Hamilton v West Gippsland Healthcare Group
[2024] VSC 315
•14 June 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2022 04610
| JULIE HAMILTON | Plaintiff |
| v | |
| WEST GIPPSLAND HEALTHCARE GROUP & ORS (according to the attached schedule) | Defendant |
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JUDGE: | Gorton J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 June 2024 |
DATE OF JUDGMENT: | 14 June 2024 |
CASE MAY BE CITED AS: | Hamilton v West Gippsland Healthcare Group |
MEDIUM NEUTRAL CITATION: | [2024] VSC 315 |
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ADMINISTRATIVE LAW – Judicial review – Medical Panel – Whether Medical Panel erred by failing to consider application of Chapter 9 of the American Medical Association Guides to the Evaluation of Permanent Impairment when assessing whether there is impairment associated with tinnitus – Where Medical Panel obliged to consider applicability of Part 9.1 of Chapter 9.1 – Whether Medical Panel did consider applicability of chapter – Wrongs Act 1958 (Vic) s 28LK – Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) – Amcor v Scardamaglia [2023] VSCA 290.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Czarnota and Mr A Macaskill | Arnold Thomas and Becker |
| For the First Defendant | Mr M Hooper | HWL Ebsworth |
| For the Second, Third and Fourth Defendant | N/A | DLA Piper |
TABLE OF CONTENTS
A. Introduction.................................................................................................................................. 1
B. Tinnitus.......................................................................................................................................... 2
B.1Ms Hamilton’s complaints................................................................................................... 2
B.2Impairment under Chapter 4 of the A.M.A. Guides........................................................ 2
B.3Impairment under Chapter 9.1 of the Guides................................................................... 3
B.4 Was the Panel obliged to consider the application of Chapter 9.1 of the A.M.A. Guides? 3
B.5Did the Panel consider the application of Chapter 9.1 of the A.M.A. Guides?............ 5
C. Balance problems......................................................................................................................... 8
D. Disposition.................................................................................................................................... 8
HIS HONOUR:
A. Introduction
Ms Julie Hamilton, the plaintiff, developed Bell’s palsy in March 2015. She contends that it was inadequately diagnosed or treated by West Gippsland Healthcare Group, the first defendant, and wishes to recover damages. In order for her to be able to claim damages for non-pecuniary loss, she has to establish that she has suffered ‘significant injury’ as that term is defined in pt VBA of the Wrongs Act 1958.[1] She obtained a certificate of assessment from a medical practitioner that her degree of impairment under the American Medical Association Guides to the Evaluation of Permanent Impairment, Fourth Edition, (‘the A.M.A. Guides’) satisfied ‘the threshold level’, that is, was at least 5%. That is one method of establishing a ‘significant injury’.[2] West Gippsland Healthcare Group, however, exercised its right not to accept that certificate and to have Ms Hamilton’s degree of impairment assessed by a Medical Panel established under the Workplace Injury Rehabilitation and Compensation Act 2013.[3] The Medical Panel determined that her degree of whole person impairment did not satisfy the threshold level. Ms Hamilton has commenced this proceeding, under ord 56 of the Supreme Court (General Civil Procedure) Rules 2015, in which she seeks an order in the nature of certiorari quashing the determination of the Medical Panel on the grounds that it failed properly to apply the A.M.A. Guides. The individual members of the Medical Panel are the second to fourth defendants and, in accordance with usual practice, they have informed the Court that they will submit to such orders as the Court may make, other than to the making of any costs order against them.[4]
[1]Wrongs Act 1958 (Vic) s 28LE; see s 28LF.
[2]Ibid s 28LF(1)(a).
[3]Ibid s 28LW(2)(b).
[4]R v Australian Broadcasting Tribunal & Ors; ex parte Hardiman & Ors (1980) 144 CLR 13.
Ms Hamilton’s argument focuses on the approach the Medical Panel took to her complaints of dizziness, balance problems and tinnitus that she says are consequences of her Bell’s palsy. Those symptoms or some of them may attract an impairment under Chapter 4 of the A.M.A. Guides, which is headed ‘The Nervous System’, and also under Chapter 9 of the A.M.A. Guides, which is headed ‘Ear, Nose, Throat, and Related Structures.’ It is common ground that the Medical Panel undertook an assessment under Chapter 4 of the A.M.A. Guides and Ms Hamilton does not take issue with its doing so or the conclusions the Medical Panel reached that she did not attract an impairment under the chapter. She contends that the Medical Panel was obliged to, but did not, proceed then to assess her impairment (if any) under Chapter 9 of the A.M.A. Guides.
This case therefore turns on whether the Medical Panel was obliged to consider also whether Ms Hamilton had an impairment under Chapter 9 of the A.M.A. Guides associated with her claimed dizziness, balance problems or tinnitus and whether, if it was, the Medical Panel did so.
