Martinez v Dynamic Engineering Construction Co Pty Ltd

[2005] VSC 204

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 4841 of 2005

IN THE MATTER of an order to review pursuant to Section 3 of the
Administrative Law Act 1978

BENITO MARTINEZ	Applicant
DYNAMIC ENGINEERING CONSTRUCTION CO PTY LTD AND DR STEVEN JENSEN AND MR PAUL KIERCE	Respondents

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JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 JUNE 2005
DATE OF JUDGMENT:	9 JUNE 2005
CASE MAY BE CITED AS:	MARTINEZ v DYNAMIC ENGINEERING CONSTRUCTION CO PTY LTD & ORS
MEDIUM NEUTRAL CITATION:	[2005] VSC 204

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ACCIDENT COMPENSATION – Application for administrative review – Assessment of impairment by a Medical Panel – Whether reasons for decision adequate – Administrative Law Act, s.8.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M. O’Loghlen QC with  Mr P. Wischusen	Slater & Gordon
For the First Respondent	Mr P. Solomon	Victorian WorkCover Authority

HIS HONOUR:

1. The applicant, Benito Martinez, who is right handed, has since about March 2000 suffered from an injury to his right shoulder. He has claimed lump sum compensation pursuant to s.98C of the Accident Compensation Act 1985 as that section is set out in reprint No. 9 of the Act (published on 30 June 1999). His claim was referred to an independent medical assessor, Mr Brendan Dooley, who is an orthopaedic surgeon.

1. Mr Dooley was required to make his assessment in accordance with the American Medical Association's Guides to the Evaluation of Permanent Impairment (4^th Edition, June 1993).  He proceeded accordingly.  His conclusion was that the applicant suffers from a stable injury the effect of which is to impair the latter’s right upper extremity by 21%.  This is the sum of a 7% impairment in flexion, a 2% impairment in extension, a 6% impairment in abduction, a 1% impairment in each of adduction and external rotation, and a 4% impairment in internal rotation – all of which translates to 13% impairment of the whole person.

1. The applicant was dissatisfied with Mr Dooley's report. His claim was therefore referred to a Medical Panel pursuant to s.104B(9) of the Act. The Panel was constituted by Dr Steven Jensen, a musculoskeletal physician and Mr Paul Kierce, an orthopaedic surgeon. So far as is presently relevant, the question they were asked to answer was: "What is the worker's degree of permanent whole person impairment resulting from the accepted injury … ?

1. The Panel examined the applicant on 20 December 2004.  Both its Certificate of Opinion and its written “Reasons for Opinion” were issued on 24 January 2005. The answer given by the Panel to the question put to it by the reference is set out in the Certificate.  So far as is presently relevant, it was: "In the Panel’s opinion the worker has an 11% whole person impairment resulting from the accepted right shoulder injury … The degree of impairment is permanent."  The Panel then, by way of elaboration, went on in its reasons to state that it “carried out the assessment of shoulder injury in accordance with the Section 3.1 of Chapter 3 [of the Guides]”.  The Panel also “assessed a 18% upper extremity impairment due to loss of motion of the right shoulder”.  This was based on findings that “[m]otion testing of the right shoulder revealed moderate restriction of motion in flexion, abduction and internal rotation  and mild limitation of movement in extension, adduction and external rotation.”  Thus, whereas Mr Dooley in coming to his conclusion of 21% upper extremity impairment had given percentages of 7%, 2%, 6%, 1%, 1% and 4% for, respectively, flexion, extension, abduction, adduction, external rotation and internal rotation, it was only by use of the words “moderate” and “mild” that the Panel revealed how it reached its figure of 18%.

1. The applicant contends that this is not good enough.  It is settled law that Medical Panels are subject to the Administrative Law Act 1978. They are therefore required, once the relevant preconditions have been met, to furnish reasons for their decisions: s.8(1). Sub-section (4) of that section goes on to provide, so far as presently relevant, that the Court, upon being satisfied “that the only statement furnished is not adequate to enable a court to see whether the decision does or does not involve any error of law”, may order the Panel to furnish, within a time specified in the order, a further statement of its reasons. Mr Martinez seeks such an order. He contends that the law requires that the Panel tell him how its figure of 18% is calculated. This information is necessary, he argues, “in order to ascertain whether the Panel’s assessment was made in accordance with the relevant medical Guides.”[1]  His solicitors assert that in the absence of “the further reasons sought” it is “impossible to advise the applicant whether or not the Medical Panel Opinion was justified or properly made.”

   [1] Affidavit of Rosie Ross sworn 1 March 2005, at para.13.

