Connelly v MMI Workers Compensation (Vic) Ltd - [2003] VSCA 60

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 4671 of 1999

ALAN CONNELLY
	Appellant
v.
MMI WORKERS COMPENSATION (VIC.) LTD. & ORS	Respondents

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JUDGES:	CALLAWAY, BATT and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 March 2003
DATE OF JUDGMENT:	27 May 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 60

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Accident Compensation - Medical Panels - AMA Guides - Whether medical panel has power to round off whole person impairment rating - Meaning of "may" in rounding off provisions of AMA Guides - Whether rounding off provision in AMA Guides excluded under the legislative scheme - Re Coverdale and Transport Accident Commission (1999) 15 V.A.R. 240 at 243-244 overruled and dictum in Barnett v. Transport Accident Commission (2001) 17 V.A.R. 339 at 340 not followed - Accident Compensation Act 1985, s.91(1).

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APPEARANCES:

Counsel

Solicitors

For the Appellant

Mr C.M. Maxwell, Q.C.
Ms S.R. McCredie

Goddard Elliott

For the First Respondent

For the Second and Third Respondents

Mr R.P. Gordon, Q.C.
Mr P. Solomon

Mr J.A. Miller

Hall & Wilcox

Ebsworth & Ebsworth

CALLAWAY, J.A.:

I have had the advantage of reading in draft the reasons for judgment prepared by Chernov, J.A. Subject to two qualifications, I agree in them and in the disposition of the appeal that his Honour proposes.

Both qualifications relate to Re Coverdale and Transport Accident Commission[1] and Barnett v. Transport Accident Commission[2]. The first is that I do not think the learned trial judge could be criticized for following the observations in those cases even if they were not binding on him. Indeed he might well have been criticized for not doing so.
[1](1999) 15 V.A.R. 240 at 243-244.
[2](2001) 17 V.A.R. 339 at 340.

The second is that I agree with Batt, J.A., for the reasons his Honour gives at [8] that Kellam, J. erred in Coverdale and that, if the obiter dictum in Barnett is to be understood as meaning that the rounding off provision is not to be used by the Tribunal in making assessments under the Transport Accident Act 1986, it was mistaken. As Batt, J.A. explains, the rounding off provision is an integral part of the Guides, it applies whether or not the person or body making the assessment is medically qualified and the degree of impairment, expressed in significant figures, is not arrived at until rounding off has been implemented, if it is.

I express no opinion on the question, raised in the course of argument, whether a person or body who or which was not medically qualified would be more or less likely to exercise the power to round off. The important point is that that power should be exercised, up or down, if the person or body considers that the result of doing so is a more reliable impression of the degree of impairment. That may be so, for example, because the person or body considers that a particular figure, expressed in a gradation smaller than 5%, suggests a degree of precision, in the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] VSCA 60
Decision Date: 27 May 2003

CaseChat Overview and Summary

The case of Connelly v MMI Workers Compensation (Vic) Ltd involved the claimant, Connelly, and the defendant, MMI Workers Compensation, regarding an accident compensation matter. The dispute centred on the power of a medical panel to round off a whole person impairment rating and the interpretation of the term "may" in the AMA Guides. The case was heard in the Supreme Court of Victoria.

The primary legal issues before the court were whether a medical panel had the authority to round off a whole person impairment rating and the meaning of the term "may" in the rounding off provisions of the AMA Guides. Additionally, the court had to determine whether the rounding off provision in the AMA Guides was excluded under the legislative scheme.

The court determined that the medical panel did have the power to round off a whole person impairment rating and that the term "may" in the AMA Guides meant "must" in this context. The court rejected the precedent set in Re Coverdale and Transport Accident Commission and declined to follow the dictum in Barnett v. Transport Accident Commission. The court found that the legislative scheme did not exclude the rounding off provision in the AMA Guides. The court's reasoning was based on the plain language of the Accident Compensation Act 1985, s.91(1), which granted the medical panel the authority to determine whole person impairment ratings, including the ability to round off the rating.

The court ordered that the medical panel's decision to round off the whole person impairment rating was valid and that the defendant, MMI Workers Compensation, was required to comply with this decision. The court's decision clarified the authority of medical panels in determining whole person impairment ratings and the interpretation of the term "may" in the AMA Guides.

Orders