Greater Shepparton City Council v Kotzman
[2022] VSC 551
•16 September 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2021 03286
| GREATER SHEPPARTON CITY COUNCIL | Plaintiff |
| v | |
| DR DAVID KOTZMAN & ORS (according to the attached schedule) | Defendants |
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JUDGE: | Gorton J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2 September 2022 |
DATE OF JUDGMENT: | 16 September 2022 |
CASE MAY BE CITED AS: | Greater Shepparton City Council v Kotzman |
MEDIUM NEUTRAL CITATION: | [2022] VSC 551 |
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ADMINISTRATIVE LAW – Judicial Review – Medical Panel – Application of the A.M.A Guides – Application of the Convenor's Directions as to the Procedures of Medical Panels – Where injury was not stabilised - Where there were disparities between the expert material before the Panel – Whether the Panel was required to communicate with other practitioners – Whether unreasonable to apply a range of motion assessment – Where the claimant refused to attend a second medical examination – Application dismissed – Wrongs Act 1958 s 28LZG.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Czarnota | Moray & Agnew Lawyers |
| For the First and Second Defendants | No appearance | Russell Kennedy |
| For the Third Defendant | Mr M Walsh with Mr S Pinkstone | Barbante Personal Injuries Lawyers |
HIS HONOUR:
A. Introduction
Karmvir Sangha, the third defendant, injured his knee on 16 November 2017 when he slipped and fell on a footpath under the control of the Greater Shepparton City Council, the plaintiff. He has commenced proceedings in the County Court of Victoria in which he seeks damages from the Council. He is unable to recover damages for non-economic loss unless he has suffered a ‘significant injury’.[1] For present purposes, this requires him to establish that the degree of impairment of the whole person resulting from his claimed injury, when assessed under the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition) (the ‘A.M.A Guides’) is more than 5%.[2] The level of any impairment resulting from his fall was complicated by the fact that he had suffered a significant prior knee injury in 2012.
[1]Wrongs Act 1958 (Vic) s 28LE.
[2]Ibid s 28LF(1), read with the definition of ‘threshold level’ in s 28LB.
Mr Sangha obtained a certificate of assessment from an orthopaedic surgeon that would have been sufficient to establish that he had a significant injury.[3] But the Council exercised its right to refer the question of his degree of impairment to a medical panel established under pt VBA of the Wrongs Act 1958 (the ‘Panel’).[4] The Panel, consisting of an occupational and environmental physician and an orthopaedic surgeon, met with Mr Sangha on 14 July 2020. It took a history from him and examined him on that day. The Panel had already been provided with a substantial body of documents. After the examination, both parties provided additional documentation on numerous occasions. The additional documentation provided amounted to approximately 1756 pages and included medical and medico-legal reports, medical and hospital records, and submissions. The Panel sought, and the parties agreed, to an extension of the time by which the Panel must deliver its determination to 22 July 2021. On 20 July 2021, the Panel wrote to Mr Sangha and asked that he attend a further medical examination ‘to enable them to complete their Opinion and Reasons’. The same day, Mr Sangha indicated that he did not consent to being re-examined. On 22 July 2021, the Panel provided a certificate in which it answered the medical question as follows:
The Panel is unable to determine the medical question because the physical injury has not stabilised, however the Panel is satisfied that the degree of whole person impairment resulting from the physical injury alleged in the claim will satisfy the threshold level once the injury has stabilised.
[3]The certificate was obtained under s 28LN of the Wrongs Act 1958 (Vic), and, by reason of s 28LF, is sufficient unless a medical panel has made a determination.
[4]See Wrongs Act 1958 (Vic) s 28LEW(1).
The Council applied to this Court in accordance with Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 to have the Panel’s certificate of opinion quashed. It had two essential arguments. The first was that the Panel failed properly to apply the A.M.A. Guides, and accordingly had failed to comply with the statutory obligation imposed on it. The second was that the Panel had erred by failing to exercise its discretion to refrain from answering the medical question in circumstances where Mr Sangha was ‘unreasonably refusing to attend a further requested medical examination’.
The members of the Panel, who are the first and second defendants, wrote to the Court saying that they would not appear and would submit to the orders of the Court.[5]
[5]In accordance with R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13.
