Swan Hill District Health v Graham
[2023] VSC 454
•4 August 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2022 01355
| SWAN HILL DISTRICT HEALTH | First Plaintiff |
| and | |
| BENDIGO HEALTH | Second Plaintiff |
| v | |
| RAYMOND DOUGLAS GRAHAM & ORS | Defendants |
| (according to the attached Schedule) |
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JUDGE: | O’Meara J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2 June 2023 |
DATE OF JUDGMENT: | 4 August 2023 |
CASE MAY BE CITED AS: | Swan Hill District Health & Anor v Graham & Ors |
MEDIUM NEUTRAL CITATION: | [2023] VSC 454 |
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ADMINISTRATIVE LAW – Judicial review – Opinion of medical panel that degree of whole person impairment resulting from physical injury to the first defendant alleged in the claim satisfies the threshold level – First defendant long standing smoker with significant history of recurrent chest infections and impaired respiratory function, including chronic obstructive pulmonary disease – Procedure to replace percutaneous endoscopic gastrostomy tube – First defendant asserted subsequent significant restrictions in functional capacity – Panel performed lung function tests – First defendant unable to perform reproducible lung function manoeuvres and also leakage in the course of the conduct of the tests – Convenor letter to plaintiffs and first defendant in respect of ‘sub-optimal’ test results – Panel’s consideration of clinical and other material subsequently obtained – Panel’s assessment of impairment – Panel’s consideration of unrelated impairments – HJ Heinz Company Australia Ltd v Kotzman [2009] VSC 311, Chua v Newman-Morris [2009] VSC 582, Lingenberg v Gallichio (2013) 40 VR 60, AMA Guides, sections 2.2, 5.2 and 5.3 and Wrongs Act 1958 (Vic), ss 28LH and 28LL(3) considered – Proceeding dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | RL Kaye KC AJ Macaskill | HWL Ebsworth Lawyers |
| For the First Defendant | FC Spencer | Garden & Green Lawyers |
| For the Second and Third Defendants | No appearance | DLA Piper Australia |
HIS HONOUR:
A. Introduction
The first defendant was born on 11 May 1942 and is presently 81 years of age.
In 2016, he was diagnosed with stage III Merkel cell carcinoma with right level II lymph node, being a rare form of malignant skin cancer on his neck, initially treated surgically. Following surgery, the first defendant completed radiotherapy and chemotherapy.
In connection with the latter, the first defendant lost a significant amount of weight and experienced difficulty swallowing. He was diagnosed with dysphagia and, on 4 October 2016, commenced being fed through a nasogastric tube.
It appears that, at some stage, the nasogastric tube was removed and, in October 2017, following a diagnosis of pneumonia on a background of chronic obstructive pulmonary disease (‘COPD’) and dysphagia, it was re-inserted in the course of a procedure performed at Swan Hill and District Hospital (‘Swan Hill Hospital’).
The nasogastric tube remained in situ permanently and was changed every six weeks, until 20 July 2018, when it was replaced with a percutaneous endoscopic gastronomy tube (‘PEG tube’) inserted through the first defendant’s abdominal wall in a procedure performed at Bendigo Hospital.
On 14 February 2019, the first defendant was admitted to Swan Hill Hospital for removal of the PEG tube. During that procedure, the distal end of the PEG tube could not be removed and was sought to be pushed into the first defendant’s stomach with the expectation that it would eventually pass through his bowels and be excreted.
Following that procedure, the first defendant reported symptoms of shortness of breath, choking and vomiting. He reported becoming progressively more incapacitated.
On 22 March 2019, a CT scan revealed the presence of the PEG tube remnant in the first defendant’s oesophagus, although it was not removed at that time. The attending medical staff recorded as follows –
Informed patient of [foreign body]. Patient denies any recent procedures. No change in swallowing for few years; still able to tolerate oral fluids. D/w Mr Liew on 22/3/19 – given no change in symptoms and comorbidities FB is not for further [investigation]. Pt agrees with plan.[1]
[1]Court Book (‘CB’) 55.
Subsequently, in June 2019, and in connection with a chronic cough productive of discoloured sputum, the first defendant had a chest X-ray at Bendigo Hospital. The X-ray results revealed the foreign body in the oesophagus. The first defendant was subsequently referred for a gastroscopy procedure to remove it. That procedure took place at Swan Hill Hospital on 29 August 2019.
On 13 April 2021, the first defendant filed an amended writ and statement of claim in the County Court of Victoria claiming that he had suffered severe injury, loss and damage as a result of alleged negligence in connection with the procedure at Swan Hill Hospital on 14 February 2019 and subsequent medical management at Bendigo Hospital. The first defendant’s claimed injury was described as –
Severe and chronic respiratory distress; Development of chronic deep cough; Disturbance of sleep function; Disturbance of mobility; Chronic lower respiratory tract infections; Chronic vomiting attacks; Chronic chest discomfort; Ongoing respiratory tract infections; Malaise; Energy disturbance; Long insufficiency; Weight loss.
On 8 February 2021, the first defendant was examined by Dr Jonathan Burdon, consultant respiratory physician. Dr Burdon assessed the first defendant as having a greater than 5% physical impairment meaning that he satisfied the relevant ‘threshold level’ in Part VBA of the Wrongs Act 1958 (Vic) (‘Act’).
Pursuant to s 28LWE of the Act, the plaintiffs referred a ‘medical question’ to a medical panel.
The panel was –
(a) constituted by a respiratory and sleep medicine physician and an occupational and environmental physician; and
(b) required to perform an impairment assessment in accordance with the relevant sections of the American Medical Association Guides to the Evaluation of Permanent Impairment (4th Edition) (‘Guides’).
In that connection, the panel was provided with records and other documents, including written submissions prepared on behalf of the first defendant and plaintiffs respectively, and the first defendant was examined by –
(a) the respiratory and sleep medicine physician on 6 October 2021; and
(b) the occupational and environmental physician on 15 October 2021.
In that context, the panel took histories from the first defendant and his wife, undertook a physical examination and also performed lung function tests at the Respiratory Laboratory of ‘Melbourne Lung & Sleep Specialists’ with equipment and calibration conforming to the requirements of American Thoracic Society Statements on Standardisation of Spirometry and Single Breath Carbon Monoxide Diffusion Testing, (1987) (‘Standardisation of Spirometry’).[2]
[2]CB53.
Subsequently, the panel sought and obtained extensive additional documentary material, including the clinical records of the first defendant’s treating general practitioner as well as the records of Bendigo Health, Peter MacCallum and Swan Hill Hospitals.
In connection with the lung function tests, on 31 January 2022 the Convenor of the panel wrote to the solicitors for the first defendant and plaintiffs and stated that –
… during testing the claimant was unable to perform reproducible lung function manoeuvres. The Medical Panel believes that the outcome of the respiratory function tests on 6 October 2021 are suboptimal due to leakage. The claimant was seated in wheelchair and it was difficult for him to sufficiently raise his head to mouthpiece, without leakage.
The Medical Panel is cognisant of the claimant’s ability to adequately perform any respiratory function tests, as he requires assistance with personal care and he is limited in most activities of daily living.
…
The Medical Panel noted that the claimant was assessed by Dr Jonathan Burdon, on 8 February 2021 … Dr Burdon, in his report also noted that respiratory function tests, as prescribed in the Fourth Edition Guides, were unable to be completed as the claimant was unable to perform the expiratory manoeuvres required to satisfy the completion of these tests.
The Medical Panel has also requested and obtained extensive additional material, including the clinical records of the claimant’s treating general practitioner, and the records of Bendigo Health, Peter MacCallum and Swan Hill Hospitals …
The Medical Panel noted from these documents that there are [no] references to the claimant having had lung function tests performed in the sixteen year period (2000 – 2016).
The Medical Panel proposes to assess the claimant’s impairment in accordance with the criteria in Table 8 of Chapter Five. In doing so, it proposes to use the best results from its respiratory function tests 6 October 2021 (FEV1 56%, FVC 73% and FEV1/FVC 59%, DCLO unable to obtain) to determine the total whole person impairment.
Prior to forming its Determination, the Medical Panel wishes to give all parties the opportunity to made submission, in response [to]:
·Application of the Fourth Edition Guides, HJ Heinz Company Australia Ltd & Anor v Kotzman & Ors [2009] VSC 311, for using suboptimal respiratory function test results to determine a total whole person impairment for the claimant’s respiratory system, pursuant to Table 8 of Chapter Five of the Fourth Edition Guides.[3]
[3]CB2245-2246.
The solicitors for the first defendant subsequently submitted that the approach proposed in the Convenor’s letter was ‘in accordance with the Guides’ and stated –
What is an “acceptable” spirometric tracing of forced expiration for the purposes of an impairment assessment under the Guides is a matter for the Medical Panel’s professional medical judgment and expertise having regard to all of the relevant circumstances.[4]
[4]CB2250.
In that regard, the solicitors for the first defendant emphasised, among other things, the inability of the first defendant to perform the tests ‘having regard to his general debility’. The essential substance of the submission was that –
Using the best results, as opposed to an average, is an appropriate way for the Panel to assess the claimant’s impairment in circumstances where the claimant’s ability to perform the tests was affected by his position in the wheelchair and difficulty in sufficiently raising his head to the mouthpiece.[5]
[5]CB2250.