B. Tinnitus
B.1 Ms Hamilton’s complaints
Ms Hamilton provided the Medical Panel with a medical opinion from the neurologist and neuro-otologist Dr David Szmulewicz that recorded her ‘current medical complaints’ as including:
Tinnitus. A constant siren like sensation head in the head.
Consistently with this, the Medical Panel recorded that Ms Hamilton told it that she ‘developed tinnitus in her head after the Bell’s Palsy’ that was ‘intermittent and would occur several times a day for up to several minutes or hours’, and that she could ‘hear it more at night’. The Medical Panel also recorded, under the heading ‘Current Symptoms’, that:
…. [Ms Hamilton] complains of tinnitus …
At no point did the Medical Panel say that it did not accept that Ms Hamilton suffered from tinnitus.
B.2 Impairment under Chapter 4 of the A.M.A. Guides
An impairment for tinnitus may be assessed under Chapter 4 of the A.M.A. Guides. Part 4.2 is headed ‘The Brain Stem’. Part 4.2b is headed ‘The Pons-Cerebellum Segment’. Under a further subheading ‘The auditory nerve’, the A.M.A. Guides states on page 4/146:
Tinnitus in the presence of unilateral hearing loss may impair speech discrimination and adversely influence the ability to carry out daily activities. Therefore, up to 5% may be added because of tinnitus to an impairment estimate for severe unilateral hearing loss.[5]
B.3 Impairment under Chapter 9.1 of the Guides
[5]Italics in the original.
Tinnitus may also, however, be assessed under Chapter 9 of the A.M.A. Guides, which is headed ‘Ear, Nose, Throat and Related Structures’. Under the heading ‘9.1 The Ear’, the A.M.A. Guides states:
Disturbances of the ear, such as chronic otorrhea, otalgia, and tinnitus, are not measurable. Therefore, the physician should estimate an impairment percentage based on the severity of those conditions and the degree to which they interfere with functions of the ear, and a percentage that is consistent with established values.
Tinnitus in the presence of unilateral or bilateral hearing loss may impair speech discrimination; therefore, an impairment percentage of up to 5% may be added to the impairment for hearing loss.[6]
[6]Footnote omitted.
It is noteworthy that while the impairment referred to under Chapter 4 set out in para 7 above seems concerned only with tinnitus in the presence of severe and unilateral hearing loss, the impairment referred to in Chapter 9 set out in para 8 above extends to tinnitus in the presence of bilateral hearing loss and hearing loss that is not severe.
B.4 Was the Panel obliged to consider the application of Chapter 9.1 of the A.M.A. Guides?
Chapter 4 was not expressed to be the only chapter that could potentially apply to a condition such as tinnitus. This is, perhaps, apparent from the fact that tinnitus is referred to as a condition that might attract an impairment in both Chapter 4 and Chapter 9. But the obligation to have regard to both chapters is made explicit in Chapter 4 itself. As noted above, the reference to tinnitus in Chapter 4 is under the subheading ‘The auditory nerve’ which is under the heading ‘4.2b The Pons-Cerebellum Segment’. In the introductory paragraph that immediately follows the heading ‘4.2b The Pons-Cerebellum Segment’, the A.M.A. Guides states:
The reader should consult the Guides chapters on the visual system and the ear, nose, throat, and related structures as necessary. Combined neurologic syndromes are considered in this chapter.[7]
[7]American Medical Association, Guides to the Evaluation of Permanent Impairment (4th ed, 1995), 4/145, second column. Italics in the original.
Then, under the subheading ‘The auditory nerve’, the A.M.A. Guides states, immediately above the passage set out in para 7 above:
The reader should consult the Guides chapter on the ear, nose, throat, and related structures (p. 223) regarding the evaluation of hearing impairment without known nerve dysfunction.[8]
[8]Ibid 4/146. Italics in the original.
It follows, it seems to me, that at least if tinnitus does not lead to a measurable impairment under Chapter 4 of the A.M.A. Guides, as the Medical Panel concluded, a proper assessment requires that consideration then be given to whether it leads to a measurable impairment under Chapter 9 of the Guides.
