Vicinity Centres PM Pty Ltd v Arik

SUPREME COURT OF VICTORIA COURT OF APPEAL
S EAPCI 2023 0040
VICINITY CENTRES PM PTY LTD	Applicant
v
MELEK ARIK & ORS (ACCORDING TO THE ATTACHED SCHEDULE)	Respondents

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JUDGES:	NIALL, KENNEDY and MACAULAY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	13 October 2023
DATE OF JUDGMENT:	5 December 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 295
JUDGMENT APPEALED FROM:	[2023] VSC 94 (Richards J)

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ADMINISTRATIVE LAW – Judicial Review – Medical Panel – Jurisdictional error – Determination by a Medical Panel of a medical question referred under Part VBA of the Wrongs Act 1958 – Medical Panel’s determination that plaintiff’s degree of impairment did not satisfy the threshold level for a ‘significant injury’ – Whether Panel’s determination ‘in accordance with’ the American Medical Association’s Guides to the Evaluation of Permanent Impairment – Whether section 3.2 of the Guides to the Evaluation of Permanent Impairment requires each measurement within a column of table 40 to be combined – Leave to appeal granted – Appeal allowed.

Wrongs Act 1958, s 28LH.

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Counsel
Applicant:	Mr J Ruskin KC with Ms FC Spencer SC
First Respondent:	Mr MJ Hooper with Ms G Angelowitsch
Second, Third and Fourth Respondents:	No appearance
Solicitors
Applicant:	HWL Ebsworth Lawyers
First Respondent:	Zaparas Lawyers
Second, Third and Fourth Respondents:	No appearance

NIALL JA
MACAULAY JA:

We would allow this appeal.
The reasons for judgment of Kennedy JA, which we have been fortunate to read in draft, set out in a comprehensive way the facts, statutory context and arguments of the parties. They enable us to come directly to the critical issue of construction.
The reasons of Kennedy JA explain how it comes to be that this Court has the role of determining the meaning to be attributed to the ‘Guides to the Evaluation of Permanent Impairment’ of the American Medical Association (‘the Guides’). It may appear incongruous that it is a court that has the job of construing a document prepared by members of the medical profession and directed to a professional medical audience. The reason lies in the fact that an entitlement to recover damages for non-economic loss depends on a plaintiff being able to establish that he or she has a ‘significant injury’. In turn, ss 28LF and 28LH of the Wrongs Act 1958 (‘the Act’) have the effect that in order to qualify as a significant injury, a medical practitioner or Medical Panel (‘Panel’) must assess the degree of impairment of the plaintiff ‘in accordance with’ the Guides. However, as we will endeavour to explain, the process of construction does not proceed as if the Guides were legislation or a legal text.
It is to be emphasised at this point that the making of an assessment of impairment by a Panel will arise in the determination by the Panel of a ‘medical question’ referred to it. In arriving at its answer to a medical question, a Panel is required to make a decision that the Act empowers it to make. That is to say, a Panel is required to make its assessment of impairment in accordance with the Guides. It is to be remembered that the task of assessing impairment for the purpose of the threshold is not given to courts, but to medical practitioners. And it is the task of medical practitioners to construe and apply the Guides.
As a consequence, a legal issue may arise in a given case as to whether the assessment of impairment has been undertaken ‘in accordance with’ the Guides. Such an issue arises in the present application. Bearing in mind that the issue arose in the Trial Division on judicial review, in which the plaintiff had to establish either an error of law on the face of the record or a jurisdictional error, the court has no role in making its own assessment of impairment.
In Saddington v Kotzman, Kyrou J said:
In order for a medical panel to assess impairment ‘in accordance with’ the Guides as required by ss 28LZG(1) and 28LH(1)(a) of the Act, it must act in conformity with the Guides. This means that it must apply the methodologies, processes and criteria set out in the Guides for the relevant condition, body part or system and adhere to any minimum or maximum values set out in the Guides for that condition, body part or system. Where the Guides contain a table that is applicable to a condition, body part or system, an assessment based on that table will not be in accordance with the Guides unless the categories, descriptions, criteria, ranges, adjustments and other elements of the table that are relevant to the condition, body part or system are adhered to and complied with.[1]
[1][2013] VSC 196, [28] (‘Saddington’).
That passage was adopted from an earlier decision of Kyrou J in H J Heinz Company Australia Ltd v Kotzman.[2] The passage in Heinz was expressly approved by this Court in Gamble v Emerald Hill Electrical Pty Ltd.[3] It was in the context of considering Heinz, which was a case in which the Panel considered there was a gap in the Guides which it sought to overcome by making an assessment that was ‘fair’ or ‘optimal’, that this Court referred to a ‘heavy onus’ on the challenging party to persuade a court that a statement by a Panel that it has carried out the assessment in accordance with the Guides should not be taken at face value.[4] With respect, the reference to there being a heavy onus is apt to mislead. Properly understood, their Honours were adverting to the fact that the Act requires the Panel to apply the Guides using the members’ individual and collective skill and expertise as medical practitioners and that their approach to the Guides is not to be supplanted merely because the court comes to a different view as to how it might be interpreted. It is necessary to go further and show that the methodology is not in accordance with the Guides, being a document intended for application by medical practitioners.
[2][2009] VSC 311, [46] (‘Heinz’).
[3](2012) 38 VR 45; [2012] VSCA 322 (‘Gamble’).
[4]Ibid 61 [56] (Maxwell P and Cavanough AJA).
This point was emphasised by this Court in Gamble in considering a submission that it should express a ‘concluded view’ on the meaning of the phrases ‘signs and symptoms’ and ‘skin disorder’, which were used in a table in the Guides. This Court rejected that submission, stating that the phrases in issue were ‘matters of basic medical terminology, and their interpretation — and application — is for doctors, not judges’.[5]
[5]Ibid 62 [58] (Maxwell P and Cavanough AJA).
In Mountain Pine Furniture Pty Ltd v Taylor,[6] this Court considered the meaning of the Guides. Nettle JA wrote the lead judgment. Ashley JA agreed, noting that the Guides were written by doctors, making use of medical concepts and language, for use by doctors, but adding that the court must ‘place a construction on the relevant part of the Guides’, being a function that was ‘similar in concept, but quite dissimilar in substance, to the issues of construction which it commonly faces’.[7]
[6](2007) 16 VR 659; [2007] VSCA 146 (‘Mountain Pine’).
[7]Ibid 672 [47].
There might be some tension between the observation of this Court in Gamble that the meaning of at least some terms in the Guides is a matter for doctors, not judges, and the observation of Ashley JA that the court must place a construction on the relevant section of the Guides. In our opinion, if there is any tension it can be reconciled by acknowledging that the ultimate legal inquiry is whether the Panel has made an assessment in accordance with the Guides and, as part of that process, whether it understood and applied the Guides in a way that was consistent with the application of a medical text by an expert medical practitioner. As well, it is important to observe that the Panel is not engaged in an adjudicative or arbitral function, but must form its own opinion.[8] Unlike with a statutory text, this may mean that the words legitimately have, and retain, different shades of meaning and in which the choice and application of the various methodologies may involve the application of medical expertise and judgment.
[8]Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, 498–9 [47] (French CJ, Crennan, Bell, Gageler and Keane JJ); [2013] HCA 43 (‘Wingfoot’); Colquhoun v Capitol Radiology Pty Ltd (2013) 39 VR 296, 299–300 [14]–[16], 300–1 [18] (Maxwell P, Weinberg JA and Ferguson AJA); [2013] VSCA 58 (‘Colquhoun’); Maimonis v Bourke [2019] VSCA 302, [51(1)] (Ferguson CJ, Beach and Ashley JJA) (‘Maimonis’).
These observations do not imply that the court should adopt a degree of deference of the kind applied in the United States of America.[9] Rather, they reflect the foundational point that the Guides are not statutes and do not themselves impose legal standards of a kind that are interpreted and applied by courts. In looking at the lawfulness of a decision of a Panel, including whether its assessment is in accordance with the Guides, a better point of reference is an administrative decision in which the merits of the decision lies with the repository of the power. Where such a decision maker is required to make a decision by interpreting and applying a policy or administrative guideline, the meaning and application of such a document lies primarily with the decision maker. That must be the greater where the primary decision maker is an expert body, expressing a medical opinion and not adjudicating on rights or liabilities.
[9]Chevron USA Inc v Natural Resources Defense Council Inc, 467 US 837 (1984); City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5.
Of course, in order to determine the legal question of whether an opinion is made in accordance with the Guides, a court will have to interpret the Guides in order to assess whether the decision accords with them. However, even in this process of interpretation, sight should not be lost of the nature of the text. It is for that reason, we venture, that Ashley JA described the process of construction as ‘quite dissimilar in substance’ to statutory interpretation.