By contrast, the solicitors for the plaintiffs submitted that –
… it would not be in conformity with the Guides to use suboptimal respiratory function test results to determine a total whole person impairment for the Claimant’s respiratory system, pursuant to Table 8, and that doing so would constitute “the exercise of professional judgment at large”, unconstrained by the requirements of the Guides. Pursuant to the finding of Kyrou J in the case of HJ Heinz v Kotzman, this is not permitted by the Guides.[6]
[6]CB2254.
In that regard, the solicitors for the plaintiffs took issue with any suggestion that the first defendant’s ‘general debility’ could be referrable to his claim against the plaintiffs, and also emphasised the requirements of s 28LL(3) of the Act.[7]
[7]CB2254-2255.
On 16 February 2022, the panel issued a certificate of determination stating and answering the ‘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 physical injury to the claimant alleged in the claim does satisfy the threshold level.[8]
[8]CB47.
B. The panel’s reasons
The panel’s certificate was accompanied by written reasons.
Such reasons are regarded as having been given voluntarily and the panel’s determination cannot be attacked on the grounds that its reasons are ‘legally inadequate’. That said, such reasons can be indicative of jurisdictional error or error of law on the face of the record affecting the panel’s determination.[9] As counsel for the first defendant put it, ‘those reasons are … examined to see whether they disclose error’.[10]
[9]Ingle v Australia Pacific Airports (Melbourne) Pty Ltd & Ors [2021] VSC 50, [24]. See also, Colquhoun v Capital Radiology Pty Ltd (2013) 39 VR 296 and La Rosa v Patrick [2022] VSC 404, [59]-[61] (‘La Rosa’).
[10]T35.
In the present instance, the panel commenced by recording the account of the first defendant and his wife concerning his medical history leading up to the insertion of the PEG tube. That included the first defendant’s diagnosis of cancer, a bout of pneumonia in 2017, COPD and dysphagia.
The panel thereafter considered the first defendant’s account of the subject events. In that connection, the panel recorded that –
The claimant told the Panel that at some point during 2018 his nasogastric feeds were substituted with PEG feeding because “my throat was getting irritated”. He told the Panel that the PEG tube was replaced on 14 February 2019 (‘the incident’) because “the feed tube was melting and the nurse couldn’t cut any more off”, and he demonstrated significant anger and emotional distress when discussing the incident. He told the Panel that “they never used local anaesthetic so they couldn’t pull the tube out”, and he said that “they left a two-inch silicone disc in – if it had got into my gut, I was history”. He told the Panel that one or two weeks after the incident he “felt it stuck in my throat sometimes”, and although he made no mention of increasing cough, he said that he started getting short of breath. He told the Panel that he also started vomiting, and he said that he developed “problems with my gall bladder”.
…
The claimant told the Panel that he became progressively more and more physically incapacitated, and he said that he spent “seven months on the couch before I finally got them to take it (the PEG remnant) out”. From the information in the Referral material the Panel noted that the PEG remnant was removed during a gastroscopy procedure on 29 August 2019.[11]
[11]CB50.
In respect of events following removal of the PEG tube remnant, the Panel recorded the following history –
The claimant told the Panel that after the gastroscopy there may have been some slight initial improvement in his dyspnoea and dysphagia, albeit not in either his mobility or his cough, but he said that he was still short of breath, and still had difficulty swallowing. He described how he struggled to walk because “I sat around for seven months and lost my balance”, and he told the Panel that his dyspnoea, dysphagia and balance difficulties have been gradually increasing in severity during the past twelve months prior to the Panel’s assessment. He told the Panel that now he cannot even walk to his letter box, which he had been able to do in 2019 and the first half of 2020, and he said that in about April/May 2021 he “got a wheelchair” in order to attend his medical appointments because “my wife doesn’t drive”.
He angrily reported that he can now only take small sips of water, whereas previously he could “drink properly”, including during the period between the incident in February 2019 and the gastroscopy in August 2019.
The claimant was unable to clarify whether his current walking tolerance is restricted primarily by his shortness of breath or by his loss of balance, but he expressed distress that he is now [sic] longer able to attend the local RSL club or mow the lawns. He reiterated that he had used a single point walking stick to ambulate since his discharge from the Peter MacCallum hospital in October 2016, and a four-wheeled walker since his discharge from the Swan Hill hospital after his admission with pneumonia in October 2017, but despite this, and the requirement for first nasogastric and later PEG tubes, he also reiterated that he had continued to mow the lawns and go to the RSL until about early 2020. He told the Panel that he had stopped driving his car in May 2020.[12]
[12]CB50-51.
The panel thereafter recorded the first defendant’s account of his ‘cough history’; noting the first defendant’s observation that although he had been a smoker of 30-40 cigarettes per day from the age of 15 years, he had been ‘good as gold’ and had never had a cough until the subject events.
On the other hand, the panel recorded –
The claimant’s wife initially told the Panel (on 6 October 2021) that the claimant had had a persistent productive cough for many years, and that although the severity of his cough fluctuated from time to time, it had not been significantly changed by nasogastric tube feeding or by the subsequent PEG feeds. She subsequently revised this history on 15 October 2021, when she stated that the claimant had initially developed a cough, usually productive of while [sic: white] sputum “when he got sick” in October 2017, and that his cough has persisted since that time. She told the Panel that the claimant’s sputum would “turn green” from time to time, and she said that for a few years he was prescribed a course of antibiotics about every three months.
Neither the claimant nor his wife was able to estimate the amount of his sputum production prior to the incident, but both again denied any increase in the severity of his cough in the short-term after the incident, and the claimant reiterated that his problem at that time was that he could feel the PEG tube remnant “stick in my throat”.[13]
[13]CB51.
The panel then addressed the first defendant’s ‘current status’, noting that –
The claimant told the Panel that currently he is 79 years old and suffers significant restrictions in his functional capacity, all of which he attributed to the incident. He told the Panel that he had been “given the all clear” after his treatment for cancer in 2016, and reiterated that he had remained independent, fully functional and physically active until the incident in February 2019. He told the Panel that prior to 2017 he had never suffered from pneumonia or chest infections, and he said that he had not seen a respiratory physician for treatment.
…
The claimant told the Panel that although he has reduced his nicotine consumption to his current intake of 10-15 cigarettes per day he suffers significant dyspnoea … He told the Panel that he also suffers from a constant cough productive of about half a cup of white sputum, and his wife said that his phlegm “turns green” every two or three weeks.
…
The claimant told the Panel that he continues to experience dysphagia, and he reiterated that although he is still able to tolerate fluids, his swallowing difficulties are increasing. He told the Panel that he is fed enterally with boluses of Resource nutritional supplement administered by his wife via his PEG button three or four times per day, and his wife said that each feed takes about 12 minutes.[14]
[14]CB51-52.
The panel thereafter recorded the first defendant’s account of his current treatment and past medical history, before turning to its observations in respect of physical examination.
In respect of the latter, the panel noted that it had conducted a clinical examination as well as an examination of the first defendant’s respiratory system. The panel then noted that lung function testing had been performed at the Respiratory Laboratory of Melbourne Lung & Sleep Specialists, with equipment and calibration conforming to the requirements of the Standardisation of Spirometry . In that connection, the panel predicted normal values pursuant to ‘Tables 2, 4 and 6 of Section 5.2’ of the Guides.
As to the lung function testing, the panel noted that[15] –
[15]CB53-54 (emphasis added).
… claimant was unable to perform reproducible lung function manoeuvres as required, and his performance was suboptimal. Consequently, the Panel considered that the best results obtained, which are tabulated below, may be an underestimate of the true values.
6 October 2021
Best Value
Predicted Value (Crapo 1981)
% Predicted
FEV1 (L).
1.36
2.42
56%
FVC (L)
2.29
3.14
73%
FEV1/FVC %
59%
N/A
N/A
DLCO ml/min/mmHg
Unable to perform
N/A
N/A
The panel then addressed the chronological substance of the various information documented in the additional material. In particular –
(a) the first defendant had been hospitalised with a diagnosis of emphysema in February 2000. Spirometry had been performed and, until 2010, he received treatment for that condition as well as for recurrent episodes of bronchitis. Repeated radiological investigations documented ‘increasing lung pathology’ and antibiotics were prescribed on three occasions;
(b) between 2010 and July 2016, the first defendant had been diagnosed with osteoporosis, chronic lumbar back pain, vitamin D deficiency, COPD, psoriasis and probable pancreatitis. On three occasions he had been treated with antibiotics for recurrent chest infections. In May 2015 an application had been made for an electronic scooter or wheelchair. The Panel noted that lung function testing prior to surgery in July 2016 indicated ‘significant decline’ in FEV1 and FVC between 2000 and 2016 – which it considered to be ‘well in excess of that expected solely as a result [of] increasing age and unrelated to any acute event’;
(c) between July 2016 and July 2018, the first defendant suffered from –
(i) severe oesophagitis and pharyngitis as a consequence of his radiotherapy and chemotherapy treatment;
(ii) marked gastro-oesophageal reflux with evidence of mild oesophagitis;
(iii) right middle lobe pneumonia in May 2017 requiring admission to Swan Hill Hospital;
(iv) bilateral lower lobe pneumonia in October 2017, requiring admission to Swan Hill Hospital – at which time a CT scan disclosed severe emphysema and bilateral basal consolidation;
(v) coughing and choking with food and fluids, with investigations revealing dysphagia with aspiration; and
(vi) chronic production of discoloured sputum throughout 2018;
(d) following insertion of the PEG tube in July 2018, the first defendant suffered an exacerbation of COPD requiring admission to Swan Hill Hospital between 6-9 October 2018;
(e) the first defendant developed acute cholecystitis in March 2019, and due to comorbidities including compromised respiratory function and atrial fibrillation, a cholecystostomy drainage tube had been inserted at Bendigo Hospital;
(f) the cholecystostomy drainage tube was removed on 24 May 2019 following the first defendant’s presentation to Swan Hill Hospital on 20 May 2019 with severe abdominal pain due to a 2cm abdominal wall collection at the site of the drainage tube;
(g) in June 2019, the first defendant was prescribed antibiotics for a chronic cough productive of discoloured sputum; and
(h) between September 2019 and August 2021, the first defendant was prescribed 10 courses of antibiotics for respiratory symptoms.[16]
[16]CB54-56.
