Lingenberg v Gallichio
[2013] VSC 207
•26 April 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2012 06013
| STEVEN LINGENBERG | Plaintiff |
| v | |
| ANTHONY GALLICHIO, PAUL KIERCE, JOHN KING and S L ELECTRICS PTY LTD | |
| Defendants |
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JUDGE: | KYROU J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 April 2013 | |
DATE OF JUDGMENT: | 26 April 2013 | |
CASE MAY BE CITED AS: | Lingenberg v Gallichio | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 207 | |
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ADMINISTRATIVE LAW — Judicial review — Order 56, Supreme Court (General Civil Procedure) Rules 2005 — Medical panel — Assessment of degree of impairment under ss 91 and 98C of the Accident Compensation Act 1985 — Compensable injury to plaintiff’s neck aggravated pre-existing ankylosing spondylitis condition — Meaning of phrase ‘impairments from unrelated injuries or causes are to be disregarded in making an assessment’ in s 91(7)(c) of the Act — Alleged jurisdictional error — Alleged misinterpretation and misapplication of s 91(7)(c) and of the AMA Guides to the Evaluation of Permanent Impairment (4th ed) — Application dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Gorton QC with Mr G Wicks | Slater & Gordon |
| No appearance for the First, Second and Third Defendants | ||
| For the Fourth Defendant | Mr J Noonan SC with Mr M Hooper | Herbert Geer |
HIS HONOUR:
Introduction and summary
On 4 May 2009, the plaintiff injured his neck in a motor vehicle accident that occurred in the course of his employment as an electrician with the fourth defendant, SL Electrics Pty Ltd (‘SL’).
Since at least 1993, the plaintiff had suffered from ankylosing spondylitis, which caused some stiffness to his neck but did not prevent him from working full-time as an electrician (‘pre-existing condition’). The 2009 accident aggravated the pre-existing condition such that the plaintiff lost all mobility of the neck and was only capable of performing modified duties two to three hours per day (‘injury’).
The Victorian WorkCover Authority (‘VWA’) accepted liability for the injury.
On 14 January 2012, the plaintiff made a claim for compensation for permanent impairment of his neck resulting from the injury. The claim was made pursuant to s 98C of the Accident Compensation Act 1985 (‘AC Act’), which provides for lump sum impairment benefits.[1]
[1]Act s 98D.
Sections 91(1) and 98C of the AC Act required that an impairment assessment be made using the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (‘Guides’). As the plaintiff was not satisfied with the impairment assessment of 0% that was made by VWA’s claims agent, he requested an impairment assessment by a medical panel.
A medical panel comprising the first, second and third defendants (‘Medical Panel’) answered two medical questions in a certificate of opinion dated 29 August 2012 (‘Opinion’) and provided reasons for the Opinion on the same day (‘Reasons’). Only the first question and the answer to that question are presently relevant. They were as follows:
Question i)
What is the worker’s degree of permanent whole person impairment resulting from the accepted injury/s as assessed in accordance with s 91 and is the impairment permanent?
Answer:
In the Panel’s opinion, the worker has a 0% whole person impairment resulting from the accepted neck injury when assessed in accordance with Section 91 of the Act. The degree of impairment is permanent.
The degree of impairment includes a 0% whole person impairment assessed in accordance with Chapter Three of the [Guides].
The effect of the Opinion was that the plaintiff was not entitled to compensation under s 98C of the AC Act.
The plaintiff has sought judicial review of the Opinion under O 56 of the Supreme Court (General Civil Procedure) Rules 2005 on the basis that the Medical Panel made a jurisdictional error by misconstruing the Guides.
The first, second and third defendants did not participate in the proceeding, in accordance with R v Australian Broadcasting Tribunal; Ex parte Hardiman.[2]
[2](1980) 144 CLR 13, 35–6.
The central issue in this proceeding is whether, in making its assessment, the Medical Panel disregarded the impairment from the pre-existing condition as required by s 91(7)(c) of the AC Act.
