Parnaby v Director of Housing
[2021] VSC 456
•9 August 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2020 02971
| ROSE INGRID PARNABY | Plaintiff |
| v | |
| DIRECTOR OF HOUSING & ORS | Defendant |
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JUDGE: | O’Meara J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 July 2021 |
DATE OF JUDGMENT: | 9 August 2021 |
CASE MAY BE CITED AS: | Parnaby v Director of Housing |
MEDIUM NEUTRAL CITATION: | [2021] VSC 456 |
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ADMINISTRATIVE LAW — Judicial Review — Determination of Medical Panel — Whether the Panel made errors of fact alleged to constitute jurisdictional error — Whether failure of Panel to ‘properly’ assess and determine the plaintiff’s injuries and apply the AMA Guides – Craig v South Australia (1990) 184 CLR 163 – Chang v Neill (2019) 62 VR 174— Proceeding dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | GJ Burns | Simon Parsons & Co |
| For the First Defendant | FC Spencer | HWL Ebsworth |
| For the Second & Third Defendants | No appearance |
HIS HONOUR:
A Background
On 4 July 2017 the plaintiff claims to have slipped on ‘sludge’ on a footpath leading to the carpark at 31 Maryvale Crescent, Morwell. She landed on her knees and suffered a fracture of the medial malleolus of the right ankle which was later treated surgically.
The plaintiff claims to have suffered injuries including fracture to the right ankle, rupture of the Achilles tendon, soft tissue injuries to the ankle and foot, injuries to both knees, aggravation and exacerbation of pre-existing osteoarthritis and anxiety and depression.
By reason of Part VBA of the Wrongs Act 1958 (‘the Act’), the plaintiff may not recover non-economic loss for damages unless her claimed injuries are assessed and determined to be a ‘significant injury’ for the purposes of the Act.
On about 18 December 2019, the plaintiff served various documents pursuant to s 28LT of the Act, including a certificate of assessment signed by Dr James Rowe, occupational physician.
Dr Rowe had examined the plaintiff and reported on 29 November 2018. Dr Rowe certified that he was satisfied that the degree of impairment resulting from the plaintiff’s injury was more than 5%. The certificate described the injury briefly as ‘fractured lateral malleolus in the right ankle and damaged right Achilles tendon’.
In respect of the Achilles tendon, the plaintiff had pre-existing tendonitis, but had undergone surgery in July 2019 (after she saw Dr Rowe). After that, it seems that her Achilles symptoms were ‘much the same’ as before the incident in July 2017.[1]
[1]Joint Court Book (‘JCB’) 74.
The first defendant referred the assessment of the plaintiff’s injuries to a Medical Panel.
On 11 May 2020, the plaintiff attended the Panel comprised of the second defendant, Dr David Kotzman, occupational and environmental physician, and the third defendant, Dr Jennifer Harmer, rheumatologist.
By certificate dated 20 May 2020, the Panel determined that the degree of whole person impairment alleged in the claim did not satisfy the threshold level.
The certificate of the Panel was accompanied by the Panel’s reasons for determination.
In respect of physical examination, the Panel reasons stated –
On physical examination, the Panel noted that Ms Parnaby stood with symmetrical bilateral genu valgum deformities of both knees, pes planus deformities of both feet, ‘too many toes’ external rotation of the ankles, and bilateral hallux valgus deformities of the great toes. Irregular scarring was noted over the right Achilles tendon. Her weight was 99 kg and her height was 156 cm, resulting in a body mass index of 40.7, in the obese range. She was able to walk slowly and could stand on her toes, but not her heels. There was no thigh or calf muscle wasting. Examination of the knees revealed minor tenderness of the medical patella-femoral facet, but no other localised tenderness. There was a normal range of motion of both knees, with no extension lag, no effusions, no patella-femoral crepitus, and no localised scarring. Examination of the right Achilles area revealed an irregular scar over the medial aspect of the tendon, measuring approximately 7 cm. There was a mild deformity due to a small ganglion associated with the upper portion of the scar. Range of motion of the right ankle and the right hindfoot, was minimally restricted, to a similar degree as on the left. Neurological examination revealed normal sensation.
