JUDGE:	Tsalamandris J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 November 2022
DATE OF JUDGMENT:	15 December 2022
CASE MAY BE CITED AS:	Freedman v Gomperts & Ors
MEDIUM NEUTRAL CITATION:	[2022] VSC 780

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ADMINISTRATIVE LAW – Judicial review – Medical Panel – Assessment of impairment –
Panel’s determination that plaintiff’s degree of impairment resulting from claimed injury satisfied threshold level for ‘serious injury’ – Whether Medical Panel fell into jurisdictional error – Whether misapplication of American Medical Association Guides to the Evaluation of Permanent Impairment (4th edition) – Whether Medical Panel used correct measuring technique – Unrelated conditions – Causation – Whether Medical Panel failed to inquire and obtain medical records – Where email from claimant sent to Medical Panel subsequent to examination – Whether respondent should have been given opportunity to respond – Procedural fairness – No jurisdictional error – Application dismissed – Wrongs Act 1958 (Vic) s 28LL(3).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	R Kaye SC with T Staindl	Kennedys (Australasia) Partnership
For the First Defendant	S Gold with Y Alazzawi	Robinson Gill
For the Second and Third Defendants	No appearance	DLA Piper Australia

TABLE OF CONTENTS

Preliminary.......................................................................................................................................... 1

Procedural background..................................................................................................................... 2

Medical Panel Opinion and Reasons............................................................................................. 4

General principles............................................................................................................................. 9

Mr Freedman’s grounds of jurisdictional error........................................................................... 9

(i) .... The Panel erred in its application of s 28LL(3) of the Act in its assessment of the degree of impairment of Ms Gomperts’ lumbosacral spine......................................................... 10
(a) Unrelated leg length discrepancy................................................................ 10
(b) Right hip arthritis causing lower back impairment.................................. 14
(c) Subsequent unrelated lower back aggravation.......................................... 15

(ii) ... The Panel erred in its use of an incorrect technique for measuring Ms Gomperts’ claimed leg length discrepancy............................................................................................................ 19
(iii).. The Panel failed to accord Mr Freedman procedural fairness in respect of the 23 September email.................................................................................................................................... 20
(iv)... The Panel failed to obtain the records of Mr Tsigaras................................................. 25

Concluding remarks........................................................................................................................ 27

HER HONOUR:

Preliminary

This is an application for judicial review sought by orthopaedic surgeon, Mr Ilan Freedman, in respect of a determination of a medical panel following its impairment assessment of his former patient, Ms Judith Gomperts. Mr Freedman performed a left total hip replacement surgery (the surgery) on Ms Gomperts on 14 June 2018. Ms Gomperts claims that the surgery was performed negligently, such that she required revision surgery on 18 June 2018 and has been left with leg length discrepancy and an altered gait. As a consequence, Ms Gomperts alleges that she suffered physical injury, being leg length discrepancy, malrotation of the left hip and pelvic tilt, restricted movement of the lumbosacral spine, and altered gait (the claimed injuries).

Under the Wrongs Act1958 (Vic) (the Act), in order for Ms Gomperts to be entitled to recover damages for her non-economic loss, she must…

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.

Continue reading Freedman v Gomperts

Details

AGLC: Freedman v Gomperts [2022] VSC 780
Case: [2022] VSC 780
Decision Date: 15 December 2022

CaseChat Overview and Summary

Freedman v Gomperts was a case heard by the Supreme Court of Victoria. The plaintiff sought judicial review of a determination made by a Medical Panel assessing the degree of impairment resulting from a claimed injury. The key issue was whether the Panel fell into jurisdictional error by misapplying the American Medical Association Guides to the Evaluation of Permanent Impairment (4th edition), using an incorrect measuring technique, or failing to consider unrelated conditions and causation. Another concern was whether the Panel failed to provide procedural fairness by not allowing the respondent to respond to an email from the claimant sent after the examination.

The court examined the Panel’s application of the AMA Guides and found no evidence of a misapplication. The Panel had used the correct measuring technique and appropriately considered unrelated conditions and causation. While the Panel did not obtain medical records, the court determined that this did not prejudice the respondent as the records were not material to the decision. The court also found that the respondent was not deprived of procedural fairness because the email from the claimant did not contain new evidence or arguments that would have changed the outcome.

The court dismissed the application for judicial review, finding that the Panel had not fallen into jurisdictional error. The respondent was not entitled to the relief sought, and the application was dismissed with costs to the respondent under section 28LL(3) of the Wrongs Act 1958 (Vic).

Orders