For the reasons that follow, I have concluded that the Medical Panel correctly disregarded the impairment from the pre-existing condition, that the Opinion was reached in accordance with the AC Act, the Guides and judicial authority, and that the application for review should be dismissed.
Relevant provisions of the Accident Compensation Act
Section 98C(1) of the AC Act provides that a worker who suffers an injury which entitles him or her 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 in the form of a lump sum calculated in accordance with s 98C.
Section 104B(9) of the AC Act provides that, where a worker disputes a determination of impairment, the VWA must refer to a medical panel for its opinion medical questions as to ‘the degree of impairment assessed in accordance with section 91’ resulting from an injury for which liability is accepted.
Section 91(1) of the AC Act provides that a reference to the assessment of a degree of impairment in accordance with that section in pt IV of the Act (which includes ss 98C and 104B) is a reference to an assessment made in accordance with the Guides.
Section 91(1A) of the AC Act provides that an assessment under s 91(1) is of the degree of impairment resulting from a compensable injury. The assessment must be made, subject to s 91(7), ‘based on the worker’s current impairment as at the date of the assessment’.
Section 91(7)(c) of the AC Act states that, for the purposes of s 98C, ‘impairments from unrelated injuries or causes are to be disregarded in making an assessment’.
Section 91(7AA) of the AC Act provides that assessments of spinal impairment are to specify the whole person values derived in accordance with s 3.3 of ch 3 of the Guides.
An opinion by a medical panel is conclusive and no appeal lies from the opinion.[3] However, an opinion is amenable to judicial review.
[3]Act ss 68(4) and 104B(12).
The AMA Guides to the Evaluation of Permanent Impairment
It was common ground that the Medical Panel had correctly identified Table 73 in ch 3 of the Guides as the relevant provision for assessing both the impairment resulting from the injury and the impairment from the pre-existing condition. Table 73 relevantly provides:
Table 73. DRE Cervicothoracic Spine Impairment Categories.
DRE impairment category
Description
% Impairment of the whole person
I
Complaints or symptoms
0
II
Minor impairment: clinical signs of neck injury are present without radiculopathy or loss of motion segment integrity
5
Section 3.3f of the Guides sets out a number of specific procedures and directions relating to the process of evaluation of impairment. Clause 9 of s 3.3f states:
From historical information and previously compiled medical data, determine if there was a pre-existing impairment. If the previously compiled data can be verified as being accurate, they may be used in apportionment (see Glossary). The percent based on the previous findings would be subtracted from the percent based on the current findings.
The Glossary in the Guides contains the following relevant definitions:
1. Impairment: Impairment is the loss, loss of use, or derangement of any body part, system, or function.
…
2. Apportionment: This is an estimate of the degree to which each of various occupational or nonoccupational factors may have caused or contributed to a particular impairment. For each alleged factor, two criteria must be met:
a. The alleged factor could have caused or contributed to the impairment, which is a medical determination …
b. In the case in question, the factor did cause or contribute to the impairment, which usually is a nonmedical determination. The physician’s analysis and explanation of causation is significant.[4]
[4]Emphasis in original.
Relevant legal principles
In HJHeinz Company Australia Ltd v Kotzman,[5] I summarised the general principles for interpreting the Guides and the provisions of the AC Act relating to the Guides as follows:
[5][2009] VSC 311 (31 July 2009) (‘Heinz’).
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.
…
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.
…
The meaning of the phrase ‘in accordance with’ depends on the context. It is generally taken to mean ‘in conformity with’, although in some contexts, strict compliance is not required.
In order for a medical panel to assess impairment ‘in accordance with the [Guides]’ as required by s 91 of the AC Act, it must act in conformity with the Guides. 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.
… 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.[6]
[6]Heinz [2009] VSC 311 (31 July 2009) [24]–[25], [28], [44]–[46] (citations omitted).
