Deitrich v Pulse Pharmacy Northcote Pty Ltd
[2014] VSC 307
•7 August 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2012 02406
| CRAIG DEITRICH | Plaintiff |
| v | |
| PULSE PHARMACY NORTHCOTE PTY LTD -and- DR PETER LOWTHIAN (Convenor of Medical Panels) -and- MEDICAL PANEL (Constituted by Dr Jennifer Harmer and Mr John Bourke) | Firstnamed Defendant Secondnamed Defendant Thirdnamed Defendant |
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JUDGE: | GINNANE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 March 2014 | |
DATE OF JUDGMENT: | 7 August 2014 | |
CASE MAY BE CITED AS: | Deitrich v Pulse Pharmacy Northcote Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 307 | |
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ADMINISTRATIVE LAW – Judicial review – Medical Panel – Whether injury stabilised – Whether stability a jurisdictional fact – Wrongs Act 1958 (Vic) ss 28LH, 28LN, 28LNA, 28LZG, 28LZH, 28LZI.
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr A G Uren QC and Mr A D Ingram | Shine Lawyers |
| For the First Defendant | Mr R P Gorton QC and Mr S Mukerjea | Moray & Agnew |
For the Second and Third Defendants | No appearance |
HIS HONOUR:
The plaintiff, Mr Deitrich, seeks judicial review of a determination of a Medical Panel constituted under the Wrongs Act 1958 (Vic) (“the Act”) made on 28 February 2012, which determined that the degree of impairment resulting from the injury that he claimed to have suffered did not satisfy the threshold level prescribed by the Act. He seeks an order quashing the Certificate of Determination of the Medical Panel.
Mr Deitrich’s case is that he sustained injury on 27 February 2010, while present at the Pulse Pharmacy at Northcote Plaza, where he fell heavily when his foot came into contact with a promotional poster which was situated on the floor surface. His case was that he suffered injury to his left hip.
Mr Deitrich commenced proceedings in the County Court against the first defendant (Pulse Pharmacy Northcote) seeking damages for the injuries that he claimed to have suffered. He relied on the report by an orthopaedic surgeon, Mr T Kossmann, of 28 July 2012 and a certificate pursuant to s 28LN of the Act, that he met the statutory threshold.
The first defendant referred Mr Deitrich’s claim to the second defendant as a convenor of Medical Panels. The referral was received on 20 November 2010 and the second defendant appointed the Medical Panel to assess Mr Deitrich’s impairment.
The question referred to the Medical Panel, and the answer or its determination given under s 28LWE of the Act, were as follows:
Q.Does the degree of impairment resulting from the injury to the claimant alleged in the claim satisfy the threshold level?
A.The Panel determined that the degree of whole person impairment resulting from the injury to the claimant alleged in the claim does not satisfy the threshold level.
That question and the Medical Panel’s answer were contained in the Panel’s Certificate of Determination given pursuant to s 28LZG(2)(a) of the Act.
The Medical Panel stated that it formed its opinion by reference to the documents and the information referred to, in particular, enclosures and the history provided by Mr Deitrich and the examination and findings elicited by the Panel at the examination of him on 19 December 2011. In its reasons the Panel concluded that:
The claimant is suffering from mild left hip dysfunction surgically treated. The Panel considers the claimant’s condition has stabilised.
Mr Kossmann’s Certificate of Assessment of Degree of Impairment Arising From a Stabilised Injury under s 28LN of the Act was dated 28 July 2011. Mr Kossmann is an orthopaedic surgeon, an accredited impairment assessor and independent medical examiner. His Certificate stated under the heading “Certification”:
I certify that on 28 July 2011, I examined the Plaintiff, Mr Craig Deitrich,
DOB: 18 May 1967 and I am satisfied that:·The degree of impairment resulting from the Plaintiff’s injury is more than 5%. Brief description of injury assessed:
1.Left hip pain and movement restrictions on the basis of a labral tear, adjacent articular surface damage and femoral acetabular impingement.
2.Trochanteric bursitis on the left side.
·The degree of impairment resulting from the Plaintiff’s psychiatric injury is more than 10%. Brief description of injury assessed: N/A.
Mr Kossmann in a report, that the Certificate accompanied, stated:
PRESENT PROBLEMS
Mr Deitrich told me that he cannot walk for more than 15 minutes. He cannot stand for more than 10 minutes as then the pain in his left hip starts. He has to change his positions all the time. He has difficulties sleeping since he wakes up because of the pain in his left hip. He has the impression that the pain is increasing. He has difficulties [sitting] for a long time in the same position.