The panel then turned to ‘diagnosis’ and stated its conclusion that the first defendant was suffering from –
… chronic obstructive pulmonary disease (COPD), including both chronic bronchitis and emphysema, on a background of symptomatic regurgitation and vomiting related to nasogastric and PEG feeding, and likely associated with recurrent aspirations, following radiotherapy treatment for Merkel cell carcinoma which caused xerostomia and pharyngeal-level dysphagia, and a lifelong history of heavy smoking.[17]
[17]CB56.
The panel thereafter addressed its ‘impairment assessment’ and stated that it had been conducted ‘in accordance with’ the Guides. In that connection, the panel stated that it had ‘assessed a mid-range Class 2 impairment [of] the claimant’s respiratory system in accordance with Table 8 of Section 5.3 of Chapter Five’.[18]
[18]CB56.
The panel then turned to the issue of impairments ‘prior to and/or after the date of the incident and which the Panel is required to disregard in accordance with Section 28LL(3) of the Act’. In that connection –
(a) the panel stated that it took into account the first defendant’s history and the information contained in the referral material;
(b) the panel thereafter referred to relevant authority[19] and stated –
[19]In that connection, the panel referred to Alcoa Holdings Ltd v Lowthian & Ors and De Haas [2011] VSC 245 (‘Alcoa’), Chua v Lowthian [2011] VSC 468 (‘Chua v Lowthian’) and Lingenberg v Gallichio (2013) 40 VR 60 (‘Lingenberg’).
The Panel understands that, in performing the task of assessing any pre-existing or subsequent impairment, the Panel must have an evidentiary basis on which it can be positively satisfied of such an impairment which is to be disregarded. In this regard, the Panel considered that it could not entirely rely on the accuracy of the claimant’s recall of events. However, the Panel also considered that it was able to rely on the information contained in the referral material, in conjunction with the claimant’s history and its own examination findings, to formulate an accurate diagnosis and impairment assessment, both currently and prior to the incident.[20]
[20]CB57.
(c) in that regard, the panel noted aspects of the first defendant’s history and the subsequently obtained documentary material and also noted that –
… prior to the incident in February 2019 the claimant has suffered from emphysema, requiring ongoing treatment, since 2000, over a period of 19 years during which he continued smoking 30-40 cigarettes per day. During this time he experienced recurrent respiratory infections, including two episodes of pneumonia for which he required hospitalisation in May 2017 and October 2017 respectively. He is documented to have been described as “frail” as early as May 2015, and an application for an electric scooter or a wheelchair was made at that time. He is also documented to have developed oesophageal reflux with dysphagia, regurgitation and aspiration almost immediately after his unrelated Merkel cell carcinoma surgery in July 2016, and this has persisted from the onset to the present time, both prior to and since the incident in February 2019.
(d) the panel noted that the above was ‘further supported by’ investigation results, including extensive imaging of the chest which demonstrated ‘progressively increasing lung pathology’ and lung function tests in respect of which the panel prepared and presented the following comparative table –
FEV1 L (% pred) (predicted value)
FVC L (% pred) (predicted value)
DLCO ml/min /mmHg (%pred). (predicted value)
Swan Hill Medical Group 16/02/2000
Age 58, height ?3.18
3.89
NA
Bendigo Health 13/07/2016
Age 74, height 1612.12 (79%)
(2.58)2.50 (74%)
(3.43)15.1 (62%)
(24.2)Melbourne Lung & Sleep Respiratory Lab. 6/10/2021
Age 79, height 1581.36 (56%)
(2.42)2.29 (73%)
(3.14)NA
(e) the panel explained how the ‘predicted values’ had been calculated.
The panel thereafter reasoned and stated its conclusion in respect of degree of impairment as follows –
The Panel considered that the information contained in Referral material provides objective, verifiable medical evidence of pre-existing problems with the claimant’s respiratory system on the basis of which the Panel is able to calculate an accurate whole person impairment which pre-existed the incident, and which ought to be disregarded in accordance with Section 28LL(3) of the Act.
The Panel calculated the claimant’s pre-existing respiratory impairment on the basis of the documented, objective respiratory function tests, above. Using this information, the Panel also calculated the per-annum rate of deterioration in the claimant’s respiratory function, and postulated his respiratory function tests results that are likely to have been obtained immediately prior to the incident in February 2019, if such tests had been performed at that time.
The Panel disregarded the pre-existing unrelated impairment of the claimant’s respiratory system due to pre-existing chronic obstructive pulmonary disease in accordance with Section 28LL(3) of the Act and concluded that the degree of impairment resulting from the physical injuries to the claimant alleged in the claim is more than 5% and is permanent.[21]
[21]CB58.
The panel then addressed a series of ‘other considerations’. In that regard, it stated, relevantly, that –
The Panel considered that it has assessed impairment arising from the physical injuries to the claimant alleged in the claim in accordance with all the appropriate Chapters in the Guides, and the Panel also considered that further explanation or detailed reasons of the basis on which the impairment was calculated is prohibited by Section 28LZG(4) of the Act.
The Panel noted that while there is a decline in lung function with increasing age over time, a further decline may also occur in a step-wise fashion after acute severe events such as pneumonia, which the claimant suffered prior to the incident. Furthermore, the Panel noted that the age-related linear rate of decline is accelerated by comorbidities such as smoking and recurrent aspiration, both of which the claimant continued to experience between the documented respiratory function tests performed in July 2016 and the incident. Consequently, the Panel considered that its postulated lung function test results immediately prior to the incident are unlikely to accurately reflect the degree of the claimant’s respiratory impairment at that time.
In addition to the above, the Panel also noted that there is likely to have been further, decline in the claimant’s respiratory function as a result of his recurrent chest infections requiring antibiotic treatment subsequent to the removal of the PEG remnant in August 2019, as well as a result of his continued smoking. The Panel noted that this decline should also be disregarded as being due to unrelated causes in accordance with Section 28LL(3) of the Act. However, the Panel also noted that the information in the Referral material does not contain objective, verifiable medical evidence on the basis of which the degree of the unrelated decline could be accurately calculated.
For the reasons above, the Panel considered that the claimant’s current whole person impairment, which the claimant attributes to the physical injuries alleged in the claim, could not be categorically considered to be so. However, in this regard, the Panel also considered that it is not required to make a finding in relation to the issue of whether or not the claimant's current medical condition was caused by the circumstances of the incident, as alleged, that gave rise to the claim, but the Panel has assessed impairment arising from the injury to the claimant that is potentially compensable, in accordance with the Referral.[22]
[22]CB58-59.
C. Relevant principles
Part VBA of the Act imposes thresholds in relation to the recovery of damages for non-economic loss.
Section 28LE of the Act prohibits a person from recovering damages for non-economic loss in respect of an injury caused by the fault of another person unless the person injured has suffered ‘significant injury’.
‘Significant injury’ is defined in s 28LF, relevantly, as follows –
(1)For the purposes of this Part injury to a person (other than a psychiatric injury) is significant injury if –
…
(b)a Medical Panel has determined under Division 5 that the degree of impairment of the whole person resulting from the injury satisfies the threshold level.
Sections 28LH(1) and 28LZG(1) of the Act relevantly require that an assessment of degree of impairment be ‘in accordance with’ the Guides.
In that regard, in H J Heinz Company Australia Ltd v Kotzman (‘Heinz’),[23] Kyrou J (as his Honour then was) stated, among other things, that –
[23][2009] VSC 311 (‘Heinz’).
(a) the purpose of the Guides is to state ‘standard protocols and criteria for estimating the degree of permanent impairment’;[24]
[24]Ibid [10].
(b) to the extent that the Act requires that determinations of impairment be made ‘in accordance with’ the Guides, the Guides have the force of law and are a ‘legislative document’;[25]
[25]Ibid [25].
(c) however, the Guides are written by expert medical practitioners, not statutory draftspeople, and should not be overlaid with legalistic interpretation. In that regard –
(vii) it is of ‘paramount importance’ to be faithful to plain words of the Guides; and
(viii) the Guides should not be interpreted as if they were a statute;[26]
[26]Ibid [26].
(d) that said, the Guides are designed ‘to promote precision, certainty and consistency’ and to ‘make as objective as possible the process of estimating impairment by reference to sufficient medical and non-medical information’;[27]
[27]Heinz (n 23) [27].