In Alcoa Holdings Ltd v Lowthian,[7] J Forrest J stated the following in relation to the phrase ‘impairments from unrelated injuries or causes are to be disregarded’ in s 91(7)(c) of the AC Act:
At first glance s 91(7)(a)[8] may convey two possible meanings. One, that in reaching the impairment assessment the requirement to disregard ‘an unrelated injury or cause’ means the Panel simply focuses on the current impairment and ignores any other contributing factor — such as a prior or subsequent injury. Such an interpretation would result in a windfall to the worker with compensation being paid for a degree of impairment that had no connection with the compensable injury. …
The second and correct meaning, in my view, is that, in making an impairment assessment, any impairment from an unrelated injury or cause is disregarded so as to ensure that the impairment assessment relates solely to that resulting from the compensable injury.
…
[T]he statutory command to the Panel is to evaluate only the impairment related to the compensable injury and to put to one side any impairment produced by non-related injuries or causes. Accordingly, if the evidence establishes a pre-existing impairment from an unrelated injury or cause, then the Panel is obliged to consider that impairment and to ensure its estimate of the current impairment disregards any pre-existing impairment (or for that matter, any subsequent impairment flowing from an unrelated injury or cause).[9]
[7][2011] VSC 245 (24 June 2011) (‘Alcoa’).
[8]His Honour’s reasons inadvertently refer to s 91(7)(a) instead of s 91(7)(c).
[9]Alcoa [2011] VSC 245 (24 June 2011) [59], [60], [66].
J Forrest J then turned to the question of the evaluation of an unrelated impairment, and stated that the AC Act does not require that the evaluation of the unrelated impairment be carried out applying the tests laid out in the Guides. His Honour continued:
In engaging in its statutory task the Panel must do the best it can to evaluate the extent to which impairment from the unrelated injury or cause is playing a part in the worker’s current impairment. If the evidence enables it to determine the extent of the present impairment and that of the pre-existing impairment, then it must make allowance for the pre-existing impairment.
It follows that the Panel is not obliged to follow the two step process set out in clause 9. As I have already said, it has no discretion in relation to ignoring the evidence of a pre-existing impairment. It may, of course, be that the two step test laid out in the clause can be utilised and is an appropriate way by which to comply with the provisions of the Act, such as in assessing the pre-existing impairment and deducting it from the current impairment (for example, a current assessment of impairment of 10% with an assessment of an unrelated injury impairment of 5% could lead to an apportionment and result in a 5% impairment related to the subject injury). But on the other hand, there may also be cases where the evidence is insufficient to satisfy the conditions of clause 9 but is sufficient to enable the Panel to apply the provisions of the Act and disregard any relevant pre-existing impairment. For instance, the Panel may be able to carry out an apportionment … in determining the impairment assessment related to the compensable injury.
Alternatively, it may be that the Panel using its collective expertise and knowledge simply attributes an estimate of the compensable injury related impairment after taking into account (and disregarding) the non-related contribution to the impairment. The Panel’s reasons, of course, should reveal how it has approached the task.[10]
[10]Alcoa [2011] VSC 245 (24 June 2011) [73]–[75] (citations omitted).
His Honour stated that, in summary, the AC Act and the Guides require the following approach where there is evidence of a pre-existing impairment of the same body part:
(a)if the evidence is sufficient to demonstrate the existence of a pre-existing impairment from an unrelated injury or cause, then the Panel must, as best it can, determine the extent of that impairment so it can be disregarded and evaluate the impairment related solely to the compensable injury;
(b)the Panel is required to apply s 91(7)(c); this does not necessitate the application of clause 9 in evaluating the pre-existing impairment. Indeed, in some cases, to utilise the clause 9 criteria (and its inbuilt evidentiary requirements) would result in error; and
(c)in an appropriate case, the two-step approach provided for in clause 9 may be appropriate, provided that in conducting the evaluation the assessment complies with the obligation imposed by the Act. There is no discretion in the Panel (as clause 9 would seem to convey) to ignore any pre-existing impairment.[11]
[11]Alcoa [2011] VSC 245 (24 June 2011) [76].
In Chua v Lowthian,[12] Osborn J quoted certain passages from Alcoa, including the summary of the approach set out at [25] above, and accepted that similar principles substantially apply to the interpretation of the provisions of the Wrongs Act1958 with which his Honour was concerned.[13]
[12][2011] VSC 468 (20 September 2011) (‘Chua’).
