Skarbek v Brand
[2023] VSC 346
•22 June 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2021 04267
| NIKKI SKARBEK | Plaintiff |
| v | |
| DR CAROLINE BRAND | First Defendant |
| ASSOCIATE PROFESSOR MICHAEL MURPHY | Second Defendant |
| EPWORTH FOUNDATION | Third Defendant |
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JUDGE: | Ginnane J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 February 2023 |
DATE OF JUDGMENT: | 22 June 2023 |
CASE MAY BE CITED AS: | Skarbek v Brand |
MEDIUM NEUTRAL CITATION: | [2023] VSC 346 |
JUDICIAL REVIEW --- Medical Panel – Medical Panel finding of no significant injury – Whether the Panel made a jurisdictional error - Whether Panel failed to assess plaintiff’s impairment in accordance with AMA Guides – Whether the plaintiff’s claim of a history of guarding was a mandatory consideration -Whether Panel failed to have regard to that consideration – Wrongs Act 1958 s 28LH.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Katz | Polaris Lawyers |
| For the Third Defendant | Mr M Fleming KC with Ms S Gold | Minter Ellison |
HIS HONOUR:
Background
The plaintiff seeks judicial review of a Medical Panel’s opinion that her degree of whole person impairment resulting from an injury did not satisfy the threshold level under the Wrongs Act 1958. She argued that the Panel committed a jurisdictional error by failing to properly assess her impairment in accordance with the AMA Guides (‘Guides’).
The plaintiff’s cervical spine was injured on 25 May 2017 during a hospital procedure at the Freemason’s/Epworth Hospital for the surgical extraction of her wisdom teeth. The head attachment of the operating table detached while she was under general anaesthetic, causing her neck to hyperextend. She was then aged 25.
The plaintiff’s grounds
The plaintiff contended that the Medical Panel committed an error of law on the face of the record or jurisdictional error by:
(a)Failing to comply with Sections 28LZG(1) and 28LH of the Wrongs Act 1958 and/or failing to properly construe and/or act in conformity with the AMA 4th Edition Guidelines (‘AMA Guides’), including the methodologies, processes and criteria set out, in particular, Sections 3.3f and 3.3h, and Table 73 and Chapter 3 in assessing her cervicothoracic spine impairment;
(b)Failing to have regard to relevant mandatory considerations, being the descriptions and verification criteria for DRE I, and DRE II under the Injury Model, and erroneously proceeding to assess the Plaintiff’s impairment as falling within the DRE I category, in circumstances where there was evidence before the Panel of a history of guarding which was a mandatory consideration which the Panel failed to consider;
(c)Failing to properly consider and apply, or engage in an active intellectual process with, the history of guarding as a differentiator, and/or the Range of Motion Model as a differentiator or the applicable method to determine the Plaintiff’s cervicothoracic spine whole person impairment level, in accordance with Section 3.3f AMA Guides, in circumstances where the Plaintiff’s impairment could not be placed into category DRE I.
The Medical Panel issued its Certificate of Determination under s 28LZG(2)(a) of the Act in response to a referral of a medical question from the Epworth Foundation, the third defendant. The Panel’s Certificate described its determination of the referred medical question as follows:
Question: Does the degree of impairment resulting from the physical injury to the claimant alleged in the claim satisfy the threshold level?
Answer: The Panel determined that the degree of whole person impairment resulting from the injury to the claimant alleged in the claim does not satisfy the threshold level.
Section 28LE provides that a person in the plaintiff’s position is not entitled to recover damages for non-economic loss in respect of an injury to the person, caused by the fault of another person, unless she has suffered a ‘significant injury’. The term ‘significant injury’ means an injury resulting in a permanent impairment that satisfies the threshold level,[1] here 5% or more of a whole person.[2] Section 28LH provides that assessment of the degree of impairment must, for present purposes, be ‘in accordance with … the A.M.A Guides’ (‘Guides’), which are defined to mean ‘the American Medical Association's Guides to the Evaluation of Permanent Impairment (Fourth Edition) (other than Chapter 15) as modified by or under this Part’.
[1]Wrongs Act 1958 s 28LF(1)(a).
[2]Ibid s 28LB.
The plaintiff’s medical evidence
The plaintiff was examined at the Cabrini Medical Centre on 27 November 2019 by Mr Charles Flanc, general and vascular surgeon, who is an Independent Medical Examiner and an Accredited Independent Assessor. He was requested by the plaintiff’s lawyers to produce a report determining whether her injuries would fulfil the criteria required to complete a certificate according to the Act (‘Mr Flanc’s report’).[3]
[3]Charles Flanc, Ms Nikki Skarbek (Medical Report, 2 December 2019) (‘Mr Flanc’s Report’).
Mr Flanc conducted an impairment assessment of the plaintiff in accordance with the Guides and certified that her degree of impairment resulting from the injury satisfied the threshold level.
