It is a jurisdictional error. The second ground of review in the amended originating motion is therefore allowed.
I adopt the following principles stated in Heinz.
A medical panel is amenable to judicial review. Its opinion can be quashed if it makes a jurisdictional error. It does not commit a jurisdictional error merely because it employs illogical reasoning. However, if its reasoning demonstrates that it asked itself the wrong question, took into account irrelevant considerations or failed to take into account relevant considerations, then it commits a jurisdictional error. What factors a medical panel is bound to consider in forming its opinion is determined by construction of the statute conferring its jurisdiction…[57]
[57]Heinz [2009] VSC 311, [38] (citations omitted).
Both parties agreed that the third ground of review in the amended originating motion would rise or fall with the outcome of the second ground of review. The third ground of review is that the Medical Panel failed to take into account a relevant consideration, being the aggravation of the pre-existing osteoarthritis as a potentially compensable injury, before determination of the ‘medical question’. As discussed above, it was required to do so pursuant to the Wrongs Act. It did not. That is a jurisdictional error. Therefore this ground is also allowed.
Conclusion
It was not in dispute between the parties that if jurisdictional error is established, it would give rise to consequential relief under the Supreme Court (General Civil Procedure) Rules 2015 O 56, namely setting aside the Medical Panel’s determination and remitting the medical question for redetermination according to law.
I will hear the parties on the precise form of orders and costs.
SCHEDULE OF PARTIES
| S CI 2017 01564 | |
| BETWEEN: | |
| ALAN ADAMS | Plaintiff |
| - v - | |
| DR JANE WADESLEY | First Defendant |
| DR MARIE FELETAR | Second Defendant |
| ASSOCIATE PROFESSOR VAL USATOFF | Third Defendant |
| ALBURY WODONGA HEALTH | Fourth Defendant |
| DR HEINRICH SCHWALB | Fifth Defendant |
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