Transport Accident Commission v Elworthy
[2007] VSC 48
•7 March 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 6409 of 2006
| TRANSPORT ACCIDENT COMMISSION | Plaintiff |
| v | |
| DARREL ELWORTHY | Defendant |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 February 2007 | |
DATE OF JUDGMENT: | 7 March 2007 | |
CASE MAY BE CITED AS: | TAC v Elworthy | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 48 | |
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ACCIDENT COMPENSATION – Transport accident – Impairment evaluation – American Medical Association Guides – Assessment of lower extremity impairment – Construction of Guides.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D. Masel | Solicitor to the Transport Accident Commission |
| For the Defendant | Dr I. Freckelton | Maurice Blackburn Cashman |
TABLE OF CONTENTS
Background......................................................................................................................................... 2
Transport Accident Act 1986 (Vic) and the AMA Guides........................................................... 3
The Tribunal Decision...................................................................................................................... 5
Grounds of Appeal............................................................................................................................ 7
Plaintiff’s Contentions...................................................................................................................... 8
The Defendant’s Contentions........................................................................................................ 12
Conclusion......................................................................................................................................... 15
HIS HONOUR:
This appeal involves a question of the construction of the American Medical Association Guides to the Evaluation of Permanent Impairment (4th Edition) (“the AMA Guides”) to quantify the impairment of a person injured as a result of a transport accident for the purpose of the Transport Accident Act 1986 (“the Act”).
Background
On 13 April 2000 the defendant, Darrel Elworthy, was struck by a motor vehicle as he walked across the Nepean Highway, Frankston. As a result he suffered a number of injuries which included double compound fractures of the left tibia and fibula, a comminuted fracture of the neck and upper shaft of the left humerus extending into the left shoulder joint, and an injury to the left knee. The defendant made an application to the Transport Accident Commission (“the Commission”) for the payment of benefits under Part 3 of the Act. On 24 January 2005 the Commission determined the level of permanent impairment sustained by the defendant at 20%. The defendant made an application to the Victorian Civil and Administrative Tribunal (“the Tribunal”) for review of that decision. His application came before Senior Member Megay in March 2006. On 21 April 2006 the senior member announced her reason for decision. She set aside the decision of the Commission, and substituted a determination that the defendant has a 31% whole person impairment arising out of the transport accident of 13 April 2000. In this proceeding Commission appeals the decision of the senior member pursuant to s.148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).
Essentially the plaintiff maintains that the senior member made an error of law in determining the degree of impairment of the defendant to his left leg. The plaintiff contends that if the member had followed the correct methodology prescribed by the AMA Guides, then the senior member should have assessed the level of impairment of the defendant at 29%. In the present case, the difference between the impairment assessed by the senior member, and the impairment which the plaintiff maintains ought to have been assessed, is small in percentage terms, and has a relatively small effect on the amount of compensation which would be payable to the defendant. However the point which has arisen, concerning the correct methodology to be applied in respect of injuries to the “lower extremity” (that is, the leg) under the AMA Guides, is an important point of principle for the plaintiff. Accordingly, the plaintiff has agreed to pay the defendant’s reasonable solicitor-client costs of the appeal, regardless of the result of the appeal. Furthermore, if the plaintiff’s submissions are accepted by me, the defendant’s level of impairment would be less than 30%, and thus he would not be automatically entitled to commence common law proceedings under s.93 of the Act. Nonetheless I was informed by Mr Masel, who appears for the plaintiff, that the Commission is satisfied that the defendant’s injury is a serious injury, and therefore will be issuing to the defendant a certificate in writing consenting to the bringing of proceedings under s.93(4)(c) of the Act, if the plaintiff were to succeed on this appeal.
Transport Accident Act 1986 (Vic) and the AMA Guides
Before referring to the decision of the Tribunal it is first necessary to outline the relevant statutory provisions. The Act was introduced in 1986. In Part 3 it provides for the payment of compensation to persons injured as a result of transport accidents. Section 47 provides for the payment of an “impairment benefit” to persons who the Commission has determined have sustained a degree of impairment of more than ten per centum as result of a transport accident. Section 47(2) prescribes the amount of the benefit on a scale according to the degree of impairment sustained. Section 46A provides how the degree of impairment is to be determined. Section 46A(2)(a)(i) requires that the Commission determine the degree of impairment in accordance with the 4th edition of the AMA Guides.
The first edition of the AMA Guides was published in 1971. The current edition is the 6th edition, however the Act provides that the 4th edition is to be applied by the Commission. That edition was published in 1993.