Mr Flanc recorded the plaintiff’s symptoms as: intermittent pain involving the whole of the left side of the neck spreading down towards the base of the neck and over the back of the left chest, especially the scapula with the pain spreading down the spine as far as the thoracolumbar junction. The plaintiff felt pain every day, sometimes for several hours, but occasionally for consecutive days. The pain had not improved over the previous six months. It could be triggered by sneezing, resulting in a short increase of pain; or when she was stressed, anxious or tired, which resulted in an ache spreading out towards her shoulder and down her spine; or when she had a ‘cold’; or when lying on her left side. Her pain became more apparent if she viewed television programs showing operating theatres as that caused her to become anxious and triggered her pain. Reaching up to a cupboard with her left hand aggravated the pain over her left shoulder, so she used her upper right limb to reach upper shelves. She took anti-inflammatory medication five tablets weekly and occasionally took Panadol. She attended her general practitioner once every two months. She had started to attend a physiotherapist weekly, but after her health insurance expired, she attended ’as necessary’. She received ‘dry needling’ treatment by a physiotherapist. She believed that she should attend a psychologist. She worked as an administrator at a TAFE college doing office work and sitting at a computer, which occasionally aggravated her left-sided neck pain. She lived with her parents and was able to drive a car with comfort and had restarted visiting the gym.
Mr Flanc made the following diagnosis:
The mechanism of injury was whiplash in type and in my opinion, she sustained a musculoligamentous injury to the muscles related to the cervical spine.
Her pain remains severe and is more extensive than it was initially. It now spreads from the left side of the neck on the back of the left side of her chest and down the thoracic spine as far as the thoracolumbar junction.
In my opinion, these additional areas of pain are principally referred from her cervical spine and are probably influenced by nonorganic factors such as anxiety. It is possible that she has developed some degree of a chronic pain syndrome in which there is a sensitisation of pain pathways causing pain which is greater in severity and distribution than that expected from the physical injury alone.
I noted that Mr Damien Tange who repeated the CT scans and MRI scans considered that the new imaging performed in 2019 identified minor degenerative changes of the cervical spine. This is based on his examination of the imaging. In contrast, the official reports of this imaging state that the findings were normal.
Under such circumstances, it would be appropriate for the imaging to be reviewed by an independent radiologist experienced in assessing MRI scans because the presence of degenerative changes in the later films (if they were not present in the initial films of 2017), would be consistent with the injury initiating the degenerative process of the cervical spine.
There was no evidence of a radiculopathy.
Thus in summary, I consider that she is suffering from the longstanding effects of a severe whiplash injury causing a musculoligamentous injury, possibly associated with mild degenerative changes. It is likely that her symptoms are also being influenced by nonorganic factors.
Under the heading, ‘Impairment Assessment using AMA Guides for the Evaluation of Permanent Assessment (4th Edition)’, Mr Flanc stated:
There were no Structural Inclusions and her assessment is based on “Description and Verification”.
I consider that the appropriate “Differentiator” under Table 71 would be “Guarding” and that it would justify placing her in DRE Impairment Category II.
Hence her impairment is 5%.
Mr Flanc added:
The prognosis must be guarded because she has continued to suffer symptoms for over two years and it is therefore quite likely that she will continue to suffer some degree of neck pain although its severity may fluctuate.
The third defendant did not accept the Certificate of Assessment and referred the medical question to a Medical Panel. Its referral included a schedule of attachments amongst which was Mr Flanc’s report.
The parties’ submissions to the Panel
The plaintiff’s submissions to the Panel included the following:
In circumstances where there is evidence before the Panel that the Plaintiff has, inter alia, a history of guarding, and impairment related to cervicothoracic spine injury, the correct and preferable opinion ought to be that her whole person impairment of the cervicothoracic spine falls into category DRE II.
…
For the reason set out above, the Medical Panel ought not be led into error in determining that the Claimant’s impairment fell in DRE I - 0% in spite of the Claimant’s well documented history of significant clinical findings, including guarding observed by a physician.
The third defendant’s submissions to the Panel contended that it was arguable that the plaintiff could be placed in DRE Impairment Category I which equated to a 0% whole person impairment.
The Medical Panel’s task
The Panel applied a Diagnosis Related Estimate Model (‘DRE Model’) in assessing the plaintiff’s impairment under the Guides. In doing so, it was obliged to apply the methodologies, processes, and criteria in Chapter 3.3h ‘Cervicothoracic Spine Impairment’ and Table 70, ‘Spine Impairment Categories for Cervicothoracic, Thoracolumbar and Lumbosacral Regions’ and Table 73, ‘DRE Cervicothoracic Spine Impairment Categories’.
In HJ Heinz Co Australia Ltd v Kotzman,[4] Kyrou J said of the Guides:
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.
However, the Guides is, as its title suggests, a guide. It was written by expert medical practitioners and not by statutory draftspeople, and should not be overlaid with legalistic – or a lawyer’s precise – interpretation. It is of paramount importance to be faithful to the Guides’ plain words. The Guides should not be interpreted as if it was a statute.
The use of the Guides is designed to promote precision, certainty and consistency. Its purpose is to make as objective as possible the process of estimating impairment by reference to sufficient medical and non-medical information to justify the estimate.
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.
[4][2009] VSC 311, [24]-[28] (citations omitted) (‘Heinz’).
In Saddington v Kotzman,[5] Kyrou J explained how Medical Panels were to apply the Guides:[6]
In order for a medical panel to assess impairment ‘in accordance with’ the Guides as required by ss 28LZG(1) and 28LH(1)(a) of the 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 suboptimal. This is so because the role conferred by the Act on a medical 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.
