Golden City Support Services v Forrest
[2021] VSC 582
•15 September 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2019 04095
| GOLDEN CITY SUPPORT SERVICES INC | Plaintiff |
| v | |
| DEBRA FORREST | First Defendant |
| ASSOCIATE PROFESSOR EVANGE ROMAS | Second Defendant |
| ASSOCIATE PROFESSOR ANDREW HARDIDGE | Third Defendant |
| DOCTOR ROBERT SHIELDS | Fourth Defendant |
---
JUDGE: | MOORE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 October 2020 |
DATE OF JUDGMENT: | 15 September 2021 |
CASE MAY BE CITED AS: | Golden City Support Services v Forrest |
MEDIUM NEUTRAL CITATION: | [2021] VSC 582 |
---
ADMINISTRATIVE LAW – Judicial review – Opinion of a Medical Panel – Left foot soft tissue injury and chronic pain syndrome are accepted injuries and left ankle is rejected injury – Panel found left ankle dysfunction relevant to accepted injury and assessed impairment – Whether panel found a separate injury of left ankle – Whether panel failed to accord plaintiff procedural fairness – Whether panel took into account irrelevant considerations – Whether panel failed to assess impairment in accordance with the Guides – Whether panel gave adequate statement of reasons – Panel assessed permanent impairment by reference only to accepted injury – Identification of impairment of ankle not identification of separate injury of ankle – No jurisdictional errors established – Accident Compensation Act 1985 ss 98C, 104B, 91 – Linfox Transport (Aust) Pty Ltd v Toohey [2004] VSCA 233.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | M Fleming QC with S Gold | Hall & Wilcox |
| For the First Defendant | R Kumar | Arnold Dallas & McPherson |
| For the Second to Fourth Defendants | No appearance | DLA Piper |
HIS HONOUR:
Introduction and background
On 10 March 2014, the first defendant (the worker) suffered an injury at work while employed by the plaintiff (the employer) as a disability support worker. In a worker’s injury claim form, she described the injury as ‘soft tissue injury – left foot’. Liability for the claim was accepted.[1]
[1]On 11 August 2014, the worker’s weekly payments were terminated on the basis that she was no longer incapacitated for work. The worker disputed the termination of her weekly payments. As part of the resolution of that dispute, a conciliation officer referred certain questions to a medical panel on 12 March 2015. The medical panel opined that the worker had suffered a ‘soft tissue injury to her left foot’ at work which had resolved with a sequelae of a chronic pain syndrome and an adjustment disorder with depressed mood. The medical panel found that the worker had a current incapacity for work.
On 27 September 2018, the worker made a claim for impairment benefits under s 98C of the Accident Compensation Act 1985 (the ACA) in relation to the injuries she sustained on 10 March 2014. She described a number of injuries in her claim including injury to her left foot, injury to her left ankle and chronic pain syndrome.
The authorised agent for the Victorian WorkCover Authority and the employer’s insurer (the agent) obtained an opinion dated 6 February 2019 from Dr Graeme Doig, an orthopaedic surgeon, regarding liability and assessment of impairment of the worker’s injuries.
In his opinion, Dr Doig noted that the worker’s current complaints and symptoms were that she had ‘problems walking and standing for any length of time. She is unable to run due to dorsal pain and the foot and ankle can suddenly give-way unexpectedly, I believe due to secondary pain inhibition’. In his clinical examination, Dr Doig’s main finding was ‘dysaesthesia of the superficial peroneal nerve, with a positive Tinel’s sign postero-laterally at the ankle’.
Dr Doig diagnosed ‘neuropraxia of the superficial peroneal nerve at the left foot and ankle on a background of a soft tissue injury’. He observed that the worker’s clinical presentation was consistent with ‘stretching the nerve’ and that ’[t]he condition has reached maximum medical improvement as per the definition in the AMA4 Guides’. He also found that there ‘was no acute injury to the left ankle’.
In his impairment evaluation of the lower extremity, Dr Doig concluded that the worker presented with ‘dysaesthesia of the superficial peroneal nerve of the foot which provides a 2% Permanent Impairment of the Whole Person’, but that ‘no further impairment merited for restricted active range of motion arcs’. He assessed a 2% combined whole person impairment.
Having received Dr Doig’s opinion, on 19 February 2019, the agent issued a Notice of Entitlement and Liability (the Notice) advising of its determination to accept liability in respect of the ‘left foot soft tissue injury and chronic pain syndrome’ and ‘psychiatric condition’. The agent determined that the worker had a 2% whole person impairment in respect of these accepted injuries. This was a level which did not give the worker an entitlement to lump sum compensation benefits for impairment under the ACA. The Notice also advised that the agent rejected liability for, amongst other things, the ‘left ankle’.
On 27 February 2019, the worker lodged with the agent a ‘Workers Response Form’ in which she accepted the liability determination in the notice, but disputed the assessment of impairment.
On 12 March 2019, the agent issued a referral to a medical panel comprised of the second to fourth defendants (the Panel) for an opinion pursuant to s 104B(9) of the ACA (the referral). Section 104B(9) of the Act relevantly provides that, where a worker disputes determinations of impairment, medical questions as to ‘the degree of impairment assessed in accordance with s 91 resulting from the injury or injuries claimed for which liability is accepted or established’ must be referred to a medical panel for its opinion. The question referred to the Panel was:
What is the worker’s degree of permanent whole person impairment resulting from the accepted injury/s as assessed in accordance with S91 and is the impairment permanent
The referral identified a ‘left foot soft tissue injury and chronic pain syndrome, psychiatric condition’ as the ‘accepted injuries to be assessed by the medical panel’. It also relevantly identified the ‘left ankle’ as a ‘rejected injur[y]’. The referral narrated that liability was accepted for left foot soft tissue injury and chronic pain syndrome, psychiatric condition and that liability was rejected for, amongst other things, the left ankle.
On 10 July 2019, the Panel certified its opinion in writing in respect of the question referred to it (the opinion):
In the Panel’s opinion the worker has a 5% whole person impairment resulting from the accepted left foot soft tissue injury and chronic pain syndrome injury when assessed in accordance with Section 91 of the Act. The degree of impairment is permanent.