The AMA Guides contain 15 chapters. Chapter 3 is entitled “The Muscoloskeletal System”. That chapter contains sections on the “upper extremity” (that is the arm), the “lower extremity” (the leg), the spine and the pelvis. Each chapter, and indeed the various sections within each chapter, are authored by specially selected qualified medical practitioners. The list of contributors reveals that the section on the hand and the upper extremity was written by a different medical practitioner to the section on the lower extremity.
Chapter 3 commences by stating that the upper extremity, the lower extremity, the spine and the pelvis are each to be considered a unit of the whole person. Each extremity has parts and sub-parts. For example the lower extremity has six sections: the foot, the hindfoot, the ankle, the leg, the knee and the hip. Section 3.1 of Chapter 3 is concerned with “the hand and upper extremity”. Section 3.1(o) provides for the method of combining more than one impairment to the upper extremity in order to calculate the impairment of the “whole person”. It states that that impairment is determined by combining each of the impairments of the upper extremity, expressed as a degree of impairment of the upper extremity, and then converting the total impairment of the upper extremity to an impairment of the whole person. I shall hereinafter refer to that method of impairment assessment as the “extremity impairment method”. The AMA Guides contains, at pp.322 and following, a “combined values chart” which is used for the combination of more than one impairment. In essence the process of combining impairments is not an arithmetic process of addition of two or more impairments; rather, the second and subsequent impairments are percentage values of the residual unimpaired state, taking into account the first and previous impairments. It is by that process that two or more impairments are “combined” to produce a total impairment. As I have stated, with the extremity impairment method, such a process involves combining two or more impairments to the upper extremity, to produce a total impairment of the upper extremity. The next step in the process is to convert that degree of impairment of the upper extremity to a degree of impairment of the whole person. That process is undertaken by reference to a table (Table 3) at p.64 of the AMA Guides.
Section 3.2 of the AMA Guides relates to the assessment of impairment of the “lower extremity”. The critical question on this appeal is whether the same method of assessment applies to impairments of the lower extremity as applies to the upper extremity. The plaintiff maintains that the same methodology is required to be applied. On the other hand the defendant submits that the proper method, under section 3.2 of the Guides, is to combine (using the combined values chart) each of the impairments of the lower extremity as expressed as an impairment of the whole person, and then combining that whole person impairment of the lower extremity with other impairments of the whole person, to produce the subject’s whole person impairment. That method is hereinafter referred to as the “whole person method”.
It will be necessary later in these reasons to refer in detail to various parts of section 3.2 of the AMA Guides. However, both parties have placed particular emphasis on the following passage at the commencement of section 3.2 (at p.75 of the Guides):
“To make this section easier to use, the tables of the section show the impairment percents of the whole person, the lower extremity, and the specific part together. The whole-person impairments are not in parentheses, the lower-limb impairment percents are in parentheses ( ), and the specific part impairments are in brackets [ ]. Multiplying a lower extremity impairment percent by 0.4 yields the whole‑person impairment percent. Multiplying the specific‑part impairment percent by 0.7 yields the lower extremity impairment percent.
If the patient has several impairments of the same lower extremity part, such as the leg, or impairments of different parts, such as the ankle and a toe, the whole person estimates for the impairments are combined. (Combined Values Chart, p.322). If both extremities are impaired, the impairment of each should be evaluated and expressed in terms of the whole person, and the two percents should be combined (Combined Values Chart, p.322).”
The Tribunal Decision
I now turn to the decision of the senior member. In her reasons, the member noted that the applicant claimed impairments relating to scarring, his left leg, left ankle, left knee and left shoulder, as well as psychiatric impairment. The senior member assessed the degree of impairment as 15% for the lower extremity, 9% for the left shoulder, 5% for the scarring, and 5% for psychiatric. Those impairments, combined according to the Combined Values Table, produced a whole person impairment of 31%. In paragraphs 18 to 23 of her reasons the senior member assessed the various impairments claimed in respect of the lower left extremity. In paragraph 18 she stated:
“In considering the impairments relating to the applicant’s lower extremity it is necessary to understand the methodology that underpins the Guides in relation to those lower extremity body parts. The first thing to note is that there is no lower extremity conversion table in the Guides as there is in respect of the upper extremity. From this I infer that when dealing with multiple joint impairments, it is necessary first to combine the lower extremity ratings before converting to whole person by multiplying by 0.4%. That is in keeping with the upper extremity section of the Guides (see chapter 3.1). In relation to the various lower extremity assessments this method has not been followed by the practitioners who have in fact assessed in whole person terms. But I am persuaded that it makes no difference in this particular case. The basis of methodology in relation to the lower extremity is said to create a system of some flexibility designed to avoid over‑assessing (‘double‑dipping’) or under assessing (missing assessable impairments).”