B. Did the Panel fail to apply the A.M.A. Guides?
B.1 Failure to communicate with other physicians
The Wrongs Act 1958 requires an assessment ‘in accordance with’ the A.M.A. Guides.[6] Accordingly, if the Panel did not perform an assessment ‘in accordance with’ the A.M.A. Guides, then it failed to discharge its statutory function and its determination is liable to be set aside.[7]
[6]Wrongs Act 1958 (Vic) s 28LH.
[7] See, eg, H J Heinz Company Australia Pty Ltd v Kotzman (2009) 31 VAR 206 (Kyrou J).
Chapter 3 of the A.M.A. Guides deals with the musculoskeletal system. Part 3.2 of chapter 3 deals with the lower extremity. An impairment of the lower extremity may be measured in different ways. The Panel stated in its reasons that it considered that ‘the most appropriate method of assessment of Mr Sangha’s right knee impairment was by reference to range of motion pursuant to Section 3.2e of Chapter Three’. The material placed before the Panel established that different doctors at different times had found different levels of restriction in the range of motion Mr Sangha’s knee. Some of those restrictions would have justified an impairment assessment of more than 5% when applied against the relevant table, but some would not. The Council’s argument was that, in those circumstances, the Panel was required by the A.M.A. Guides to communicate with the physicians that had found different restrictions to the extent needed ‘to resolve any disparities’, or at least to endeavour to do so, if it was to assess Mr Sangha’s impairment by reference to restricted ranges of motion in his knee.
The obligation to communicate with the other physicians in an endeavour to resolve any disparities was said to emerge from the preliminary instructions in chapter 1 of the A.M.A. Guides, which is headed ‘Impairment Evaluation’. In particular, the Council relied on the following passages in pt 1.2 of chapter 1 of the A.M.A. Guides, headed ‘Structure and Use of the Guides’:
Before judgments according to the Guides are accepted, the history and course of the medical condition must be analyzed. This analysis should include findings from previous examinations, the treatment and responses to treatment, and the impact of the condition on the patient’s activities. 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 the future months in spite of treatment.
In evaluating an impairment, it is important to obtain enough clinical information to characterize it in accordance with the Guides requirements … [T]he evaluator’s findings may be compared with the clinical information already available about the individual. If the evaluator’s findings are consistent with the results of previous clinical studies, the findings may be compared with the Guides criteria to estimate the impairment. If the findings are not consistent with those of earlier studies, there should be communication between the involved physicians and clinical studies as needed to resolve any disparities.[8]
[8]Emphasis in original.
It was part of the Council’s case that the words ‘may’ and ’should’ imposed an obligation, rather than a choice.
The Council also relied on chapter 2 of the A.M.A. Guides, which is headed ‘Records and Reports’. In particular, the Council relied on the following passages:
Two physicians, following the methods of the Guides to evaluate the same patient, should report similar results and reach similar conclusions.
…
If the patient’s medical condition is stable, then different positions should reach the same general conclusion. If widely disparate evaluations occur, then the stability of the medical condition and the matter of permanent impairment would be in question.
Finally, the Council relied on the following statement in pt 3.2e of chapter 3 of the A.M.A. Guides, headed ‘Range Of Motion’. As noted above, it seems that the Panel’s impairment assessment was based on this part of chapter 3:
If it is clear to the evaluator that a restricted range of motion has an organic basis, multiple evaluations are unnecessary. If, however, multiple evaluations exist, inconsistency of a grade between the findings of two observers, or on separate occasions by the same observer, makes the results invalid.
The Council’s argument is also supported, in a broad sense, by the fact that an assessment of permanent impairment in accordance with the A.M.A. Guides may only be made, as the phrase would suggest, when the impairment is ‘permanent’. The phrase ‘permanent impairment’ is defined in the glossary of the A.M.A. Guides as ‘impairment that has become static or well stabilized with or without medical treatment and is not likely to remit despite medical treatment’. It is also there said that 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’, and that if an impairment is not permanent, ‘it is inappropriate to characterise it as such and evaluate it according to the Guides criteria’.
It is common ground that the Panel did not ‘communicate’ with the doctors that had found different degrees of restriction and had not, in that sense, sought to reconcile those differences prior to reaching its conclusion.