(e) the expression ‘in accordance with’ is generally taken to mean ‘in conformity with’, although in some contexts strict compliance is not required;[28]
(f) in order for a panel to act in conformity with the Guides it ‘must apply the methodologies, processes and criteria set out … for the relevant condition, body part or system’;[29] and
(g) it follows that the Guides do not permit ‘the exercise of professional judgment at large, unconstrained by the specific requirements of each methodology or table that it sets out’.[30]
[28]Ibid [44].
[29]Ibid [45].
[30]Ibid [46].
In Heinz, the panel had assessed the respondent’s ankle by reference to a method relevant to a total hip or knee replacement. Kyrou J found that to have been impermissible –
… because the classifications of ‘good result’, ‘fair result’ and ‘poor result’ in Table 64 [of the Guides] in relation to total hip and knee replacement could only be arrived at by applying the criteria set out in Tables 65 and 66, respectively, and accumulating the points set out in those tables. The panel did not purport to apply Tables 65 and 66 for the simple reason that those tables are specific to total hip and knee replacement respectively and contain criteria (such as adduction and abduction) which are not relevant to an ankle. It was not open to the panel to apply those criteria in Tables 65 and 66 which could be relevant to an ankle and ignore those criteria which were not relevant, as this would produce a points score which was not sanctioned by the Guides.[31]
[31]Ibid [49].
Shortly thereafter, his Honour stated –
The panel in this case did not simply do the best it could in applying the Guides. Instead, it purported to address a perceived deficiency in the Guides by applying provisions of the Guides which, by their terms, were not applicable to Ms King’s injury.[32]
[32]Ibid [52].
Where a party contends that the determination of a panel was not ‘in accordance with’ the Guides, as Walker JA recently stated in La Rosa v Patrick (‘La Rosa’) –
… [the party] must demonstrate that the panel’s assessment … departed from the methodology laid down by the Guides to such an extent that it can be properly said of the assessment that it was not ‘in accordance with’ the Guides.[33]
[33]La Rosa (n 9) [52].
Relevantly, in Gamble v Emerald Hill Electrical Pty Ltd (‘Gamble’),[34] the Court of Appeal stated –
Where, as here, the medical panel states in its reasons that it has carried out the assessment in accordance with the AMA Guides, there will be a heavy onus on the challenging party to persuade the reviewing court that this statement should not be taken at face value. The court will ordinarily be most reluctant to conclude that medical practitioners, who have stated that they followed the assessment methodology laid down by the Guides, did not in fact do so.[35]
[34](2012) 38 VR 45 (‘Gamble’).
[35]Ibid [56] (see also at [53]).
However, as Walker JA also stated in La Rosa –
… I do not consider that the Court of Appeal [in Gamble] was suggesting that the recitation of such a statement will insulate a panel determination from review. It will always be for the court conducting the judicial review to determine whether, considering the reasons as a whole, the panel has carried out its assessment in accordance with the Guides.[36]
[36]La Rosa (n 9) [62].
In addition, s 28LL(3) of the Act requires that –
For the purposes of this Part, impairments from unrelated injuries or causes are to be disregarded in making an assessment.
In that regard, in Lingenberg v Gallichio (‘Lingenberg’),[37] the Court of Appeal stated that –
(a) the statutory imperative to disregard the degree of impairment due to underlying injury requires a panel to ‘do its best to evaluate the extent to which impairment from the unrelated injury or cause is playing a part in the … current impairment’; and
(b) in that regard, the panel is not bound to evaluate the pre-existing impairment in accordance with the AMA Guides, although might do so if it ‘is the method best calculated to produce an accurate evaluation of the degree of underlying impairment’.
[37]Lingenberg (n 19) [28]-[30].
In that connection, any assessment of pre-existing or subsequent unrelated impairment must be evidence based and cannot be simply speculative.[38]
[38]See, Alcoa (19) [72]-[76], Chua v Lowthian (n 19) [133]-[139], [161](8) and (16), City of Melbourne v Neppessen [2019] VSC 84, [123]-[125] (‘Neppessen’).
In respect of ‘questions of causation’ and the requirements of s 28LL(3), in Chua v Newman-Morris (‘Chua v Newman-Morris’),[39] Emerton J (as her Honour then was) stated –
[39]Chua v Newman-Morris [2009] VSC 582 (‘Chua v Newman-Morris’).
35It is true that a new definition of “medical question” was inserted in the Wrongs Act in 2003 to make clear that a medical panel does not have to determine questions of causation. The explanatory memorandum to clause 13 of the Wrongs and Other Acts (Law of Negligence Bill) 2003 states that the new definition was included to make it clear that the role of the medical panel is to assess the degree of impairment resulting from the injury or injuries that a claimant alleges in his or her claim. The panel does not determine issues of causation , that is, “whether or not those injuries could have been sustained in the incident on which the claim is based.”
36This does not support an argument that the medical panel can only consider injuries ‘at large’. To the contrary, it makes plain that the panel is concerned with the injury or injuries alleged in the claim. The panel must consider the injury allegedly caused by the tortfeasor and assume that it was caused by the tortfeasor as alleged. However, that does not absolve the panel of responsibility to correctly identify - for the purposes of assessing the degree of impairment - the injury which is alleged to have been caused by the tortfeasor.
37The requirement that the Panel assess impairment arising from the injury that occurred as a result of the incident which is the basis for the claim does not require the Panel to determine whether the plaintiff caused the injury in respect of which damages are sought. Rather, it requires the Panel to assess the degree of impairment resulting from a particular injury - the injury in respect of which damages are sought. In this case, it is the injury suffered by the plaintiff as a result of delay in the treatment and diagnosis of a pre-existing dysfunction of the lower left leg and ankle.
…
39Most importantly, the medical question itself required the Panel to assess whether the degree of impairment resulting from “the injury alleged in the claim” satisfied the threshold level. The injury alleged in the claim is not coextensive with the injury ‘at large’.
40This analysis is consistent with s 28LL of the Wrongs Act, which concerns the assessment of injuries arising out of the same ‘incident’. Injuries arising from the one incident must be included in the one assessment. Conversely, impairments from unrelated injuries or causes are to be disregarded in making an assessment.
The effect of a medical panel’s determination as to degree of impairment is set out in s 28LZH(1) of the Act –
A determination by the Medical Panel under this Division that the degree of impairment resulting from an injury satisfies the threshold level must be accepted by a court in any proceeding on the claim as a determination of significant injury for the purposes of this Part.
Finally, there is no right of appeal on the merits from an assessment or determination of a medical panel[40] and, as I have earlier noted, the reasons provided by a panel convened pursuant to the Act are legally considered to be provided voluntarily.
[40]Wrongs Act 1958 (Vic) s 28LZI.
In that context, the Guides provide a standard framework and method of analysis via which physicians can evaluate, report on and communicate information about the impairments of any human organ system.[41]
[41]American Medical Association Guides to the Evaluation of Permanent Impairment (4th Edition), 1/1 (‘Guides’).
Section 1.2 provides that evaluation should be carried out in accordance with the directions in the Guides, and that ‘if the physician has followed the protocols and [evaluation] tables, then the reported findings will be congruent with the Guides criteria’.[42]
[42]Ibid s 1.2, 1/3.
Section 1.3 addresses the relevance of a physician’s judgment and experience when assessing impairment, as well as ‘other considerations’ that are not necessarily within the physician’s control –
The physician’s judgment and his or her experience, training, skill and thoroughness in examining the patient and applying the findings to Guides criteria will be factors in estimating the degree of the patient’s impairment. These attributes compose part of the “art” of medicine, which, together with a foundation in science, constitute the essence of medical practice. The evaluator should understand that other considerations will also apply, such as the sensitivity, specificity, accuracy, reproducibility, and interpretation of laboratory tests and clinical procedures, and variability among observers’ interpretations of the tests and procedures.[43]
[43]Guides (n 41) s 1.3, 1/3.
In respect of the ‘Rules for Evaluations’, section 2.2 states that –
If in spite of an observation or test result the medical evidence appears not to be of sufficient weight to verify that an impairment of a certain magnitude exists, the physician should modify the impairment estimate accordingly, describing the modification and explaining the reason for it in writing.[44]
[44]Ibid s 2.2, 2/8.
Chapter 5 deals with the respiratory system. Section 5.1 is titled ‘Assessing the Respiratory System’ and states, relevantly, that –
Assessment of the respiratory system should begin with the patient’s description of the specific complaints related to respiration. Then a review should follow of personal habits and workplace exposures to potentially toxic substances that might explain or contribute to the existence of the symptoms. During the physical examination, the physician evaluates structural or movement abnormalities of the chest and its contents. Radiologic techniques provide visual evidence of internal anatomic abnormalities that are not apparent by external inspection of the chest wall or auditory assessment of the lungs, heart and pleural space.
While each of the techniques mentioned above provides a certain amount of information about the severity of any respiratory abnormality, their main objectives are diagnostic and qualitative rather than quantitative. Pulmonary function testing, on the other hand, provides an objective assessment of the severity of respiratory abnormality but only a small amount of diagnostic information …[45]
[45]Ibid s 5.1, 5/153-154.
Section 5.2 concerns physiologic tests of pulmonary function and, in relation to ‘forced respiratory maneuvers’, provides that –
Physiological testing of pulmonary function is the quantitative basis on which the evaluation of respiratory system impairment rests. A forced expiratory maneuver must be performed during the examination and evaluation of each patient for permanent pulmonary impairment. The testing and spirometry must be performed on standardized equipment calibrated according to, and using techniques described in, the [Standardisation of Spirometry].[46]
[46]Ibid s 5.2, 5/159.