The Panel is also of the opinion there is a 0% psychiatric impairment resulting from the accepted psychiatric condition injury when assessed in accordance with Section 91 of the Act. The degree of psychiatric impairment is permanent.
The degree of impairment includes a 5% whole person impairment assessed in accordance with Chapter Three of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition).
In this proceeding brought pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2015, the employer seeks judicial review to quash the opinion.
The employer advanced four grounds of review:
(a)in determining its response to the referred question, the Panel committed jurisdictional error by failing to accord the plaintiff procedural fairness (ground 1);
(b)in determining its response to the referred question, the Panel committed jurisdictional error by failing to take into account mandatory relevant considerations and/or taking into account irrelevant considerations (ground 2);
(c)further or in the alternative, in determining its response to the referred question, the Panel committed jurisdictional error and/or erred in law by failing to properly assess the first defendant’s impairment in accordance with the Guides as it was required to do pursuant to s 91 of the ACA (ground 3); and
(d)the Panel failed to give an adequate statement of reasons sufficient to comply with s 313(2) of the Workplace Injury Rehabilitation and Compensation Act 2013 (the WIRCA) (ground 4).
Statutory framework
Section 82(1) of the ACA gives an entitlement to compensation ‘in accordance with this Act’, ‘[i]f there is caused to a worker an injury arising out of or in the course of any employment’.[2]
[2]It is to be noted that the WIRCA generally commenced operation on 1 July 2014. Because the worker’s injury was sustained before that date, the ACA governs her entitlement to compensation. However, the dispute resolution provisions of the WIRCA apply to the worker’s application because the referral was made after 1 July 2014. As is relevant to this proceeding, there is no material difference between the provisions of WIRCA and the ACA which govern a worker’s entitlement to compensation and medical panel referrals.
Section 98C(1) of the ACA deals with compensation for non-economic loss for injuries which result in permanent impairment. It provides:
A worker who suffers an injury which entitled the worker to compensation is, in respect of an injury resulting in permanent impairment as assessed in accordance with section 91, entitled to compensation for non-economic loss calculated in accordance with this section.
The assessment of permanent impairment to be undertaken in accordance with s 91 of the ACA is relevantly dealt with in the following provisions of that section:
(1)In this Part, a reference to the assessment of a degree of impairment in accordance with this section is a reference to an assessment—
(a) made in accordance with—
(i)the AMA Guides as applicable subject to subsections (1A) and (1B); or
(ia)the AMA Guides as applicable subject to subsections (1A) and (1B) and guidelines in accordance with subsection (6), (6A) or (6B); or
…
(2)In assessing a degree of impairment under subsection (1), regard must not be had to any psychiatric or psychological injury, impairment or symptoms arising as a consequence of, or secondary to, a physical injury.
…
(7) For the purposes of section 98C—
…
(c)impairments from unrelated injuries or causes are to be disregarded in making an assessment;
…
The ‘AMA Guides’ are the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition), as modified by the ACA and any regulations made under it (the Guides). [3]
[3]And excluding ch 15 of the Guides. See definition in the ACA, s 5.
Section 104B of the ACA prescribes a sequence of steps for making and determining a claim for compensation for permanent impairment under s 98C. In any such claim, a worker must include all injuries arising out of the same event or circumstance.[4] The agent determines whether to accept or reject liability for each injury included in a claim,[5] obtains an assessment of the degree of permanent impairment in respect of the injuries for which liability is accepted and advises the worker accordingly.[6] In doing so, the agent must obtain assessments in accordance with s 91 as to the degree of permanent impairment resulting from any injury for which liability is accepted or established.[7] Further, pursuant to s 104B(5B):
A determination of the degree of impairment must take into account all impairments resulting from the injuries entitling the worker to compensation included in the claim for compensation under section 98C.
[4]ACA s 104B(5A). And pursuant to s (5AA), a worker can only make one claim for compensation under s 98C in respect of injuries arising out of the same event or circumstance.
[5]Ibid s104B(2)(a).
[6]Ibid s104B(2)(b), (f).
[7]Ibid s 104B(5).
The worker must respond to the agent’s determination in writing, stating whether he or she accepts or disputes the decision as to liability in respect of each of the injuries claimed.[8] If the worker disputes the liability determination, he or she must refer the liability dispute to conciliation prior to issuing proceedings.[9]
[8]Ibid s 104B(6).
[9]Ibid s 104B(3).
If there is no dispute regarding liability, the worker must advise the agent whether he or she accepts or disputes the determination of impairment.[10] If the worker disputes the determination, the agent must refer certain medical questions, including as to the degree of impairment, to a medical panel for its opinion.[11] There is no appeal to a court or tribunal from a determination or opinion as to the degree of permanent impairment.[12]
[10]Ibid ss 104B(6B), (7B).
[11]Ibid ss 104B(9), (10).
[12]Ibid s 104B(12).
The Panel’s reasons
The Panel provided written reasons for its opinion on 10 July 2019 (the reasons) which, as is presently relevant, are summarised below.
(a) The Panel commenced by noting that:
… it is accepted that the worker, Ms Debra Forrest suffered a “Left foot soft tissue injury and chronic pain syndrome, psychiatric condition” injury, with an accepted injury date of 10 March 2014.
(b) The Panel then recounted the history provided by the worker including that she:
… has burning pain through the top of the left foot and the pain is present both at rest and on weight-bearing. Her standing and walking distance are reduced. Her left ankle sometimes gives way. She feels her ankle may swell. …
(c) The Panel then referred to its physical examination of the worker. It noted that:
There was no true weakness of left foot dorsiflexion. There was no unilateral left calf atrophy. There was some inhibition of active foot motion due to pain.
The Panel also noted that no radiological investigations were presented, but that no additional diagnostic procedures were required.
(d) The Panel then recorded its diagnosis as follows:
After taking into account the worker's history and contemporaneous examination findings the panel concluded the worker is suffering from: Left ankle dysfunction and from a Left superficial peroneal nerve injury, relevant to the accepted “Left foot soft tissue injury and chronic pain syndrome” injury.