[Emphasis added]
As to diagnosis –
The Panel concluded that Ms Parnaby is suffering from a mild persisting right ankle and hindfoot dysfunction, as a consequence of a healed fracture of the right ankle and a resolved exacerbation of a pre-existing Achilles tendonitis, surgically treated. There are mild persisting symptoms in the left knee, but no significant abnormal findings on examination. The Panel concluded the Ms Parnaby’s physical condition has stabilised.
Finally, as to assessment of impairment, the Panel stated, relevantly –
The Panel conducted an impairment assessment according to the methods prescribed in the American Medical Association Guides to the Evaluation of Permanent Impairment (Fourth Edition) (‘the Guides’), as required by Section 28LH of the Wrongs Act 1958.
The Panel assessed the right ankle and the right hindfoot in accordance with Section 3.2 of Chapter Three. Joint ranges of motion were measured using a goniometer.
As the process of rating range of motion deficits of the lower extremity is based on a classification of mild, moderate or severe, the Panel is of the opinion that the direction of motion of the right ankle and the right hindfoot that provides the highest rating is used to determine impairment for that joint.
The Panel assessed the appropriate whole person impairment for loss of motion of the right ankle pursuant to Table 42 of Chapter Three.
The Panel assessed the appropriate whole person impairment for loss of motion of the right hindfoot pursuant to Table 43 of Chapter Three.
The Panel also assessed the appropriate whole person impairment attributable to surgical scarring of the right Achilles area, pursuant to Table 2 of Sections 13.4 and 13.5 of Chapter Thirteen.
The Panel considered that there is no additional impairment resulting from the injuries to Ms Parnaby alleged in the claim, including any injury to the left knee, when assessed in accordance with the Guides.
…
Using the formula A + B (1-A) as prescribed on page 322 of the Guides, the Panel combined the whole person impairments and concluded that the degree of whole person impairment resulting from the physical injuries to Ms Parnaby alleged in the claim is not more than 5% and is permanent.
After receipt of the Panel’s determination, the plaintiff’s solicitor wrote to Dr Rowe by letter dated 2 July 2020 which, among other things, stated –
A copy of the certificate of determination and the Medical Panel’s reasons for determination are enclosed.
We ask that you review the reasons given by the Medical Panel in relation to its determination and you would provide us with a supplementary report by way of critique of those reasons. It would be extremely useful if you could itemise each of the points where you disagree with the Panel’s commentary and provide a brief explanation as to why each of those points offend.
The plaintiff was not at this point returned to Dr Rowe for examination and assessment. Among the various things stated in the letter, however, the solicitor advised that –
Ms Parnaby has since the determination, and at our request, been to her doctor for the specific purpose of having her calf muscles measured, and reports that at that time (June 2020), which is subsequent to the Medical Panel assessment her right calf measured 42 cms and her left calf measured 44 cms.
The letter referred to what it described as a ‘clear discrepancy’ between those measurements and the Panel’s statement, in respect of its own physical examination of the plaintiff, that ‘there was no thigh or calf muscle wasting’.
The letter stated that it seemed to the solicitor that ‘the Panel has failed to properly apply the AMA Guides to the assessment of Ms Parnaby’s injury’ and requested as follows –
We would be grateful if in your report you could detail the proper application of the AMA Guides to Ms Parnaby’s injuries, the errors made by the medical panel in applying the Guides, and whether on proper application of the Guides you still consider she would be over the threshold.
Dr Rowe provided a report dated 9 July 2020 in which he expressed the view that the Panel had not ‘properly’ assessed the injuries suffered by the plaintiff and not ‘properly’ applied the AMA Guides. In particular, he expressed the view that the Panel had failed to –
(a) examine ‘the exact measurements of her calves’;
(b) assign a ‘rating’ for the plaintiff’s surgical scar;
(c) mention and assess the use of a walking stick; and
(d) provide ‘specific measurements’ of loss of range of movement of the right foot and ankle.