[5][2013] VSC 196.
[6]Ibid [28]-[29].
Section 3.3, which concerns impairment of the spine, directs assessors to use the DRE Model in preference to the Range of Motion Model.[7] Impairment estimates are based on the history, objective findings and data, impression and any other information collected during the evaluation.[8] Under the DRE Model, categories are differentiated according to clinical findings that are verifiable using standard medical procedures.[9]
[7]Guides 3.3, 3/94.
[8]Guides 3.3c, 3/99.
[9]Guides 3.3d, 3/100.
The two DRE categories of present relevance are Categories I and II, which state:[10]
[10]Guides 3.3h, 3/103-4.
DRE Cervicothoracic Category I: Complaints or Symptoms:
Description and Verification: The patient has no significant clinical findings, no muscular guarding or history of guarding, no documentable neurologic impairment, no significant loss of integrity on lateral flexion and extension roentgenograms, and no indication of impairment related to injury or illness.
Structural Inclusions: None.
Impairment: 0% whole-person impairment.
DRE Cervicothoracic Category II: Minor Impairment
Description and Verification: The history and findings are compatible with a specific injury and include intermittent or continuous muscle guarding observed by a physician, nonuniform loss of range of motion (dysmetria, differentiator 1, Table 71, p. 109), or nonverifiable radicular complaints. There is no objective evidence of radiculopathy or loss of structural integrity.
Structural Inclusions: (1) Less than 25% compression of one vertebral body; (2) posterior element fracture without dislocation (not developmental spondylosis) is present and healing has occurred without loss of structural integrity or radiculopathy. A patient with a spinous or transverse process fracture with displacement should be placed in this category, because the fracture does not disrupt the spinal canal.
Impairment: 5% whole-person impairment.
The Specific Procedures and Directions that the assessor is to follow are contained in section 3.3f of the Guides. They include taking a careful history of the patient, performing a thorough medical examination and reviewing all pertinent records. The assessors are to identify the patient’s most serious objective finding, using the clinical differentiators in Table 71 if necessary to place the patient in the appropriate DRE category on the basis of objective clinical findings. If the criteria of one impairment category cannot be met, then the assessor is to compare the findings in the patient with the criteria of other categories. If the Injury Model is not applicable, the assessor is to refer to and use the Range of Motion Model as a differentiator.
The assessors are to start with Table 70 as a guide towards the appropriate category for the spine impairment. They may then use the differentiators in Table 71 which describe clinical criteria that correlate with serious physiologic dysfunction or structural change to help define the patient’s impairment.[11]
[11]Guides 3.3e, 3/100.
Table 71 is titled ‘DRE Impairment Category Differentiators’ and in introductory paragraphs states:[12]
In many cases, as with patients who have localized, severe pressure on spinal nerve roots, physicians can differentiate one type of impairment from another. But it may be difficult to reach agreement when the clinical findings are not obvious. The criteria below will help differentiate spine impairments and place them in impairment categories for the cervicothoracic, thoracolumbar, and lumbosacral regions.
The more objective and important differentiators are marked with an asterisk; the physician should use these to determine the highest impairment category. If the physician cannot place a patient’s impairment in one of the categories, or if there is disagreement about the most appropriate category, he or she should use the Range of Model (Section 3.3j,p.113) to evaluate the magnitude of the impairment and identify the most appropriate category (see Sections 3.3b, p 95 and 3.3f, p101).
[12]Guides 3.3h, 3/109.
The Guides describe the role of differentiators and state that ‘in using the Injury Model, the physician or examiner may use certain clinical procedures or determinations in placing the patient’s impairment in the proper category’.[13] The first differentiator listed in Table 71 is ‘Guarding’, which is described as follows:
[13]Guides 3.3b, 3/99.
1. Guarding
Paravertebral muscle guarding or spasm or nonuniform loss of range of motion, dysmetria, is present or has been documented by a physician. Radicular complaints that follow anatomic pathways but cannot be verified by neurologic findings belong with this type of differentiator.
The term ‘guarding’ in DRE I is not defined, although the differentiator ‘Guarding’ is given meaning by the criteria listed under it. Counsel for the plaintiff, while preferring not to define the term, suggested that it meant an involuntary protective movement to protect a muscle area or region of the body. Senior counsel for the third defendant submitted that the Court should not attempt to apply a definition of the term, as guarding was a medical term known to doctors and it was a matter for medical practitioners to apply the Guides.
The Medical Panel’s reasons
The Medical Panel comprised Dr Caroline Brand, Rheumatologist and Associate Professor Michael Murphy, Neurosurgeon, who examined the plaintiff on 26 August 2021 and produced a ‘Certificate of Determination’ and ‘Reasons for Determination’ both dated 21 September 2021.
The Panel recorded the plaintiff’s ‘current status: symptoms, treatment and functional limitations’ as follows:
Ms Skarbek described her current symptoms to the Panel, including:
·She suffers discomfort in the neck every day but not all day. She describes milder symptoms as “tightness/stiffness” and more severe symptoms as “spasms/twitches” and at times as “hot scalding water”;
·The discomfort centres around the left side of the neck and spreads down the back to the left “shoulder blade” (she pointed to the mid-scapular region); At times there is spread up towards the left eye.
