Latchford v Gibbons
[2021] VSC 229
•3 May 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2018 00994
| CHRISTINE LATCHFORD | Plaintiff |
| v | |
| PETER GIBBONS (in his capacity as Deputy Convenor of Medical Panels) & Ors. (according to the attached schedule) | Defendants |
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JUDGE: | FORBES J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 November 2020 |
DATE OF JUDGMENT: | 3 May 2021 |
CASE MAY BE CITED AS: | Latchford v Gibbons & Ors |
MEDIUM NEUTRAL CITATION: | [2021] VSC 229 |
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ADMINISTRATIVE LAW – Judicial Review – Medical Panel - Referral of question to medical panel – Wrongs Act 1958, Part VBA - Jurisdictional error –Error arising from irregularities and deficiencies in the process of referral to panel – Failure to consider all relevant injuries identified by the plaintiff - Whether panel properly applied American Medical Association Guides to the Evaluation of Permanent Impairment – Opinion of panel not attended by error - Proceeding dismissed - Chua v Newman-Morris [2009] VSC 582 - Melbourne Health v Lloyd [2009] VSC 370 – Saddington v Kotzman [2013] VSC 196 – HJ Heinz Co Australia Ltd v Kotzman [2009] VSC 311.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr. D Williams QC Mr. P Czarnota | Slater and Gordon Ltd |
| For the Fifth Defendant | Mr. M Fleming QC Ms. S Gold | Minter Ellison |
| For the Sixth Defendant | Mr. M Fleming QC Ms. S Gold | IDP Lawyers |
HER HONOUR:
A Medical Panel (the Panel) was convened pursuant to s 28LWE of the Wrongs Act1958 (Vic) (the Act) to assess impairment. The plaintiff seeks orders quashing the Panel’s opinion dated 26 June 2018 and remitting the medical question to a differently constituted Medical Panel for determination.
Ms Latchford alleges that by reason of the negligent medical treatment of West Gippsland Health Care Group (the fifth defendant) and her treating surgeon, Dr Andries De Villiers (the sixth defendant) she has suffered injury and damage.
Ms Latchford underwent an arthroscopic partial lateral meniscectomy of the right knee on 28 October 2015. After discharge she developed symptoms in her right leg that were investigated by ultrasound. The investigations identified a large false aneurysm of the popliteal artery, a haematoma of the calf and an occlusive thrombus of the posterior tibial vein. Treatment of the false aneurysm required a further surgical procedure, a fasciotomy, on 1 November 2015 to avoid the development of compartment syndrome. The plaintiff has been left with ongoing symptoms and restrictions.
The referral to the Panel for an assessment of impairment was for the purpose of recovering damages for non-economic loss as required by s 28LE of the Act.
Grounds of Review
Three of the grounds of review in this proceeding, detailed below, concern errors arising out of irregularities and deficiencies in the process of referral to the Panel. The plaintiff had inadvertently failed to complete the details identifying the relevant injury to be assessed by the Panel and the defendants used forms that required them to identify relevant injury. A fourth ground deals with the proper application of the AMA Guides to the Evaluation of Permanent Impairment 4th Edition (Guides), which the Panel was required to use for its assessment.
The referral to the Panel
The plaintiff’s further amended originating motion[1] identified the three grounds of review concerning the referral process as follows:
(a)Jurisdictional error by the Panel by proceeding to consider the medical question without the prescribed information as to the injury to be assessed having been provided by the plaintiff by reason of which the referrals were defective (Ground 1).
(b)The Panel failed to take into account a relevant consideration, being what the plaintiff claimed to be the injury (Ground 2) and took into account an irrelevant consideration, by drawing inferences about the nature of the injury from the material that was supplied (Ground 3).
[1]As amended by an order of Judicial Registrar Keith on 1 May 2020.
The medical question referred to the Panel was:
Does the degree of impairment resulting from the physical injury to the claimant alleged in the claim satisfy the threshold level?
To satisfy the threshold, Ms Latchford’s solicitor served on the fifth and sixth defendant certificates of assessment from Dr Peter Blombery, Dr David Freilich and Mr Murray Stapleton.[2] The certificates from Dr Blombery and Mr Stapleton each certify that the plaintiff has a greater than 5% permanent whole person impairment. Dr Freilich’s certificate states that he is not satisfied the degree of impairment resulting from the plaintiff’s injury is more than 5%.
[2]Dated 2 November 2017; 1 December 2017 and 11 December 2017 respectively.
These certificates were served in accordance with s 28LT of the Act along with the ‘prescribed information’ required by s 28LT(2). Section 28LT(2) provides that:
The copy of the certificate of assessment must be accompanied by the prescribed information (if any) in the prescribed form (if any) unless the information has already been provided to the respondent under section 28LO.
The Wrongs (Part VBA) Claims Regulations 2015 (Regulations) identified the content of the information prescribed by s 28LT(2). Regulation 8 listed matters at (1)(a) to (q).