…
ANALYSIS, DISCUSSION AND PROGNOSIS
Mr Deitrich is still suffering from left hip pain. In particular, he is not able to walk more than 15 minutes or stand more than 10 minutes. In my opinion, Mr Deitrich has developed accelerated osteoarthritic changes in his left hip. In my opinion the injuries are consistent with the accident. At present I would regard his injuries as stable. However, I cannot exclude that Mr Deitrich may require further treatment in the form of hip arthroscopies and, in the worst case scenario, a total hip replacement. At present I do not expect any improvement. Furthermore, I do not recommend any further or different treatment.
Ground of amended originating motion
Mr Deitrich’s application for judicial review of the Medical Panel determination ultimately relied on the following ground:
The Medical Panel had jurisdiction under the Wrongs Act 1958 to determine the degree of impairment of a plaintiff only if it was in fact the case that his impairment had become static or well stabilised. The Medical Panel determined the degree of an impairment of the plaintiff at a time at which it had not become static or well stabilised.
The amended originating motion contained other grounds, but Mr Deitrich did not pursue them on the basis that they could not be accepted by a judge at first instance because of binding authority of the Court of Appeal.[1]
[1]Transcript 3–4.
The Medical Panel’s reasons
The Medical Panel set out the medical history of Mr Deitrich and then the results of its examination of him that it conducted on 19 December 2011. The Panel noted that Mr Deitrich walked normally with both his feet externally rotated. He was able to walk on his heels and toes. He had four small surgical scars over the upper and outer aspect of his thigh. The scars were not tender or elevated and there was no current treatment of them, although Mr Deitrich did not like their appearance. The Panel found a full range of lumbar spine movements and there was no wasting in Mr Deitrich’s thighs or calves. It found a mild restriction of left hip flexion, with all other hip movements being within the normal ranges. There was widespread superficial tenderness to light palpitation over the outer aspect of the left upper thigh region with the maximal area being above and in front of the left greater trochanter. The area of tenderness over the outer aspect of the left upper thigh extended some fifteen centimetres below the area tip of the greater trochanter and also above this area for five to six centimetres.
The Medical Panel recorded Mr Deitrich’s current symptoms as including:
constant pain over the outer aspect of his left upper thigh region, which extends down the outer aspect of the left thigh to just above his left knee and back in to his left buttock. He has no lower back pain. He can stand for twenty minutes, walk for twenty minutes and sitting in an aircraft is uncomfortable. He also experiences pain deep in the medial aspect of his left upper thigh when his left outer thigh pain is more intense. He has trouble with sleeping and has to change positions often. He is unable to lie directly on his left hip for any length of time.
The claimant said that he recovers over the weekend. He has no sensory symptoms in his left lower limb and has intact bowel and bladder control. He has noticed altered wearing of the heels of his shoes (outer aspects of both heels).
The claimant said that his current treatment includes Tramadol SR 100mg twice a day for pain relief. He also takes Panadeine Forte at night to assist his sleeping and may take Tramadol 50mg for “break-through” pain. When on long haul flights he may use Mersyndol Forte for pain relief. He takes Glucosamine, Primrose oil, Advance joint repair, Multi-vitamins and Minerals. He is on Olmetec to control his blood pressure. He has remedial massage treatment once a week for his hip and low back.
The Medical Panel reviewed the MRI of Mr Deitrich’s left hip on 6 May 2010. It referred to the x-rays of 28 October 2010 of the left hip, and found it to be of normal appearance both of the left hip and sacroiliac joints. There was no narrowing of the joint space of the left hip. Its examination of the plain x-ray of the left hip of 25 August 2011 led to the same conclusion and this was confirmed in the CT scan views dated 25 November 2011.
The Medical Panel later examined the MRI of the left hip taken on 3 January 2012, which indicated that there was a mild increase in joint fluid but no discrete recurrent labral tear or chondral defect. It stated:
The Panel considered whether further plain X-rays of the left hip (weight bearing) were indicated and concluded that based on the operative findings of minor joint changes and on the subsequent normal joint spaces in the plain X-rays, the CT scan and the recent MRI of the left hip on 3 January 2012 that this investigation was not necessary as there was clear evidence of a normal left hip joint space on the Xrays that were reviewed.
It found no evidence to support Mr Kossmann’s view expressed on 25 October 2011, that there was a “significant labral tear acetabulum, eqiv to 2mm loss of cartilage interval”.
As previously stated, the Panel concluded that there was a mild left hip dysfunction surgically treated. It considered that Mr Deitrich’s condition had stabilised.