In respect of the measurement of the plaintiff’s calves, Dr Rowe stated –
There is no mention of the specific measurements of Ms Parnaby’s calves. The Panel has stated there is ‘no evidence of thigh or calf muscle wasting’. No measurement figures were provided so I do not know whether the Panel took measurements during their assessment of if there finding was by observation only, which would be of course be (sic) inadequate.
Ms Parnaby attended her local GP after her presentation at the Medical Panel for the specific purpose of having her calves measured. His findings were not dissimilar to mine. He reported a 2cm difference in calf size. This represents a minimum of 4% WPI.
As to the walking stick, Dr Rowe stated –
There is no mention of use of a walking stick or other mobility aid. In my original notes, taken on the day of her appointment with me, she did acknowledge that she requires a walking stick from time to time. This would represent a further rating in terms of her WPI.
It should be noted that even part-time use of a cane or walking stick produces a 15% WPI.
I would also point you to the AMA 4th Edition, chapter 3, page 76, table 36 where it is stated that if there is any sort of limp even a mild one, this would represent a 7% WPI.
Dr Rowe’s earlier report dated 29 November 2018 had made no direct mention of a limp or any use of a walking stick. In respect of the right calf, however, it had been recorded that it was ‘smaller than the left’ and that there was a ‘2 cm difference in size at equal points of measurement’.
In any event, in conclusions stated in his report dated 9 July 2020, Dr Rowe expressed the opinion that the plaintiff would ‘well satisfy’ the statutory threshold ‘when the following factors are considered’ –
• Evidence of muscle wasting of the right calf;
• Scarring; at least 2% and possibly more if assessed by a plastic surgeon;
• Loss of range of movement of the right foot and ankle;
• Part-time use of a walking stick.
Dr Rowe said that he ‘would urge the Panel to make further enquiries and engage in closer questioning of this lady’s condition’.
Subsequently, by letter dated 21 July 2020, the plaintiff’s solicitor requested that the plaintiff be re-examined by Dr Rowe.
That examination occurred and Dr Rowe provided a further report to the plaintiff’s solicitor dated 28 July 2020.
In many respects that report was similar to the report which immediately preceded it. It purported to speak to what it described as ‘several deficiencies in the report offered by the Medical Panel’.
In respect of his examination of the plaintiff, Dr Rowe recorded –
The right calf measured 33cm and the left calf measured 40cm, when measured at equal points. This is a significant difference of 7cm.
In respect of movement of the right foot and ankle Dr Rowe recorded two sets of apparent measurements at different parts of his report.
In respect of the walking stick, Dr Rowe stated, among other things, that ‘it should be noted that even part-time use of a cane or walking stick produces a 15% WPI’.
The report attached an impairment assessment which accumulated a sequence of whole body percentage impairments to come to a total of 26% WPI (which included 15% attributed to the use of a walking stick).
B The present proceeding
Between the provision of Dr Rowe’s report dated 9 July 2020 and his further report dated 28 July 2020, the plaintiff commenced the present proceeding by originating motion dated 16 July 2020.
The originating motion contended that the Medical Panel had fallen into jurisdictional error in the following respects –
(a)Ignoring and/or failing to give proper weight to relevant material, namely the plaintiff’s complaints on examination, the medical report of Dr James Rowe dated 29 November 2018, the medical report of Dr Krishna Saha (referred to by the Medical Panel as dated 7 May 2018 but correctly dated 8 August 2018), and the prescribed information provided in the Form 4 dated 18 December 2019.
(b)Failing to properly examine the plaintiff including, but not limited to, the following matters:
(i)having measured the circumference of both the plaintiff’s calf muscles, failing to take into account the muscle atrophy that had occurred in the plaintiff’s right calf muscle when compared with her left calf muscle;
(ii)failing to ascertain properly and/or take into account the loss of movement that the plaintiff suffered in the right ankle joint and the affect (sic) that loss had on her mobility.
(c)Failing to ascertain and/or take into account the fact that the plaintiff used of (sic) a mobility aid, to wit a walking stick.