The list in Regulation 8(1) included:
…
(m) a description of the incident:
(n) details of the injury suffered as a result of the incident:
(o)details of any one or more of the following categories of loss suffered by the claimant as a result of the injury:
(i) pain and suffering;
(ii) loss of amenity of life;
(iii) loss of enjoyment of life;
…
The ‘prescribed form’[3] was at the time Form 4 in Schedule 1 of the Regulations. The form contained prompts designed to elicit all prescribed information. Erroneously, the plaintiff’s solicitor omitted to complete the section of the form that gave the details of the injury suffered as required by Regulation 8(1)(n).[4]
[3]Pursuant to r 8(2) in Wrongs (Part VBA Claims) Regulations 2015 (‘2015 Regulations’), a “prescribed form” is Form 4 in Schedule 1.
[4]Plaintiff, Affidavit of Allan Macrae, Affidavit in Christine Latchford v Peter Gibbons & Ors, S ECI 2018 00994, 3 September 2018 (‘Affidavit of Allan Macrae’). The Form 4 as completed was Exhibit 1.
The plaintiff’s Form 4 identified the relevant incident, required by (m), as occurring on 28 October 2015 at Monash Health. It was described as:
The Claimant in this action was born on 18 June 1961. The Claimant alleges that she underwent right knee arthroscopy by Mr A de Villiers at Warragul Base Hospital. The Claimant alleges that her knee had been painful and had osteoarthritis on about 28 October 2015. The Claimant alleges that she suffered a right popliteal artery aneurysm and compartment syndrome as a result. The Claimant alleges that she had to have a fasciotomy and split skin grafting (from her right thigh) at Monash Health.
In the prescribed Form 4, item 7 concerns the injury and is set out this way:
7. THE INJURY TO THE CLAIMANT
Set out all the injuries that you claim you suffered as a result of the incident
Details of any one or more of the following categories of loss suffered by the claimant as a result of the injury:
(i) Pain and suffering
(ii) Loss of amenity of life
(iii) Loss of enjoyment of life
The plaintiff’s Form 4 reads:
7. THE INJURY TO THE CLAIMANT
Details of any one or more of the following categories of loss suffered by the claimant as a result of the injury:
(i) Pain and suffering
(ii) Loss of amenity of life
(iii) Loss of enjoyment of life
(iv) Economic loss
The legislation requires a response by a respondent within 60 days of receipt of the certificate and the required information under s 28LT.[5] On 13 April 2018, the fifth and sixth defendants each responded by referring a medical question to a Medical Panel in accordance with s 28LW(2)(b). The referrals occurred within 60 days of receipt of the plaintiff’s material under s 28LT, albeit this had not identified the details of the injuries sustained in answer to Question 7 of the ‘required information’.[6]
[5]Wrongs Act 1958 (Vic) (‘Wrongs Act’) s 28LW(1).
[6]Being the “prescribed information” required under s 28LT of the Wrongs Act and reg 8 of the 2015 Regulations.
The Regulations state that a respondent must make the referral on a further prescribed form, being Form 5 in Schedule 1.[7] The Form 5 must attach a copy of the plaintiff’s prescribed form.[8] The defendants are not required to set out the injuries alleged in the claim and in fact the prescribed Form 5 does not have any section requiring (or allowing) a respondent to identify the injuries alleged.
[7]2015 Regulations (above n 3) reg 9(2); Wrongs Act (above n 5) s 28LWE.
[8]2015 Regulations (above n 3) reg 9(2).
This process is different to that required under the Wrongs (Part VBA Claims) Regulations 2005 (Vic) and the Act as it stood before 2015. At that time there were no prescribed forms for referral to a Medical Panel. The Convenor of Medical Panels made available on its website a form for use when making referrals. This earlier form asked a referring respondent to identify both the incident and the injuries alleged to have been suffered.
Prior to 2015, despite identification by a respondent, a Medical Panel retained a responsibility to ensure that it correctly identified the injuries alleged by a claimant suffered in the incident from the material provided to that panel.[9]
[9]Chua v Newman-Morris [2009] VSC 582 [36].
In their referrals to the Panel both defendants used the form created by the Convenor of Medical Panels that pre-dated the 2015 Regulations. This was still available at the time of the referral on the Convenor of Medical Panels’ website.[10] The Form 5 prescribed by Regulations was not used. When asked in the form to provide details of the injury the claimant alleges to have suffered as a result of the incident, the sixth defendant’s solicitors wrote:
In the prescribed Information the Claimant alleges by way of injury that she has suffered pain and suffering, loss of amenity of life, loss of enjoyment of life and economic loss. In the Certificate of Assessment the injury assessed is described as the right leg.”[11]
This simply repeated the limited information as to injury identified in Question 7 of the plaintiff’s Form 4.
[10]The Referral to Medical Panels form that was available at
[11]Referral to Medical Panels by Ms Francis-Martin, pursuant to s 28LWE of the Wrongs Act.
The fifth defendant’s form identified injury as:
(a)right popliteal artery aneurysm;
(b)compartment syndrome;
(c)fasciotomy; and
(d)two skin grafts from her right thigh.