In relation to the diagnosis of obstructive airway disease and assessment of severity of that disease, section 5.2 further states –
The FEV1/FVC ratio is helpful in the diagnosis of obstructive airway disease. However, according to the most recent ATS statement on the interpretation of pulmonary function testing, that ratio is not useful in assessing the severity of that type of disease. Rather, the severity should be judged on the basis of the absolute value of FEV1 or the percentage of predicted value of FEV1.
Section 5.3 is titled ‘Criteria for Evaluating Permanent Impairment’ and relevantly states that –
Table 8 (p. 162) presents criteria for estimating the extent of permanent impairment. Spirometry and DCO must be performed on each individual being studied.[47]
[47]Guides (n 41) s 5.3, 5/163.
In that regard, Table 8 in Chapter 5 sets out four classes of respiratory impairment which correlate with the degree of whole person impairment.
The four classes of impairment are determined according to test results of forced respiratory manoeuvres (forced vital capacity (‘FVC’) and forced expiratory volume in the first second (‘FEV1’)) and from diffusing capacity of carbon monoxide (‘DCO’). They are set out as follows –
Table 8. Classes of Respiratory Impairment.*
Class 1:
0%, no impairment of the whole person
Class 2:
10-25%, mild impairment of the whole person
Class 3:
26-50%, moderate impairment of the whole person
Class 4:
51-100%, severe impairment of the whole person
FVC, FEV1, FEV1/ FVC (%)
DCOFVC ≥ 80% of predicted; and FEV1 ≥ 80% of predicted; and FEV1/FVC ≥ 70%; and DCO ≥ 70% of predicted.
FVC between 60% and 79% of predicted; or FEV1 between 60% and 79% of predicted; or DCO between 60% and 69% of predicted.
FVC between 51% and 59% of predicted; or FEV1 between 41% and 59% of predicted; or DCO between 41% and 59% of predicted.
FVC ≤ 50% of predicted; or FEV1 ≤ 40% of predicted; or DCO ≤ 40% of predicted.
VO2 Max
or
> 25 mL/(kg • min); or > 7.1 METS
or
Between 20 and 25 mL/(kg • min); or 5.7-7.1 METS
or
Between 15 and 20 mL/(kg • min); or 4.3-5.7 METS
or
< 15 mL/(kg • min); or < 4.3 METS
*FVC = forced vital capacity, FEV1 = forced expiratory volume in the first second, DCO = diffusing capacity of carbon monoxide. The DCO is primarily of value for persons with restrictive lung disease. In classes 2 and 3, if the FVC, FEV1 and FEV1/FVC ratio are normal and the DCO is between 41% and 79%, then an exercise test is required.
VO2 Max, or measured exercise capacity, is useful in assessing whether a person’s complaint of dyspnea (see Table 1) is a result of respiratory or other conditions. A person’s cardiac and conditioning status must be considered in performing the test and in interpreting the results.[48]
[48]Guides (n 41) s 5.2, 5/162.
D. The present proceeding
The plaintiffs brought this proceeding by originating motion dated 14 April 2022 seeking judicial review of the panel’s opinion on the following stated grounds –
Ground 1: Jurisdictional error by failing to assess impairment as required under s 28LH of the Act
[9]In determining its response to the referred medical question, the Medical Panel committed jurisdictional error by failing to conduct its assessment in accordance with s 28LH of the Act, which requires that an assessment of degree of impairment must be done in accordance with the American Medical Association Guides to the Evaluation of Permanent Impairment (4th edition) (the Guides).
…
Ground 2: Error of law by failing to assess impairment as required under s 28LH of the Act
[10]Further or alternatively to Ground 1, the Medical Panel erred in law by failing to conduct its assessment in accordance with s 28LH of the Act, which requires that an assessment of degree of impairment be done in accordance with the Guides.
…
Ground 3: Error of law by failing to properly apply s 28LL(3) of the Act
[11]In determining its response to the referred question, the Medical Panel erred in law by failing to properly apply s 28LL(3) of the Act.
…
Ground 4: Failure to take into account relevant considerations
[12]Further or alternatively to Ground 3 above, in determining its response to the referred question, the Medical Panel fell into jurisdictional error and/or erred in law by failing to take into account relevant considerations, namely by failing to take into account and then to disregard all of the First Defendant’s unrelated impairment as it was required to do under s 28LL(3) of the Act.
The plaintiffs summarised the alleged errors of the panel as follows –
(a) failing to assess the first defendant’s degree of impairment ‘in accordance with’ the Guides (Grounds 1 and 2); and
(b) failing to disregard unrelated impairments as required by s 28LL(3) of the Act (Grounds 3 and 4).
By contrast, the first defendant contended that the panel had not erred in either respect.
Prior to the hearing, both the plaintiffs and first defendant filed and served detailed written submissions.[49]
[49]CB16-40.
The second and third defendants did not participate in the hearing and advised that they would abide the result.
E. Grounds 1 & 2: failure to perform spirometry testing ‘in accordance with’ the Guides
In argument, senior counsel for the plaintiffs described the first issue as being whether the panel had assessed impairment ‘using sub-optimal spirometry results, without making any modification’.[50]
[50]T1.
In substance, the plaintiffs submitted that –
(a) in its reasons the panel had said that its assessment was performed in accordance with the Guides[51] – however, that was ‘simply not done’;[52]
[51]CB56.
[52]T1.
(b) in that connection, section 5.2 of the Guides relevantly states –
Physiologic testing of pulmonary function is the quantitative basis on which the evaluation of respiratory system impairment rests. A forced expiratory maneuver must be performed during the examination and evaluation of each patient for permanent pulmonary impairment. The testing and spirometry must be performed on standardized equipment calibrated according to, and using techniques described in, the [Standardisation of Spirometry].
Measurements are made from at least three acceptable spirometric tracings of forced expiration; forced vital capacity (FVC), forced expiratory volume in the first second (FEV1), and the ratio of these measurements (FEV1/FVC). The manuevers should be performed at least three times, and the results of the two best FVC efforts should be within 5% of each other. The tracing with the highest FVC and the tracing with the highest FEV1 should be used to calculate the FEV1/FVC ratio, even if these measurements occur on different expiratory efforts.
…
Measurements of FVC and FEV1 should be compared to the values obtained from healthy subjects or reference values.
(c) further, section 5.3 of the Guides commences –
Table 8 (p.162) [ie, Table 8 within section 5.2 of the Guides] presents criteria for estimating the extent of permanent impairment. Spirometry and DCO must be performed on each individual being studied.
(d) in respect of the lung function tests performed by the panel, however, it was said to be evident from the Convenor’s letter together with the subsequent reasons of the panel that the FEV1 and FVC values were inadequate in that there was ‘leakage’ and ‘no reproducibility’ and, accordingly, the values obtained may be ‘an underestimate of the true values’; [53]
[53]T3-4 and T9. Cf., CB19, [15]-[17]. I should say that the plaintiffs’ written submissions also directed argument to ‘testing deficiencies’ in respect of DCO (CB19, [18]). In oral argument, however, it was confirmed that the fact that there was apparently no reading for DCO was ‘perhaps a footnote to the ultimate submission … that the panel was required to modify what it did and it didn’t do that’: T3.
(e) section 2.2 of the Guides relevantly states –
If in spite of an observation or test result the medical evidence appears not to be of sufficient weight to verify that an impairment of a certain magnitude exists, the physician should modify the impairment estimate accordingly, describing the modification and explaining the reason for it.
(f) it follows, it was said, that in the present instance ‘there had to have been be some modification in writing of the ultimate impairment assessment and that simply wasn’t done’;[54]
[54]T3.
(g) that is –
… there was simply not following of the Guides in respect of inadequate test results and what the panel was required to do in respect of those inadequate test results; namely, and importantly, to modify them and notify that modification in writing as is required by section 2.2 of the Guides.
…
… the fact that the panel has to apply clinical judgment and its own expertise does not absolve it of its obligation to effectively apply the Guides.[55]
[55]T14-15. Cf., CB20, [19]-[20].
In response, the first defendant submitted that –
(a) the plaintiffs bear a ‘heavy onus’ of demonstrating that the panel’s statement that it performed its assessment in accordance with the Guides ought not be taken at face value;[56]
[56]T30. Cf., Gamble (n 34) [56].
(b) in that regard, where different readings of the panel’s reasons are ‘open’, the plaintiffs will not have discharged the onus;[57]
[57]T36.
(c) the Guides do not lay down any relevant mandatory requirement that must strictly be complied with – especially in circumstances where a claimant is unable to perform the tests in strict compliance with the method prescribed;[58]
[58]T31-32.
(d) the direction in section 2.2 goes to adequacy of reasons rather than to ‘error in a jurisdictional sense’;[59]
(e) ‘at all points’, including in section 2.2, the Guides emphasise the requirement that the panel members exercise clinical judgment;[60] and
(f) in the circumstances, it should be inferred that the panel applied its expert skill and judgment to ensure that its assessment took account of the first defendant’s difficulties in performing the test.[61]
[59]T27-29.
[60]T33-34 and T36-43. Cf, Guides (n 41) s 1.3, 1/3.
[61]T43.