(e) The Panel then set out the worker’s psychiatric examination and mental state examination and concluded that she was suffering from an adjustment disorder with mixed anxiety and depressed mood, relevant to the accepted psychiatric condition injury.[13]
[13]The Panel also noted that the worker had a major depressive disorder which was longstanding, pre-existing and unrelated to the accepted injury.
(f) The Panel then recorded that the worker’s physical and psychiatric conditions were stable and permanent. After noting that it conducted the impairment assessment according to the Guides as required by s 91 of the ACA, the Panel stated that it:
… assessed the left ankle according to Section 3.2 of Chapter Three. The Joint ranges of movement were measured by using a goniometer in accordance with the instructions in the Guides.
The Panel considered that the appropriate methods to assess the lower extremity impairment was by Range of Motion (Section 3.2e) combined with assessment for the Peripheral (superficial peroneal) Nerve Injuries (s 3.2k) because these are two different manifestations of the accepted injury and there is no duplication.
As the process of rating range of motion deficits of the lower extremity is based on a classification of ‘mild’, ‘moderate’ or ‘severe’, the Panel therefore used the direction of motion of the left ankle that provided the highest impairment rating to determine the impairment.
The Panel therefore assessed a 3% whole person impairment of the left ankle joint pursuant to Table 42 of Section 3.2e for a mild loss of ankle extension.
The Panel assessed the left superficial peroneal nerve in accordance with Section 3.2k. According to Table 20 of Section 4.4a the Panel assessed a Class 3 sensory impairment because there was decreased sensibility with abnormal sensation or pain which interferes with activity) [sic] and applied this criterion against Table 68 of Section 3.2k. The Panel assessed a 1% whole person impairment for reduced sensation and a 1% whole person impairment for dysaesthesia impairment of the left superficial peroneal nerve, for decreased sensation with pain, interfering with activity.
Using the formula, A + B (1 - A) as prescribed on page 322 of the Guides, the Panel combined the respective ankle range of motion, the superficial peroneal nerve sensory and dysaesthesia impairments to a total impairment of 4.93% which results in the nearest whole percent of 5%. The degree of impairment is permanent.
(g) The Panel noted that it accepted the worker’s history and ‘concluded there is no pre-existing functional impairment from unrelated injury or cause which is playing a part in the worker’s current left ankle and left superficial peroneal nerve impairments, which ought to be disregarded in accordance with Section 91(7)(c) of the Act’.
(h) The Panel referred to Dr Doig’s report, noting that Dr Doig had also diagnosed a superficial peroneal nerve injury, but had found normal Range of Motion in the left ankle. The Panel stated that it relied on its own clinical findings and noted that Dr Doig did not include an impairment rating for dysaesthesia. The Panel continued:
The Panel considers that the superficial peroneal nerve is partially injured and the worker’s neurological symptoms and pain reflect a combination of a sensory loss and dysaesthesia due to nerve injury. The Panel also included the impairment for left ankle restriction. This approach results in the Panel’s higher calculation of 5% whole person impairment.
(i) After assessing the worker’s psychiatric impairment, the Panel concluded that:
… the worker has a 5% whole person impairment resulting from the accepted physical and psychiatric injuries when assessed in accordance with Section 91 of the Act. The degree of impairment is permanent.
The degree of impairment includes a 5% whole person impairment assessed in accordance with Chapter Three of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition).
…
Did the Panel identify a separate injury of the worker’s left ankle ?
An important threshold issue which arises in considering a number of the employer’s contentions advanced in support of its grounds of review is whether the Panel identified a separate injury of the worker’s left ankle. The employer argued that the reasons reveal that the Panel did proceed in this way and, to a significant extent, its submissions proceeded from that premise. Counsel for the worker acknowledged that, if the Panel did in fact identify an injury to the worker’s left ankle and then proceeded to assess the impairment resulting from that injury, the Panel would have erred as its statutory function was only to assess impairment in respect of injuries for which liability was accepted. It is convenient to first consider this issue before addressing the employer’s grounds of review.
There were a number of features of the reasons which the employer identified as indicating that the Panel did in fact identify a separate injury of the worker’s left ankle.
(a) Reference was made to the opening statement by the Panel in its reasons in which it noted the nature of the accepted injury suffered by the worker.[14] The absence from the reasons of any equivalent acknowledgement by the Panel of the rejection of a claimed left ankle injury was said to be significant and suggested that that fact had been overlooked.
(b) The employer also emphasised the terms of the Panel’s diagnosis of the worker: that she was suffering from ‘“Left ankle dysfunction and from a Left superficial peroneal nerve injury” relevant to the accepted injuries’. It was submitted that, although the Panel presented itself as if it was only diagnosing in connection with the accepted injury, it was significant that left ankle dysfunction was the first matter to which it referred in this diagnosis and that it was separated by a copula from the following reference to left superficial peroneal nerve injury. The left ankle and the peroneal nerve were presented by the Panel as stand-alone conditions.
[14]See [13(a)] above.
These arguments are unpersuasive. They are inconsistent with the need to read the reasons fairly, as a whole and in context, and to not subject them to overly zealous judicial review.[15] That the Panel undertook the task of assessing the worker’s degree of permanent impairment by reference only to the accepted injury is tolerably clear from its explanation as to why it selected two methods to assess the worker’s lower extremity impairment: because there were ‘two different manifestations of the accepted injury and there is no duplication’.[16] It is apparent from early in the reasons that the Panel properly understood that the accepted injury was a left foot soft tissue injury and chronic pain syndrome.[17] It may be inferred that the Panel was likewise aware of the nature of the rejected injuries from the terms of the referral; contrary to the employer’s submissions, no significance attaches to the absence of any express reference in the reasons to the rejected injuries.
[15]As recently re-stated by the Court of Appeal in Dundar v Bas [2019] VSCA 315 [51].
[16]My emphasis. See reasons set out at [13(d)] above (second paragraph).
[17]See [13(a)] above.