·Her symptoms range in severity form 0/10-10/10, with more severe flares occurring at least once a fortnight; She has about 3 “good days” per week;
·She does not feel spread of pain into the left arm or hand and she suffers no pins and needles or numbness on the left side.
·She finds looking to the left side more difficult than the right, having to twist her whole body to look to the left. This movement can cause spasm in her neck;
·Cough or sneeze can cause pain in the neck and shoulder blade;
·She has normal bladder and bowel function;
·factors which aggravate her symptoms include: colder weather, extending her left arm above her head in a sustained manner, lifting heavy items (she avoids this);
·She lives with her parents and sister and contributed to cooking and lighter cleaning activities. She is independent in her own self-care;
·She drives an automatic car without problem;
·She walks each day after work briskly for 45 minutes, finds standing still limited to 25 minutes due to slouching causing discomfort;
·Her sleep is interrupted by pain most nights of she turns onto her left side;
She only takes medication for more severe flares (Brufen 400 mg up to 3 daily) about fortnightly. She uses heat packs and occasional magnesium and turmeric. She performed home based exercises and intends to return to a graduated gym program and to physiotherapy (dry needling in particular) when Covid restrictions are removed. She has no further specialist appointments planned.
She said that her symptoms have stabilised and no further treatment is planned for her neck symptoms.
The Panel described the plaintiff’s general health as good.
As mentioned, the Medical Panel determined that the plaintiff’s impairment did not satisfy the threshold level. The Panel concluded that her degree of whole person impairment resulting from the spinal injury alleged in the claim was permanent, but was not 5% or more.
The Panel referred to Mr Flanc’s report, stating:
The Panel noted that the alleged physical injury was described by Independent Medical Examiner, Mr Charles Flanc in his report dated 2 December 2019 as, “a musculoligamentous injury to the muscles related to the cervical spine”.
The Panel noted that no significant abnormalities were detected on the medical imaging of the plaintiff taken after the incident. That imaging and reports in March 2019 recorded that there was minor signal change at the C5/6 level without disc protrusion or neuro compression and that CTs and X-rays of the plaintiff’s cervical spine in March and May 2019 reported no abnormalities. The Panel stated that at no time was there documentation of restriction of cervical spine movement or neurological compromise during her admission to hospital.
The Panel’s conclusions
Under the heading ‘Physical Examination Findings’ the Panel stated:
The Panel observed active cervical spine movements and noted that there was global reduction in movements but no guarding or dysmetria. In particular there was symmetrical movement of lateral flexion, rotation of the cervical spine. Thoracic spine rotation was normal to both sides without pain.
The Panel’s ‘Medical Diagnoses’ were:
Based on Ms Skarbek’s history, reports from treating clinicians and the Panel’s examination, the Panel concluded that Ms Skarbek is suffering from:
·Persisting neck pain with features of central sensitisation, and without radiculopathy, following a cervical spine soft tissue injury.
The Panel concluded under the heading ‘Impairment Assessment’ that:
The Panel considered that Ms Skarbek’s physical injury has stabilised.
…
The Panel concluded that the degree of whole person impairment resulting from the spinal injury to the claimant alleged in the claim is permanent but is not 5% or more.
Plaintiff’s submissions
The plaintiff argued that the Panel made a jurisdictional error by failing to consider her history of guarding. Mr Flanc relied on the plaintiff’s guarding to form his assessment and his report established that she had a history of guarding. Because of that history, the plaintiff could not have satisfied the ‘description and verification’ criteria for Category DRE I, which required that the patient:[14]
[h]as … no muscular guarding or history of guarding.
[14]Guides 3.3h, 3/103.
The Panel did not refer in its Reasons to the plaintiff’s history of guarding, Mr Flanc’s reference to guarding, or the plaintiff’s solicitor’s submission to the Panel about her history of guarding. On that basis, the Court should infer that the Panel simply failed to consider the plaintiff’s history of guarding and only considered the assessment it made on the day that it examined the plaintiff.
The plaintiff’s history of guarding was a mandatory consideration in the assessment of her impairment, given the express reference to it in the impairment assessment criteria of the Guides and the importance it plays in differentiating between impairment categories. By placing the plaintiff in DRE I, the Panel affirmed the following description of the plaintiff’s symptoms:
…the plaintiff has no muscular guarding or history of guarding…
Mr Flanc’s report established that the plaintiff had a history of guarding, and that this symptom was intermittent or continuous. A history of guarding exists despite the absence of present symptoms.
While the Panel did not have to state in its reasons that they considered the plaintiff’s history of guarding, its failure to consider that history was self-evident by its conclusion that the plaintiff’s level of impairment was less than 5%, placing her within DRE I. Had the Panel considered the history of guarding, the plaintiff may have fulfilled the ‘description and verification’ criteria for DRE II.
The effect of the plaintiff’s submissions was that it was not open to the Medical Panel, making their assessment 21 months after Mr Flanc, to conclude that the plaintiff had no history of guarding. The Panel could not have considered Mr Flanc’s report, and at the same time concluded that the plaintiff had no history of guarding. DRE I lists a ‘history of guarding’ as a separate descriptor to ‘muscular guarding’.