The Medical Panel carried out an impairment assessment of Mr Deitrich’s left hip. It concluded that the degree of whole person impairment resulting from the physical injuries to him alleged in his claim was not more than 5% and was permanent. It based that assessment on the operative findings of minor joint changes, the x-rays showing normal joint spaces, and the CT scan and the MRI.
Mr Deitrich in his first affidavit contended that the Medical Panel did not mention in its reasons that he told them that he could no longer lift more than a kilogram without suffering increased left hip problems and that those problems had affected his social life. He said that the Panel did not ask if the restriction was getting worse or had stayed the same. He said that on the morning of the examination, he had taken Tramadol SR 100mg medication, in anticipation of experiencing pain in moving his hip during the examination, and that the medication had increased his range of movements.
Mr Deitrich stated that he had told the Panel that he was to have an MRI on 3 January 2012 and would be seeking options and that Mr James Stoney, his orthopaedic surgeon, had told him that “we were looking at another arthroscopy”. He asked the male member of the Panel what would happen if Mr Stoney suggested a hip replacement at the end of January, and that person said that the Panel’s job was to assess him at the date of 19 December 2011 and nothing more.
The Plaintiff’s medical history
Mr Deitrich made two affidavits that included some facts that were not before the Medical Panel. I ruled on matters relating to the form of various statements in the affidavits at the commencement of the hearing. I allowed to remain in evidence some statements, to which the first defendant objected, pending argument about whether the stability of the impairment was a jurisdictional fact. Mr Deitrich also relied on an affidavit of Mr Stoney which exhibited his clinical records and two reports that he had provided.
Mr Deitrich stated that he had had no previous pain in his left hip region before the incident of 27 February 2010. On 6 May 2010, he had an MRI of his left hip and was referred to an orthopaedic surgeon. On 25 October 2010, he first attended Mr Stoney, who diagnosed him with left trochanteric bursitis. On 28 October 2010, he had an x-ray of his left hip and received an injection into it. On 17 December 2010, he underwent a left hip arthroscopy and was on crutches for six weeks. Mr Stoney noted that Mr Deitrich had a significant labral tear which was shaved, along with some adjacent articular surface damage. Some bone at the head neck junction was removed. Mr Deitrich attended a physiotherapist and he commenced taking Tramadol and Panadeine Forte.
On 24 March 2011, Mr Stoney, having reviewed Mr Deitrich on 8 March 2011, gave the following prognosis:
Craig has some early degenerative changes within his hip. There is a potential for this to progress to the point where he gets recurrent symptoms.
He may require a further hip arthroscopy in the future.
Degenerative labral tears can progress.
He may at some point require a hip replacement if his degeneration becomes severe.
On 25 August 2011, Mr Deitrich had another x-ray of his left hip and received an injection into it. On 7 November 2011, he saw Mr Stoney again and told him that the injection had been of little assistance and that he was suffering considerable left hip pain. On 25 November 2011, he had a CT scan of his hips.
On 19 December 2011, Mr Deitrich was examined by the Medical Panel. On 3 January 2012, he underwent an MRI of his left hip, to which the Medical Panel referred.
On 23 January 2012, Mr Stoney reviewed Mr Deitrich with his MRI and CT scans. He found a small capsular defect on his MRI scan which was fluid filled, which he thought could be the cause of his ongoing symptoms and possibly needed stitching. He recorded that “otherwise there was no other serious complication demonstrated”. He advised that a further arthroscopy should occur and this took place on 24 April 2012. Mr Stoney found a significant tear in Mr Deitrich’s hip capsule and a split in the labrum, both of which he repaired. He removed bone from the femoral head to permit a little more movement. After the arthroscopy, Mr Deitrich’s symptoms settled down and he ceased taking Tramadol for a time. However, by August 2012 his symptoms had returned.
On 28 August 2012, Mr Stoney, in a further letter to Mr Deitrich’s solicitors stated, by way of diagnosis, that Mr Deitrich presented with two problems: a labral tear and trochanteric bursitis. In response to the question, “Whether our client’s condition is stable”, Mr Stoney responded:
Unfortunately Craig has recently had a recurrence of his symptoms.
His condition is no longer regarded as stable.
Mr Stoney noted that Mr Deitrich had enquired about a hip replacement, but he considered that he did not have substantial degenerative changes and that he “did not think a hip replacement was where we were headed at that moment”.
In February 2013, Mr Deitrich returned to Mr Stoney for a further consultation. He was referred for an injection of local anaesthetic and cortisone in his hip. Mr Stoney recommended weight loss, but that was impossible for Mr Deitrich to achieve.