The employer’s emphasis on the Panel’s diagnosis referred to in [21(b)] is also misplaced and reflects an undue preoccupation on matters of grammar and syntax. Read in the context of the reasons as a whole and in particular the sentence from the reasons referred to in the previous paragraph, it is apparent that in its diagnosis the Panel is identifying that both the conditions referred to are ‘relevant to the accepted “Left foot soft tissue injury and chronic pain syndrome” injury’.
It is significant that the Panel diagnosed left ankle dysfunction and left superficial peroneal nerve injury. The Panel must be taken to have done so deliberately. In doing so, the Panel is to be understood as identifying a loss of function, as distinct from injury, of the left ankle. Such an approach is consistent with ‘injury’ as meaning a physiological change in a part of the body, as discussed further below. It is also consistent with the worker’s presentation before the Panel and its clinical findings referred to in [13(b)]-[13(c)], in particular its observation that ‘there was some inhibition of active foot motion due to pain,’ but in relation to which no diagnostic procedures were required. As was submitted on behalf of the worker, it is apparent from this that the Panel’s assessment of ‘left ankle dysfunction’ was found, on examination, to be due to pain which arose from the worker’s diagnosed peroneal nerve injury.
In support of the proposition that the Panel identified a separate injury of the worker’s left ankle, the employer also focused on the Panel’s statement that it ‘assessed the left ankle’ according to section 3.2 of ch 3 of the Guides by using a goniometer.[18] The Panel explained that it ‘assessed a 3% whole person impairment of the left ankle joint pursuant to Table 42 of Section 3.2e for a mild loss of ankle extension’. Table 42, entitled ‘Ankle Motion Impairments’, deals with different motions of the ankle and provides as follows:
[18]See [13(d)] above.
Motion
Whole-person (lower extremity) [foot] impairment
Mild: Moderate: Severe:
3% (7%) 6% (15%) 12% (30%)
[10%] [21%] [43%]
Plantar flexion capability
11°-20°
1°-10°
None
Flexion contracture
–
10°
20°
Extension
10°-0° (neutral)
–
–
The employer submitted that this approach was in error, as the Panel’s task was to assess the left foot, not the left ankle. It contended that the Panel could have only properly adopted this approach if it was assessing the degree of permanent impairment as a result of an admitted injury to the ankle; the fact that it approached its task in this way confirmed that it identified a separate injury of the worker’s left ankle.
In support of this submission, the employer relied on the judgment of the Court of Appeal in Linfox Transport (Aust) Pty Ltd v Toohey[19] which concerned a dispute about Mr Toohey’s claim for impairment benefits under s 98C of the ACA. Mr Toohey had claimed injury by way of back, right leg, sexual dysfunction, stress and anxiety. The relevant WorkCover agent rejected liability in relation to the right leg, sexual dysfunction, stress and anxiety. That rejection was challenged and the agent contended at trial that the conditions affecting the right leg and sexual function were not ‘independent injuries for the purposes of ss 98C and 98E’, but ‘were to be treated for these purposes as secondary consequences of the accepted injury to the worker’s back’.
[19]Linfox Transport (Aust) Pty Ltd v Toohey [2004] VSCA 233 (‘Linfox v Toohey’).
The Court of Appeal observed that the words of s 98C(1) of the ACA:[20]
…strongly suggest that a distinction is drawn in this provision between the injury, on the one hand, and, on the other, impairment which would include the loss of function to any part of the body where this loss is shown to have been the result of the injury.[21]
[20]See [15] above.
[21]Linfox v Toohey (n 19) [13].
The Court of Appeal also stated that the reference in s 98C(1) to ‘an injury resulting in permanent impairment’ suggests that the word ‘injury’ as used in the section is intended:
… to retain its traditional meaning of “sudden physiological change” to a part of the body and that it was a concept distinct [from] any consequential loss of function to that or any other part of the body’. … “Permanent impairment” in this provision, as elsewhere, is directed to permanent impairment of the whole person of the worker and to an impairment of that part which is injured.[22]
The terminology of s 98C led to the conclusion that ‘injury’ in the section ‘is to be understood in its traditional meaning as an identifiable physiological change to the body part. It is not sufficient that there be simply a loss or diminution of its function’.
[22]Linfox v Toohey (n 19) [15].
On the basis of these statements of principle, the employer drew attention again to the acceptance by the agent of the ‘injury’ to the worker’s left foot and the rejection of liability for a separate direct injury to the left ankle. Thus, like the right leg pain and sexual dysfunction in Linfox v Toohey, it was submitted that any consequential loss of function in the left ankle arising from the accepted injuries should not have been independently assessed as if it was a separate injury.
I do not accept these submissions. Unlike Linfox v Toohey, this proceeding does not concern a disputed injury, but rather a disputed assessment of impairment. The above analogy advanced by the employer is therefore unsound and apt to mislead.
When the Panel stated in the reasons that it had ‘assessed the left ankle’, it is explicit from the preceding paragraph of its reasons that it was doing so as part of ‘the impairment assessment according to the [Guides] as required by s 91 of the [ACA]’. This is entirely consistent with s 104B(5B) of the ACA which requires that ‘[a] determination of the degree of impairment must take into account all impairments resulting from the injuries entitling the worker to compensation …’. This was also recognised by the Court of Appeal in Linfox v Toohey where the Court stated that permanent impairment ‘is directed to permanent impairment of the whole person of the worker and to an impairment of that part which is injured’.[23] The decision in Linfox v Toohey underlines the difference between the concept of impairment and the concept of injury, the latter not being an issue in dispute in this proceeding. Whether the Panel properly applied the Guides in assessing the worker’s impairment is a different issue and is considered below.
[23]See [31].
For these reasons, I accept the submissions on behalf of the worker that the identification by the Panel of impairment of the worker’s ankle and its assessment of impairment is not properly regarded as indicating that the Panel identified a separate injury of the ankle. An examination of the reasons does not support a conclusion that the Panel identified a separate injury of the worker’s left ankle.
Ground 3 – the Guides
By ground 3 the employer contended that the Panel failed to properly assess the worker’s impairment in accordance with the Guides.
Principles
It was uncontroversial that a failure by a medical panel to assess impairment in accordance with the Guides is an error of law going to jurisdiction. The principles which apply to the interpretation of the Guides were set out by Kyrou J (as his Honour then was) in HJ Heinz & Anor v Kotzman & Ors:
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.