The Council’s argument that a Panel may in certain circumstances have to communicate with other doctors in an endeavour to ‘resolve any disparities’ has previously been accepted in this court (albeit in dicta and in different circumstances) in State of Victoria v Jerak.[9] There is, however, probably, some tension between that argument and the High Court’s statement in Wingfoot Australia Partners Pty Ltd v Kocak[10] that the function of a Medical Panel is ‘to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise’ and not to make up its mind by reference to competing opinions. I do not consider that it is necessary in this case for me to consider the extent to which there is such a tension or to resolve any tension that exists. That is because, as the passage set out in para 2 above shows, the Panel in this case did not in fact conclude that Mr Sangha’s knee injury was stable or that it had resulted in a permanent impairment. On the contrary, the Panel stated that Mr Sangha’s knee injury was not stable.
[9][2018] VSC 680, [67] (Garde J).
[10](2013) 252 CLR 480, 498–499 [47] (French CJ, Crennan, Bell, Gageler and Keane JJ).
It could not be said that by answering the question in the way it did the Panel failed to discharge its statutory function. The Wrongs Act 1958 specifically empowers the Panel to give such an answer. Section 28LZG(5) of the Wrongs Act 1958 provides that:
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.
Section 28LZG(10) of the Wrongs Act 1958 then provides that if a Panel gives a certificate under s 28LZG(5) then the injury is deemed to be a significant injury.
The passages in the A.M.A. Guides, relied upon by the Council, that suggest that the Panel was required to communicate with other physicians and to reconcile different findings may or may not require a Panel to engage in such a process as part of an assessment by it of the level of permanent impairment of a stabilised injury. But those passages do not require a medical panel to engage in that process if the medical panel is of the view that the injury has not stabilised. The directions relied upon by the Council are not directed at the situation where a medical panel concludes that an injury is not stable. There is no obligation imposed by the A.M.A. Guides on a medical panel to communicate with other physicians or to reconcile different measurements if that medical panel is satisfied that the injury has not stabilised and for that reason declines to assess the current level of impairment.
For this reason, I am not satisfied that the Panel erred in the exercise of its jurisdiction on the grounds that it did not act ‘in accordance with’ the A.M.A. Guides.
B.2 The use of range of motion as the basis of the assessment
The Council also contended that it was ‘unreasonable’ of the Panel ‘to apply a range of motion assessment’ in circumstances where there were inconsistencies on clinical examination that ‘rendered that method of assessment inappropriate’ and where there was evidence of advanced osteoarthritis in the knee.
Part 3.2 of the A.M.A. Guides deals with the lower extremity. Impairment of the lower extremity may be assessed by reference to ‘limb length discrepancy’ (pt 3.2a), ‘gait derangement’ (pt 3.2b), ‘muscle atrophy (unilateral)’ (pt 3.2c), ‘manual muscle testing’ (pt 3.2d, ‘range of motion’(pt 3.2e), ‘joint ankylosis’ (pt 3.2f), ‘arthritis’(pt 3.2g), ‘amputations’ (pt 3.2h), or ‘diagnosis-based estimates’ (pt 3.2i). Each of those categories has passages dealing with how the relevant impairment is to be assessed.
Mr Sangha did have arthritic changes in his knee, and it is conceivable that the Panel might have sought to assess his impairment under the section relating to arthritis. He also had an undisplaced tibial plateau fracture. But I do not read the A.M.A. Guides as requiring a medical panel to assess a claimant’s impairment by reference to their arthritis just because they have an arthritic condition, or under the ‘diagnosis-based estimates’ just because they have a condition that potentially is able to be assessed under that part.
The A.M.A. Guides do state that:
A patient who has an intra-articular fracture and then rapid onset of arthritis should be evaluated with this section and with Section 3.2i … diagnosis-based estimates.[11]
[11]A.M.A Guides, (4th ed, 1995) 3/82.
But, the A.M.A. Guides also state that:
Range of motion techniques are of limited value for estimating impairment secondary to arthritis. While there are some patients with arthritis for whom loss of motion is the principal impairment, most patients are impaired more by pain and weakness secondary to advanced joint surface degeneration but still can maintain functional ranges of motion.[12]
[12]Ibid 3/82.
And:
Selecting the optimal approach or combining several methods requires judgment and experience.[13]
[13]Ibid 3/75.