In September 2013, Mr Deitrich went to Mr Stoney for review after having an MRI and discussed a platelet rich plasma procedure, but Mr Stoney told him it was too expensive and experimental. In December 2013, he saw Mr Stoney again following a further increase in his symptoms. Mr Stoney recorded that he seemed to have deteriorated and had developed increasing pain around his hip and was on increased pain medication. He had developed pain around his right knee. He had an MRI on his right knee, which showed a medial meniscal tearing with degenerative change present.
On 11 February 2014, Mr Deitrich underwent a right knee arthroscopy and it was found that he had a degenerative meniscal tear and some loose cartilage which required repair. There was evidence of osteoarthritis in his right knee joint, stirred up because he was placing extra strain on it. It was anticipated that he would have further problems in his right knee in the long term. Mr Stoney reviewed Mr Deitrich on 24 February 2014 and:
He noticed a significant improvement in his knee since the arthroscopy. He has commenced a pain management program. He is on pain patches, which seem to have made a significant difference to his pain levels, and he was now happy to hold off on any idea of further hip surgery.
Mr Stoney provided the following responses to questions put to him:
The current state of Mr Deitrich’s left hip
He continues to have left hip pain. He is controlling these symptoms with pain patches at the moment. There is some new bone formation in his abductors around the site of his previous hip arthroscopy. There is some spurring of his acetabulum around his femoral head/neck junction. There is some residual femoral head/neck junction bone odema.
Despite having his pain controlled on pain patches, he still continues to have considerable pain without them.
The nature of any anticipated future treatment
I suspect that in due course Craig will need further surgery on his hip. Should his current symptoms not resolve he will need a repeat hip arthroscopy. I feel on the balance of probabilities it is more likely than not that Craig will ultimately require a hip replacement.
Your prognosis in relation to his injuries
I suspect that Craig will continue to have a degree of pain in his left hip that will reduce his ability to enjoy normal social and leisure activities. It may prevent him from doing certain types of work.
His level of ongoing symptoms suggest that his hip will probably deteriorate at some point in the future and he will require a hip replacement.
Mr Deitrich states that his main concern continues to be his left hip. He was referred to Dr Khan, a pain and rehabilitation specialist, who placed him on stronger medication, but he continues to suffer from considerable hip pain. In his first affidavit, he stated that the pain impacted on his sleep and ability to function. The use of pain relievers has led him into a depressed state.
The statutory scheme
Under the Act, a person is not entitled to recover damages for non-economic loss unless the person has suffered a significant injury: s 28LE of the Act. The term “significant injury” is defined as injury that has been assessed by an approved medical practitioner as satisfying the threshold level: s 28LF. Section 28LG provides that the assessment of the degree of impairment must be made by an approved medical practitioner. The threshold level means in the case of injury, other than psychiatric injury, impairment of more than 5 per cent: s 28LB. Impairment is defined in s 28LB as meaning “permanent impairment”.
The other relevant sections of the Act are:
28LH How is the degree of impairment to be assessed?
(1)Subject to this Division, an approved medical practitioner must make an assessment of degree of impairment under this Part—
(a)in accordance with—
(i)the A.M.A. Guides; or
(ii)the methods prescribed for the purposes of this Part; and
(b)in accordance with operational guidelines (if any) as to the use of those Guides or methods issued by the Minister.
(2)Nothing in subsection (1) prevents an assessment being made in respect of a degree of impairment of a person even if not all of the injuries to the person have stabilised.
…
28LN Certificate of assessment
(1)Subject to section 28LNA and this section, an approved medical practitioner who makes an assessment of degree of impairment under this Part must provide to the person seeking the assessment a certificate of assessment.
…
(3)If not all the injuries to a person have stabilised, a certificate of assessment can only be provided under this section in respect of the person if the injuries that have stabilised are sufficient to determine a degree of impairment that satisfies the threshold level.
28LNA Certificate where injury not stabilised
(1)This section applies if, after making an assessment of degree of impairment under this Part, an approved medical practitioner is unable to determine the degree of impairment because the injury has not stabilised.
(2)If, at the end of 6 months after that first assessment, an approved medical practitioner is unable to determine the degree of impairment but is satisfied that the degree of impairment resulting from the injury will satisfy the threshold level once the injury has stabilised, that approved medical practitioner may issue a certificate of assessment under this section.
(3)The certificate of assessment must state that the approved medical practitioner is unable to determine the degree of impairment but is satisfied that the degree of impairment resulting from the injury will satisfy the threshold level once the injury has stabilised.