(d)Failing to properly assess and determine the plaintiff’s injuries and the impairment caused to her by those injuries.
(e)Failing to properly apply the American Medical Association Guides to the Evaluation of Permanent Impairment (Fourth Edition) (“the AMA Guides”) as required by section 28LH of the Act when determining the plaintiff’s level of whole person impairment.
(f)Making a determination that was irrational or illogical in that it failed to properly apply … (“the AMA Guides”) as required by section 28LH of the Act.
(g)Reaching a wrong conclusion as to the plaintiff’s level of impairment by wrongly applying the … (“the AMA Guides”) as required by section 28LH of the Act.
(h)Making a determination of the plaintiff’s level of impairment that was irrational or illogical in that it omitted to take into account:
(i) the muscle wasting of the right calf;
(ii)the loss of movement suffered by the plaintiff in her right foot and ankle;
(iii) the use by the plaintiff of a walking stick;
(iv)the scarring suffered by the plaintiff as a consequence of the injury;
and by reason of those admissions failing to carry out the task required of it as required by section 28LH of the Act.
The originating motion came to be supported by three affidavits of the plaintiff’s solicitor, Mr Parsons, including affidavits affirmed 16 July 2020 and 18 September 2020. Aspects of the former purported to speak to opinions expressed in Dr Rowe’s report dated 9 July 2020. The latter exhibited Dr Rowe’s report dated 28 July 2020.
The plaintiff also swore an affidavit dated 18 September 2020. She deposed to having read the affidavits of Mr Parsons of 16 July 2020 and 18 September 2020. The plaintiff’s affidavit sought to lend her voice to the criticisms of the Panel’s determination sought to be advanced by Dr Rowe and also reflected in the affidavits of Mr Parsons.
The plaintiff deposed that she did not believe that the Panel had ‘proper regard’ to the complaints that she had made about her injuries. The affidavit added a few further criticisms of a more general nature directed to matters such as, for example, the plaintiff’s perception of the attitude and behaviour of the Panel members during her examination and a complication with a screw or grommet related to the repair of her Achilles tendon that had become complicated some time after she had attended the Panel for assessment and which, she asserted, the Panel ‘should’ have ‘picked up’ if their examination ‘had been properly carried out’.
In respect of her attendance at the Medical Panel on 11 May 2020, the plaintiff deposed, particularly, as follows –
(a) that after the plaintiff had been asked to undress and was sitting at the side of the examination bench, one of the Panel doctors, Dr Harmer, had said ‘Rose, your right leg is thinner than your left one’;
(b) that because of the injury to her ankle and knee her mobility had been decreased and that she used a walking stick if she was going out or walking for any length of time or was going up or down stairs or an incline;
(c) that at no time during the Panel’s examination had her ‘leg musculature’ been measured; and
(d) that –
I did not believe that the Medical Panel had proper regard to the complaints I made about my injuries, and the effect that they had upon me. I indicated to the Panel that I had ongoing problems with my ankle and that I could not handle stairs and had difficulty walking up an incline or any sort of grade. I told them that I now use a walking stick generally when going out for any length of time.
Provoked by the material to which I have referred, the first defendant obtained the handwritten notes of the Panel members in connection with their examination of the plaintiff on 11 May 2020.
C The hearing
At the hearing, counsel for the plaintiff confirmed that the second and third defendants had, in correspondence, adopted a Hardiman position.
Thereafter, the counsel for the first defendant advanced objections to –
(a) Dr Rowe’s reports dated 9 July 2020 and 28 July 2020;
(b) [18] to [22] of Mr Parsons’ affidavit sworn 16 July 2020;
(c) the whole of Mr Parsons’ affidavit sworn 18 September 2020; and
(d) [9] to [12] and [33] to [39] of the affidavit of the plaintiff sworn 18 September 2020, (save for the third sentence at [11]).