The plaintiff made the additional submission that had the Panel considered her history of guarding, it may have decided to use the Range of Motion Model to assess her impairment. While the Guides prioritise the use of the DRE Model as the method of assessment for cervical spine injuries, they also direct when the Range of Motion Model should or might be used. Those circumstances include disagreements about the appropriate category and the possibility of a patient falling within two DRE categories. As, on one view, the plaintiff did not fit entirely within DRE I or II, the Panel was required to use the Range of Motion Model to make an accurate assessment of her impairment. The Panel should have used that Model, either initially, or as a differentiator, to place the plaintiff in DRE I or II.
If the Panel had applied the Range of Motion Model, it was likely to have found that the plaintiff’s injury fell into category II of Table 75. That category equates to a diagnosis-related whole person impairment of 4%, which was then be combined with the results of the range of motion specific impairment, to arrive at the total whole person impairment. The Guides, when dealing with ‘3.3j The Range of Motion Model’, describe under the heading ‘Estimating Whole-person Impairment’, the following:
2. Using Table 75 (p112), determine the estimated diagnosis-related impairment percent for the primarily involved region. This percent will be combined with those representing the impairment range(s) of motion…
The Panel’s reasons noted the plaintiff’s cervical spine had a ‘global reduction in movements’. If the Panel had conducted a range of motion assessment of that ‘global reduction’ in cervical movements, the assessment of the range of motion impairment component need only have amounted to, or rounded to, 1% in order for the plaintiff to meet the significant injury threshold of 5%. That figure would then have been used to place the plaintiff within one of the DRE categories, possibly DRE II.
The Panel’s determination should be quashed, and the matter remitted to a differently constituted Panel for redetermination.
Third defendant’s submissions
The third defendant submitted that the plaintiff had not established that the Panel made a jurisdictional error. The Panel determined that the plaintiff’s level of impairment fell within the scope of DRE I, as not 5% or more of whole person impairment. It did not determine that the plaintiff had no impairment at all, but rather that the level of impairment constituted ‘complaints or symptoms’ and fell within DRE I.
The plaintiff submissions to the Medical Panel were that it should apply the DRE Model and that her whole person impairment of the cervicothoracic spine fell into category DRE II. She did not submit that it should apply the Range of Motion Model.
The determination of the plaintiff’s level of impairment under the Guides was a question of fact for the Panel. The Guides do not mandate how an assessor selects the appropriate DRE. Differentiating between DRE I and II, depended on the Panel’s identification of objective clinical findings. The Guides explain the role of differentiators in the following passage:[15]
[15]Guides 3.3b, 3/99.
Differentiators
In using the Injury Model, the physician or examiner may use certain clinical procedures or determinations in placing the patient’s impairment in the proper category. These ‘differentiators’ are described in Table 71 … and are listed below.
No differentiator is required to place a patient in any impairment category. However, if a differentiator is present, it provides important evidence as to the category in which the patient belongs.
Impairment Category Differentiators
Guarding
Loss of reflex(es)
Decreased muscle circumference
Electrodiagnosis
Lateral motion roentgenograms
Loss of bowel or bladder control
Bladder studies
Range of Motion model
Tsalamandris J in Bhelley v Coles Supermarkets Pty Ltd[16] considered the role of differentiators in the context of a DRE impairment assessment involving the lumbar spine. Her Honour stated:[17]
For a patient’s spinal condition to fit under DRE II, 3.3g states such findings may include significant, intermittent, or continuous muscle guarding that has been observed and documented, or non-verifiable radicular complaints. The description for this category also expressly refers to Table 71, differentiator 1, being guarding. Whilst these are not expressed as mandatory requirements, they are offered as example findings for the examiner to consider in determining the appropriate impairment category.
…
For a patient's spinal condition to fit under DRE1, 3.3g states [that] the patient has no significant clinical findings, no muscle guarding or history of guarding, and no indication of impairment related to the injury. Once again, although not mandatory requirements, these are characteristics offered to assist the examiner in determining the appropriate category.
[16][2022] VSC 446 (‘Bhelley’).
[17][70]– [71] (citations omitted).
The Act does not make every ingredient in the Guides a mandatory consideration. The Guides are addressed to physicians to guide their assessment of impairments and are to be used in conjunction with professional medical skill and expertise. They are not to be construed as if they were a statute, as they are ‘written by expert medical practitioners and not by statutory draftspeople, and should not be overlaid with legalistic – or a lawyer’s precise – interpretation.’[18] Moreover, the Guides commonly use medical terminology and ‘their interpretation – and application – is for doctors, not judges.’[19] Mandatory consideration are higher level considerations, not mere matters of evidence.[20]
[18]H J Heinz Company Australia Ltd v Kotzman (2009) 31 VAR 206, [2009] VSC 311, [26] (Kyrou J).
[19]Gamble v Emerald Hill Electrical Pty Ltd (2012) 38 VR 45, [58] (‘Heinz’).
[20]Chang v Neill (2019) 62 VR 174, [71]-[72] (‘Chang’).