…
28LZG Determination of Panel
(1)A Medical Panel must not determine the degree of impairment of a person unless it has made an assessment of the degree of impairment in accordance with Division 3.
(2)After making the assessment, the Medical Panel must give the claimant and the respondent—
(a)its determination of the medical question in accordance with subsection (4); or
(b)its certificate, in accordance with subsection (5), that it is unable to determine the medical question but that it is satisfied that the degree of impairment will satisfy the threshold level when the injury has stabilised; or
(c)its certificate that it is unable to determine the medical question and a statement of the time fixed for further assessment of the person under subsection (6).
…
(4)If, after making the assessment, the Medical Panel determines the degree of impairment, the determination of the medical question must state whether the degree of impairment resulting from the injury satisfies the threshold level but must not state the specific degree of impairment.
(5)If, after making an assessment, the Medical Panel is unable to determine the medical question because an injury has not stabilised, but the Medical Panel is satisfied that the degree of impairment resulting from injury will satisfy the threshold level once the injury has stabilised, the Medical Panel may certify in writing to that effect.
(6)If, after making an assessment, the Medical Panel is unable to determine the medical question because an injury has not stabilised and subsection (5) does not apply, the Medical Panel must in writing—
(a)certify that it is unable to determine the medical question; and
(b)fix a time (not being later than 12 months after the first assessment) for a further assessment of the degree of impairment of the person to be made under this section.
(7)The time fixed under subsection (6) must be the earliest time by which the Medical Panel considers that the injury will have stabilised.
(8)More than one further assessment may be made under this section but each further assessment must be made within the period of 12 months following the first assessment.
…
(10)If the Medical Panel gives a certificate under subsection (5) in relation to an injury, the injury is deemed to be significant injury.
…
28LZH Effect of determination as to threshold level
(1)A determination by the Medical Panel under this Division that the degree of impairment resulting from an injury satisfies the threshold level must be accepted by a court in any proceeding on the claim as a determination of significant injury for the purposes of this Part.
(2)A determination by the Medical Panel under this Division that the degree of impairment resulting from an injury does not satisfy the threshold level must be accepted by a court in any proceeding on the claim as a determination that the injury is not significant injury for the purposes of this Part.
28LZILimitations on appeal in relation to assessments and determinations
(1)No appeal on the merits may be made to a court from an assessment or determination of a Medical Panel under this Division.
(2)Nothing in subsection (1) affects any right of a court to grant any other relief or remedy in relation to an assessment or determination of a Medical Panel under this Division.
The AMA Guides
Section 28LN assumes that the injury the subject of the certification has stabilised.
The effect of s 28LZG is that the Medical Panel has to determine the degree of impairment by making an assessment in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition) (“AMA Guides”), because that is what Division 3 of the Act requires. The Medical Panel must consider the matters that are set out in the AMA Guides about the existence of the impairment, the permanence of the impairment and the stability of the impairment.
The AMA Guides in the Glossary say of “impairment”:
Impairment is the loss, loss of use, or derangement of any body part, system, or function.[2]
[2]American Medical Association, Guides to the Evaluation of Permanent Impairment (4th ed), 315.
The AMA Guides say “permanent impairment”:
is impairment that has become static or well stabilised during a period of time sufficient to allow optimal tissue repair, and one that is unlikely to change in spite of further medical or surgical therapy. A permanent impairment is considered to be unlikely to change substantially and by more than 3% in the next year with or without medical treatment. If an impairment is not permanent, it is inappropriate to characterize it as such and evaluate it according to the Guides criteria.[3]
[3]Ibid.
Before a judgment regarding impairment is made, it must be shown that the problem has been present for a period of time, is stable, and is unlikely to change in future months in spite of treatment.[4] The AMA Guides also contain the following relevant statements:
A key tenet is that the book applies only to permanent impairments, which are defined as adverse conditions that are stable and unlikely to change.[5]
The Guides attempts to take into account all relevant considerations in estimating or rating the severity and extent of permanent impairment and the effects of the impairment in terms of the individual’s everyday activities. An impairment should not be considered “permanent” until the clinical findings, determined during a period of months, indicate that the medical condition is static and well stabilised.[6]
[4]Ibid 1/3.
[5]Ibid, Foreword, v.
[6]Ibid 2/9.
The plaintiff’s submissions
Mr Deitrich’s counsel submitted that the Medical Panel’s statutory task or jurisdiction was to determine the degree of impairment, that is an impairment that is static or well stabilised, resulting from an alleged injury. This followed from the provisions of the Act and the AMA Guides.
It followed that the existence of a permanent impairment was a necessary pre-condition of the Medical Panel performing the task of assessing the degree of impairment. It was a matter of jurisdictional fact.