Counsel for the first defendant submitted that, generally speaking, in an application for judicial review, the Court is confined to the material before the decision-maker. She submitted that the proposed evidence – particularly the reports of Dr Rowe requested and posited in the nature of a ‘critique’ upon the determination of the Panel – was not within the exceptional categories referred to and discussed by the Court of Appeal in McKenzie v Head, Transport for Victoria.[2]
[2][2021] VSCA 100, [153]-[176]. See also, City of Melbourne v Neppessen [2019] VSC 84.
In short, with the exception of those parts of the plaintiff’s affidavit directed to events said to have occurred in the course of the plaintiff’s attendance on the Panel on 11 May 2020, counsel submitted that none of the material objected to was relevant because none of it was capable of establishing that the Panel’s own findings and assessment were erroneous.
Counsel for the plaintiff submitted that the material was relevant and admissible to establish the unreasonableness of the decision of the Panel in that, it was submitted, there ‘has been an error of fact in her examination’. The material was said to fall ‘squarely’ within the exceptions stated in McKenzie.
I indicated that I would rule upon the question of admissibility in my reasons as precisely how it was to be said that the determination of the Medical Panel was legally unreasonable had yet to be fully articulated in argument.
Having since heard that argument – which was in significant part directed to both the reasons of the Panel and the disputed reports of Dr Rowe – I would accept the submissions of counsel for the first defendant to the effect that the material was not within the McKenzie exceptions and therefore irrelevant and inadmissible.
In any event, it will be evident that it has been necessary to consider that material in some detail – particularly the reports of Dr Rowe – in order to determine that the case is not properly to be viewed as within the relevant categories; in that there has been no legal unreasonableness or jurisdictional error of a kind identified and discussed by the Court of Appeal in McKenzie.
In this sense, it has not made any material difference to the conduct or outcome of the case whether the disputed material was formally received into evidence or not.
A separate aspect of the hearing arose from those parts of the plaintiff’s affidavit that deposed to events said to have occurred in the course of the plaintiff’s attendance upon the Panel on 11 May 2020.
In that regard, counsel for the first defendant made application to cross-examine the plaintiff concerning those aspects of her affidavit. Counsel for the plaintiff did not resist the application and indicated that the plaintiff was available to give evidence. In the circumstances, I acceded to the application.
The plaintiff was cross-examined thoroughly concerning those parts of her affidavit directed to the events at the Panel examination. At various points, the plaintiff accepted, in substance, that her memory of those events may not have been what she had thought. The plaintiff was plainly honest in her oral evidence; however, it emerged that her memory of the events was, as she conceded, ‘pretty sketchy’.[3]
[3]Transcript 31 line 6 (hereafter, in the style ‘T31.6’).
The plaintiff conceded that she ‘[did] not know what to say’ in respect to the apparent measurements of her thighs and calf and absence of any wasting recorded in the notes of the Panel members.[4] She evidently did not remember it that way. She also did not recall Dr Kotzman taking any notes (although it is apparent that he did so, and that his notes are detailed).
[4]T28.4.
In respect to the walking stick, the plaintiff conceded that she could not remember the extent to which she had told the members of the Panel about her use of it.[5] She was ‘pretty sure’ that she had mentioned the walking stick, but could not really be sure of what was said.[6] She had found the occasion ‘very scary’ and ‘you get overwhelmed’; ‘maybe I didn’t tell them everything, I honestly don’t know’.[7]
[5]T30.18.
[6]T32.25-32.30.
[7] T32.19.
The plaintiff also accepted that the notes of the Panel members were in certain respects more likely to be correct.[8] She thought that if she had had the benefit of the notes she ‘quite possibly’ would have been assisted in recalling what happened.[9]
[8]T37.16-38.10.
[9]T40.6.
More generally, I gained the impression that the language employed in the plaintiff’s affidavit was very much the language of the solicitor who drafted it rather than the plaintiff herself. There was something of a contrast between the plaintiff’s spoken language and the form and detail of the language used in her affidavit. By way of particular example, in respect to the word ‘musculature’ appearing in her affidavit at [23], the plaintiff said that she had needed to look up the word in a dictionary.[10] Although the plaintiff said more than once that she was ‘happy’ with what was in her affidavit, I did not feel that I could and should rely upon it as an accurate reflection of either her own language or her actual memory of the details of events in the course of the Panel’s examination.