These four matters align with those aspects of the injury identified in the description of the incident given in the plaintiff’s prescribed Form 4.
The solicitor for the plaintiff deposed that he received copies of the letters and attached forms that the defendants provided to the Panel. He deposed that the usual practice was to review the documents but that neither the original error by the plaintiff, nor the forms used by the defendants or any inaccuracy as to how they had described injury, was noticed at that stage.[12]
[12]Affidavit of Allan Macrae (above n 4).
The first defendant in his capacity as Deputy Convenor of Medical Panels convened the Panel consisting of Dr David Fish, Mr Russell Corlett and Mr Peter Field (respectively the second, third and fourth defendants). He confirmed that a ‘Certificate of Determination’ was required concerning the following injuries alleged in the claim. The Panel then identified injury by reference to information in the plaintiff’s Form 4 and the submission of the fifth defendant as:
(a)Right popliteal artery aneurysm;
(b)Compartment syndrome;
(c)Fasciotomy; and
(d)Split skin grafting.[13]
[13]The first to fourth defendants submitted an appearance and thereafter took no active part in the proceeding advising the Court that they would abide the outcome in accordance with R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13.
On 31 May 2018, the Panel then proceeded to assess the plaintiff on the basis of these injuries.
On 26 June 2018, the Panel issued its determination that the degree of whole person impairment resulting from the physical injury to the claimant alleged in the claim does not satisfy the threshold level.[14] After obtaining a history from the plaintiff and conducting their examination the Panel undertook an impairment assessment. They assessed surgical scarring in accordance with Chapter 13, vascular impairment in accordance with Chapter 6, and concluded there was no additional impairment when assessed in accordance with the Guides. The Panel then combined the assessments to derive a whole person impairment and concluded that there was no unrelated impairment which was to be disregarded.[15]
[14]Medical Panel, Certificate of Determination (Medical Panel Ref No. M 118/1135, 26 June 2018) (‘Medical Panel Reasons’).
[15]The Panel was bound to consider this and disregard any impairment from an unrelated injury by s 28LZG(4) of the Act.
Did error in the process of referral to the Panel lead to error by the Panel?
The first three grounds of review focus on the assertion that the plaintiff failed to completely identify injury in the Prescribed Form, leading to an incomplete identification of injury by the defendants. It was submitted that the consequence of those failures in error in the Panel’s identification of injury.
The plaintiff submits that had she completed an identification of injury, the description would have included complex regional pain syndrome, spasm and limited movement in the right ankle producing impaired mobility, among other particulars.
The medical report of Dr Freilich referred to injury to the peroneal nerve as a complication of surgery and assessed impairment of the nervous system under Chapter 4, that impairment, albeit in isolation, amounted to less than 5%. Dr Blombery’s report contained an assessment under Chapter 3 (the Musculoskeletal system) from muscle wasting of the right calf and motion impairment of the right ankle and hindfoot as found by him. Dr Blombery attributed –
‘Most of her limitations in terms of mobility are a consequence of the fasciotomy and the compartment syndrome which she developed as a consequence of the false aneurysm and bleeding into the calf muscles.’
The presence of changes in temperature and colour of the foot, in combination with pain, suggested in Dr Blombery’s opinion a component of complex regional pain syndrome type 1 as a complication of the injury.
The plaintiff argues that the Panel proceeded whilst limiting itself to what were described as ‘historical injuries’ and without regard to the plaintiff’s ‘ongoing injuries’,[16] and ought to have had regard to all the conditions nominated by the plaintiff. In particular, the Panel ought to have assessed the plaintiff’s complex regional pain syndrome and dysfunction of the right leg due to loss of mobility and spasms. Although it was not made explicit in the submissions of the plaintiff it follows that had the Panel done so, it ought have conducted impairment assessments under Chapter 3 and/or Chapter 4, as Dr Blombery and Dr Freilich had done. It was not suggested that loss of mobility, spasm or complex regional pain syndrome ought be assessed by some other chapter or method of the Guides.
[16]Plaintiff, ‘Plaintiff’s Submissions in Reply’, Submission in Christine Latchford v Peter Gibbons & Ors, S ECI 2018 00994, 24 April 2019, [15]–[16].
As both parties accept, the position prior to 2015 required a Medical Panel in the discharge of its statutory task to correctly identify the injury which is alleged to have been caused by the tortfeasor.[17] The statutory obligation, then on a respondent to provide identification of injury claimed, is to assist the Panel to undertake that task.[18]
[17]Chua (above n 9) [36].
[18]Melbourne Health v Lloyd [2009] VSC 370 [9].
The change in 2015 to place this responsibility on a claimant and not a respondent does not in any way alter the statutory task of a Medical Panel nor the statutory obligation on the relevant party to provide assistance to the Panel. Mr Williams properly conceded this but submitted that the Panel should start with the injury as identified by the claimant, and if that is not provided then it should not embark on its task.