Two points may be noted in respect to the foregoing passage from the senior member’s reasons. First, although the senior member stated that it was first necessary to combine the lower extremity ratings before converting to whole person by multiplying by 0.4%, the senior member did not adhere to that methodology. Rather, by reference to the medical evidence before her, she assessed each of the claimed impairments in respect of the lower extremity (left knee, wasting, sensory loss, left ankle and leg shortening), and then combined them using the Combined Values Table. It was that combination which produced a whole person impairment of the left lower extremity of 15%. Secondly, it is common ground that, notwithstanding the observation that it would make no difference in this case, in fact the application of the extremity impairment method would have produced a whole person impairment, in respect of the lower extremity, of 13%, whereas the application by the senior member of the whole person impairment method produced a lower extremity impairment of 15%.
Grounds of Appeal
The appeal is brought by the plaintiff pursuant to leave granted to it by order of the Master of 1 June 2006. Under s.148(1) of the Victorian Civil and Administrative Tribunal Act the plaintiff may only appeal from the decision of the tribunal on a question of law. The notice of appeal contains four grounds of appeal as formulated in the Master’s orders, which are as follows:
1.Upon proper application of the AMA Guides it was not open to the Tribunal to combine multiple impairments of the lower extremity, expressed as impairments of the whole person, and then combine the whole person impairment of the lower extremity with other impairments of the whole person, to attain the defendant’s whole person impairment.
2.Upon the proper application of the AMA Guides, the Tribunal was obliged to combine multiple impairments of the lower extremity, expressed as impairments of the lower extremity, and then convert the impairment of the lower extremity thereby attained to an impairment of the whole person, and then combine that whole person impairment with other impairments of the whole person to attain the defendant’s whole person impairment.
3.In preferring to combine impairments of the lower extremity expressed as impairments of the whole person rather than as impairments of the lower extremity, the Tribunal
(a)had regard to an irrelevant consideration, namely, a contention that the method of combination made no difference (a contention that was incorrect);
(b)failed to have regard to a relevant consideration, namely that the Guides read as a whole preferred that impairments of an extremity, including a lower extremity, be combined as impairments of the extremity;
(c)failed to have regard to a relevant consideration, namely that s.46C of the Transport Accident Act 1986 expressed statutory disapproval of rounding as is encouraged by ‘whole person impairment combination’ and minimised by ‘lower extremity impairment combination’.
4.In finding that the methodology adopted for combination of impairments of the lower extremity made no difference in the particular case of the present defendant, the Tribunal erred in law in making a finding and decision consequent thereon that no reasonable tribunal properly instructing itself as to combination under the AMA Guides could have made.”
Plaintiff’s Contentions
Mr Masel, who appeared for the plaintiff, submitted that the Tribunal member erred in considering that there was no practical difference between the application of the extremity impairment method and the application of the whole person method. In fact, as illustrated by the affidavit of Mr Ansell filed in support of the appeal, application of the two methods would produce impairment assessments of the defendant which differ by 2%. Further Mr Masel submitted that the Tribunal member erred in applying the whole person method when calculating the impairment sustained by the defendant. Mr Masel submitted that, on their correct construction, the AMA Guides require the Tribunal to assess the impairment of the defendant by applying the extremity impairment method to both the upper and lower extremities. However the Tribunal member only applied the extremity impairment method to the upper extremity, but applied the whole person impairment method to the lower extremity.
Alternatively, Mr Masel submitted that under the AMA Guides there is a choice, when assessing the degree of impairment of the lower extremity, either of using the extremity impairment method or, alternatively, of using the whole person method; Mr Masel submitted that in this case the “preferable” method was the extremity impairment method which should have been applied by the Tribunal member. He submitted that the reasons for that conclusion would apply not only to the case of the defendant, but also universally to most if not all cases of impairment assessment involving a combination of multiple lower extremity impairments.
Mr Masel acknowledged, as he must, that, in the introduction to section 3.2 in the Guides relating to the lower extremity, there appears (at p.75) the following sentence which, on its literal construction, requires the assessor to use the whole person method in a case of several impairments to the lower extremity:
“If the patient has several impairments of the same lower extremity part, such as the leg, or impairments of different parts, such as the ankle and a toe, the whole‑person estimates for the impairments are combined (combined values chart p.322).”
(Emphasis added).