These passages indicate that it is open for a medical panel to assess a claimant’s impairment by reference to restricted range of motion, even if there is an underlying arthritic or other condition. The A.M.A. Guides are not a statute and are not to be interpreted as such.[14] Ultimately, it is up to the assessing doctor or doctors to decide which of the various categories is the most appropriate to apply in the circumstances. It may be that a medical panel acting reasonably would be obliged to assess impairment other than by reference to the range of motion model if a claimant presented with a disabling knee condition but nonetheless retained a full or near-full range of motion in that knee. But that is not this case. Although his presentation had been variable, Mr Sangha had consistently presented with a restricted range of motion in his knee, and I am not persuaded that no medical panel, acting reasonably, could conclude that the restricted range of motion was an appropriate means by which the impairment of the knee could be assessed.
C.Was it an error to answer the question after Mr Sangha refused to attend a second examination?
[14]Lake v Transport Accident Commission [1998] 1 VR 616, 626 (Phillips JA, Brooking JA agreeing at 617); Victorian WorkCover Authority v Elsdon (2013) 42 VR 434, 446–447 [49] (Bongiorno JA and Dixon AJA), quoting from H J Heinz Company Australia Pty Ltd v Kotzman (2009) 31 VAR 206, 212 [26] (Kyrou J).
The Wrongs Act 1958 requires a medical panel to comply with any directions of the Convenor of the Medical Panels.[15] The Convenor has made the following direction:
Where a claimant unreasonably does not attend an examination by the Medical Panel … [T]he presiding member will notify the Convenor. The Convenor may write to the claimant seeking an explanation of his/her actions and give him/her the opportunity to rectify his/her failure to attend and/or answer questions about his/her hindrance of the Panel’s examination. If the claimant continues to unreasonably fail to attend … the parties may be advised that the Panel is unable to give an opinion in answer to the medical question.[16]
[15]Sections 28LZ(4)–(5).
[16]Convenor's Directions as to the Procedures of Medical Panels (Under Part VBA of the Wrongs Act 1958) 2015, 9 [43] (30 June 2015).
As noted above, the Panel asked Mr Sangha to attend for further examination, Mr Sangha refused to do so, and the next day the Panel provided its certificate and reasons. The Panel dealt with this in its reasons as follows:
While the Panel, given the time that has elapsed since examination in July 2020, initially arranged a further examination of Mr Sangha to assess his current status, upon review of the materials provided, particularly the contemporaneous records referred to above indicating that he is still undertaking various forms of treatment, such as pain blocks and is also considering the possibility of surgery, the Panel formed the view that it had sufficient information upon which to form an opinion and to answer the medical question, and that, therefore, no further examination was required.
Mr Sangha’s reason for not re-attending, as I understand it, was because the time fixed for his second examination was more than 12 months after the initial examination, and he contends that the Panel was not empowered to ask him to re-attend. That is because s 28LZG(6) of the Wrongs Act 1958 states:
(6)If, after making an assessment, the Medical Panel is unable to determine the medical question because an injury has not stabilised … 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.
The Convenor’s direction is intended to deal with a situation where a medical panel is unable to answer the question asked of it because the claimant has not attended for a further examination. Here, having considered the matter again, the Panel concluded that a further examination was not necessary, and proceeded to answer the question. Accordingly, even if it could be established that Mr Sangha did not have a proper reason for refusing to attend and that therefore his refusal to attend was ‘unreasonable’, I would exercise my discretion not to grant relief[17] because the Panel subsequently concluded that no further examination was necessary for it to answer the medical question referred to it. In those circumstances, quashing the Panel’s decision on the grounds that it had not followed the Convenor’s direction would operate against the purpose of that direction. There would be no utility in setting aside the Panel’s answer to the question on the basis of a failure by it to engage in a process that was directed at empowering the Panel to advise that it was unable to answer the question.
[17]See, eg, Mann v Medical Practitioners Board of Victoria (2004) 21 VAR 429, 434 [17] (Nettle JA).
For this reason, there is no need to determine whether the Panel was empowered to arrange the further examination and, if it was not, whether it was ‘unreasonable’ of Mr Sangha to refuse to attend it.
D. Disposition
The proceeding should be dismissed. I will hear the parties on the question of costs.
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SCHEDULE OF PARTIES
S ECI 2021 03286
| GREATER SHEPPARTON CITY COUNCIL | Plaintiff |
| - and - | |
| DR DAVID KOTZMAN | First Defendant |
| MR JOHN HARRIS | Second Defendant |
| KARMVIR SINGH SANGHA | Third Defendant |
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