The Panel is bound to assess the injury suffered as a result of complications arising from the knee surgery. The Panel is not bound to confine itself to those particulars of injuries provided (or not) by the claimant, but can have regard to the totality of the material. Regard to the description of the incident was one specific source of information identified by Emerton J in Chua as was the content of medical reports provided by the claimant.[19] There may be circumstances, whether by inadvertence or otherwise, where a Medical Panel forms the view that it has insufficient information for it to undertake its task. In those circumstances a Medical Panel has statutory powers to require further information to be provided.
[19]See Chua (above n 9) [38].
The complaint of the plaintiff is in substance that the Panel failed to consider injury that included complex regional pain syndrome, nerve injury or some other injury causing loss of mobility and pain in its assessment of impairment.
A plain reading of the reasons as a whole demonstrates that the Panel turned their mind to questions of a peroneal nerve injury, of whether there was a complex regional pain syndrome or other pain condition present and whether such conditions gave rise to impairment to be assessed in accordance with the Guides.
The reasons set out a detailed history from the plaintiff of her ongoing symptoms including numbness in the right leg, a burning sensation, spasms, changes in temperature and colour, and swelling for which she occasionally wore an elastic sock. The history also described the nature and effect of the scarring, including that it was ‘ugly’, that she wore clothing to cover the scars but that ‘the scars had no other effect on her activities of daily life’. The examination commences with the observation of a right antalgic gait and the use of a walking stick. The Panel measured and described each scar. The reasons then continue:
The Panel examined the vascular system of the right leg and noted that all pulses were present and equal to that on the left side. There was no palpable mass in the popliteal fossa. There was minimally delayed capillary return in the right foot when compared to the left foot. There were no signs of complex regional pain syndrome. There was no wasting of the thighs or calves on circumferential measurement and there was no measurable ankle oedema. There was minimal oedema at the base of the lateral fasciotomy scar but no generalised oedema which is due to the scar and not to venous insufficiency. Venous return was normal.
The Panel assessed ankle and subtalar motion and compared this to the left ankle. The Panel found that there was no restriction of ankle or subtalar motion in the right foot.
The Panel also assessed the peripheral nervous system in the right leg and found patchy sensory loss throughout the right calf, sparing the right foot, which the Panel considered was not consistent with a named peripheral nerve distribution.
The Panel did not review any medical imaging, and the Panel considered that no medical imaging or other investigations or information were required for it to complete its assessment of the claimant’s medical condition and to answer the medical question.
The Panel considered that the claimant had suffered a right popliteal false aneurysm and deep venous thrombosis that had been surgically treated but that now there was no peripheral or vascular insufficiency. The Panel noted that there was no objective finding to confirm the need for elastic stockings.
The Panel concluded that due to the nature and duration of the physical injury that the claimant’s physical condition is stabilised and permanent.
As is clear, the Panel considered each of the matters that the plaintiff would have identified had she described the claimed injury, namely:
(a)A diagnosis of complex regional pain syndrome was considered in the vascular examination;
(b)Ankle and subtalar motion and wasting was assessed, whether caused by oedema, muscle necrosis, pain or otherwise, and no wasting or restriction was found; and
(c)An examination of the peripheral nervous system concluded that sensory loss was not consistent with a peripheral nerve distribution.
The Panel’s reasons deal with the injury as identified and assessed by Dr Blombery and Dr Frielich and set out why it has not assessed any impairment for injury as identified by those practitioners. The Panel said:
The Panel noted that Dr Blombery assessed the claimant as having right calf wasting and ankle motion and hindfoot motion impairment ….The Panel was unable to identify any muscle wasting of the right calf or ankle or hindfoot abnormal range of motion in the course of on[sic]its own examination of the claimant on 31 May 2018, and, based on its own clinical examination findings, the Panel formed a different opinion to that of Dr Blombery.[20]
Further on it said:
The Panel noted that Dr Freilich assessed the claimant as having a right common peroneal nerve lesion with sensory impairment….The Panel found patchy sensory loss throughout the right calf, sparing the right foot, which the Panel considered was not consistent with a named peripheral nerve distribution in the course of on[sic] its own examination of the claimant on 31 May 2018…[21]
[20]Medical Panel Reasons (above n 14), p 6.
[21]Ibid.
It is clear that the Panel did not misapprehend its task by failing to grapple with the key complaints of injury. The Panel, like the assessors whose opinions were provided to the Panel, found no reason to question the veracity of the plaintiff’s presentation. It accepted that the plaintiff presented with a loss of mobility that is restrictive for her. Implicitly it accepted that she experienced pain. The assessments provided to the Panel did not assess any impairment arising from restricted mobility. They assessed musculoskeletal or nervous impairment based upon findings that they accepted to be related to complications of the surgery. Dr Blombery specifically said that most of the mobility limitations were as a consequence of the fasciotomy. Accepting this to be so, those limitations fell to be assessed under the Guides. The relevant part of the Guides used by Dr Blombery was Chapter 3 Tables 37, 42 and 45. The relevant part used by Dr Frielich was Chapter 4 (The nervous system). There was no submission that some other chapter or table was appropriate.