[13]Chua [2011] VSC 468 (20 September 2011) [132].
In Heinz, I stated the following in relation to an application for judicial review of a determination of a medical panel on the ground of jurisdictional error:
A medical panel is amenable to judicial review. Its opinion can be quashed if it makes a jurisdictional error. It does not commit a jurisdictional error merely because it employs illogical reasoning. However, if its reasoning demonstrates that it asked itself the wrong question, took into account irrelevant considerations or failed to take into account relevant considerations, then it commits a jurisdictional error. What factors a medical panel is bound to consider in forming its opinion is determined by construction of the statute conferring its jurisdiction, namely the AC Act.[14]
[14]Heinz [2009] VSC 311 (31 July 2009) [38] (citations omitted).
Medical Panel’s Reasons
The Medical Panel’s Reasons relevantly stated:
The Panel considered that no additional medical imaging or other investigations were necessary for it to assess the worker’s current condition and impairment with respect to the accepted neck injury.
Based on the worker’s history of injury, the Panel’s findings on clinical examination and consideration of the materials provided with the referral, the Panel concluded that the worker is suffering from persistent dysfunction of the cervical spine, following aggravation of pre-existing ankylosing spondylitis, with persistent symptoms of the left hand, without radiculopathy, relevant to the accepted neck injury with a designated date of injury of 4 May 2009.
The Panel considers the worker’s medical condition relevant to the accepted physical injury has stabilised.
The Panel conducted an impairment assessment of the accepted physical injury neck in accordance with the [Guides] as required by Section 91 of the Act. The Panel considered that no further information was required from the worker’s treating practitioners to carry out the assessment.
The Panel carried out the impairment assessment of the neck in accordance with the Specific Procedures and Directions in Section 3.3f of Chapter Three on page 101 of the Guides.
The Panel assessed the worker’s cervicothoracic spine in accordance with Table 70 of Chapter Three and the DRE Impairment Category Differentiators in Table 71 of Chapter Three and concluded that clinical signs of cervical disc injury are present, but there are no clinical signs of radiculopathy. The Panel therefore concluded that the appropriate impairment category for the cervicothoracic spine is DRE Category II pursuant to Table 73 of Chapter Three, resulting in a 5% whole person impairment.
As the impairment attributable to the neck could be assessed in accordance with the Diagnosis-Related Estimates Model (DRE), the use of the Range of Motion Model is not appropriate.
The Panel considers that there is no other intrinsic medical condition or impairment attributable to the accepted neck injury when assessed in accordance with the Guides.
To evaluate the extent to which there is impairment from an unrelated injury or cause which is playing a part in the worker’s current impairment, the Panel gave consideration to the Supreme Court judgements of Alcoa Holding Limited & Anor v Peter Lowthian & Ors and John de Haas [June 2011] and Dr K S Chua v Dr Peter Lowthian & Ors [September 2011]. The Panel understands that, in performing the task of assessing any unrelated impairment, the Panel must have an evidentiary basis on which it can be positively satisfied of an unrelated impairment, which is to be disregarded.
The Panel considered there is clinical evidence of an unrelated condition which is playing a part in the worker’s current level of impairment and which ought to be disregarded in accordance with Section 91(7)(c) of the Act.
The Panel estimated the worker’s pre-existing neck condition in accordance with Table 70 of Chapter Three of the Guides and concluded that the worker is suffering from pre-existing ankylosis spondylitis associated with facet arthrosis (fusion of apophyseal joints) without clinical evidence of radiculopathy. The Panel therefore concluded that the appropriate impairment category for the cervicothoracic spine due to the pre-existing neck condition is DRE Category II pursuant to Table 73 of Chapter Three resulting in a whole person impairment of 5%.
The Panel therefore disregarded the whole person impairment due to the pre-existing neck condition (5%) from the worker’s current level of whole person impairment (5%) pursuant to Section 91(7)(c) of the Act, resulting in a 0% whole person impairment resulting from the accepted neck injury. The degree of impairment is permanent.