Mr Deitrich submitted that, although the Panel had the power to make an assessment of a non-stabilised injury and give a certificate, it had no power to determine the medical question that had been put to it and determine the degree of impairment if an injury had not stabilised. By using the terms “assessment” and “determination” Parliament had distinguished between those two steps.
The impairment had to be stable during a period of time that enabled optimum repair to take place. The AMA Guides, by requiring stability, ensured that claimants did not suffer an unjustified loss or obtain an unjustified windfall, as a result of being assessed at a time when they were either at their best or worst. The Court should exercise a “corrective jurisdiction”, if an incorrect assessment had been made. Mr Deitrich further submitted that the impairment had to be stable and the assessment of stability had to be addressed to the reality of the claimant’s condition. It was inappropriate to limit the period during which the impairment must be stable.
The Medical Panel’s findings, as appeared in its reasons, showed that Mr Deitrich’s impairment had not stabilised.
As the question of whether the impairment was stable was a jurisdictional fact, the Court was obliged to make an objective assessment of the evidence before the Panel, as well as of relevant evidence that had become available since the Panel’s determination, in order to decide whether the impairment had stabilised. It may have become apparent that, in fact, the impairment was not stable at the time of the Panel’s determination. The Court was required to look at what the situation actually then was, not what it was thought to be on the material available at the time of the Medical Panel’s determination. It needed to consider whether Mr Deitrich’s condition as it then was, fairly represented his condition as it was likely to be in the future. If that task was undertaken, the evidence showed that, despite earlier improvement, Mr Deitrich’s condition had worsened by the time he was examined by the Medical Panel. There was a likelihood that Mr Deitrich would require a hip replacement.
The Medical Panel had not taken into account, nor expressed a view about, Mr Deitrich’s description of his current symptoms, which extended beyond his ability to move his limbs. The Panel did not identify the causes of those symptoms and it did not express a view about the progress of his condition. The Panel’s conclusion and reasons were disclosed in the reasons that it provided, because even though the Panel was not obliged to provide them,[7] they were intended to be a complete statement of relevant information. The Panel’s conclusion that there was no discrete recurrent labral tear was shown by the treatment of April 2012 to be wrong, because Mr Deitrich was operated on and a labral tear was ascertained and repaired. The Panel did not wait to learn the result of Mr Deitrich’s consultation with Mr Stoney on 23 January 2012.
[7]Colquhoun v Capitol RadiologyPty Ltd [2013] VSCA 58.
Mr Deitrich pointed out that under the AMA Guides, the replacement of a hip attracts an assessment of impairment which exceeds the threshold level. The only permanent alleviation of his pain will be a hip replacement.
Mr Deitrich had a longstanding condition which had not been cured by his treatment, except that on some occasions, after treatment, he appeared better, but then had relapses to his previous level. The Panel’s reasons showed a fairly significant physical problem which had not been ameliorated by treatment. The Panel appeared not to have enquired or taken into account, as far as can be seen, what the progress of the impaired condition was. All that the Panel stated was:
The claimant is suffering from mild left hip dysfunction surgically treated. The Panel considers the claimant’s condition has stabilised.
However, there was medical opinion that in due course Mr Deitrich might require a total hip replacement.
The first defendant’s submissions
Pulse Pharmacy Northcote disputed Mr Deitrich’s contentions and submitted that the stability of the impairment was not a jurisdictional fact. Alternatively, if it was a jurisdictional fact, then the evidence supported the Panel’s conclusion and it had formed an opinion that was open to it.
Mr Stoney’s assessment of March 2011 was that Mr Deitrich had experienced a degenerative labral tear that could progress and that, at some point, he may require a hip replacement if the degeneration becomes severe. However, those conclusions and those expressed by Mr Kossmann did not indicate a lack of stability of the impairment.
At the time of his first report of March 2011, Mr Stoney regarded Mr Deitrich’s condition as stable. This was apparent from the wording of his second report of 28 August 2012, where in response to the question “whether our client’s condition is stable” he answered (as has been set out previously):
Unfortunately, Craig has recently had a recurrence of his symptoms. His condition is no longer regarded as stable.
Pulse Pharmacy Northcote submitted that the question whether the impairment was stable was for the Medical Panel to determine following its examination of Mr Deitrich and its consideration of the medical information that concerned him. The Act imposed on the Medical Panel, in the exercise of its decision‑making process, the determination of whether a claimant’s impairment was stable. The determination of that issue was not a condition precedent to the Medical Panel commencing to undertake an assessment of the impairment.