The plaintiff submitted that the Panel failed to assess impairment caused by ‘burning pain’, spasm or impaired mobility.[22] Insofar as the mobility was limited by pain, she told the Panel that she suffered from a burning sensation in the calf when walking and occasional spasms and that she was taking medication for pain relief. It was not suggested by the plaintiff that an assessment of pain or impaired mobility should have been assessed by some other chapter or table of the Guides than those utilised relevantly by Dr Blombery and Dr Freilich.
[22]Plaintiff, ‘Plaintiff’s Submissions’, Submissions in Christine Latchford v Peter Gibbons & Ors, S ECI 2018 00994, 7 March 2019, [28].
The Guides contain a Chapter for the assessment of impairment relating to pain: Chapter 15. That chapter states:
Chronic pain and pain-related behaviours are not, per se, impairments, but they should trigger assessments with regard to ability to function and carry out daily activities.[23]
[23]American Medical Association, Guides to the Evaluation of Permanent Impairment (American Medical Association, Fourth Edition, 1997) (‘AMA Guides’) Ch 15.3, 304.
The examples listed demonstrate an assessment of the injury (skeletal, muscular or nervous) which is then combined with an assessment of impairment from pain in accordance with Chapter 15. The requirement to conduct an assessment in accordance with the Guides is modified by statute in some respects. Relevantly, Chapter 15 is excluded from consideration. Section 28LB of the Act contains definitions. The AMA Guides are defined as –
the American Medical Association Guides to the Evaluation of Permanent Impairment (Fourth Edition) (other than Chapter 15) as modified by or under this part.
Therefore, assessment of limitations brought about by pain are excluded and only those associated impairments that are assessable under the other relevant chapters are included.
Although Chapter 3 provides an assessment of gait derangement as an alternate measure for impairment of the lower limb (Table 36), no medical practitioner thought it appropriate to use this method and no submission was advanced that the Panel erred by failing to use this table. A medical panel is entitled to determine which measure of impairment as provided by the Guides is appropriate. Any error in doing so would not be one of law. As Kyrou J observed in HJ Heinz Company Australia Ltd & Anor v Kotzman & Ors [2009] VSC 311:
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.[24]
[24]At [46].
Accepting that the mobility problems were as a result of the surgical complications, the challenge to the Panel’s process does not identify any error in identifying injuries which fell for assessment by the Guides. The Panel seemed to accept implicitly that, had it found wasting, venous insufficiency or motion impairment, the relevant tables selected by Dr Blombery or Dr Frielich would have been appropriate. Indeed, Ground 3A is partly predicated on a misapplication of the relevant table in the vascular chapter.
Grounds 1, 2 and 3 fail.
Error in application of the AMA Guides (Ground 3A)
The plaintiff added Ground 3A by Further Amended Originating Motion dated 4 May 2020 and focused oral submissions on this Ground. The error alleged is described as:
3A….
(b) Failing to properly consider and apply the criteria in Table 14 of Chapter 6 in circumstances where there was evidence before the Panel that (inter alia) the Plaintiff experienced a “burning sensation” in her right calf on walking “more than 15 metres” and/or claudication on walking short distances, pain and/or swelling of the right leg, and wears elastic socks for right leg swelling;
…
(d) Failing to consider and properly apply Table 2 of Chapter 13, in circumstances where there was evidence before the Panel that:
a.Signs and symptoms of skin disorder and scarring are present; and
b.There is limitation from the skin disorder and scarring in the performance of some of the activities of daily living; and
c.Intermittent to constant treatment may be required to the skin disorder and scarring including but not limited to further surgeries to the skin grafted areas recommended by Mr Stapleton, plastic surgeon.
The parties were agreed on the applicable principles which are well established. Both parties referred to Minister for Immigration and Multicultural Affairs v Yusef and the reference therein to Craig v South Australia to describe jurisdictional error.
As was said in Craig v South Australia, if an administrative tribunal (like the Tribunal):
‘falls into an error of law which causes it to identify a wrong issues, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.’[25]
[25]Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 [82].
Applied to medical panel opinions under the Wrongs Act, the following principles may be summarised:
(a)Interpretation of the Guides and any misapplication or failure to apply them is an error of law.[26] This is to be distinguished from a determination of impairment which is a question of fact not amenable to review.
(b)In order to correctly apply the Guides, the Panel must first identify the injuries that requires assessment.[27] It must then assess in accordance with the Guides. It is no part of the injury identification process to engage in questions of whether the negligence to be alleged by a claimant has caused the injuries identified. In arriving at an impairment, a Medical Panel is required to disregard impairment from unrelated injuries or causes.[28]
(c)A Panel may commit jurisdictional error if, in applying its clinical judgment to the application of the Guides, it fails to engage itself in an active intellectual practice with the methodology.[29]
(d)A Panel may commit jurisdictional error if it asks itself the wrong question, identifies the wrong issue or ignores relevant material in applying the Guides in a way that affects its exercise of power.[30]
(e)Recourse to the reasons may assist to illuminate a jurisdictional error. Reasons might be expected to disclose consideration of fundamental issues to be resolved,[31] but adequacy of reasons is not a ground of review of Medical Panel determinations under the Wrongs Act.