…
Based on its examination of the worker on 20 August 2012, the Panel assessed a 5% whole person impairment due to clinical signs of cervicothoracic injury without verifiable clinical evidence of radiculopathy, however estimated that a 5% whole person impairment was due to a pre-existing neck condition and therefore disregarded the unrelated impairment pursuant to Section 91(7)(c) for the reasons expressed above. The Panel therefore concluded there is a 0% whole person impairment resulting from the accepted neck injury with designated injury date of 4 May 2009.
Ground of review
The sole ground of review is as follows:
Having:
(a)found that the injury the plaintiff suffered from was a persistent dysfunction of the cervical spine as a result of aggravation of pre-existing ankylosing spondylitis (‘the injury’); and
(b)determined that the injury was assessed as falling into DRE Category II in Table 73 of the [Guides] thereby attracting a 5 percent whole person impairment (‘WPI’); and
(c)considered that there was clinical evidence of an unrelated condition which was playing a part in the plaintiff’s impairment (‘the pre-existing condition’); and
(d)concluded that the appropriate impairment category for the pre-existing condition was DRE Category II pursuant to Table 73 of Chapter Three of the Guides thereby attracting a 5 percent WPI;
The Medical Panel fell into jurisdictional error by failing to exercise its jurisdiction or alternatively it misunderstood its jurisdiction when, in the process of purporting to disregard the impairment due to the pre existing condition, it instead deducted the WPI value attributed to it from the WPI value attributed to the injury.
Parties’ submissions
The critical issue in dispute was the effect of the requirement in s 91(7)(c) of the AC Act to disregard impairment to the plaintiff’s neck from unrelated causes. The plaintiff submitted that s 91(7)(c) required the Medical Panel to disregard the impairment from the pre-existing condition by ignoring it. SL, on the other hand, contended that the Medical Panel had correctly disregarded the impairment from the pre-existing condition in accordance with s 91(7)(c) by quantifying it and deducting it from the percentage assessment of the plaintiff’s current whole person impairment (‘WPI’).
Two important premises underpinned the plaintiff’s submissions. The first premise was that the direction ‘to disregard’ means ‘to ignore’ (‘first premise’). The second premise was that the Medical Panel first assessed the percentage WPI resulting solely from the injury at 5%, then assessed the percentage WPI from the pre-existing condition at 5%, and then deducted the latter from the former to arrive at a 0% WPI (‘second premise’).
In relation to the first premise, the plaintiff relied upon the statement in Alcoa that a medical panel must ‘put to one side any impairment produced by non-related injuries or causes.’[15]
[15]Alcoa [2011] VSC 245 (24 June 2011) [66].
In relation to the second premise, the plaintiff relied upon the statements in the Reasons that the Medical Panel had ‘conducted an impairment assessment of the accepted physical injury neck’, that it had ‘concluded that clinical signs of cervical disc injury are present, but there are no clinical signs of radiculopathy’ and that it had ‘concluded that the appropriate impairment category for the cervicothoracic spine is DRE Category II pursuant to Table 73 of Chapter Three, resulting in 5% whole person impairment.’
The plaintiff submitted that instead of ignoring the impairment from the pre-existing condition, as required by s 91(7)(c) of the AC Act, the Medical Panel expressly took it into account. The plaintiff contended that the Medical Panel did so by assessing the percentage WPI from the pre-existing condition and then deducting that percentage from the percentage WPI resulting from the injury.
According to the plaintiff, the Medical Panel’s approach was not in accordance with the Guides or the AC Act and therefore the Medical Panel made a jurisdictional error which was apparent on the face of the record of the Opinion.[16]
[16]Section 10 of the Administrative Law Act 1978 provides that the record of a decision of an inferior court or tribunal includes the reasons for the decision.