If there is any inconsistency between the AC Act and the Guides, the AC Act will prevail. 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.[24]
[24]HJ Heinz & Anor v Kotzman & Ors [2009] VSC 311 (‘HJ Heinz’), [24]–[28]. Citations omitted.
Section 91 of the ACA[25] requires that impairment be assessed ‘in accordance with’ the Guides. [26] In HJ Heinz Kyrou J explained that:
This means that it must apply the methodologies, processes and criteria set out in the Guides for the relevant condition, body part or system and adhere to any minimum or maximum values set out in the Guides for that condition, body part or system. Where the Guides contains a table that is applicable to a condition, body part or system, an assessment based on that table will not be in accordance with the Guides unless the categories, descriptions, criteria, ranges, adjustments and other elements of the table that are relevant to the condition, body part or system are adhered to and complied with.
Some provisions of the Guides, including some tables, provide alternative methodologies or set out ranges, and require the exercise of professional judgment in selecting the most appropriate methodology or in determining where in the range the relevant condition or body part falls. However, the Guides does not permit the exercise of professional judgment at large, unconstrained by the specific requirements of each methodology or table that it sets out. Once a particular methodology or table is selected, its requirements, including any limitations, must be applied in the manner set out by the Guides even if the outcome may appear sub‑optimal. This is so because the role conferred by the AC Act on a panel is not to arrive at a correct or fair assessment, but rather to arrive at an assessment that is the product of the application of the Guides.[27]
[25]See [16].
[26]Subject to certain statutory exceptions and modifications. See for example s 91(1)(a) referred to in [16] above and ss 91(1A) and (1B) which provide:
(1A)Despite anything to the contrary in the A.M.A. Guides, an assessment under subsection (1) of the degree of impairment resulting from an injury must be made—
(a)after the injury has stabilised; and
(b)subject to subsection (7), based on the worker’s current impairment as at the date of the assessment, including any changes in the signs and symptoms following any medical or surgical treatment undergone by the worker in respect of the injury.
(1B)The A.M.A Guides apply in respect of an assessment under section 3.3d of Chapter 3 of the A.M.A Guides as if the following were omitted—
“with the Injury Model, surgery to treat a impairment does not modify the original impairment estimate, which remains the same in spite of any changes in signs or symptoms that may follow the surgery and irrespective of whether the patient has a favourable or unfavourable response to treatment”.
[27]HJ Heinz (n 24) [45]–[46].
The Guides
The parts of the Guides of relevance to this proceeding are set out below.
(a)In relation to the rules for evaluations of permanent impairment, the Guides state that ‘[i]n general, the physician should estimate the extent of the patient’s primary impairment or impairing condition, that is, the condition that seems to be of most concern to the patient’.[28]
[28]Guides 2/8.
(b) Chapter 3, which deals with the musculoskeletal system, identifies that the lower extremity is comprised of six sections, two of which are the foot and the ankle, and that anatomic, diagnostic and functional methods are used in evaluating permanent impairments. The Guides state that:
… While some impairments may be evaluated appropriately by determining the range of motion of the extremity, others are better evaluated by the use of diagnostic categories or according to test criteria. In some instances, a combination of two or three methods is required.
This section includes information on using some of the simpler, more reproducible methods of and tests for assessing function. It also includes examples illustrating how the physician selects the best approach to evaluate an impairment. Selecting the optimal approach or combining several methods requires judgment and experience. Also needed is careful testing that produces accurate and consistent results.
…
If the patient has several impairments of the same lower extremity part, such as the leg, or impairments of different parts, such as the ankle and a toe, the whole-person estimates for the impairments are combined (Combined Values Chart, p 322).…[29]
[29]Guides 3/75 (emphasis added).
(c)Table 42 entitled ‘Ankle Motion Impairments’ which appears in Section 3.2e is set out in [27] above.
(d)Section 3.2(i) of Chapter 3 is entitled ‘Diagnosis-based Estimates’ and relevantly states:[30]
[30]Guides 3/84.
There may be instances in which elements from both diagnostic and examination approaches will apply to a specific situation. A patient with an acetabular fracture and a sciatic nerve palsy should have estimates made for both the hip joint impairment and the nerve palsy. The estimates for the fracture and the nerve condition would be combined (Combined Values Chart, p 322).
(e)Section 3.2(k) of Chapter 3 is entitled ‘Peripheral Nerve Injuries’ and relevantly states:[31]
[31]Guides 3/88 (emphasis added).
Peripheral Nerve Injuries are divided into three components: motor deficits, sensory deficits, and dysesthesia or disordered sensation. Figures 59 and 60 (p. 93) show the sensory and motor nerves of the lower extremity. All estimates listed in table 68 (p. 89) are for complete motor or sensory loss for the named peripheral nerves. Motor, sensory and dysesthesia estimates should be combined. An impairment estimate for multiple peripheral nerve injuries should not exceed the whole-person impairment estimate for complete loss of a lower extremity (40%). Partial motor loss should be estimated on the basis of strength testing (Section 3.2(d), p. 76).
Sensory deficits and dysesthesias are subjective and must be carefully evaluated. Ideally, two examiners should agree. Estimates for peripheral nerve impairments may be combined with those for other types of lower extremity impairments, except those for muscle weakness and atrophy, using the Combined Values Chart (p 322).
(f)Table 68 is entitled ‘Impairments From Nerve Deficits’ and deals with eleven different nerves. In relation to the superficial peroneal nerve, it provides as follows:[32]
[32]Guides 3/89.
Whole-person(lower extremity) [foot] impairment (%) Nerve Motor Sensory Dysesthesia Superficial peroneal 0 2 (5) 2 (5)
Employer’s submissions
For the reasons set out in [21]–[35] above, ground 3 must fail insofar as it proceeds from the premise that the Panel treated the worker’s left ankle dysfunction as a separate injury for which liability had been rejected.
However, the employer acknowledged that, on a ‘beneficial reading’, the reasons ‘might’ suggest that the Panel in fact assessed the left ankle dysfunction as consequential to, or arising from, the accepted left foot injury. As I have explained, this is the correct interpretation of the reasons.