(f)It is necessary to show that at the very least the decision may have been different if the error had not occurred.[32]
(g)Medical Panels are entitled, indeed required, to exercise clinical judgment and that judgment, including the attribution of weight to be accorded to relevant matters of history or findings on examination, is otherwise beyond the supervisory role of judicial review.
[26]Saddington v Kotzman [2013] VSC 196; H J Heinz Company Australia Ltd v Kotzman & Ors [2009] VSC 311.
[27]Melbourne Health v Lloyd [2009] VSC 370, Chua v Newman-Morris [2009] VSC 582 [37], Chua v Lowthian [2011] VSC 468 [59] – [60]; Summers v Director of Housing & Ors [2012] VSC 395 [61].
[28]Section 28LL(3).
[29]Combined Enterprises Pty Ltd v Brister [2016] VSC 807.
[30]Ryan v the Grange at Wodonga [2015] VSCA} 17.
[31]Ryan v The Grange at Wodonga Pty Ltd [2015] VSCA 17, Omerasevic v Kotzman [2016] VSC 383.
[32]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 [46].
The task for the Panel on a referral under s 28LWE of the Act is to assess the claimant’s whole person impairment. All injuries alleged to have been caused by the asserted wrongful act or omission are to be assessed as it is no part of the Panel’s task on such a referral to address questions of causation.[33] It is incumbent upon the Panel to identify any unrelated impairment that is to be disregarded.[34]
[33]Chua v Lowthian [2011] VSC 468 [59] - [60].
[34]Wrongs Act (above n 5), s 28LL.
Having identified the relevant injuries, without error for the reasons outlined above, the Panel then applied Chapter 6 to the vascular injury and Chapter 13 to the scarring injury. The Panel found no evidence of impairment from an unrelated injury or cause which is to be disregarded. The plaintiff submits that in applying both Chapters the Panel failed to properly apply the Guides having regard to the evidence before the Panel. In substance it was submitted that the Panel either failed to have regard to relevant matters or failed to actively engage in the exercise imposed by the methodology and criteria of the Guides.
The plaintiff’s submission focused in large part on the Panel’s failure to actively engage with, or ask itself the question about the ways in which the plaintiff was impacted in her activities of daily living by the relevant injury.[35]
[35]Plaintiff, ‘Plaintiff’s Further Submissions’, Submissions in Christine Latchford v Peter Gibbons & Ors, S ECI 2018 00994 (‘Plaintiff’s Further Submissions’), 16 April 2020.
Impairment of the Cardiovascular System
Chapter 6 deals with impairment of the Cardiovascular system. This includes impairment due to vascular diseases affecting the extremities. Table 14 provides for Impairment of the Lower Extremity due to Peripheral Vascular Disease.[36]
[36]The Medical Panel Reasons recorded an assessment under Table 13. The parties agreed that this was a typographical error, table 13 being the equivalent table applicable to the upper extremity and Table 14 being relevant to the lower extremity.
For ease of reference I have replicated Table 14 here.
As can be seen, each class contains a range of impairment; for instance, Class 1 is for 0%-9% impairment of the extremity while Class 5 sets a range of 90%-100% impairment of the extremity. Allocation of an appropriate class is made based on the severity of one or more of three descriptors: claudication, oedema, and/or vascular damage. As is clear from the illustrated examples, a clinical judgment is made to allocate a percentage within the range of the appropriate class.
The plaintiff submits that the Panel, having diagnosed ‘minimal transient oedema’, placed the claimant in Class 1. However, the written submissions argued that the plaintiff’s description of her altered gait, which is due to pain and swelling and her reported (and observed) difficulties walking or limping, meant that she met the criteria for Class 2 in respect of claudication.
The difficulty with that submission, as Mr Williams conceded, was that claudication, according to Mosby’s Medical Dictionary relied on by the fifth and sixth defendants, is defined as ‘limping, cramp-like pains caused by poor circulation of the blood to the leg muscles. The condition is commonly associated with atherosclerosis’.
The Panel did not attribute the antalgic gait to poor circulation of vascular causes. It found all leg pulses present and equal, and venous return to be normal. The only vascular abnormalities were ‘minimally delayed capillary return in the right foot when compared with the left foot’ and ‘minimal oedema at the base of the lateral fasciotomy scar…which is due to the scar and not venous insufficiency’. It then assessed these both in accordance with Chapter 6.8.
There was no relevant medical opinion before the Panel. Dr Blombery did not identify or assess any vascular injury place the claimant within the criteria of Class 2 in relation to peripheral vascular disease. Nor did the Panel’s own findings. The plaintiff has not demonstrated any error in the application of Chapter 6.
Impairment of the function of the skin
Chapter 13 assesses impairment of function of the skin. The chapter sets out the functions of the skin. Those functions include (1) providing a protective covering for the body; (2) participating in sensory perception, temperature and fluid regulation, electrolyte balance, immunobiologic defences, and resistance to trauma; and (3) regenerating the epidermis and its appendages.[37] Impairment is said to contemplate both anatomic and functional abnormality[38] with actual functional loss being the prime consideration.[39] Cosmetic involvement may also be important. In saying this the Guides recognise that scarring represents a special type of disfigurement where both function and appearance are relevant.