There is, however, a complication. Section 28LK of the Wrongs Act 1958 replaces the process contained in Chapter 9 of the A.M.A. Guides for assessing the degree of impairment ‘from binaural hearing impairment’. Section 28LK(2) provides that the ‘percentage of diminution of hearing’ must instead be determined in the ‘manner approved’ under s 63 of the Workplace Injury Rehabilitation and Compensation Act 2013, and ‘in accordance with the Improved Procedure for Determination of Percentage Loss of Hearing … published by the National Acoustic Laboratory.’ It was arguable that this had the effect of excluding from the assessment process a requirement to consider under Chapter 9.1 any hearing-related problems including tinnitus. That argument was put to rest, however, at least for present purposes, by the Court of Appeal decision in Amcor v Scardamaglia.[9] That case concerned Mr Scardamaglia’s claim to permanent impairment benefits for industrial deafness. He suffered from tinnitus. It was accepted, before me, that the ‘approved method’ of assessing Mr Scardamaglia’s claim for benefits was the same as that provided for in the Wrongs Act 1958. A medical panel concluded that Mr Scardamaglia’s tinnitus did not attract a separate allowance in the impairment rating assessed in accordance with the ‘approved method’. It was held, though, by the Court of Appeal, that the approved method in effect incorporated the tinnitus passages contained in Chapter 9.1 of the A.M.A. Guides set out above, with the result that the medical panel, in applying the ‘approved method’, was obliged to consider also whether there was an additional impairment for tinnitus having regard to the passage in Chapter 9.1 set out in para 8 above. In the Court of Appeal’s words:
…An expert assessor is given the discretion to add a percentage (up to 5 per cent) for any additional diminution of hearing caused by tinnitus, which diminution is over and above any diminution of hearing that may have been accounted for on the pure tone audiogram.[10]
[9][2023] VSCA 290.
[10]Ibid [53(1)].
It then stated that there was:
… no basis for contending that the percentage diminution in hearing obtained using the NAL Procedure in accordance with the ASOHNS Guidelines cannot be aggregated with an additional percentage hearing loss assessed in accordance with the A.M.A. tinnitus paragraphs.[11]
[11]Ibid [53(2)].
West Gippsland Healthcare Group formally submitted that Amcor v Scardamaglia was wrongly decided. It is, however, binding on me.
Accordingly, the Medical Panel, in this case, was obliged to consider whether Ms Hamilton’s tinnitus warranted, under the passage from Chapter 9.1 set out in para 8 above, an impairment assessment, beyond any impairment that might arise from acoustic hearing testing.
B.5 Did the Panel consider the application of Chapter 9.1 of the A.M.A. Guides?
The Medical Panel stated in its reasons the following:
Notwithstanding Ms Hamilton’s complaints of tinnitus and balance problems, the Panel, in its examination of Ms Hamilton, found no clinical findings to support an impairment of Ms Hamilton’s auditory nerve (VIII cranial nerve) when assessed in accordance with Table 11 of Section 4.2b of Chapter Four of the Guides.
and:
The Panel assessed a binaural hearing loss in accordance with the Improved Procedure for Determination of Percentage Loss of Hearing (1988 Edition) published by the National Acoustic Laboratory (NAL) pursuant to Section S28LK (sic) of the Act. The Panel determined the percentage of the diminution of hearing in accordance with subsection (2).
and:
As speech discrimination and hearing was bilateral and only mildly impaired, there is no impairment for the complaint of tinnitus when assessed in accordance with the text on page 4/146 of the Guides.
and:
The Panel considered that there is no additional impairment resulting from the physical injury to Ms Hamilton alleged in the claim, when assessed in accordance with the Guides.
The first and third passages are, clearly, findings of no measurable impairment for tinnitus under Chapter 4 of the A.M.A. Guides. The first passage is directed at a table that relates to impaired equilibrium. The third passage is directed at the criteria in Chapter 4 set out in para 7 above. So much is clear by the reference to the problems being bilateral (not unilateral) and only mild (not severe). Also, on its face, that passage suggests that the Medical Panel did find some mildly impaired speech discrimination, which, certainly, raises a possibility that an impairment under Chapter 9.1 might exist.
West Gippsland Healthcare Group submitted that it should be assumed that the Medical Panel nonetheless had regard to Chapter 9.1 and did not refer to its having done so because it found no impairment under that chapter. It relied on the fourth passage set out in para 17 above. In this respect, it emphasised that a medical panel is not under an obligation to explain why it did not reach an opinion it did not form[12] and it also noted that, unlike a medical panel that is answering medical questions referred to it under the Workplace Injury Rehabilitation and Compensation Act 2013, this Medical Panel was not required to give reasons.[13] Even so, I disagree. I infer, from the reasons that were given in this case, that the Medical Panel, having determined that Ms Hamilton’s tinnitus did not warrant an impairment under Chapter 4 of the A.M.A. Guides, did err by then failing to consider whether her tinnitus warranted an impairment under Chapter 9.1 of the A.M.A. Guides.
[12]See, e.g. Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, 501-502 [56] (French CJ, Crennan, Bell, Gageler and Keane JJ).
[13]As to which, see St Vincent’s Hospital v Freidin [2023] VSC 602, [40] (Gray J). Cf La Rosa v Patrick [2022] VSC 404, [62] (Walker JA).