The employer acknowledged that the rejection of liability for a left ankle injury did not preclude an assessment of left ankle impairment, if that impairment was consequential upon the accepted injury. However, it submitted that such an assessment must accord with the methodology prescribed by the Guides associated with the accepted injury.
As is clear from the reasons, the Panel assessed the degree of impairment which arose from the worker’s accepted left foot injury by combining together its assessments made under Tables 42 and 68. As to the former,[33] the Panel assessed a 3% whole person impairment of the left ankle joint for mild loss of ankle extension. In relation to Table 68 which deals with impairments from the superficial peroneal nerve,[34] the Panel ‘assessed a 1% whole person impairment for reduced sensation and a 1% whole person impairment for dysaesthesia impairment of the left superficial peroneal nerve, for decreased sensation with pain, interfering with activity’. The Panel then ‘combined the respective ankle range of motion, the superficial peroneal nerve sensory and dysaesthesia impairments to a total impairment of 4.93% which results in the nearest whole percent of 5%’.
[33]See [27] above.
[34]See [9(f)] above.
It was the employer’s case that the Panel erred by combining these assessments under tables 42 and 68 of the Guides. It was also submitted that the approach adopted by the Panel involved double-counting for loss of motion in the impairment assessment
The employer accepted that, consistent with the terms of the Guides, estimates for peripheral nerve impairments may be combined with certain other types of lower extremity impairments. However, it was submitted that the Panel could only proceed in that way if liability had been accepted for an injury to that other body part. The employer relied on the following statement by the Court of Appeal in Linfox v Toohey in support of this submission:
The significance of the resolution of this dispute, it was said, was that, if the leg pain and sexual dysfunction are treated as secondary consequences of the back injury, their impact upon the worker’s activities of daily living must be assessed as part of the worker’s permanent whole of body impairment resulting from his back injury. If, on the other hand, these conditions are seen as independent injuries, the impact of each upon the worker’s activities of daily living must be assessed separately. Having regard to s 104B(5B), it may be thought surprising that this would be of any practical significance.[35]
[35] Linfox v Toohey (n 19) [8]. See, too, ACA (n 3) s 98C(7).
In the context of the facts in Linfox v Toohey, the employer submitted that the practical consequence of the above statement was that the impairment assessment of the accepted back injury could only occur by reference to the methodology prescribed by the Guides which related to spinal injuries, and not the methodologies in the Guides which were applicable to the leg or to the reproductive system. An assessment of those conditions would require a finding of injury in relation to them.
Analogously to the present case where the accepted injury was ‘left foot soft tissue injury and chronic pain syndrome’, any impairment of the worker’s left ankle could only be assessed by reference to a method of assessment in relation to the foot. Given the determination on liability, the Panel was not entitled to utilise a method of assessment (table 42) that was only connected with the condition of the ankle itself, where that was a disputed injury. By ‘separately assessing impairment to the left ankle as if it were an accepted injury and combining this impairment with that of the left foot, the panel went beyond the limits of its jurisdiction’. No criticism was made of the Panel’s reliance on table 68: in the context of the accepted left foot injury, the Panel diagnosed a condition related to the superficial peroneal nerve which properly called for the application of table 68.
Table 68 provides for percentage impairments associated with motor deficits, sensory deficits and dysaesthesia arising from peripheral nerve injuries. The employer argued that the reference to motor deficits in table 68 indicates that the table incorporates impairment arising from loss of motor function. This is so notwithstanding that the motor function impairment associated with injury to the superficial peroneal nerve as stipulated by the table will not result in an increased impairment assessment. The Panel therefore erred by adding the whole person impairment assessed from table 42 to the percentage degree of impairment derived from table 68 because, to the extent that it considered that any loss of function to the left ankle was consequential to the diagnosed peripheral nerve injury, this was already accounted for in the assessment made under table 68. Insofar as this may result in no additional percentage impairment being available despite the presence of symptoms, such an outcome would be the product of the application of the Guides. Consistent with the observations of Kyrou J in HJ Heinz, it is not within the authority of a medical panel to substitute the outcome of a proper assessment under the Guides, with its own judgment ‘at large’.
Consideration
The submissions advanced by the employer in support of ground 3 are not anchored in the terms of the ACA and involve a misapplication of the Court of Appeal’s judgment in Linfox v Toohey.
The procedure for claiming an impairment benefit prescribed by s 104B of the ACA has two stages:[36] the identification of injury followed by the determination of the degree of impairment. In relation to the latter, the employer’s submissions ignore the operation of s 104B(5B)[37] which requires that the determination of the degree of impairment ‘must take into account all impairments resulting from the injuries entitling the worker to compensation included in the claim for compensation under section 98C’.[38]
[36]Set out in [18]-[20] above.
[37]Set out in [18] above.
[38]ACA (n 3) s 104B(5B), my emphasis.
The import of the directive in s 104B(5B) was confirmed by the Court of Appeal’s statement in Linfox v Toohey that the words of s 98C(1) of the ACA indicate that a distinction is to be drawn between injury and impairment, with the latter including:
… the loss of function to any part of the body where this loss is shown to have been the result of the injury.[39]
The Court of Appeal noted that the concept of ‘permanent impairment’ in the ACA ‘is directed to permanent impairment of the whole person of the worker and not to an impairment of that part which is injured’.[40] The employer’s contention that estimates for peripheral nerve impairments may only be combined with other types of lower extremity impairments if liability had been accepted for an injury to that other body part is contrary to these statements of principle and to the terms of s 104B(5B) of the ACA.
[39]Linfox v Toohey (n 19) [13], my emphasis.
[40]Linfox v Toohey (n 19) [15], my emphasis.
It follows that, in assessing the worker’s degree of impairment in accordance with the Guides as required by s 91 of the ACA, the Panel was required to take into account all impairments resulting from the worker’s accepted injuries – relevantly, her ‘left foot soft tissue injury and chronic pain syndrome’. In undertaking that task, the Panel was required to act in conformity with the Guides.[41] Although the Guides are not to be interpreted as if it is a statute, as explained by Kyrou J in HJ Heinz, it is of paramount importance to be faithful to its ‘plain words’.[42]
[41]HJ Heinz (n 24) [45].