Under the AMA Guides, pain was not to be taken into account when making an assessment of an impairment under the Act.
The Act envisaged that the Medical Panel would conduct an objective consideration of the issues in the course of exercising its jurisdiction and not objectively ascertain those issues as pre‑conditional jurisdictional facts.[8] To hold otherwise, would be to usurp the effect of the primary fact‑finding function of the specialist Medical Panel and place that function in the hands of a non‑specialist court.
[8]See Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297, 303–4.
Stability does not refer to a situation that will never change or that is fixed once and for all. Symptoms can change but an impairment can still be stable. There is no definition of stability. Mr Deitrich’s potential need for further medical treatment did not indicate that his impairment was not stable.
There was abundant evidence on which the Medical Panel could properly have concluded that Mr Deitrich’s impairment was stable. His current symptoms are little different from those that the Panel noted. The prospect that Mr Deitrich may have to undergo further surgery does not mean that his impairment was not stable when the Medical Panel made its determination.
Consideration of submissions
In Gedeon v Commissioner of the New South Wales Crime Commission,[9] the High Court said in respect of jurisdictional facts:
The expression is used to identify a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question. If the criterion be not satisfied then the decision purportedly made in exercise of the power or discretion will have been made without the necessary statutory authority required of the decision maker.
[9](2008) 236 CLR 120, 139 [43].
In Plaintiff M70/2011 v Minister for Immigration and Citizenship,[10] French CJ explained what was meant by a jurisdictional fact in the following terms:
The term “jurisdictional fact” applied to the exercise of a statutory power is often used to designate a factual criterion, satisfaction of which is necessary to enliven the power of a decision-maker to exercise a discretion. The criterion may be “a complex of elements”. When a criterion conditioning the exercise of statutory power involves assessment and value judgments on the part of the decision-maker, it is difficult to characterise the criterion as a jurisdictional fact, the existence or non-existence of which may be reviewed by a court. The decision-maker’s assessment or evaluation may be an element of the criterion or it may be the criterion itself. Where a power is expressly conditioned upon the formation of a state of mind by the decision-maker, be it an opinion, belief, state of satisfaction or suspicion, the existence of the state of mind itself will constitute a jurisdictional fact. If by necessary implication the power is conditioned upon the formation of an opinion or belief on the part of the decision-maker then the existence of that opinion or belief can also be viewed as a jurisdictional fact.
[10](2011) 244 CLR 144, 179–80 [57] (citations omitted).
A case based on the absence of a jurisdictional fact differs from one based on a contention that an error was made in the exercise of jurisdiction in the sense described in Craig v State of South Australia.[11]
[11](1995) 184 CLR 163.
If a matter is a jurisdictional fact, then the court exercises powers of review de novo, because the court determines for itself whether the fact exists.[12] Spigelman CJ stated in Woolworths Ltd v Pallas Newco Pty Ltd:[13]
A court which is reviewing a decision with respect to a jurisdictional fact must determine the matter on the evidence before the court and not on the evidence before the primary decision-maker.
[12]Mark Leeming, Authority to Decide – The Law of Jurisdiction in Australia (Federation Press, 2012) 63, citing City of Enfield v Development Assessment Commission (2000) 199 CLR 135, 155 [48].
[13](2004) 61 NSWLR 707, 729 [105].
Spigelman CJ also accepted that in the particular context of the characterisation of a development proposal, which was the subject matter of the proceeding that His Honour was considering:
There is no reason why evidence of that matter should be confined to evidence that was in existence as at the date of the primary decision or to what was before the primary decision-maker.[14]
[14]Ibid 730 [107].
The question whether a fact is a pre‑condition to the exercise of a statutory power is answered by the construction of the statute concerned.
The principles applicable to statutory interpretation were stated in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory),[15] by Hayne, Heydon, Crennan and Kiefel JJ as follows:
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.
[15](2009) 239 CLR 27, 46–7 [47] (citations omitted).
As Bathurst CJ recently stated in SAS Trustee Corporation v Woollard:[16]
[I]t is important to emphasise that it is not up to courts in construing a statute to consider what is or is not a desirable policy and impute that to the legislature as a matter of construction: See Australian Education Union v Department of Education and Children’s Services [2012] HCA 3; (2012) 248 CLR 1 at [26]-[28]; Certain Lloyd’s Underwriters v Cross supra at [26].
[16][2014] NSWCA 75 [59].