1. It is in my opinion very doubtful indeed that the solicitors’ assertion can be justified.  The Panel’s statement that it carried out its assessment in accordance with the Guides must be taken at face value unless there is good reason to the contrary.  No suggestion of a good reason has been put before me.  Moreover, its reasons of 24 January are, so far as I can ascertain on the basis of the submissions put to me, adequate to enable the Court to see whether the medical decision that the applicant suffers from “11% whole person impairment” does or does not involve any error of law.  In that respect, no error of law is revealed.  The Panel’s calculation of 18% impairment of the applicant’s upper extremity is principally if not wholly a medical, not a legal, issue.  To that extent, the Administrative Law Act has nothing to say about it, and the Court has no power to order a further inquiry into it, even assuming that a medical error was involved in its calculation.[2]

   [2] Not that there is, in any event, any basis for such an assumption.  Even if it were relevant (and that is in my view doubtful) this is not a case about which I could conclude that, although the Panel’s reasons do not themselves disclose error, its conclusions are such that they are inexplicable in the absence of error.

1. On the other hand, the Panel is – by a combination of ss. 91, 104B(5) and 104B(9) of the Accident Compensation Act – required to make its assessment of a degree of impairment in accordance with the Guides.  The relevant chapter of the Guides is Chapter 3.  It states that the measurement techniques recommended in the chapter are as simple, practical and scientifically sound as possible.  It goes on to specify that the tests should be done accurately and precisely.  Moreover, they “should be performed and reported (my emphasis) according to Guides recommendations, so they can be repeated by others and the results compared.”  An impairment evaluation report should include “information such as” a comparative analysis with impairment criteria including a “[s]ummary list of all impairment percents”.[3]   In conformity with the above, Figure 1 on p. 3/17 of the Guides includes provision for the insertion of the impairment percentages of each of flexion, extension, adduction, abduction, internal rotation and external rotation.

   [3]Guides, at p.3/14

1. I am, as the courts must be, diffident about intruding into medical matters.  I am also conscious of the impropriety of requiring a Medical Panel “to do more than provide sufficient reasons to enable it to be seen by the court and the parties that it has arrived at its decision in accordance with its statutory functions.”[4]   I am, moreover, reluctant to require a Panel to go to any trouble to provide information that may well be of no use at all to the person calling for it.  But if, as I think is the position, a Panel must make its assessments in accordance with the Guides, and if they in turn specify that reports should include the information that the applicant here wishes to obtain, then it seems to me that the Panel must as a matter of law comply.  And although I have my doubts about the usefulness to the applicant of the percentages he seeks, I am not qualified to make an informed evaluation of that matter.  In this context, it must I think be the case that if the individual percentage figures that are the subject of this application are shown as a matter of arithmetic to add up to more than 18%, then the applicant would have a complaint that ought to be remedied.  Beyond that, I concede, there may be nothing that the applicant can gain from production of the information in question because it is very doubtful that such production will reveal a medical, let alone a legal, error. 

   [4] Masters v McCubbery and Ors [1996] 1 VR 635 at 650 per Winneke P.

1. The submissions of counsel were, on both sides, helpful; and I am grateful for them.  Mr Solomon on behalf of the first respondent submitted that success in this application would set a precedent by which a dissatisfied party could require a Panel to provide more and more detail as more and more queries were raised about the Panel’s reasoning process.  Thus, the next question from an applicant such as Mr Martinez would go to the justification for each individual percentage figure.  The Panel would then be required to embark upon an explanation for that calculation, which in any event may well be a matter for judgment rather than exact measurement.  The ultimate result would be to negative those often-repeated statements about the proper limits of the reasons that a Panel is obliged to give.

1. I share Mr Solomon’s reservations.  I therefore stress that my decision rests solely on the necessity, in the appropriate circumstances, to make assessments in accordance with the Guides, including the requirements for reporting which the Guides there laid down.  This is a question of law.  But it does not necessarily mean slavish adherence to every jot and tittle which is to be found in the Guides, which by their title indicate that they are not to be interpreted as if they were a statute.  Indeed, the requirement to give the percentages about which we are here concerned is in my opinion at the very limit of that which an assessment in accordance with the Guides requires.

1. The applicant seeks an order pursuant to the Administrative Law Act that the Panel furnish, within 21 days, a further written statement of its reasons.  I think, for the reasons set out above, that it is entitled to that order.  I make it plain at the same time, however, that the Panel is required to do no more than provide the degrees of movement which correspond to those set out in the table at the foot of p.2 of Mr Dooley’s report dated 21 September 2004 and the percentage figures which correspond to those set out in the same table.

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