[42]Ibid [26].
In combining the assessments of impairment made under tables 42 and 68 of the Guides, the Panel undertook its task in a manner which was entirely consistent with the plain words of the Guides which, it may be noted, recognise the need for the exercise of judgment and experience.[43]
[43]See [39(b)] above.
(a) Chapter 3 of the Guides states that:
If the patient has several impairments of the same lower extremity part, such as the leg, or impairments of different parts, such as the ankle and a toe, the whole-person estimates for the impairments are combined …[44]
[44]See [39(e)] above. Original emphasis.
(b) The same point is explicitly made in the following statement in Section 3.2(k) of Chapter 3 of the Guides which deals with peripheral nerve injuries:
Estimates for peripheral nerve impairments may be combined with those for other types of lower extremity impairments, except those for muscle weakness and atrophy …
Notably absent from these provisions is any limitation of the type submitted by the employer in determining a worker’s degree of impairment. Neither was any other provision of the Guides, or the ACA, referred to as requiring such an approach.
Although it is true, as the employer submitted, that on the approach adopted by the Panel, loss of function not amounting to injury may potentially have the same status in the assessment of impairment as an injury for which liability had been accepted, the impairments which may be combined must be those which are tethered to an accepted injury. In the terms of s 104B(5B) of the ACA, it is all impairments ‘resulting from’ the injuries for which liability has been established which must be taken into account in determining the degree of impairment. When the existence of s 104B(5B) of the ACA in the two-stage statutory process for claiming impairment benefits is acknowledged, the employer’s complaint that the approach adopted by the Panel would subvert that scheme necessarily falls away. Neither do I accept, for the reasons I have outlined, that that approach is contrary to the reasoning of the Court of Appeal in Linfox v Toohey.
The employer’s complaints in relation to double-counting are without substance. The Panel stated that there was ‘no duplication’ in the impairment assessments it made under Sections 3.2e (table 42) and 3.2k (table 68) of the Guides because they were ‘different manifestations of the accepted injury’. The reasons and the Guides do not provide any basis for considering that the Panel erred in this statement. First, whereas table 68 provides for the assessment of motor deficits, table 42 provides for the assessment of loss of range of motion. The Guides indicate that motor deficits concern weakness and loss of power, as distinct a loss of active range of motion.[45] Secondly, in its reasons, the Panel did not identify any such motor deficit in relation to the worker. Thirdly, the reference to motor deficits in table 68 would in any event be inapplicable to the worker’s circumstances because, as the Guides state, all estimates in table 68 ‘are for complete motor or sensory loss for the named peripheral nerves’.[46] There is no suggestion in the reasons that the worker sustained a complete motor or sensory loss.
[45]Section 4.4b of the Guides is entitled 'Motor Deficits and Loss of Power' and relevantly states that '[i]nvolvement of peripheral nerves or roots may lead to paralysis or weakness of the muscles supplied by them, as well as to characteristic sensory changes'.
[46]See [39(e)] above.
For the above reasons, I reject the employer’s submission that the Panel failed to properly assess the worker’s impairment in accordance with the Guides.
Ground 1 - Procedural fairness
The primary ground of review relied on by the employer was that the Panel failed to accord it procedural fairness.
The relevant principles were uncontentious. The Panel was required to observe principles of procedural fairness in forming its opinion.[47] In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs, the High Court approved the following formulation of the procedural fairness requirement:
It is a fundamental principle that where the rules of procedural fairness apply to a decision‑making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.[48]
[47]Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, 498 [47] (‘Wingfoot’).
[48](2006) 228 CLR 152, 162 [32] (emphasis removed).
In North v Homolka,[49] Ashley J identified that what constitutes a breach of the requirement of procedural fairness will be a ‘matter of fact and degree’.[50] His Honour continued:
… but speaking generally a want of procedural fairness is likely to be disclosed where a finding by a panel is unexpected, could not have been reasonably anticipated, or would not obviously be open on the known material.[51]
[49][2014] VSC 478.
[50]Ibid [104].
[51]Ibid.
In the context of medical panels, complaints of procedural fairness have been upheld in circumstances including where, without notice to the parties, a medical panel has come to a novel diagnosis,[52] came to a wholly new impairment assessment of an accepted injury,[53] found new and different psychiatric symptoms,[54] or relied on a previously unnoticed aspect of a physical condition.[55] As stated by Cavanough J in Barrett Burston Malting Co Pty Ltd v Kotzman & Ors:
A medical panel can also breach the hearing rule in relying upon its own medical expertise to form an opinion – say, as to diagnosis, or, say, as to an aspect of disability previously unnoticed by other medical examiners – such that it could be said that a party did not have a fair opportunity to have that proposed adverse conclusion explored with its own experts. In such a situation, the aggrieved party has been denied a fair opportunity to be “heard” (for instance, through submitting its own medical reports or written submissions) on the issue. Calleja v Franet Pty Ltd is an example of the Supreme Court giving relief in such an instance.[56]
[52]Calleja v Franet Pty Ltd [2000] VSC 339; Barrett Burston Malting Co Pty Ltd v Kotzman [2013] VSC 248; Midfield Meat Processing v Fish [2015] VSC 195.
[53]State of Victoria v Jerak [2018] VSC 680.
[54]YG-1 Australia Pty Ltd v Dr Brann & Ors [2016] VSC 713.
[55]Sargent v Disler [2016] VSC 292.
[56][2013] VSC 248, [34] (‘Barrett Burston’).
In considering a complaint of procedural fairness, it is not necessary for the Court to be certain that any new information or finding relied upon by a medical panel would have necessarily altered the panel’s ultimate opinion. Where the Panel’s opinion was not otherwise ‘inevitable’,[57] the Court should grant relief for want of procedural fairness.
[57]Bahonko v Moorfields Community & Ors [2008] VSCA 6, [80].