The present issue arises from a combination of the results of the panel’s lung function tests, the content of the Convenor’s subsequent letter and the manner in which the panel expressed the relevant part of its reasons for determination.
The parties agreed that the panel undertook the correct tests. However, it is evident from the Convenor’s letter that the first defendant had been unable to perform ‘reproducible lung function manoeuvres’ and the panel had considered the outcomes to have been ‘sub-optimal’ due to ‘leakage’. That said, there was no suggestion that the first defendant had not been trying to perform the tests and, as I have noted, the testing did produce values for FEV1 and FVC (albeit that the panel considered that the results ‘may be an underestimate of the true values’).
In that context, the Convenor’s letter stated –
The Medical Panel … understands however that to adequately assess respiratory function strictly in accordance with the criteria in Table 8 of Chapter Five of the Fourth Edition Guides, the claimant must be able satisfactorily perform the prescribed lung function testing.[62]
[62]CB2245.
As I have noted, that ‘understanding’[63] provoked directly opposing responses in the subsequent submissions. Regrettably, the submissions of neither the plaintiffs nor first defendant referred to section 2.2 of the Guides, and the extreme position adopted by the plaintiffs in those submissions was not ultimately embraced in the present argument.
[63]I note that in address senior counsel for the plaintiffs described the panel’s ‘understanding’ as an express concession: T52. I would not accept that the Convenor’s letter could amount to a ‘concession’ in the sense in which that word is ordinarily deployed in litigation.
In any event, the whole of the relevant part of section 2.2 of the Guides reads as follows –
The physician must utilize the entire gamut of clinical skill and judgment in assessing whether or not the results of measurements or tests are plausible and relate to the impairment being evaluated. If in spite of an observation or test result the medical evidence appears not to be of sufficient weight to verify that an impairment of a certain magnitude exists, the physician should modify the impairment estimate accordingly, describing the modification and the reason for it in writing.
It will be evident that there is much in the submission of the first defendant that section 2.2 emphasises the need for the panel to exercise clinical skill and judgment when assessing any relevant test results and, ultimately, whether ‘an impairment of a certain magnitude exists’.
It should, however, also be evident that the text of section 2.2 suggests that the ‘understanding’ attributed to the panel might have been somewhat too rigidly stated.
In that regard, whilst the earlier quoted passages in sections 5.2 and section 5.3 of the Guides include some language of a mandatory kind (as well as some language of a more permissive kind), section 2.2 makes it tolerably clear that –
(a) the physician must use ‘the entire gamut of clinical skill and judgment’ in assessing the plausibility of any test results;
(b) if, in spite of a test result, the ‘medical evidence’ is ‘not … of sufficient weight to verify that an impairment of a certain magnitude exists’;
(c) then, the physician should modify the impairment estimate, describing the modification and explaining the reason for it.
Bearing in mind that the Guides are not to be construed as if they were a statute, it follows from the above that whether or not the subject can ‘strictly’ perform all aspects of the required tests, the plausibility of the test results obtained may be assessed and, in that regard, the ‘weight’ of the ‘medical evidence’ may verify that ‘an impairment of a certain magnitude exists’ without any requirement that the physician modify the estimate and explain the modification.
In that connection, it seems clear enough that the requirement for a described modification arises only when a test result would suggest a certain degree of impairment and the ‘medical evidence’ is not of sufficient weight to verify it.
In any event, it is apparent that the assessment of test results and, in due course, impairment, is not necessarily a purely mathematical exercise and the assessing physician or panel is afforded a degree of professional ‘room to swerve’.
At some point, of course, it might be said that a panel’s methodology is so insufficient that it can no longer be said that the panel conducted itself as required by the Guides. Heinz is a particularly stark example of exactly that.
However, cases of the present kind (where the correct tests were conducted, some values were obtained, but questions arise concerning the completeness and reliability of the values obtained) are in a somewhat different category. In cases of that kind, questions of degree can arise. In that connection, the panel may well be required to exercise its clinical skill and judgment in determining whether such test results as were obtained, together with other relevant ‘medical evidence’, are sufficient in order that the assessment required by the Guides may be considered to have been properly conducted.
In the present instance, when the panel came to consider the results of the lung function testing, it noted that the first defendant’s performance was ‘sub-optimal’ and that the best results may be an underestimate of true values. In respect of those results, however, the first defendant’s best value for FEV1 was 56% of predicted and his best value for FVC was 73% of predicted.[64]
[64]CB53-54.
From that point, the panel moved to consider other aspects of the ‘additional material’ – in some detail – before coming to its diagnosis.
Immediately thereafter, the panel expressed its core reasons in respect of its impairment assessment –
The Panel conducted an impairment assessment of the physical injury to the claimant alleged in the claim in accordance with the American Medical Association Guides to the Evaluation of Permanent Impairment (4th Edition) … as required by Section 28LH of the Wrongs Act 1958 … . The Panel considered that no further information was required from the claimant’s treating practitioners to carry out the assessment.
The Panel carried out an assessment of the respiratory system in accordance with the Criteria for Evaluating Permanent Impairment in Section 5.3 of Chapter Five of the Guides. The Panel assessed a mid-range Class 2 impairment [of] the claimant’s respiratory system in accordance with Table 8 of Section 5.3 of Chapter Five.[65]
[65]CB56 (emphasis added).
In that connection, among other things, counsel for the first defendant emphasised that –
(a) in respect of each of the presently relevant classes of respiratory impairment, Table 8 states the values that the panel may consider and assess for FVC or FEV1 or DCO; and
(b) the panel’s recorded value for FEV1 would place the first defendant within class 3 and the panel’s recorded value for FVC would place him within class 2, but the panel evidently ‘assessed’ the impairment as ‘mid-range class 2’.
In light of the above, counsel submitted that –
It can thus be inferred … that [the panel] applied its expert skill and judgment to ensure that its impairment assessment took account of the difficulties [of] performing the test.[66]
[66]T43.
By contrast, senior counsel for the plaintiffs submitted that –
… where the plaintiff really falls is probably somewhere in … a low class 2 for the FVC and a low class 3 for the FEV and what the panel has ultimately said is, ‘we’re going to assess him as a mid-range class 2.’
But there’s no prima facie discounting or modification built into that; that is, effectively, where the plaintiff sits naturally or prima facie as a result of the test results which the panel applied.[67]
[67]T8.
It may be noted that, notwithstanding the length and detail evident in other aspects of the panel’s reasons, the core reasons expressed in respect of impairment assessment are comparatively exiguous. That said, from the features of reasoning to which I have referred, it is tolerably clear that –
(a) the panel noted that the first defendant’s performance in the lung function testing was ‘sub-optimal’ and the ‘best values’ may be ‘an underestimate of the true values’;
(b) immediately thereafter, the panel commenced upon a detailed consideration of the additional material – directed to past lung function testing as well as to past and subsequent steps and clinical observations;
(c) thus, immediately prior to expressing its conclusions in respect of diagnosis and assessment of impairment, the panel had given close attention to the results of the lung function tests as well as the records disclosing the long term clinical presentation of the first defendant;
(d) in that context, the panel said that it conducted an impairment assessment ‘in accordance with’ the Guides, considered ‘no further information was required’ and ‘assessed’ a ‘mid-range Class 2 impairment [of] the claimant’s respiratory system’;
(e) in that regard, the consideration by the panel of the question of any potential ‘further information’ tends to suggest that which seems plainly apparent, namely that in conducting the impairment assessment the panel considered information beyond the ‘best values’ obtained on lung function testing to be potentially relevant;
(f) in that connection, it seems overwhelmingly likely that it was necessary to consider such information because the performance of the first defendant in lung function testing had been ‘sub-optimal’ and, as a matter of mere correlation with Table 8, the best value obtained for FEV1 had fallen within class 3, but the best value for FVC had fallen within class 2;
(g) in that regard, whether such values ‘naturally’ aligned with ‘mid-range class 2’ or not, the circumstances seem to me to have required that the panel exercise its clinical judgment (and, in the course of argument, so much ultimately seems to have been acknowledged);[68] and
(h) it follows that the impairment assessed by the panel must have involved either evaluating the values obtained, or adjusting them, and that must have involved an exercise of clinical skill and judgment undertaken by reference to the other information to which the panel referred in such detail.
[68]T54.
After the passage of reasoning to which I have referred, the panel commenced upon a lengthy consideration of impairments required to be disregarded in accordance with s 28LL(3) of the Act. That reasoning also includes the following passage –
… the Panel also considered that it was able to rely on the information contained in the referral material, in conjunction with the claimant’s history and its own examination findings, to formulate an accurate diagnosis and impairment assessment, both currently and prior to the incident.[69]
[69]CB57 (emphasis added).
That passage tends to confirm that when assessing the first defendant’s current impairment the panel relied upon matters beyond the ‘best values’ derived from the lung function testing.
In any event, as I have earlier indicated, section 2.2 of the Guides emphasises the need for clinical skill and judgment in assessing any test results and, indeed, contemplates that ‘medical evidence’ may be of ‘sufficient weight to verify that an impairment of a certain magnitude exists’. From what I have already said, it will be evident that what the panel appears to have done is consistent with that instruction.
To be clear, the passages of reasoning to which I have referred seem to suggest that the ‘medical evidence’ was not out of keeping with the test results obtained, albeit that those results were in some respects ‘sub-optimal’. Thus, it was not a case in which the test results suggest a certain degree of impairment and, in spite of that, the overall medical evidence would not ‘verify’ that ‘magnitude of impairment’. It follows that section 2.2 did not require that the panel describe any modification or reason for that modification.