The Panel could only have placed the plaintiff’s impairment in DRE II in accordance with the Guides, if had found that she had intermittent or continuous muscle guarding observed by a physician. However, the Panel upon its examination of the plaintiff found that she did not have guarding. There was no history, in the form of an objective clinical finding, that the plaintiff had guarding at all. Mr Flanc did not make any objective clinical finding of ‘guarding’ or refer to any previous findings of ‘guarding’ by anyone else. Mr Flanc’s fleeting reference to ‘guarding’ did not require the Panel to give it any more consideration than it did. The Panel was not required to explain why it did not come to the same opinion as another physician. [21] The Panel had no statutory obligation to give reasons.
[21]Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 (‘Wingfoot’).
The Panel referred in its Reasons to Mr Flanc’s report and his diagnosis and stated that it had regard to the documents referred to it in Enclosures A & B, which included Mr Flanc’s report. It stated that it had ‘formed its opinion with regard to’ those documents. There is no reason to doubt the accuracy of that statement. It is unlikely that the Panel overlooked that Mr Flanc had assessed the plaintiff to DRE II by reference only to the differentiator ‘guarding’. The plaintiff’s solicitors had provided submissions urging the acceptance of Mr Flanc’s report and the conclusion of guarding. The Panel specifically said that it ‘noted’ that submission provided and considered that its reasons ‘adequately and appropriately addressed the issues raised therein.’
The Panel assessed the appropriate DRE Category as DRE I rather than DRE II. DRE I applies where there are ‘complaints or symptoms’. The Panel’s task was to assess the plaintiff’s impairment and form its own opinion on the medical question referred. It was open to the Panel to find that the plaintiff met the criteria of DRE I of ‘Complaints or Symptoms. She was able to work full time and the Panel did not find any clinical signs of neck injury. The Panel made no significant clinical findings of muscular guarding or history of guarding, no documentable neurologic impairment, no significant loss of integrity on lateral flexion and extension roentgenograms, and no indication of impairment related to injury or illness. The plaintiff’s ongoing symptoms were largely subjective.
If the patient or complainant exhibits only complaints or symptoms, and no significant clinical findings, such as those set out in Table 71, differentiator 1, then the assessor is directed by the Guides to place the impairment in DRE I. The Panel appropriately considered whether a differentiator was present.
The third defendant submitted that the Panel considered that the use of the Range of Motion Model was inappropriate because the impairments attributable to the plaintiff’s neck and back could be adequately assessed using the DRE Model. In addition, the plaintiff did not establish that she would have satisfied the threshold of 5% if the Range of Motion Model had been applied. Mr Flanc did not apply that Model and the plaintiff did not ask him to do so.
The Guides provide that if no diagnosis in Table 75, which contains the Range of Motion Model, ‘Whole-person Impairment Percents Due to Specific Spine Disorders’ was applicable, that Model should not be used. Instead, the patient should be placed in the lowest of the DRE categories in question.[22] The plaintiff’s impairment did not fit within any of the criteria in the Range of Motion table in Table 75 and so the Range of Motion Model could not be used.
[22]Guides 3.3f, 3/101.
Finally, the plaintiff contended that if the Panel made any error, it was not material to its assessment. The plaintiff had not met the threshold requirement because she had not established that she could realistically surpass the threshold of 5% or more impairment if assessed in accordance with the Range of Motion Model.
Analysis
In my opinion, the plaintiff has not established that the Panel made the jurisdictional errors she alleges.[23]
[23]Minister for Immigration and Citizenship (2011) 241 CLR 594, 616 [67], 623 [91]-[92] and MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590, 600 [39].
The function of a medical panel is to form and to give its own opinion on the medical question referred to it.[24] That function is:[25]
[n]either arbitral or adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.
[24]Wingfoot 499 [47].
[25]Ibid.
The determination of the plaintiff’s level of impairment was a question of fact for the Panel exercising its medical skill and judgment as Kyrou J explained in HJ Heinz.[26]
[26][2009] VSC 311, [24] – [28].
The task of the Panel was described by Tsalamandris J in Bhelley[27] as follows:
It was for the Panel, after taking a history, examining Mrs Bhelley, and reviewing all pertinent material, to use its collective expertise and knowledge to determine whether category DRE I or II was most appropriate for Mrs Bhelley’s spinal impairment, having regard to the descriptions for each. That included the Panel determining whether there were any clinical signs of lumbar injury without radiculopathy. If the Panel considered there were none, then it was open for it to determine that Mrs Bhelley’s spinal impairment be categorised as DRE I and assign a 0% impairment rating. As I have already said, this is a matter of medical judgement, and is not a matter with which I will readily interfere.
I therefore reject Mrs Bhelley’s assertion that she must fall under the DRE II category in Table 72, as it was said that at the time of her examination by the Panel, clinical signs of lumbar injury were present without radiculopathy or loss of motion segment integrity. As stated above, whether or not clinical signs were present, and the significance of them to the patient, is a medical question for the Panel to answer.
It is worth noting that although DRE I equates to 0% impairment, that is not to say a patient categorised in this way has no symptoms or complaints. To the contrary, DRE I expressly contemplates a patient who has symptoms and complaints albeit in circumstances where the examiner is satisfied the patient has no significant clinical findings. For the reasons given above, it was open to the Panel to determine that Mrs Bhelley’s complaints and symptoms were most appropriately categorised under DRE I. By analogy, in the present case, the Panel did not find that the plaintiff had no symptoms or complaints, but that her symptoms and complaints were appropriately categorised under DRE I.