That, in my view, follows from the fact that the Medical Panel did state in its reasons that it had ‘assessed the appropriate whole person impairment’ in accordance with ‘Section 9.3a of Chapter Nine’, ‘Section 9.3b of Chapter Nine’, ‘Section 9.3c of Chapter Nine’, and ‘Section 9.3d of Chapter Nine’, but did not make any reference to Chapter 9.1 of the A.M.A. Guides or otherwise to the criteria in that chapter set out in para 8 above. This is not a case where an inference is drawn that a matter has not been considered simply from any absence of a reference to that matter.[14] The inference is instead drawn from an absence of any reference to that matter in circumstances where the reasons as a whole indicate that had the matter been considered, it probably would have been referred to. Had the Medical Panel considered whether there was an ‘appropriate whole person impairment’ for tinnitus under Chapter 9.1, I would, in light of the reasons considered generally and its explicit references to the other sections in Chapter 9, have expected it to have said that it had done so.
[14]Cf Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173, 185-186 [25] (French CJ, Bell, Keane and Gordon JJ).
Also:
(a) This is not a set of reasons that is limited to setting out findings of established whole person impairment, so that it might easily be inferred that a failure to refer to an area of possible impairment is explicable on the grounds that it was considered but not found to be relevant. This is because, as the first and third passages set out in para 17 above demonstrate, the Medical Panel did set out circumstances where it had performed an assessment but concluded that there was no measurable impairment; and
(b) At a more general level, these reasons, with respect to the Medical Panel, reveal a detailed and logical structure that reads as if they are intended quite comprehensively to explain its reasoning process including to what matters it had consideration.
Finally, it must be recalled that the Medical Panel in this case performed its assessment before either the trial judge or the Court of Appeal had clarified in Amcor v Scardamaglia that the presence of tinnitus called for a consideration of Chapter 9.1 of the A.M.A. Guides, even though the impairment of hearing loss was otherwise not assessed by reference to the A.M.A. Guides. Prior to those decisions, the ability of Chapter 9.1 of the A.M.A. Guides to add an impairment due to tinnitus was unclear and there were respectable arguments suggesting that it could not. This makes it well understandable that even the most careful medical panel might not have turned its mind to Chapter 9.1 of the A.M.A. Guides at the time that this Medical Panel performed its assessment.
C. Balance problems
In light of my conclusion that the Medical Panel erred in its assessment of Ms Hamilton’s complaints of tinnitus, it is not necessary for me to consider the argument that it erred in its assessment of her balance problems (assuming that the Medical Panel accepted that she had balance problems).
D. Disposition
I am satisfied that the Medical Panel failed to perform an assessment of Ms Hamilton’s whole person impairment in accordance with its statutory obligation. Accordingly, I will make an order in the nature of certiorari quashing the Medical Panel’s Certificate of Determination dated 11 September 2022.
Ms Hamilton sought an order that the matter be remitted for determination by a differently-constituted Medical Panel. West Gippsland Healthcare Group submitted that no such order should be made.
Counsel for Ms Hamilton contended that there was a risk if the matter was redetermined by the same Medical Panel, and that if it came to the same conclusion that Ms Hamilton did not have a significant injury, that it might be perceived (by her) that the Medical Panel had acted to vindicate its earlier decision (that had been set aside) rather than to consider the matter afresh and impartially.
It is apparent that Ms Hamilton will have to be reassessed, whoever be on the panel, as it is almost two years since she was seen by this Medical Panel. I am prepared to assume that there is no prejudice, so to speak, to either West Gippsland Healthcare Group or the Convenor in being required to convene a differently constituted panel.[15] In those circumstances, I accept Ms Hamilton’s submission. It is easy for lawyers experienced in litigation to accept that an expert body like a medical panel would not be influenced by the litigation history of any particular case, but it may not be the same for an individual claimant. I accept there is a real risk that a person in Ms Hamilton’s position, who has sought review of a medical panel’s decision and established that it erred, might genuinely feel concerned that if the same doctors were to assess her they could be influenced by what had happened and that that concern would increase in the event that they came to the same conclusion. In these circumstances, and where there is no practical disadvantage to having a differently-constituted panel assess her, I will make an order to that effect.
[15]See, in respect of the ‘Convenor’ of ‘Medical Panels’, ss 3 and 537 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).
I will hear the parties on the question of costs.
SCHEDULE OF PARTIES
S ECI 2022 04610
| JULIE HAMILTON | Plaintiff |
| -and- | |
| WEST GIPPSLAND HEALTHCARE GROUP | First Defendant |
| DR DAVID KOTZMAN | Second Defendant |
| PROF CASSANDRA SZOEKE | Third Defendant |
| PROF ANDREW SIZELAND | Fourth Defendant |
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