It is therefore necessary to consider the terms of the Act. Section 28LZG(1) is an example of the Act prescribing a precondition to the Medical Panel making a determination of the degree of impairment. It uses the words “a Medical Panel must not determine the degree of impairment of a person unless it has made an assessment of the degree of impairment in accordance with Division 3”. That provision is to be contrasted with the remaining subsections of s 28LZG which deal with the Medical Panel’s assessment of, and determination of, the degree of impairment. Those subsections contain no preconditions to the assessment of the impairment. Rather, they provide for an assessment of impairment and either a determination of the impairment or, if the Medical Panel is unable to determine the medical question because an injury has not stabilised, then the adoption of one of two options. Those options are provided by s 28LZG(5) and (6). Even if the injury is not stable, the Medical Panel has obligations to continue, and in the circumstances specified in s 28LZG(5), to certify that the degree of impairment resulting from the injury will satisfy the threshold level once the injury has stabilised.
As the first defendant submitted, once the Medical Panel commences to exercise its jurisdiction under s 28LZG, it must make an assessment of the degree of impairment in accordance with Division 3. After making that assessment, it must do one of three things. First, determine the medical question by stating whether the degree of impairment resulting from the injury satisfies the threshold level. Secondly, it can determine that despite the fact that the injury is not stabilised, it is satisfied that the degree of impairment resulting from the injury will satisfy the threshold level once the injury has stabilised: see s 28LZG(5). Thirdly, if it is unable to determine the medical question because an injury has not stabilised, it can certify in writing that it is unable to determine the medical question and fix a time, not being more than 12 months after the first assessment, for a further assessment to be carried out: see s 28LZG(6).
The sections that deal with stability have to be considered together. On their face, ss 28LZG(2)(b), (2)(c), (5) and (6) appear to make it clear that the Medical Panel’s “statutory power” is by no means only enlivened upon a finding that an injury has stabilised. Rather, the Act provides for two distinct avenues of action when an injury has not stabilised – one of which culminates in a seemingly final decision by the Medical Panel (s 28LZG(5)).
I do not consider that the distinction that Mr Deitrich sought to draw between the assessment and the determination of an impairment is relevant to the determination of whether the stability of an impairment is a jurisdictional fact.
In my opinion, once the relevant sections of the Act are construed according to their plain meaning, it appears that “stability” is not a jurisdictional fact.
The next matter of significance that supports the conclusion that “stability” is not a jurisdictional fact, is that the determination of whether an impairment is stable involves an evaluative exercise. The authorities, for example Plaintiff M70/2011 v Minister for Immigration and Citizenship,[17] indicate that this is an important consideration. The assessment of the degree of impairment is carried out by a specialist Medical Panel. The significance of that feature of the assessment of impairments is bolstered by other surrounding provisions — in particular, ss 28LZH, 28LZI and 28LZO — which limit the availability of appeal in several circumstances. The right to review the Medical Panel’s determination on the ground that a jurisdictional fact had not been shown to exist would provide a right of review de novo, possibly by reference to material and evidence that the Medical Panel did not have before it and therefore did not subject to its specialist evaluative consideration.
[17](2011) 244 CLR 144, 179–80 [57].
The AMA Guides refer to a permanent impairment as one that has become static or well stabilised during a period of time sufficient to allow optimal tissue repair and one that is unlikely to change in spite of further medical or surgical therapy. But the AMA Guides do not envisage that the impairment will continue indefinitely in the same manner or by displaying the same symptoms. The Medical Panel has the responsibility of determining whether or not a claimant’s impairment has stabilised.
A further matter of significance is that if Mr Deitrich’s submissions were accepted, then a determination of the degree of impairment by a Medical Panel may not be final and would lack certainty, because it could be challenged on the basis of events occurring after it had been made. This would be due to the de novo basis of jurisdictional fact review in which the court would be required to consider afresh the material before the Medical Panel, but without access to the Panel’s physical examination of the claimant.
In my opinion, the stability of an impairment is not a jurisdictional fact that is a precondition to the exercise of the Medical Panel’s jurisdiction. Rather, it is a matter about which the Panel is required to form its own assessment and judgment.
Mr Deitrich relied in support of his application on the one ground based on the argument concerning jurisdictional fact. Because I have not accepted that argument, Mr Deitrich cannot rely on the additional evidence which he sought to introduce of events occurring after the Medical Panel’s determination. Nor, in view of the binding authority to which reference has been made,[18] can he rely on any significance that may attach to the Medical Panel’s reasons not referring to all the matters of which he informed it.
[18]Colquhoun v Capitol Radiology Pty Ltd [2013] VSCA 58.
Conclusion
Mr Deitrich’s application to quash the Medical Panel’s Certificate of Determination does not succeed.
The proceeding must be dismissed.
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