[27]Bhelley [72]-[74].
The Panel was required to identify the patient’s ‘most serious objective findings’[28] and to act in conformity with the Guides, which do not:[29]
…permit the exercise of professional judgment at large, unconstrained by the specific requirements of each methodology or table that it sets out. 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.
[28]Guides 3.3f, 3/101.
[29]Heinz [46].
The Panel stated that it assessed the impairment of the plaintiff’s cervical spine in accordance with the Specific Procedures and Directions in section 3.3f of the Guides and in accordance with Tables 70 and 73 of Chapter Three. It also stated that it based its medical diagnosis on the plaintiff’s history, reports from treating clinicians, provided to it, and its examination of the plaintiff. The Panel noted the submissions that the plaintiff and third defendant provided ‘and considered its Reasons… adequately and appropriately address the issues raised therein’.[30]
[30]Medical Panel’s Reasons (‘Reasons’), p 6.
The Panel’s findings on its physical examination of the plaintiff included observing that she had ‘mild tenderness to the left paraspinal cervical region and the left mid-scapular region without muscular spasm’. It observed ‘active cervical spine movements and noted that there was global reduction in movements but no guarding or dysmetria. In particular there was symmetrical movement of lateral flexion and rotation of the cervical spine and normal rotation of the thoracic spine without pain.’[31]
[31]Reasons, p 5.
The Panel referred to Mr Flanc’s report, noting his description of the plaintiff’s physical injury as a ‘musculoligamentous injury to the muscles related to the cervical spine’. The Panel’s and Mr Flanc’s clinical findings differed on the extent of the plaintiff’s pain, amongst other things. The plaintiff informed the Panel that her symptoms had stabilised and that no further treatment was planned for her neck symptoms.
Mr Flanc’s treatment of guarding as a differentiator did not bind the Panel when it formed its opinion 21 months later and it did not have to explain why it disagreed with his opinion.
The three grounds upon which the plaintiff’s judicial review application is based rely directly or indirectly on the contention that the Panel failed to have regard to relevant considerations, being the plaintiff’s history of guarding as contained in, or evidenced by, Mr Flanc’s report. In more detail, the grounds in their final form were that first that the Panel failed to apply the Guides including the methodologies, processes and criteria set out, in particular, sections 3.3f and 3.3h and Table 73. Secondly, that the Panel failed to have regard to mandatory considerations being the descriptions and verification criteria for DRE I and II and erroneously assessed the plaintiff’s impairment as falling within DRE I when there was evidence of a history of guarding. Thirdly, that the Panel failed to properly consider and apply, or engage in an intellectual process with the history of guarding as a differentiator and/or the Range of Motion Model as a differentiator or the applicable method to determine the plaintiff’s cervicothoracic spine whole person impairment in circumstances where her impairment could not be placed into DRE I.
It is a question of fact whether a Panel has failed to take into account a relevant consideration.[32] The fact that the Panel’s reasons do not expressly refer to considerations does not necessarily establish that they were not taken into account. The Panel was not obliged by statute to give reasons.[33]
[32]Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675, 679-80.
[33]Colquhoun v Capitol Radiology Pty Ltd (2013) 39 VR 296, [44]-[45].
The initial question in this case is what were the relevant considerations to which the assessor must have regard in conducting the assessment. That depends in this case on the proper interpretation of the Guides.[34] I accept that the criteria of ‘guarding’ and ‘a history of guarding’ contained in DRE I had to be considered by the Panel if there was some objective clinical evidence that such conditions may have been present in a patient or claimant. If they were present, they prevented the assessor placing the impairment into DRE I. I do not accept the third defendant’s submission that a distinction between high level considerations which may be mandatory and ‘mere matters of evidence’ is of assistance in the present case. The assessor must consider matters that are ‘fundamental issues raised by the facts of the case’.[35] But, if there is no objective clinical indication of the presence of such conditions, the assessor is not obliged to have regard to them. In the present case, the Panel did consider whether the plaintiff exhibited guarding and, based on its examination of her, found that she did not. However, the requirement to give active or genuine consideration to criteria, or engage in an active intellectual process with the criteria in the DRE categories is formulated, the Panel performed that obligation in respect of guarding.
[34]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39-42.
[35]Sidiqi v Kotsios [2021] VSCA 187, [61].
The Panel did have regard to Mr Flanc’s report and his conclusions about ‘guarding’. In my opinion, it is reasonable to assume that the Panel was aware that the question of whether the plaintiff displayed guarding was relevant to an assessment of her impairment. This is especially so, because the third defendant referred the medical question to the Panel following Mr Flanc’s assessment, which included that ‘the appropriate “Differentiator” would be guarding’. In addition, the Panel in its own assessment considered whether the plaintiff exhibited guarding. The plaintiff did not challenge the Panel’s finding on that issue.