[37]AMA Guides (above n 23), Ch 13.1, 277.
[38]Ibid.
[39]Ibid, Ch 13.1, 278.
The Guides acknowledge that impairment of other body systems may also be relevant. They provide the example of an impairment from a burn or scar impacted by peripheral nerve dysfunction or loss of range of motion which may be evaluated by the appropriate tables in Chapter 3 or 4. Where this occurs, the skin disorder evaluation would exclude those components from consideration under Chapter 13.[40]
[40]AMA Guides (above n 23), Ch 13.5, 280.
The complications of the knee surgery led to two long incisions, one on either side of the right calf in the fasciotomy. Later surgery covered these wounds with skin grafted from the front and outer aspect of the right thigh.
The plaintiff’s written submission proceed from what is in my view a false premise. She submitted that genuine difficulty with walking and mobility, is not referrable to peripheral vascular disease or to a pain disorder. This meant that it was incumbent on the Panel to consider ‘whether those complaints were caused by surgical scarring’. [41] Colloquially, this is to put the cart before the horse. The Panel is not engaged in a task of attributing impairment or limitation to injury. It identifies injury (uncontroversially here in respect of scarring from surgical complications), and then assesses impairment from that injury in accordance with the relevant chapters of the Guides.
[41]Plaintiff’s Further Submissions (above n 34) [45].
Assessment of a skin disorder under Chapter 13 is undertaken as set out in Table 2 which I have replicated below.
The plaintiff submitted that an essential component of the assessment under Table 2 was the identification of limitations on the activities of daily living. It is clearly one of three criteria that are relevant: the other two being the presence of signs or symptoms of a skin disorder and treatment requirements.
The Panel’s reasons outlined the treatment including debridement of and application of skin grafts to the fasciotomy wounds. They recorded measurements, locations and appearances of all scars and said the following in relation to scarring:
The claimant told the Panel that since then she has suffered three episodes of skin infection in association with the fasciotomy wounds requiring antibiotics on three occasions. She said that her last antibiotic treatment had been in December 2017 and that this had been oral antibiotics prescribed by her General Practitioner.
…
The claimant said that her right leg feels cooler than her left leg and that it occasionally goes blue in cold weather. She said that she noticed no change in sweating or the hair or nails of the right leg.
The claimant said that her right ankle and foot feel constantly swollen and that she has trouble putting on her shoes at times. She described no change of ankle or subtalar movement and said that there were no clicks present. She says that she has occasionally worn elastic socks to prevent swelling in the right leg. The claimant also told the Panel that the appearance of the scar was ugly and that it was no longer breaking down. She said that she now wears long skirts and pants to cover the scars on her legs but that the scars had no other effect on her activities of daily living. The claimant said that she was not planning to undergo any scar revision surgery. She uses Vitamin E cream applied to the scars.
The Panel concluded that the claimant was ‘suffering from surgical scarring arising from the popliteal false aneurysm repair, medial and lateral fasciotomies and split skin graft harvesting, and minimal venous insufficiency’.[42] It then concluded:
The Panel assessed impairment for surgical scarring in accordance with Section 13.5 of Chapter 13. The Panel assessed the appropriate whole person impairment for skin impairment due to signs of skin disorder and scarring, without any symptoms or limitations to the performance of activities of daily living, and not requiring any treatment pursuant to Table 2 of Chapter Thirteen.
[42]Medical Panel Reasons (above n 14), 4 – 6.
The plaintiff swore an affidavit as to her attendance at the Panel. She said in that affidavit, which was unchallenged, that when asked by the Panel whether her scars affected her activities of daily living she said no. She said she had not appreciated what was being asked at the time and was not taken through a list of activities that may be affected such as can be found in the glossary of the Guides.[43] She deposes that had she been asked she would have identified a number of activities that were affected by her scars and deposed to things she would have identified as being impacted.
[43]AMA Guides (above n 23), Glossary, 315.
The plaintiff submitted that, despite the negative answer by the plaintiff to the Panel’s general question as to impact, it was incumbent on the Panel to ‘drill down’ by asking more specific questions about impact. This is because a plaintiff might not appreciate that the question was directed at whether a claimant finds activities are made more difficult by the scar and may, therefore, answer in the negative if activities can still be undertaken albeit with difficulty. Without this ‘drilling down’ the Panel was not intellectually engaging with the relevant criteria.
The plaintiff’s affidavit as to the question asked and the negative answer given is consistent with the Panel’s statement about the effect of the scars on her activities of daily living. The Panel did not find that the scars had no impact. It did, from her history, identify some aspects of activity that were different: specifically dressing because of the appearance of the scar. Presumably it elicited this information from the plaintiff in answer to questions asked by it.