[10]T24.12.
D Consideration
At the hearing, counsel for the plaintiff confirmed that the nub of the plaintiff’s complaint of jurisdictional error[11] rested in the alleged failure of the Panel properly to consider and assess her leg wasting, use of a walking stick, restriction of ankle movement and scarring.
[11]Cf., Chang v Neill (2019) 62 VR 174.
In essence, as I have indicated, that submission was advanced by reference to the various criticisms of the Panel determination advanced by Dr Rowe. It was submitted, in substance, that these were all ‘matters of fact’ and if those ‘facts’ had properly been taken into account, and appropriately applied to the AMA Guides, the whole person impairment arising from the plaintiff’s injury would have been found to exceed the statutory threshold.
The first element of the particular complaints was directed to the Panel’s assessment of any presence of ‘wasting’ in her right calf.
For the reasons I have indicated, the notes of the members of the Panel disclose, and I accept, that the Panel members measured the circumferences of the plaintiff’s calves and detected no wasting, or at least no clinically significant wasting. The substance of the position – that no ‘wasting’ was detected – is reflected in the Panel’s reasons.
The fact that the Panel’s measurements and assessment might have been different to those performed later by the plaintiff’s GP and then later again by Dr Rowe is not to the point. Dr Rowe’s own measurements might be said to raise more questions than they answer, in that his measurements of the calves are distinctly different to those of the GP and the Panel members. Curiously, in a case in which the claim is made that there is wasting of the right limb, Dr Rowe also evidently measured the right thigh to be larger than the left.[12]
[12]JCB 140.
In any event, the Panel undertook its measurements, plainly considered the issue of wasting and, in its assessment, did not find anything of significance. In the present instance I cannot accept that error is shown by different measurements obtained on different occasions by different clinicians. I accept that the issue is more than one of mere measurement – it also involves clinical assessment and the exercise of professional judgement by the assessors. I am not satisfied that the manner in which the Panel performed that task at the examination involved any error, let alone jurisdictional error.
I do not accept that anything turns upon what the plaintiff says was stated by Dr Harmer while the plaintiff was sitting on the examination bench. That was very likely before any measurements were performed. Dr Rowe also states that simply viewing the leg would not be sufficient. If that statement was made, it may have given rise to a misapprehension in the plaintiff, but that does not establish jurisdictional error in the determination of the Panel.
The second element of the plaintiff’s particular complaints concerns the walking stick.
In that regard, she confirmed in oral evidence that she had a walking stick and on the day of the assessment by the Panel had left it in the car because she had thought that she could negotiate the entry to and stairs in the building without it.
As I have outlined, the plaintiff acknowledged in evidence that she may not have articulated to the Medical Panel all of the details in respect of her use of the walking stick. In effect, she thought that she said something about the walking stick, but was not clear exactly what that something might have been. With some reservations, I am prepared to assume for present purposes that the plaintiff mentioned to the Panel that she used a walking stick on occasion.
However, the fact that there is no reference to the walking stick in either the notes of the Panel members or the Panel’s reasons is not indicative of jurisdictional error.[13] The mere fact that a fact is not referred to in the notes or reasons does not mean that it has been overlooked.
[13]I observe in passing the irony in the position advanced by Dr Rowe concerning the walking stick. His reports of 9 July 2020 and 28 July 2020 advance criticisms of the Panel for, among other things, failing to ‘closely question and examine the exact nature of this lady’s condition’ including her use of a walking stick. The latter report of Dr Rowe included an assessment in which he attributed a ‘rating’ of 15% WPI to the ‘P/T use of walking stick’. However, his own earlier report dated 29 November 2018 had itself made no mention of any use of a walking stick or attributed any particular ‘rating’ to such a feature.
In this regard, the walking stick could only have assumed any real significance if the Panel’s assessment of the plaintiff’s gait and manner of walking had provoked it. As I have noted, the Panel recorded ‘she was able to walk slowly and could stand on her toes, but not her heels’. The Panel also recorded that the range of motion of the right ankle and hind foot was ‘minimally restricted’ and to a similar degree as the left. There was no record of a limp, in the reasons or either of the notes.