However, the plaintiff’s case involves a further step in reliance on Mr Flanc’s opinion. It was that, even though the Panel found that the plaintiff did not exhibit guarding, the Panel was obliged to, but did not, consider whether the plaintiff had a history of guarding and was therefore excluded from DRE I. I do not agree with the plaintiff’s contention that the panel did not have regard to the issue of whether the plaintiff had a history of guarding. I am not persuaded that Mr Flanc’s report, or the plaintiff’s other medical records, contained an objective clinical finding that she had a history of guarding. Mr Flanc’s report listed medical reports, notes and imaging that he considered, including by a neurosurgeon and spinal surgeon as well as the plaintiff’s general practitioner and musculoskeletal physiotherapist.[36] It was not suggested that any of them recorded that the plaintiff had a history of guarding, let alone that she had ever complained to them, or to Mr Flanc about symptoms of guarding. Furthermore, although Mr Flanc placed the plaintiff’s impairment in DRE II, he did not make a clinical finding that the plaintiff exhibited the relevant criteria of DRE II which were that ‘the plaintiff’s history and findings … were compatible with a specific injury and include intermittent or continuous muscle guarding observed by a physician.’ On the plaintiff’s approach to the application of the DRE criteria, they were relevant considerations in determining whether the impairment fitted into DRE II. Mr Flanc only stated that guarding ‘would be’ the differentiator that he considered was appropriate under Table 71.
[36]Mr Flanc’s Report, 6-8.
The Panel stated that they had regard to the history provided by the plaintiff. In my opinion, it was open to the Panel, as expert medical practitioners, having found that the plaintiff did not exhibit guarding, to conclude that there were no clinical findings or evidence that she had a history of guarding and not further consider that issue. I consider it likely that the Panel followed that path and that the plaintiff has not established that it made a jurisdictional error. The evidence and material that was before the Panel suggested that no clinical finding of guarding had been made by the plaintiff’s general practitioners and she had not complained of symptoms of guarding. The Panel did not find any evidence of guarding when it examined her.
It was also open to the Panel to find that Mr Flanc’s use of guarding as a differentiator did not establish a history of guarding that took the plaintiff out of DRE I. Mr Flanc did not make a clinical finding that the plaintiff displayed ‘guarding’. The differentiator ‘guarding’ contains a range of criteria including ‘paravertebral muscle guarding or spasm or nonuniform loss of range of motion or dysmetria is present or has been documented by a physician’. Mr Flanc did not specify which of these criteria he found to be present and upon which he based his conclusion that the appropriate differentiator under Table 71 ‘would be Guarding’.
While the Panel did not refer in its reasons to the issue of whether the plaintiff had a history of guarding, that is explicable and permissible on the basis that there was no clinical evidence before the Panel that she had such a history. The Panel acting under the Wrongs Act was not obliged to give reasons and no ground based on inadequacy of reasons has been, or could be, raised.
The Panel appears to have considered the description of guarding as a differentiator, as their reasons refer to some of the conditions contained in the description of that differentiator in Table 71. However, I do not consider that Mr Flanc’s use of the guarding differentiator necessitated the Panel to consider that the plaintiff had a history of guarding in the absence of any objective clinical finding that she had exhibited guarding previously.
In my opinion, the Panel made no jurisdictional error, when exercising their medical skill and judgment, they assessed the plaintiff’s degree of impairment resulting from the spinal injury alleged in the claim as permanent but as not ‘5% or more’. That meant that the plaintiff’s impairment was placed in DRE I as ‘complaints or symptoms.’
I should add that, like Tsalamandris J in the passage in Bhelley which I have set out above,[37] I do not consider that the differentiators are expressed as mandatory considerations for the Panel to take into account.
[37]Bhelley [70]-[71].
The Panel stated it did not consider that the Range of Motion Model was required or necessary to assess the plaintiff’s impairments, as the impairments attributable to the plaintiff’s neck and back could be adequately assessed using the DRE Model. There was no occasion for the Panel to use the Range of Motion Model.
Moreover, the plaintiff did not suggest to the Panel that it should use the Range of Motion Model, which uses a diagnosis-based component based on Table 75. That Model should be used only if the DRE Model is not applicable, or if more clinical data on the spine is needed to categorise the individual’s spine impairment.[38] The process of estimating whole person impairment under the Range of Motion Model requires using Table 75.
[38]Guides 3/112 3.3j.
In any event, it was far from clear that a diagnosis under Table 75 could have been made. The plaintiff pointed to Disorder II ‘Intervertebral disk or other soft-tissue lesion’, but not to any specific sub-category. It may be that sub-category B was relevant, but it is not clear that the plaintiff’s condition fitted within the description ‘unoperated upon, stable, with medically documented injury, pain and rigidity’. This possibility was not suggested to the Panel, nor was it developed in argument before the Court.
Conclusion
The plaintiff has not established that the Medical Panel made the jurisdictional errors alleged. The plaintiff has not established that the Panel failed to comply with the Guides (ground 1(a)), failed to have regard to relevant mandatory considerations (ground 1(b)) or failed to properly consider and apply, or engage in an active intellectual process with the matters listed in ground 1(c).
The proceeding is dismissed. The usual order as to costs in this event is that the plaintiff would be ordered to pay the third defendant’s costs of the proceeding on a standard basis. If any party within 7 days notifies the Court that they seek a different order, I will relist the proceeding to hear their submissions. Otherwise, I will order that the plaintiff pay the third defendant’s costs of the proceeding on a standard basis to be assessed by the Costs Court in default of agreement.
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