However Mr Masel submitted that there are eight reasons which, working together, militate against construing that sentence of the Guides in their literal sense, so as to mandate the application of the whole person impairment method. Those reasons or factors were outlined by Mr Masel as follows:
(1)If the whole person method was intended to be applied by the Guides, there was no need for the Guides to include, in parentheses, the lower extremity impairment percentages. In the section of the introduction to the lower extremity chapter in the Guides, the authors specifically note that the tables were intended to disclose the whole person impairments not in parentheses, and the lower limb impairment percentages in parentheses. With one exception, each table in section 3.2 of the Guides sets out the whole person percentage, together with, in parentheses, the lower extremity impairment percentage. Mr Masel submitted that if it was intended that the whole person impairment method would be applicable, then the inclusion in the Guides of the extremity impairment calculation (in parentheses) was otiose. He submitted that they were included for a particular purpose, to enable the assessor to apply the extremity impairment method to the assessment of a combination of multiple lower extremity impairments.
(2)In this context Mr Masel drew my attention to Table 36 (p.76), which relates to lower limb impairment from gait derangement. That table defines the impairment assessment only as a percentage of the whole person. It does not also provide (in parentheses) the lower extremity impairment percentage. However, Mr Masel pointed out, that is for good reason. The Guides expressly provide that an assessment of gait derangement must stand alone, and must not be combined with any other lower limb impairment. Thus Mr Masel submitted that the one occasion in which the whole person impairment method is mandated is an occasion on which the Guides specifically proscribe the combination of multiple lower limb impairments.
(3)Immediately after the sentence at the commencement of section 3.2 which states that whole person estimates for lower extremity impairments are combined, there appears the sentence which states that, if both lower extremities are impaired, the impairment of each should be evaluated, and expressed in terms of the whole person, and the two percentages are to be combined using the combined values chart. Mr Masel submitted that if the first sentence of that passage was intended to prescribe the whole person impairment method, then the succeeding sentence would have no utility. He submitted that the second sentence only has utility because each lower extremity impairment must be combined as an impairment of the lower extremity and then calculated as an impairment of the whole person.
(4)Section 3.2, at p.84, does contain one example in which the lower extremity impairment method is used, without, even as an alternative, using the whole person impairment method. That section occurs under sub‑section 3.2(i) entitled “Diagnosis based estimates”. In the example on that page, two lower extremity impairment calculations (as distinct from whole person impairment assessments) are combined to produce a lower extremity impairment (in the example, of 31%) which is then translated into a whole person impairment (12%). Mr Masel submitted that there is no logical reason why the extremity impairment method should be used for a diagnosis based estimate. He submitted that the use of that method in that example militates against giving the initial part of section 3.2 the literal construction which is relied upon by the defendant.
(5)Section 3.2 expressly provides that the lower extremity impairment, when multiplied by 0.4, yields the whole person impairment percentage. Thus mathematically an assessment of the impairment of a lower extremity, in terms of whole person impairment, should not and could not exceed 40%, which would be the equivalent of a 100% impairment of the lower extremity. Indeed, so much is made plain in at least three parts of the text (pp.79, 84 and 88). However, it is possible to postulate examples where, by applying the whole person impairment method, rather than the extremity impairment method, the combination of various lower extremity impairments may produce a total whole person impairment in excess of the 40% limit which must apply. Thus, Mr Masel submitted it could not have been contemplated that the Guides would mandate the application of a formula which produced such an anomalous result.
(6)Mr Masel further submitted that in other parts of the Guides the impairment of the lower extremity, assessed under different organ systems than the musculoskeletal system, are assessed by reference to the extremity impairment method, and not by the whole person impairment method. Thus in Chapter 4, “Neurological Impairment” and in Chapter 6, “Cardiovascular Impairment”, impairments to the lower extremity resulting from pathology involving either of those two systems are expressly required to be assessed by the extremity impairment method, and not the whole person impairment method. There is no reason why a different method of assessment should apply for the calculation of the impairment to a lower extremity in the musculoskeletal system. If the extremity impairment method were applied to the musculoskeletal system, that would be consistent with the scheme of the Guides as evidenced by its application in Chapters 4 and 6.
(7)Mr Masel further submitted that the application of the extremity impairment method to the lower extremity would be consistent with section 3.1 of the Guides (p.66) which specifies that the extremity impairment method be used in the calculation of multiple impairments of the upper extremity. He submitted that there is no logical reason why different methods of assessment should apply to those two different parts of the musculoskeletal system.