The Guides

The medical question that engaged the Guides was concerned with the level of impairment of the respondent’s hip.
In order to utilise the range of motion method of assessment, the Guides required the Panel to proceed as follows. First, the Panel was required to measure the movement of the hip in various directions of movement or planes using a goniometer. Those planes were: flexion, extension, internal rotation, external rotation, abduction, adduction and abduction contracture.
We interpolate to observe by way of illustration that if the Panel had not used a goniometer but instead made an estimate using a line of sight, that would not be to make an assessment of impairment in accordance with the Guides.
Second, the Panel had to populate the table in Table 40 (‘Table 40’) using the measurements it had obtained. Table 40 is in the following form:
Table 40. Hip Motion Impairments.
Third, it had to make its assessment using Table 40. It is at this point that the area of controversy arises.
One way to apply Table 40 would be to understand each column as describing a set of measurements that produce a description of lower extremity impairment and of whole person impairment. That means that in the event that one or more measurements fit within the identified bands, the person will have an impairment attributed to that column. On that approach, a mild impairment covers the range from the minimum restriction in one plane up to the maximum restriction in each of the planes as set out in the first column. Equally, a moderate impairment would cover the range extending from the minimum restriction applicable to any of the identified planes to the maximum restriction.
A different way would be to treat the heading ‘Mild 2% (5%)’ as applying separately and cumulatively to each measurement.
The following table seeks to illustrate the competing constructions:

Mild: 2% (5%)

