Lingenberg v Gallichio - [2013] VSC 207

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 (4^th 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lingenberg v Gallichio

Details

AGLC: Lingenberg v Gallichio [2013] VSC 207
Case: [2013] VSC 207
Decision Date: 26 April 2013

CaseChat Overview and Summary

The case of Lingenberg v Gallichio involved the plaintiff seeking judicial review of a decision by a medical panel that assessed the degree of impairment of her neck injury under the Accident Compensation Act 1985. The plaintiff argued that the panel erred in its interpretation and application of section 91(7)(c) of the Act and the AMA Guides to the Evaluation of Permanent Impairment, leading to an underestimation of her impairment level due to her pre-existing condition of ankylosing spondylitis. The matter was heard in the Supreme Court.

The central legal issues revolved around the interpretation of the phrase ‘impairments from unrelated injuries or causes are to be disregarded in making an assessment’ as it appears in section 91(7)(c) of the Act. The plaintiff contended that the panel failed to correctly apply this provision and the AMA Guides, resulting in a flawed assessment of her impairment. The court was required to determine whether the panel's decision involved a jurisdictional error or a misinterpretation of the relevant statutory provisions and guidelines.

In dismissing the application, the court found that the medical panel had correctly applied the statutory provisions and the AMA Guides. The court concluded that the phrase in question did not require the panel to disregard the plaintiff's pre-existing condition entirely but rather to ensure that the impairment assessment focused on the injury in question, without double counting impairments from unrelated causes. The court held that the panel had appropriately balanced the plaintiff's pre-existing condition with the new injury in its assessment, thus finding no jurisdictional error or misinterpretation in the panel's decision.

The court's decision resulted in the dismissal of the plaintiff's application for judicial review, affirming the medical panel's assessment of her degree of impairment. The plaintiff's appeal was therefore unsuccessful, and the original decision of the medical panel was upheld.

Orders