In this context, the walking stick – which, after all, the plaintiff had not brought with her to the examination – may well have been considered by the Panel, in its professional judgement, to have been of either minimal significance or an aid deployed for subjective rather than objective reasons.[14]
[14]AMA Guides, Section 3.2b, 3/75.
I am conscious that Dr Rowe’s reports direct attention to Table 36 in Section 3.2b of the AMA Guides. His reports do not explain precisely how it is that Table 36 ought be thought to apply. It is not directly said that the Panel should have found either an ‘antalgic limp with shortened stance phase and documented moderate to advanced arthritic changes of hip, knee or ankle’ or a ‘positive Tredelenberg sign and moderate to advanced osteoarthritis of hip’. Dr Rowe does not himself state that he detected such features in the course of his own examination. In any event, Table 36 appears in Section 3.2b of the AMA Guides which, as I have noted, ‘does not apply to abnormalities based only on subjective factors’.
For these reasons, even if the plaintiff mentioned the walking stick to the Panel, I do not regard the failure of the Panel to refer to that feature in its reasons to be of any material significance. It certainly does not amount to jurisdictional error.
The third element of the plaintiff’s particular complaints concerns restriction of movement of the right ankle.
The reasons of the Panel disclose that the right ankle and hind foot were assessed in accordance with Section 3.2 of the AMA Guides. The joint ranges of motion were measured using a goniometer. The Panel assessed the motion of the right ankle and right hind foot to be only ‘minimally restricted’ and to a degree similar to the left. The Panel considered Tables 42 and 43 of the AMA Guides in respect to the right ankle and hind foot respectively, and was not said to have been in error in doing so.
Confirmatory of the approach evident in the Panel’s reasons, the notes of both members of the Panel disclose that measurements were obtained in respect of various aspects of the plaintiff’s right ankle and foot.
Against that, Dr Rowe conducted his own assessment of the ranges of motion of the right foot and ankle. As I have noted, his report contains two sets of measurement figures. His methods of measurement and assessment are not identified. His findings are not wholly or readily able to be aligned with those appearing in the notes of the Panel members, and in submissions no attempt was made to do so. In the opinion of Dr Rowe there was a ‘loss of range of movement in the right ankle in all directions’.
Dr Rowe did not seek to specify or explain what, if any, error he says was committed in the measurements and assessment undertaken by the Panel, save to say that it was implicitly different to his own. No clear explanation was sought to be advanced by reference to the Tables referred to and relied upon by the Panel.
As above, I do not consider any variance between what Dr Rowe found on a different occasion and in an unspecified way to bespeak error in the assessment undertaken by the Panel in its own assessments. As was submitted by counsel for the first defendant, the relevant Section and Tables of the AMA Guides required the Panel make its own assessment and provided ranges within which particular assessments might fall. Whether the Panel might find any restriction of the plaintiff’s right ankle and hind foot to fall within any of the specified ranges and, if so, what particular range, was a matter of its professional judgment to be exercised in the setting presented. It is evident from the reasons of the Panel that it did so. No jurisdictional error is evident.
The final element of the plaintiff’s particular complaints concerns scarring.
The reasons of the Panel concerning the physical examination of the plaintiff referred to scarring more than once.
The Panel’s reasons also referred to its assessment of any contribution attributable to the scarring in the assessment of whole person impairment pursuant to Table 2 of Sections 13.4 and 13.5 of Chapter 13 of the AMA Guides.
It was not said that the Panel referred to the wrong Table or Sections of the AMA Guides. In substance, Dr Rowe merely asserted that the Panel had ‘not assigned a rating for this scar in the calculation of her WPI’. In his own assessment, Dr Rowe attributed an individual ‘rating’ of 2% for scarring.
The Panel, of course, is not permitted by statute to specify its ‘rating’ or assessment of the degree of whole person impairment and did not do so. It merely recorded that, by its assessment, it was not more than 5%. That might well be capable of having accommodated a ‘rating’ for scarring.