Whilst there may be circumstances where an active intellectual engagement with an issue does require the Panel to go beyond a given answer at face value in light of all the material available to it, I am not persuaded that it was required to do so in this case. The material from Mr Stapleton relied on by the plaintiff, which was provided to the Panel, identified only two impacts of the scars on daily activity. One was that the fasciotomy scars were tender and she is careful not to bump or abrade them. The other was an impact of the original surgical scar to the knee itself on sitting. Many of the specific limitations identified in the plaintiff’s affidavit, which she says she would have described had she been specifically asked, were also not described in Mr Stapleton’s report.
The information before the Panel in May 2018 was that the scars were ugly but made no mention of any other characteristics that might impact on activities of daily living. The Panel did not record, and it appears was not told that the scars were painful or otherwise sensitive to touch. Whether, had they been so appraised, it would have been incumbent upon them to make inquiry of ways in which scar pain impacted upon activity does not arise. The plaintiff submitted despite the answer that she gave, that the Panel was required to question the plaintiff specifically on the impact of her scars on her activities.
The Guides contain a Glossary as to the terms that should be used by clinicians.
It says that ‘Daily Living Activities’ inform an impairment that is intended among other purposes to be an estimate of the degree to which a capacity to carry out daily activities has been diminished. A Table of Examples is set out at page 317 of the Guides. I do not accept that the Panel was required to have recourse to the Table of Examples and that its failure to do so explicitly amounts to a misapplication of the Guides. In my view further questioning in the face of the plaintiff’s answer was a matter of judgment by the Panel and there was nothing in the accompanying materials that might have alerted it to some need to do so whether by reference to the Table or otherwise.
Even if some further questioning had been required, it remained a matter of judgment by the Panel whether any further information elicited on subsequent questioning left the level of impact within Class 1; namely, a ‘limitation on the performance of few activities of daily living’.[44] I do not accept the submission that ‘few’ should be read as ‘three’ activities and ‘some’ should be ‘several’. The actual words, both ‘few’ and ‘some’ are perfectly clear and allow a measure of judgment. Prescribing a number or substituting one descriptor for another is neither desirable nor necessary.
[44]AMA Guides (above n 23), Ch 13, Table 2, 280.
Secondly, the plaintiff submitted that the Panel failed to take account of, or actively engage in, the assessment it was bound to undertake by not asking her about the opinion of Mr Stapleton that she should consider scar revision surgery. In failing to do so it misapplied Chapter 13 Table 2. Mr Stapleton’s opinion, in December 2017, was that the plaintiff had sustained post-operative infection of the fasciotomy scars and that the area of the outer fasciotomy scar had not then completely settled. He recommended revision of both fasciotomy scars. It would appear that the plaintiff was unaware of Mr Stapleton’s opinion and revision surgery was not something canvassed with her by her general practitioners. Ms Latchford indicated that she answered ‘no’ to the Panel’s inquiry about further surgery as she was not interested in surgery for cosmetic purposes. She did not elaborate this to the Panel. She understood Mr Stapleton to be suggesting surgery for non-cosmetic purposes. The Panel obtained a history that the scar was no longer breaking down. It is unclear whether what had been proposed was something other than cosmetic.
In short, the plaintiff’s complaint under Ground 3A(d) is that the Panel did not elicit from her all of the relevant information about the impacts of the scars. The Panel acted upon her answer that she did not intend scar revision as it was entitled to do. While it was abundantly clear that walking (amongst other activities) was limited, there was no material from the plaintiff or otherwise attributing that to the scarring. Neither Dr Blombery, Dr Freilich nor Dr Stapleton identified mobility as being impacted by the scarring, such that the material as a whole ought to have compelled the Panel to go beyond or behind the answers provided by the plaintiff. It is difficult to criticise the Panel for acting as it did on the answers that had been given.
To the extent that the plaintiff did not but might have told the Panel that she would have considered non cosmetic surgery and that she used Vitamin E cream, the Panel was not bound to conclude that this elevated the treatment criteria to treatment as formulated for Class 2. Intermittent treatment is covered by both classes.
The plaintiff relied on the notes of the Medical Panel. Here the notes were said to be consistent with the plaintiff’s sworn account of the examination. In those circumstances the notes were relied on to supplement the argument that no regard was had to the impact of the scars on walking or mobility, and therefore there had been no intellectual engagement. The notes take matters no further than the Reasons on whether there was a fundamental issue that the Panel has failed to consider giving rise to judicial review.
Conclusion
For the reasons outlined I have concluded that the opinion of the Panel is not attended by error. The proceeding will be dismissed. I will receive minutes of proposed orders or, if required, hear the parties on the question of costs and the form of orders consistent with these reasons.
SCHEDULE OF PARTIES
Christine Latchford Plaintiff
Peter Gibbons (in his capacity as Deputy Convenor
of Medical Panels) First Defendant
David Fish (in his capacity as a member of
a Medical Panel) Second Defendant
Russell Corlett (in his capacity as a member of
a Medical Panel) Third Defendant
Peter Field (in his capacity as a member of
a Medical Panel) Fourth Defendant
West Gippsland Healthcare Group Fifth Defendant
Andries De Villiers Sixth Defendant
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