(8)Finally, Mr Masel referred to and relied on s.46C of the Act, which was introduced in 2003. Section 46C(1) provides that no number determined under the AMA Guides is to be “rounded up or down, regardless of whether the number represents an initial, an intermediate, a combined or a final value, unless the rounding is expressly required or permitted by this Act”. Sub-section (2) specifies the one circumstance in which rounding is to be permitted, namely:
“(2)A number determined under the AMA Guides must be rounded to the nearest whole per cent.
Example: a final degree of impairment of 9.5% must be rounded to 10%. A final degree of 8.4% must be rounded to 8%. …”
Mr Masel submitted that s.46C evidences a legislative policy against the “rounding” of numbers and the calculation of impairments under the AMA Guides. That prohibition was designed to enhance the precision and accuracy of impairment assessments performed under the Guides. Mr Masel submitted that the whole person impairment method involves a greater degree of rounding than the extremity impairment method. The difference arises from the use of lower numbers in the whole person impairment method, and the use of less precision in the combination of those lower numbers in the combined values chart. Mr Masel illustrated his point by reference to the facts of this case, in which the whole person impairment method produced an impairment 2% greater than would have been produced had the extremity impairment method been applied.
The Defendant’s Contentions
In response, Dr Freckelton, who appeared for the defendant, submitted, as his primary point, that the words of section 3.2 of the Guides (at p.75) are clear, unambiguous and unequivocal. In plain terms they state that if the patient has several impairments of the same lower extremity part, then the “whole person estimates for the impairments are combined”. Dr Freckelton submitted that the Guides could not be expressed in any clearer terms. He further submitted that that mandate, in respect of lower extremity impairments, is in direct contrast to the method prescribed by the Guides for assessing multiple impairments of the upper extremity. He submitted that the contrast between the two methods, each clearly expressed, emphasises and reinforces the proposition that the Guides require and intend that several impairments of the lower extremity part are to be combined as whole person estimates, and not as estimates of the lower extremity. Dr Freckelton further submitted that the text of section 3.2 contains a number of examples (pp.76, 78, 81 and 83) in which two or more lower extremity impairments are combined (using the combined values chart) to produce the whole person impairment of the patient. Those examples further reinforce the clear terms of the passage in section 3.2, referred to above, which states that the whole person estimates for lower extremity impairments are to be combined.
Dr Freckelton acknowledged that the senior member did err in two respects in paragraph 18 of her reasons.[1] First, she erred in inferring that, when dealing with multiple joint impairments, it is necessary first to combine the lower extremity ratings before converting to the whole person by multiplying by a factor of 0.4%. In fact as pointed out by Dr Freckelton, at paragraphs 19 to 23 of the reasons, the senior member did not apply that methodology, but, rather, applied the whole person impairment method which, he submitted, was the correct methodology. Secondly, Dr Freckelton accepted that the senior member erred in observing that application of either of the two methodologies – the extremity impairment method and the whole person impairment method – would produce the same result. In fact, as I have already stated, application of the two tests, in the case of the defendant, produces different results. Nonetheless, Dr Freckelton submitted that neither of those errors by the senior member impacted on her ultimate decision. For, she correctly applied the whole person impairment test, which, Dr Freckelton submitted, is the only correct test applicable under the Guides.
[1]Quoted at [10] above.
Dr Freckelton then proceeded to make submissions in rebuttal of the eight points proffered by Mr Masel as follows:
(1)Dr Freckelton submitted that the inclusion, in the tables, of the lower limb impairment percentage (in parentheses) can be explained by the policy of the Guides to be user friendly, and to provide transparency of information. The inclusion of those percentages in brackets assists the reader to understand how the whole person impairment has been derived.
(2)The sentence on p.75, which relates to impairments of both lower extremities, does not qualify the plain meaning of the sentence which precedes it, which requires the combination of whole person estimates of the lower extremity. The second sentence is not otiose. Rather it is included as an abundance of caution, to make it clear to the practitioner how to implement the impairment methodology when there are impairments to both limbs.
(3)The section on gait derangement (p.76) is clearly a distinctive category of its own. That section is a combination of a number of different types of lower extremity impairments, and thus it would be obviously impermissible to combine other impairments with gait derangement. The fact that the table does not, in parentheses, also provide a lower extremity impairment calculation, does not take the argument of the plaintiff anywhere.
(4)The example on p.84, which only utilises the extremity impairment method, is to be distinguished because it is an example where there is only one injury, and the impairments are different manifestations of it.