The central contention advanced by the employer was that it could not have reasonably anticipated that the Panel would assess the worker’s impairment arising out of a condition to her left ankle. Considering the terms of the referral in context, this conclusion followed from the agent’s rejection of the left ankle injury in the notice;[58] the worker’s acceptance of the agent’s liability determination;[59] and the terms of the referral which expressly identified that injury to the left ankle was rejected. This was said to be made even clearer in light of Dr Doig’s report in which he found no injury to the worker’s ankle.
[58]See [7] above.
[59]See [8] above.
The employer also relied on the fact that the Guides categorised the ankle and the foot as separate sections of the lower extremity. This was said to support the conclusion that an impairment arising from a left ankle injury was a matter outside the boundaries of the known dispute between the parties which had been referred to the Panel.
The employer also relied upon State of Victoria v Jerak in which Garde J upheld a complaint of want of procedural fairness in relation to a Panel assessment of impairment for loss of visual field in the left eye, in circumstances where the agent had accepted liability for an injury to the left eye, but the extent of injury found by the Panel was new.[60] His Honour stated:
The plaintiff was not given notice of the panel’s actual or possible assessment of a 38% loss of left eye visual field, and had no reason to expect that such an assessment would be made. It was an assessment contrary to the previous ophthalmic assessments of the worker’s left eye visual field.
…
For these reasons I find that there was a clear denial of procedural fairness. The panel failed to put the parties on notice of its new assessment, or likely assessment of the worker’s loss of left eye visual field, or to give them the opportunity of putting further evidence or submissions before it.[61]
[60][2018] VSC 680.
[61]Ibid [49], [51].
The employer submitted that the unfairness was starker in this case. It had no reason to suspect that the Panel might assess impairment of the ankle referrable to the accepted ‘left foot soft tissue injury and chronic pain syndrome’, where there had been an explicit rejection of an injury to that body part in the notice. In this way, the Panel’s assessment of left ankle dysfunction came ‘out of the blue’. By way of analogy, the employer relied upon the judgment of Richards J in Withers v Chalmers[62] which concerned a disputed injury, as distinct from an assessment of impairment.
[62][2020] VSC 635.
The employer submitted that, had the Panel given notice that it proposed to assess impairment arising from left ankle dysfunction, it would have had the opportunity to make submissions to the Panel on the following matters.
(a)The need to disregard unrelated impairment pursuant to s 91(7)(c) of the ACA – drawing the Panel’s attention to possible unrelated prior and subsequent injury to the worker’s left ankle in the clinical records. The clinical records before the Panel included an x-ray taken of the worker’s left ankle on 5 July 2004 and a reference to an incident where the worker rolled her ankle at home while getting out of bed on 22 July 2014.
(b)The extent to which there was a non-physical basis to the left ankle dysfunction. Reference was made to an opinion by Dr Buzzard dated 8 January 2015 who stated that his impression was that the symptoms were functional rather than physical. Reliance was also placed on the reasons of the previously constituted medical panel[63] which concluded that the worker’s complaint of pain no longer had an organic cause.
(c)The correct method of assessment under the Guides and in particular whether the left ankle impairment should be combined with impairment from the superficial peroneal nerve injury.[64]
[63]Referred to in [1] above.
[64]Dealt with further below.
Consideration
The employer’s complaint that the Panel denied it procedural fairness is without substance. Although Dr Doig found that the worker did not have an ‘acute injury’ to her left ankle, the possibility that she suffered impairment to her left ankle from the accepted injury was directly raised in his report. He noted that the worker had:
… problems walking and standing for any length of time. She is unable to run due to dorsal pain and the foot and ankle can suddenly give-way unexpectedly, I believe due to secondary pain inhibition.
In his diagnosis, Dr Doig’s referred, in terms, to the worker’s ankle. He diagnosed ‘neuropraxia of the superficial peroneal nerve at the left foot and ankle on a background of a soft tissue injury’ (my emphasis). Likewise, Dr Doig’s main finding from his clinical examination was ‘dysaesthesia of the superficial peroneal nerve, with a positive Tinel’s sign postero-laterally at the ankle’ (my emphasis).
It ought to have been readily apparent to the employer from these aspects of Dr Doig’s report that the worker suffered from symptoms affecting her left ankle consequential upon the injury to her foot. In those circumstances, if the employer did not appreciate that, despite the rejection of a left ankle injury, the Panel might assess the worker as having an impairment of the ankle consequential upon the injury to her foot, such a view does not reflect any failure by the Panel to accord procedural fairness. Instead, it would appear to reflect a misunderstanding about the legal principles relevant to the distinction between injury and impairment considered by the Court of Appeal in Linfox v Toohey, or the correct application of the Guides considered above.
No different result follows from a consideration of the authorities relied on by the employer referred to in [64]-[65] above; as acknowledged by the employer, they are necessarily a product of their own facts.
Ground 1 is rejected.
Ground 2 – Relevant considerations
The employer submitted that the Panel committed jurisdictional error because, by considering the left ankle, it failed to take into account the confined terms of the liability determination when forming its opinion: the left ankle was a rejected injury. Alternatively, it was submitted that, by assessing an impairment to the left ankle under table 42, the Panel took into account a matter that it was bound to disregard.
This ground must fail in light of my conclusions that: (a) the Panel did not in fact identify a separate injury of the worker’s left ankle; and (b) the approach adopted by the Panel in assessing the worker’s degree of impairment in respect of the accepted injuries, in particular by having regard to the dysfunction of the worker’s left ankle, was consistent with the requirements of the ACA and the Guides.
Ground 4 – Adequacy of reasons
The Panel was required to ‘explain the actual path of reasoning by which [it] in fact arrived at the opinion [it] in fact formed on the medical question referred to it’.[65] It was required to ‘explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law’.[66]
[65]Wingfoot (n 47) 501 [55].
[66]Wingfoot (n 47) 501 [55].
For the reasons I have explained, the actual path of reasoning followed by the Panel in reaching its opinion is sufficiently clear from its reasons to enable me to conclude that it did not commit jurisdictional error in undertaking its task. Ground 4 is accordingly not made out.
Disposition
As none of the grounds of review have been made out, the proceeding must be dismissed. I shall hear from the parties on the form of orders and on the question of costs.
0
4
0