The plaintiff also submitted that if the second premise is incorrect, then the Medical Panel exceeded its jurisdiction. According to the plaintiff, the AC Act required the Medical Panel to assess the percentage WPI resulting solely from the injury and to ignore impairments from other causes. It followed, so it was said, that if the Medical Panel assessed the plaintiff’s current percentage WPI resulting from the cumulative effects of the pre-existing condition and the injury and then deducted the percentage WPI from the pre-existing condition, then the Medical Panel failed to comply with the AC Act.
SL submitted that the second premise gave rise to a threshold issue. SL conceded that if the second premise is correct, then the Medical Panel made a jurisdictional error. This was because, so it was said, if the initial 5% WPI assessment related solely to the aggravation to the pre-existing condition resulting from the injury, then there was no proper basis for the Medical Panel to make any adjustment to that assessment.
However, SL disputed the correctness of the second premise. SL relied upon the phrase ‘the worker’s current impairment’ in the Reasons for the proposition that the Medical Panel’s initial 5% WPI assessment related to the cumulative effect of the pre-existing condition and its aggravation by the injury.
SL also disputed the correctness of the first premise. SL submitted that, as the Medical Panel had initially assessed the cumulative effect of the pre-existing condition and its aggravation by the injury, the Medical Panel was required by s 91(7)(c) of the AC Act to disregard the effect of the pre-existing condition so as to arrive at the percentage WPI resulting solely from the injury. According to SL, as the Medical Panel was able to assess the percentage WPI from the pre-existing condition, the only proper way in which the Medical Panel could disregard the contribution of the pre-existing condition was to deduct the percentage WPI resulting from it from the cumulative percentage WPI.
SL contended that its approach is supported by the direction in cl 9 of s 3.3f of the Guides[17] and the principles in Alcoa, and that the plaintiff’s approach ignores that direction and misconceives those principles. According to SL, the plaintiff’s approach of ignoring any impairment from a pre-existing condition had been considered and expressly rejected by Alcoa. SL also submitted that Alcoa makes it clear that the direction ‘to be disregarded’ in s 91(7)(c) does not necessarily exclude the two-step approach that the Medical Panel had adopted in the present case.
[17]See [20] above.
Decision
In my opinion, the Medical Panel reached the Opinion in accordance with the AC Act, the Guides and judicial authority, and did not make any jurisdictional error. In reaching this conclusion, I have substantially adopted SL’s submissions.
As the plaintiff described the correctness of the second premise as a threshold issue, I will first discuss that issue.
When the Reasons are read as a whole, there can be no doubt that the second premise is incorrect. The Medical Panel consistently used the present tense in describing the plaintiff’s impairment, which indicates that it was making a WPI assessment based on the cumulative effects of the pre-existing condition and the injury.
The Medical Panel initially concluded that ‘the worker is suffering from persistent dysfunction of the cervical spine, following aggravation of pre-existing ankylosing spondylitis … relevant to the accepted neck injury’. The Medical Panel then ‘conducted an impairment assessment of the accepted physical injury neck in accordance with the [Guides]’ and ‘concluded that the appropriate impairment category for the cervicothoracic spine is DRE Category II pursuant to Table 73 of Chapter Three, resulting in a 5% whole person impairment.’ The Medical Panel then stated:
To evaluate the extent to which there is impairment from an unrelated injury or cause which is playing a part in the worker’s current impairment …
The Panel considered there is clinical evidence of an unrelated condition which is playing a part in the worker’s current level of impairment and which ought to be disregarded in accordance with Section 91(7)(c) of the Act.
…
The Panel therefore disregarded the whole person impairment due to the pre-existing neck condition (5%) from the worker’s current level of whole person impairment (5%) …
…
Based on its examination of the worker on 20 August 2012, the Panel assessed a 5% whole person impairment due to clinical signs of cervicothoracic injury …[18]
[18]Emphasis added.
The parts that I have emphasised in the above extracts from the Reasons clearly indicate that the Medical Panel’s initial assessment of 5% WPI related to the condition of the plaintiff’s neck and the impairment resulting from that condition as at the date of the Medical Panel’s examination on 20 August 2012. In other words, the Medical Panel assessed the cumulative, current impairment. Having done so, the Medical Panel proceeded to identify whether causes other than the injury contributed to the current impairment.