(5)It may well be that, in certain instances, the whole person impairment method does produce an impairment in excess of 40% (which is the equivalent to an impairment in excess of 100% for the lower extremity). However there is an express ceiling stipulated in the Guides of 40%. Thus if the impairment assessment, using the combined values tables, produced a result in excess of 40%, it would, under the Guides, be reduced to 40%.
(6)The fact that different assessment methods are used in relation to neurology (Chapter 4) and cardiovascular disorders (Chapter 6) simply highlights the intention of the authors of Chapter 3.2 that the impairment assessment method for the lower extremity is to be different.
(7)Equally, the prescription, by the Guides, of the extremity impairment method for the upper extremity, makes it all the more significant that the whole person impairment method is expressly prescribed for assessing impairment of the lower extremity.
(8)In respect of Mr Masel’s submissions concerning rounding, Dr Freckeleton took issue with Mr Masel’s construction of s.46C. The Guides (Chapter 2, p.9) state that a final estimated whole person impairment percentage may be rounded to the two nearest values ending in 0 or 5. Section 46C was designed to prevent that type of rounding, and only to permit “rounding” of figures with decimals to the nearest number. Dr Freckelton further pointed out that, in any event, there is a degree of imprecision involved in using the extremity impairment method, which involves a combination exercise from the impairment to the extremity impairment assessment, and hence to the whole person impairment. Thus, either method necessarily involves a degree of mathematical imprecision.
Conclusion
The question raised by this appeal centres on the correct construction of the AMA Guides and, more particularly, on the part of section 3.2 of the Guides, which states that if the patient has several impairments of the same lower extremity part, “the whole‑person estimates for the impairments are combined” (using the combined values chart). The effect of s.46(2)(a)(i) of the Act is to require any determination of impairment to be made in accordance with the Guides, and thus to give the Guides, to that extent, the force of law. In construing those Guides two points are important. First, as observed by Nettle J in Gillat v Transport Accident Commission,[2] the rationale of the Guides 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 of impairment.” Thus the use of the Guides is designed to promote precision, certainty and consistency.
[2][2003] VSC 15 at [47]; 38 MVR 463 at 473.
The second point is that the Guides have been written, not by statutory draftsmen, but by medical practitioners who are expert specialists in the various fields covered by the Guides. They comprise a document written by medical practitioners for use by medical practitioners. It is true that the Tribunal, and, on appeal, the Court, are the final arbiters of the correct assessment of the impairment of a particular individual. However those decisions are based upon, and informed by, the evidence of expert medical practitioners who are required to base their estimates on the Guides. In that context it is important to bear in the mind the admonition of the Court of Appeal[3] that it is important not to overlay the Guides with legalistic interpretation, for, to do so, would be to render the Guides a legal “minefield” which would be of little utility to doctors and lawyers. Ordinarily, in any area of statutory construction, the plain ordinary meaning of words used by an instrument is preferred. In the context of the Guides, it is, I consider, of paramount importance to be faithful to the plain words used by the text, and to avoid “torturing” those words by a technical and legalistic approach.
[3]Lake v Transport Accident Commission [1998] 1 VR 616 at 626 (Phillips JA); see also Connelly v MMI Workers Compensation (Vic) Limited [2003] VSCA 60 at [9] (Callaway JA).
With those principles in mind, the central starting point in this case must be the plain words used by the Guides. As Dr Freckelton correctly points out, the key sentence in section 3.2 (that if the patient has several impairments of the same extremity part then the whole person estimates for the impairments are combined) is, standing alone, clear, unambiguous, and intelligible. The plain meaning of those words is to require the practitioner (and thus the Tribunal and now the Court) to assess the degree of impairment to an individual, resulting from several impairments of the same lower extremity part, by combining (using the combined values chart) the whole person estimates for each of those impairments. That construction is reinforced by comparing and contrasting it with the methodology expressly prescribed for combining multiple impairments of the upper extremity to obtain the impairment percentage of the whole person (p.65 of the Guides). By contrast to the method prescribed for the lower extremity (p.75), the method specified for the upper extremity is the extremity impairment method of assessment. The express requirement that for the use of different methods of assessment for the two different units of the musculoskeletal system cannot be ignored. It is particularly significant that the authors of the Guides, having selected the extremity impairment method for the upper extremity, have specifically selected a different method, the whole person method, for the lower extremity.