In light of the above, the panel’s assessment of impairment did not depart from the methodology stated in the Guides and, consequently, was conducted ‘in accordance with’ the Act.
It follows that grounds 1 and 2 must be rejected.
F. Grounds 3 & 4: failure to disregard unrelated impairment
In respect of the second issue, senior counsel for the plaintiffs submitted that the panel had erred in –
(a) relying upon only ‘precise calculations’ in respect of unrelated impairments, rather than simply doing its ‘best’;[70] and
(b) confusing ‘the concept of [s] 28LL(3) with the concept of causation’.[71]
[70]T15.
[71]T21.
In that regard, senior counsel examined the relevant reasons of the panel in some detail, referred to a sequence of relevant authorities[72] and submitted that –
… whilst the panel has taken into account pre-existing impairment by doing that very precise calculation … none of the subsequent unrelated impairment which it’s identified at p.59 has been disregarded because of the approach that the medical panel has taken. So it’s only disregarded a part; that is, a part of the pre-existing impairment, not all of the pre-existing impairment and none of the subsequent impairment. That is a significant error that the panel has made.[73]
[72]Alcoa (n 19), Chua v Lowthian (n 19), Lingenberg (n 19), Neppessen (n 38) and Chua v Newman-Morris (n 39).
[73]T23-24. See also, T56: ‘… the panel’s error really lay in it thinking it had to calculate it [the unrelated impairments] exactly rather than simply doing its best’.
Further, in respect of three paragraphs of the panel’s reasons appearing under the heading ‘other considerations’, the plaintiffs submitted –
(a) as to the panel’s reference to the decline in lung function and its ‘postulated lung function test results’[74] –
[74]CB59.
… the Panel has acknowledged that there is other unrelated impairment which it did not disregard in conducting its impairment assessment.[75]
[75]CB22, [28].
(b) as to the panel’s references to likely subsequent decline in the first defendant’s lung function albeit that the ‘Referral material does not contain “objective, verifiable medical evidence” on the basis of which the degree of the unrelated decline could be accurately calculated’[76] –
[76]CB59.
… it [the panel] did not need to be able to calculate the unrelated impairment itself in accordance with the Guides.[77]
[77]CB22, [30].
(c) as to the panel’s reference to not being required to make a finding of causation in relation to whether or not ‘the claimant’s current medical condition was caused by the circumstances of the incident’[78] –
… error arises as the Panel conflates that principle with its obligation under s 28LL(3) to disregard unrelated impairment.
… [and]
… [the panel] erred by failing to disregard other identified parts of the unrelated impairment.[79]
[78]CB59.
[79]CB23, [32]-[33].
For her part, counsel for the defendant submitted that the panel’s reasons do not disclose error in the application of s 28LL(3), in that –
(a) the reasons of the panel should not be overzealously scrutinised with an eye attuned to the perception of error;[80]
[80]T44-45.
(b) whether the evidence properly allows for the assessment of an unrelated impairment is ‘a judgment for the panel’;[81]
[81]T46. Cf., Chua v Lowthian (n 19).
(c) any such assessment must be ‘evidence based’ and may not involve speculation or resort to ‘uninformed guesswork’;[82]
[82]T49.
(d) the reasons of the panel refer to applicable principles and authority;[83]
[83]T46-48.
(e) in particular, the Court of Appeal in Lingenberg did not discount the possibility that it might be appropriate to adopt a ‘Guides methodology’;[84]
[84]T47-48.
(f) the panel undertook a detailed analysis of the medical records;[85] and
[85]T48.
(g) accordingly –
… although … the panel said that the impairment assessed could not categorically be determined to entirely result from the physical injuries alleged in the claim, in my submission it was open to the panel to determine in its expert judgment that its impairment assessment produced the most accurate evaluation possible on the evidence and therefore the best result.[86]
[86]T50.
As with the consideration of the first issue, it is necessary to give attention to what the panel said and evidently did.
In that regard, the relevant passage of reasoning is lengthy and, in full, reads as follows –
In making an assessment of impairment, the Panel took into account the claimant’s history and the information contained in the Referral material to determine the level of impairment that may have been present prior to and/or after the date of the incident, and which the Panel is required to disregard in accordance with Section 28LL(3) of the Act as impairment from unrelated causes or injuries.
To evaluate the extent to which there is impairment from an unrelated injury or cause which is playing a part in the claimant’s current impairment, the Panel gave consideration to the Supreme Court judgements of Alcoa Holdings Limited & Anor v Peter Lowthian & Ors and John de Haas [June 2011], and Dr K S Chua v Dr Peter Lowthian & Ors [September 2011].
The Panel also gave consideration to the Court of Appeal judgment in the case of Lingenberg v Gallichio & Ors [June 2013] VSCA 143, wherein it is stated that “the statutory imperative to disregard the degree of impairment due to underlying injury requires a Medical panel to ‘do its best to evaluate the extent to which impairment from the unrelated injury or cause is playing a part in the (claimant’s) current impairment.’”
The Panel understands that, in performing the task of assessing any pre-existing or subsequent impairment, the Panel must have an evidentiary basis on which it can be positively satisfied of such an impairment which is to be disregarded. In this regard, the Panel considered that it could not entirely rely on the accuracy of the claimant’s recall of events. However, the Panel also considered that it was able to rely on the information contained in the referral material, in conjunction with the claimant’s history and its own examination findings, to formulate an accurate diagnosis and impairment assessment, both currently and prior to the incident.
Specifically, the Panel noted, and considered, the claimant’s history of pre-existing Merkel cell carcinoma of the right clavicle and cervical lymph nides [sic], in respect of which he underwent surgical, chemotherapeutic and radiotherapy treatment, resulting in xerostomia and dysphagia necessitating enteral feeding, as documented in the clinical records of the Peter MacCallum oncology facilities in Melbourne and Bendigo, the records of the Swan Hill and Bendigo hospitals, and the clinical records of his treating general practitioners, and his history of smoking 30 – 40 cigarettes per day, currently 15 – 20 cigarettes per day, since the age of 15 years.
The Panel also noted that prior to the incident in February 2019 the claimant has suffered from emphysema, requiring ongoing treatment, since 2000, over a period of 19 years during which he continued smoking 30 – 40 cigarettes per day. During this time he experienced recurrent respiratory infections, including two episodes of pneumonia for which he required hospitalisation in May 2017 and October 2017 respectively. He is documented to have been described as “frail” as early as May 2015, and an application for an electric scooter or a wheelchair was made at that time. He is also documented to have developed oesophageal reflux with dysphagia regurgitation and aspiration almost immediately after his unrelated Merkel cell carcinoma surgery in July 2016, and this has persisted from the onset to the present time, both prior to and since the incident in February 2019.
The Panel noted that the above information is further supported by investigation results, including extensive imaging of the chest, which demonstrated progressively increasing lung pathology, and the respiratory function tests, in respect of which the Panel made the following comparative tabulation:
FEV1 L (% pred) (predicted value)
FVC L (%pred) (predicted value)
DLCO ml/min/ mmHg(%pred). (predicted value)
Swan Hill Medical Group 16/02/2000
Age 58, height ?
3.18 3.89 NA Bendigo Health 13/07/2016
Age 74, height 1612.12 (79%)
(2.68)2.50 (74%)
(3.43)15.1 (62%)
(24.2)Melbourne. Lung & Sleep Respiratory Lab. 6/10/2021 Age 79, height 158 1.36 (56%)
(2.42)2.29 (73%)
(3.14)NA Predicted values derived from Tables 2,4 & 6, (2016) and/or calculations made in accordance with the equations in the subtexts of the Tables (2021) Chapter 5, AMA4
The Panel considered that the information contained in Referral material provides objective, verifiable medical evidence of pre-existing problems with the claimant’s respiratory system on the basis of which the Panel is able to calculate an accurate whole person impairment which pre-existed the incident, and which ought to be disregarded in accordance with Section 28LL(3) of the Act.
The Panel calculated the claimant’s pre-existing respiratory impairment on the basis of the documented, objective respiratory function tests, above. Using this information, the Panel also calculated the per-annum rate of deterioration in the claimant’s respiratory function, and postulated his respiratory function tests results that are likely to have been obtained immediately prior to the incident in February 2019, if such tests had been performed at that time.
The Panel disregarded the pre-existing unrelated impairment of the claimant’s respiratory system due to pre-existing chronic obstructive pulmonary disease in accordance with Section 28LL(3) of the Act and concluded that the degree of impairment resulting from the physical injuries to the claimant alleged in the claim is more than 5% and is permanent.
OTHER CONSIDERATIONS
The Panel considered that it has assessed impairment arising from the physical injuries to the claimant alleged in the claim in accordance with all the appropriate Chapters in the Guides, and the Panel also considered that further explanation or detailed reasons of the basis on which the impairment was calculated is prohibited by Section 28LZG(4) of the Act.
The Panel noted that while there is a decline in lung function with increasing age over time, a further decline may also occur in a step-wise fashion after acute severe events such as pneumonia, which the claimant suffered prior to the incident. Furthermore, the Panel noted that the age-related linear rate of decline is accelerated by comorbidities such as smoking and recurrent aspiration, both of which the claimant continued to experience between the documented respiratory function tests performed in July 2016 and the incident. Consequently, the Panel considered that its postulated lung function test results immediately prior to the incident are unlikely to accurately reflect the degree of the claimant’s respiratory impairment at that time.