Once the Medical Panel identified the pre-existing condition as a cause of the current impairment, it assessed the percentage WPI resulting from the pre-existing condition and deducted that percentage from the plaintiff’s current WPI in order to arrive at the percentage WPI resulting solely from the injury.
I reject the plaintiff’s contention that the approach adopted by the Medical Panel evinces a jurisdictional error. The task assigned to the Medical Panel by the Act is to assess the percentage WPI resulting from the injury in accordance with the Guides. Where the injury constitutes an aggravation of a pre-existing condition, one of the permissible ways in which the percentage WPI resulting from the injury can be assessed in an appropriate case — of which the present case is one — is to assess the current percentage WPI and to then identify and exclude the percentage WPI resulting from the pre-existing condition.
There is nothing in the AC Act, the Guides or judicial authority that suggests that the Medical Panel’s approach was inappropriate. On the contrary, that approach was entirely consistent with both statute law and judicial authority.
The Medical Panel’s approach was consistent with the AC Act. Section 91(1A)(b) states that, subject to s 91(7), an assessment under s 91(1) must be based on ‘the worker’s current impairment as at the date of the assessment’. Section 91(7)(c) provides that any impairment from a pre-existing condition must be disregarded. The Medical Panel acted in accordance with sub-ss 91(1A) and (7) by assessing the plaintiff’s current impairment and then making an allowance for the impairment from the pre-existing condition.
The Medical Panel could not have complied with s 91(7)(c) by ignoring the contribution of the pre-existing condition to the plaintiff’s current impairment, as suggested by the plaintiff. If the Medical Panel had done so, the percentage WPI assessment of 5% would not have been confined to the impairment resulting solely from the compensable injury but would also include the impairment from the unrelated pre-existing condition. This result would be contrary to the underlying purpose of the AC Act, which is to compensate workers only for impairments resulting from compensable injuries.
I agree with SL’s submission that the word ‘disregard’ is used in s 91(7)(c) of the AC Act in the sense of excluding any unrelated impairment component, rather than creating a fiction whereby the unrelated impairment component is deemed not to exist.
The Medical Panel’s approach was consistent with the Guides because cl 9 of s 3.3f directs that the percentage WPI based on previous unrelated causes be subtracted from the current percentage WPI in circumstances where the impairment caused by previous unrelated causes can be quantified. The plaintiff has not suggested that the evidentiary requirements of cl 9 were not satisfied. Nor has the plaintiff challenged the methodology that was used by the Medical Panel to determine the percentage WPI from the pre-existing condition. The Medical Panel acted consistently with cl 9 of s 3.3f and the definitions of ‘impairment’ and ‘apportionment’ in the Glossary in the Guides, and its assessment was in accordance with the Guides.[19]
[19]See [21] above.
The Medical Panel’s approach was consistent with the principles in Alcoa, which were adopted by Osborn J in Chua. In my opinion, those principles are correct and are applicable to the present case.
In Alcoa, J Forrest J emphasised that the role of a medical panel is to arrive at an impairment assessment resulting solely from the compensable injury and that, in arriving at such an assessment, the medical panel does not have a discretion to ignore impairment from an unrelated cause. The principles adopted by his Honour provide no support for the plaintiff’s submissions. On the contrary, they directly contradict the plaintiff’s position.
It follows from the above that the plaintiff has failed to identify any jurisdictional error or any error of law on the face of the record of the Opinion. Accordingly, the proceeding will be dismissed.
I agree with the plaintiff’s submission that an assessment of 0% WPI is unfair because the aggravation to his neck condition resulting from the injury has worsened his impairment and has adversely affected his work capacity. However, as I said in Heinz, ‘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.’[20]
[20]Heinz [2009] VSC 311 (31 July 2009) [46].
Proposed order
I propose to make an order dismissing the proceeding. I will hear from the parties on the precise form of the order to be made by this Court and on the question of costs.
0
4
0