The plain construction of the words in question is, I consider, further reinforced by the circumstance, that in each of the tables provided in relation to section 3.2, the primary estimate for each deficit or discrepancy is stated in terms of the whole person impairment. It is not coincidental that the lower extremity impairments are only included in parentheses. Further, with one exception, all of the examples contained in the text in section 3.2 use and apply the whole person impairment method, and not the extremity impairment method (See pp.78, 81, 83). The one exception is to be found in section 3.2(i), that section being entitled “Diagnosis based estimates”. The example in that section does use the extremity impairment method, and not the whole person impairment method. I agree with Mr Masel that it is no answer to the point which he makes to suggest, as Dr Freckeleton has, that the injury in the example postulated was one injury, and the impairments were but two manifestations of it. In a number of the other examples provided in the text under section 3.2, the same comment could be made. It is not clear to me why the example given on p.84 in section 3.2(i) only uses the extremity impairment method. However that one example does not contradict the plain words on p.75 of the Guides; nor does it overcome the effect of the other examples contained in the text of section 3.2 in which the whole person impairment method is used, and not the extremity impairment method.
Each of the matters to which I have referred above is strong support for the construction contended for by the defendant, namely, that the passage on p.75 of the Guides be given its plain literal meaning. I do not consider that the submissions made by Mr Masel warrant displacing that meaning, and, in effect, ignoring the plain words on p.75, or, even worse, rewriting them. The fact that the lower extremity impairment is (with one exception) also set out in each table in section 3.2, in parentheses, is susceptible of a single explanation. The Guides are intended to be used by a wide audience. They are designed, as Dr Freckelton stated, to be “user friendly”. In that context, the inclusion of the lower extremity impairment in parentheses in round brackets is, I consider, part of the process of assisting in the understanding of the Guide, and providing additional information to the reader. In a similar manner, a number of the tables in section 3.2 (such as tables 39, 42, 43, 44, 45 and 55 to 60) also provide, in square brackets, the “specific part impairment” percentage. It is not suggested that that process be used, either as the method of the assessment, or as an alternative method. It is clear that the provision of information in parentheses is designed simply to provide extra information, and not to form part of the process of impairment assessment in section 3.2.
I also consider that table 36, relating to the gait impairment assessment, works neither in favour of, nor against, the construction contended for by the defendant. The Guides expressly provide that gait derangement is a stand‑alone assessment, and is not to be combined with any impairment. That is, no question of combining several impairments arises. Accordingly the fact that the impairment is expressed as a whole person impairment is plainly neutral in determining the question raised by this appeal.
Mr Masel submitted that if the passage on p.75, requiring the combination of whole person estimates, is to be given its literal meaning, then the sentence following it is otiose. I reject that submission. The first sentence deals with the combination of impairments to the same lower extremity part. The second sentence relates to a different topic. It deals with the combination of impairments to both lower extremity parts. It is clearly intended out of an abundance of caution, to make it plain that the whole person method is confined to each of the lower extremities specifically, and not collectively. Thus understood, the second sentence is neither superfluous, nor does it reflect upon or affect the plain construction of the first sentence.
The next submission made by Mr Masel is that examples can be postulated whereby the application of the whole person impairment method produces an impairment greater than 40 percent of the whole person, which is excess of the maximum prescribed by the Guide. That may well be so. Nonetheless the Guides make it clear that the maximum whole body impairment which might be assessed in relation to the lower extremity is 40 percent. That limit, or ceiling, is not only expressly stated in a number of parts of section 3.2, but is necessarily implicit from the opening section at page 75, which states that the multiplication of a lower extremity impairment by 0.4 yields the whole person impairment percent. The fact that on some occasions that maximum might, in theory, be exceeded, is not to the point. In those instances, the maximum whole body impairment (40 percent) would be applied, so that the combined whole body impairment of the lower extremity would not exceed that limit.
Mr Masel also relied on other parts of the Guides (Chapter 4, the Peripheral Nervous System, and Chapter 6, the Cardiovascular System) as evidence of a policy of the Guides to apply the extremity impairment method. However the simple answer to that proposition is that those sections stand in clear contradistinction to the plain words in section 3.2, which specify the use of the whole person impairment method in respect of the lower extremity. The use of the extremity impairment method in Chapters 4 and 6, as contrasted with the express stipulation for the use of the whole person method in section 3.2 for the lower extremity, only serves to highlight the point that a different methodology be adopted in respect of lower extremity impairment.