In submissions, counsel for the plaintiff sought to emphasise an interpretation of the notes of Dr Kotzman to the effect that the Panel assessed the overall figure at 4% comprised only of a ‘rating’ for loss of movement of the right ankle. I am unable to see how that necessarily follows from the notes in question and, in any event, counsel for the first defendant explained that overall assessments of whole person impairment are not an accumulation of individual ‘ratings’ in the manner undertaken by Dr Rowe in ultimately coming to his figure of 26% WPI.
Whatever might be the case, I am not able to infer from the reasons of the Panel that it made any jurisdictional error in approaching the issue of scarring and, in the end, I am unable to see how it is that Dr Rowe’s reports should propel me to do so.
It will be evident from the above that I am unable to accept the essential submission of the plaintiff that there was a ‘significant and fundamental discrepancy between the findings that the medical panel made … and the findings of Dr Rowe’ such that the Panel had fallen into jurisdictional error in that it had failed ‘properly’ to assess and determine the plaintiff’s injuries and impairment and ‘properly’ apply the AMA Guides.
In this more general respect, it is important to remain conscious of the fact that the Medical Panel was an expert body. It plainly conducted a physical examination of the plaintiff. The Panel reasons and the notes of the Panel members disclose that examination to have been detailed. The examination may not have gone for as long as was anticipated by the plaintiff, but that cannot be the measure of its legality. The reasons and notes record that the Panel assessed, among other things, the range of motion of the plaintiff’s right ankle and hind foot, her gait, the circumference of her thighs and calves, the question of ‘wasting’ and her scar.
Those measurements and assessments were performed on and as at the date on which the Panel assessed the plaintiff. That is to say nothing about dates prior to that date or, indeed, after that date.
The Panel had regard to the parts of the AMA Guides which it identified. I am not satisfied that any of the parts of the AMA Guides referred to by the Panel were considered or applied erroneously. Nor am I persuaded that it overlooked any relevant Table or Section of the AMA Guides.
The task entrusted to the Panel required it to perform assessments requiring professional evaluation and judgement. It is evident that it undertook and discharged that task.
It is evident that Dr Rowe performed a different assessment on a different occasion and formed a different view. As I have sought to explain, the fact that his findings and assessment were different to those of the Panel does not give rise to a ‘significant and fundamental discrepancy’. The issues involved are beyond those of correlating simple ‘facts’. The task of the Panel was to obtain a history and make findings on examination and then to perform professional assessments by reference to the text and Tables of the AMA Guides. It was ultimately an issue of complex professional judgment that, in this instance, is not to be displaced as ‘unreasonable’ or ‘illogical’ or ‘irrational’ merely because Dr Rowe on one or more other occasions essentially formed a different view. In short, I am not satisfied that any part of the Panel’s task proceeded upon or gave rise to jurisdictional error that would vitiate its determination.[15]
[15]In the sense in which jurisdictional error was relied upon in the plaintiff’s submissions by reference to Craig v South Australia (1990) 184 CLR 163 and Chang v Neill (2019) 62 VR 174.
Finally, I have read and considered both the plaintiff’s written submissions and the further criticisms of the Panel sought to be advanced in the plaintiff’s affidavit. Those documents seek to advance several further and other criticisms directed to a range of matters including the condition of the plaintiff’s knees and certain further documents and reports which, it is said, the Panel failed ‘properly’ to take into account. It will be evident from what I have already said that I am not satisfied that it is reasonably able to be inferred from the reasons and notes of the Panel that it failed ‘properly’ to take into account or act upon any relevant matters, including any matters of that peripheral kind.
For these reasons, I cannot accept that any of the plaintiff’s complaints – whether taken individually or collectively – can amount to jurisdictional error that would stand to vitiate the determination of the Medical Panel.
E Conclusion
The plaintiff’s various jurisdictional error arguments must be rejected. The application for judicial review is refused.
I will hear counsel concerning the form of orders, and costs.
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