In addition to the above, the Panel also noted that there is likely to have been further, decline in the claimant’s respiratory function as a result of his recurrent chest infections requiring antibiotic treatment subsequent to the removal of the PEG remnant in August 2019, as well as a result of his continued smoking. The Panel noted that this decline should also be disregarded as being due to unrelated causes in accordance with Section 28LL(3) of the Act. However, the Panel also noted that the information in the Referral material does not contain objective, verifiable medical evidence on the basis of which the degree of the unrelated decline could be accurately calculated.
For the reasons above, the Panel considered that the claimant’s current whole person impairment, which the claimant attributes to the physical injuries alleged in the claim, could not be categorically considered to be so. However, in this regard, the Panel also considered that it is not required to make a finding in relation to the issue of whether or not the claimant’s current medical condition was caused by the circumstances of the incident, as alleged, that gave rise to the claim, but the Panel has assessed impairment arising from the injury to the claimant that is potentially compensable, in accordance with the Referral.
The Panel also noted, and considered, the information provided and issues raised in the Submissions and Further Submissions made on behalf of the claimant by his legal advisors, dated 5 October 2021 and 11 February 2022 respectively, and by the respondent’s legal advisors, dated 15 June 2021 and 14 February 2022 respectively, which were included with the Referral material. The Panel considered that its Reasons herein above clearly explain the basis underlying the Panel’s opinion.[87]
[87]CB57-59 (emphasis added).
I have, of course, already accepted that the panel took account of the lung function test results as well as other medical evidence when assessing the first defendant’s ‘current impairment’.
Further, the quoted passage is extensive in comparison to the more exiguous reasons of the panel in respect of current impairment (which, in my view, reflects the greater difficulty attending the panel’s determination of the present issue).
In that context, it will be evident that –
(a) the quoted passage commences with the panel stating that it took account of ‘the claimant’s history and the information in the Referral material’ when determining the present issues;[88]
[88]It is evident from context – later on the same page – that the panel used the expression ‘Referral material’ to include the material that it had obtained subsequent to its examinations of the first defendant.
(b) the panel then referred to relevant authority, including the observation of the Court of Appeal in Lingenberg that a panel is required to ‘do its best to evaluate the extent to which impairment from the unrelated injury or cause is playing a part’;[89]
[89]Lingenberg (n 19) [29].
(c) the panel also stated, correctly, that ‘any pre-existing or subsequent impairment … must have an evidentiary basis on which [the panel] can be positively satisfied of such an impairment which is to be disregarded’;
(d) the panel then stated that it was able to rely upon the information in the ‘referral material, in conjunction with the claimant’s history and its own examination findings’, to formulate an accurate impairment assessment prior to the incident and, thereafter, detailed the effect of that material;
(e) the panel then noted that ‘the above information’ was ‘further supported by’ investigation results and the lung function tests – which I take to mean that the results of the investigations and lung function tests were consistent with the panel’s assessment of the effect of the other material to which it referred;
(f) in that context, the panel considered the results of the various lung function tests and expressed the view that the ‘information in the Referral material’ provides ‘objective, verifiable medical evidence of pre-existing problems … on the basis of which the Panel is able to calculate an accurate whole person impairment which pre-existed the incident and which ought to be disregarded’;
(g) the panel calculated the pre-existing unrelated impairment (and per annum rate of deterioration) by reference to the ‘objective respiratory function tests’ (which, as I have noted, were considered by the panel to have been ‘supported by’ or consistent with the ‘referral material’) and then disregarded that impairment.
In short, in assessing the pre-existing impairment, the panel adopted an approach that was in some respects similar to that which it adopted when earlier assessing current impairment. That is, the panel considered both the results of relevant lung function tests and other relevant medical evidence.
Importantly, the panel considered the effect of the ‘referral material’ to be ‘supported by’, or consistent with, its assessment of the results of the lung function tests. From that point, the panel appears to have treated those results as therefore representative of the effect of the whole of the material under consideration.
It follows that while the panel referred to its calculations in respect of the tests, that was not the only material which it considered. Indeed, those calculations were evidently considered by the panel to be consistent with the broader clinical picture.
It seems to me that such an approach –
(a) was open to the panel – as matter of its exercise of clinical skill and judgment – when assessing the question in issue and different sources of medical information presented; and
(b) accorded with the authorities referred to in argument.
It follows that I do not consider the approach of the panel to have been in error.
In addition to the above, however, the plaintiffs directed attention to three particular paragraphs of the panel’s reasons appearing under the heading ‘other considerations’. That reasoning appears in the lengthy passage quoted above.
In connection with the first of those paragraphs, while the panel evidently considered that the ‘postulated lung function tests immediately prior to the incident’ were ‘unlikely to accurately reflect the degree of the claimant’s respiratory impairment at that time’, I do not consider that to be any more than an observation made for the purposes of completeness.
In that regard, the panel had already made the point that the results of the lung function tests were ‘supported by’ or consistent with its assessment of the referral and other material. It follows that the panel could not have been saying that the assessments performed by it in the paragraphs immediately preceding that observation should be taken to be in doubt.
Further, the panel had earlier and correctly noted authority to the effect that it must ‘do its best to evaluate the extent to which impairment from an unrelated injury or cause is playing a part’ and that such an impairment must have ‘an evidentiary basis on which it can be positively satisfied of such an impairment’.
It follows that I cannot accept that the paragraph in question is indicative of the panel having erred in failing to disregard some distinct unrelated impairment. Among other things, the panel did not there identify any degree of unrelated impairment that was sufficiently distinct and able to be disregarded.
As to the second of the paragraphs relied upon under the heading ‘other considerations’, the panel considered the question of ‘further … decline … due to unrelated causes’ and did not consider the ‘referral material’ to contain ‘objective, verifiable medical evidence’ such that ‘the degree of the unrelated [further] decline could be accurately calculated’.
Senior counsel for the plaintiffs tended to emphasise the panel’s use of the word ‘accurately’ as indicative of error.
In the circumstances to which I have already referred, I do not accept that the panel erred in determining the issue of unrelated impairment solely by reference to the results of lung function testing.
I also do not accept the contention that the panel’s use of the word ‘accurately’ is necessarily indicative of error. After all, in Lingenberg, the Court of Appeal stated –
No doubt, in some cases a medical panel might properly take the view that the application of s 3.3f(9) of the Guides is the method best calculated to produce an accurate evaluation of the degree of underlying impairment. In such cases, a panel would be right to adopt that method.[90]
[90]Lingenberg (n 19) [30] (emphasis added).
In other words, accuracy is not necessarily an inappropriate consideration or objective when assessing the degree of any unrelated impairment.
In addition to the above, in the present case it seems to me to have been within the province of the panel to determine that the evidence concerning subsequent impairment was insufficiently ‘objective’ and ‘verifiable’. In that regard, I am conscious that –
(a) the substance of the ‘referral material’ relating to subsequent events and the first defendant’s clinical presentation at that time had earlier been considered by the panel in some detail;
(b) that material covered a comparatively short period; and
(c) it contained no results of lung function testing other than those that had been obtained by the panel.
It follows that I do not accept that the panel erred in the second of the paragraphs relied upon under the heading ‘other considerations’.
The final paragraph to which the plaintiffs directed attention concerns the panel’s reference to the first defendant’s attribution of his ‘current whole person impairment’ to ‘the physical injuries alleged in the claim’ and the authorities to the effect that the panel was not required to make a finding in respect of causation. That paragraph does not refer to the panel’s ‘obligation under s 28LL(3)’ of the Act.
I read that paragraph as a comment by the panel on a forensic problem that might arise in the first defendant’s common law claim. It might be doubtful whether such a comment is strictly relevant to the panel’s determination of the ‘medical question’ – after all, at that point, the panel had already determined that ‘the degree of impairment resulting from the physical injuries to the claimant alleged in the claim is more than 5% and is permanent’.
In any event, the panel correctly stated that it was not required to make a finding on the question of causation which, in my view, is more indicative of correctness than error.
For completeness, I should add that by that point the panel had sought to explain, in some detail, its consideration of the issues, the relevant principles and the evidence relating to the task presented by s 28LL(3) of the Act. In so doing, it had correctly disregarded the unrelated impairment which it could assess and explained that it could not make that assessment in respect of any subsequent unrelated impairment. In that context, I cannot accept that in a paragraph which, as I have noted, the panel did not refer to the task presented by s 28LL(3) of the Act, the panel had nonetheless ‘conflated’ the principles to which it (correctly) referred with that obligation.
In the circumstances, grounds 3 and 4 must be rejected.
G. Conclusion
In light of the above, the proceeding must be dismissed.
I will hear from the parties concerning the form of final orders.
SCHEDULE OF PARTIES
S ECI 2022 01355
BETWEEN:
| SWAN HILL DISTRICT HEALTH | First Plaintiff |
| BENDIGO HEALTH | Second Plaintiff |
| - and - | |
| DOUGLAS RAYMOND GRAHAM | First Defendant |
| ASSOCIATE PROFESSOR ABRAHAM RUBINFIELD | Second Defendant |
| DR SUSANNE HOMOLKA | Third Defendant |
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