Finally, I do not consider that Mr Masel’s submission concerning ”rounding” is sound. It is clear that s.46C was introduced to overcome the effect of the passage in Chapter 2 of the Guides (p.9) which permit “rounding” of estimates to the nearest values ending in 0 or 5. Before 2003, the Court of Appeal had construed the Guides as reposing a discretion in the hands of the assessor, and the Tribunal, to round a figure to the nearest 0 or 5.[4] Such a rounding could produce unintended effects, particularly in respect of an assessment of an impairment for the purposes of determining whether a particular person had suffered a “serious injury” under Part 6 of the Act. Thus s.46C was introduced to, as it were, repeal that part of the Guides. It is, I consider, stretching s.46C impermissibly to describe it as evidencing a broad statutory policy against “rounding” per se. Further, I agree with Dr Freckelton that, whether the extremity impairment method or the whole person impairment method is implemented, there is introduced a degree of inexactitude. That element is inherent, particularly in the use of the combined values tables. However, whether the degree of inexactitude is greater by using the whole person method than by using the extremity impairment method, that consideration does not displace the plain words of section 3.2.
[4]Connelly v MMI Workers Compensation (Vic) Limited [2003] VSCA 60 at [23] (Chernov JA); Wight v Transport Accident Commission [2003] VSC 213 at [23] – [24] (Bongiorno J).
For those reasons I consider that the plain words of section 3.2 must prevail, so that the correct construction of section 3.2 is that it not only permits, but requires that, if the patient has several impairments of the same lower extremity part, the whole person estimates for the impairment are to be combined by reference to the combined values chart at p.322 of the Guides. I do not consider that any matters argued by Mr Masel, either alone or in combination, displace the ordinary meaning which is to be given to the passage in question on p.75 of the Guides. My conclusion is reinforced by the principles which I referred to earlier in these reasons, namely, the principles which emphasise the importance of avoiding an overly legalistic or technical construction of plain words used in the Guides. None of the submissions made on behalf of the plaintiff can alter or detract from the plain words (on p.75) at the commencement of section 3.2, namely that:
“If the patient has several impairments of the same lower extremity part … the whole‑person estimates for the impairments are combined.”
Those words are plain and unambiguous. They mean what they say.
Mr Masel, as an alternative, submitted that section 3.2 of the Guides provides the decision‑maker with a choice in assessing lower extremity impairment. The decision‑maker may choose between applying the extremity impairment method or applying the whole person method. Mr Masel submitted that in the present case the senior member made a choice between the two methods based on an irrelevant and erroneous consideration, namely, that application of either method would produce the same result. Mr Masel further contended that in this case, and indeed in any case, the “overwhelmingly correct or preferable” decision would be to use the extremity impairment method, and not the whole person impairment method.
Mr Masel’s alternative proposition was, at least implicitly, a recognition that, whatever arguments he might mount, nonetheless the clear words on p.75 of section 3.2 of the Guides remain, and expressly mandate the application of the whole person impairment method to the assessment of a combination of lower extremity impairments. Whatever arguments might be made against the application of the whole person method, nonetheless those words remain, and cannot be wished away. Thus the plaintiff was forced to rely, at least as an alternative, on the secondary proposition put by Mr Masel.
For the reasons I have already advanced, I do not consider that, on the correct construction, the Guides do provide any “choice” as to the method of assessment of impairment in respect of a combination of lower extremity impairments. First, the words of section 3.2 are clear and unambiguous. They require the application of the whole person method. Secondly, the concept of the assessor having a “choice” between alternative methods would be quite alien to the clear philosophy of the Guides, namely, to produce consistent and precise results. If the decision‑maker were, in each case confronted with a choice, then, a fortiori, each decision would be contentious. Mr Masel submitted that the “overwhelmingly correct or preferable decision” was to use the extremity impairment method. However, such a proposition was really a reversion by Mr Masel to his first major submission, namely, that on the proper construction of the Guides, the extremity impairment method is to be applied when combining multiple lower extremity impairments. For the reasons which I have already canvassed at length, I reject that proposition.
For those reasons I consider that the correct construction of the Guides is that contended for by the defendant. It is true that, in paragraph 18 of her reasons, the Tribunal member appears to have misstated the applicable test. However, and notwithstanding that, the senior member clearly implemented the correct test, namely, the whole person impairment test, in assessing the impairment to the defendant’s lower left extremity. Accordingly, she came to the correct conclusion by applying the correct test.
It follows that the plaintiff’s appeal must be dismissed. As I have already noted the plaintiff has agreed to pay the defendant’s solicitor-client costs. Subject to hearing from counsel I therefore propose to make the following orders:
1.The appeal by the plaintiff from the order of the Victorian Civil and Administrative Tribunal made on 21 April 2006 is dismissed.
2.Order that the plaintiff pay the defendant’s costs of and incidental to the appeal, including any reserved costs, on a solicitor-client basis.
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