Measurement example 1

Measurement example 2

Flexion

Less than 100

90

90

Extension

10–19 flexion contracture

15

15

Internal Rotation

10–20

15

5

External Rotation

20–30

25

25

Abduction

15–25

20

20

Adduction

0–15

10

10

Abduction Contracture

0–5

2

2

On the first construction, all of the measurements fit within the parameters in the first column. In the result, the person has a 2 per cent whole body impairment. That would remain the case even if, for example, there was no restriction on either internal or external rotation. To alter the example slightly, if internal rotation was 5 degrees, all other figures remaining the same, that would mean that, in at least one plane, the person fits within column 2, which describes a moderate whole body impairment of 4 per cent.
On the second construction, each plane gives rise to a relevant impairment, all of which must be aggregated using the combined values chart, with the result that the person has an impairment of 14 per cent whole body impairment.[10]
[10]The combined values chart does not simply cumulate each variable.
Shorn of context, in our opinion, the first construction better accords with the structure of Table 40. There is nothing in Table 40 itself that requires the attribution of a percentage impairment to each measurement.
Of course, Table 40 cannot be approached without regard to its context. In that respect there are some broader aspects of context that go to the nature of the task being undertaken and the specific direction in section 3.2, which the judge regarded as determinative.
Before going to context, one important point can be made immediately. Both approaches to the application of Table 40 yield a single figure. That is, each proceeds on the basis of empirical data, inputs that data into Table 40 and produces a certain figure for impairment (of both the limb and whole body basis). Neither is productive of a more precise result than the other. For that reason, certainty of outcome does not appear to us to provide a basis to prefer one construction over the other.
Dealing first with broader matters, we would emphasise the following.
Impairment is defined in the Glossary to mean ‘the loss, loss of use, or derangement of any body part, system, or function’. Impairment is said to be ‘assessed by medical means and is a medical issue’.[11] An impairment assessment is intended, among other purposes, to be an estimate of the degree to which an individual’s capacity to carry out daily activities has been diminished. An impairment percentage is intended to represent an informed estimate of the degree to which the capacity to carry out daily activities has been diminished.[12]
[11]The Guides, section 1.1.
[12]Ibid. See also definition of ‘daily living activities’ in Glossary.
A purpose of the Guides is to provide an objective and repeatable method of assessing impairment. The Guides proceed on the basis that the physician’s judgment, experience, training, skill and thoroughness in examining the patient and applying the Guides will be factors in estimating impairment.[13]
[13]Ibid section 1.3.
Chapter 3 deals with the assessment of impairment of the musculoskeletal system, which is divided into four components: upper extremity, lower extremity, spine and pelvis. In turn, the lower extremity is divided into six sections: foot, hindfoot, ankle, leg, knee and hip.
Chapter 3 recognises that evaluating the range of movement of an extremity is a valid method of estimating an impairment. In respect of some joints, the range of movement is subdivided into ‘functional units of motion’, which attract a proportion of impairment of the joint. For example:
(a)the thumb has five functional units which contribute to a defined relative value of thumb motion: for example, flexion and extension of the IP joint 15 per cent, flexion and extension of the MP joint 10 per cent;[14]
(b)the wrist has two units of motion each contributing a relative value to its function: flexion and extension represents 70 per cent of wrist function and radial and ulnar deviation represents 30 per cent of wrist function;[15] and
(c)the shoulder has three functional units of motion, each of which is given a relative value to overall shoulder function: flexion and extension (50 per cent of shoulder function), abduction and adduction (30 per cent of shoulder function) and internal and external rotation (20 per cent of shoulder function).[16]
[14]Ibid section 3.1f.
[15]Ibid section 3.1h.
[16]Ibid section 3.1j.
Impairment assessment of the lower extremity is dealt with in section 3.2 of the Guides. The introduction to section 3.2 states:
Anatomic, diagnostic, and functional methods are used in evaluating permanent impairments of the lower extremity. While some impairments may be evaluated appropriately by determining the range of motion of the extremity, others are better evaluated by the use of diagnostic categories or according to test criteria.
…
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).[17]
[17]Emphasis added.
The range of motion method is described in section 3.2e. The introductory section provides:
Evaluating permanent impairment of the lower extremity according to its range of motion is a suitable method. Principles similar to those for manual muscle testing apply because the patient’s pain or motivation may affect the results. If it is clear to the evaluator that a restricted range of motion has an organic basis, multiple evaluations are unnecessary. If, however, multiple evaluations exist, inconsistency of a grade between the findings of two observers, or on separate occasions by the same observer, makes the results invalid. The arcs listed are examples of mild, moderate, and severe impairments and are to be used as guides.[18]
[18]Emphasis added.
Within the above context, the critical issue of construction is whether the words in section 3.2, which the judge referred to as the section 3.2 direction, require that each measurement within a column be ascribed an impairment assessment which are then to be combined. To repeat, the relevant words are:
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).
In order to apply that direction, it is necessary to identify more than one impairment to the same lower extremity part (in this case, the hip).
Once more than one impairment is identified, then we would agree with the judge that the language is clear, unambiguous and intelligible. It is necessary to combine the various whole person impairments, using the combined values chart at the end of the Guides. Her Honour adopted her description of the language from the reasons for judgment of Kaye J in Transport Accident Commission v Elworthy.[19] The issue in Elworthy was different in that the question was whether, in looking at the combined effect of two or more impairments of a lower extremity, it was correct to combine each impairment of the extremity, or combine the whole person impairment that applied to each impairment. To put that issue in the context of Table 40, the issue was whether to combine the whole person impairment, being the percentage figure, or the lower extremity impairment, being the figure in parentheses. Kaye J held that the Guides required the combination of whole person impairments because that is precisely what the language required.
[19][2007] VSC 48 (‘Elworthy’).

In our view, before one gets to the application of the direction, the assessing practitioner has to identify more than one impairment to the relevant lower extremity part. There is nothing in the text of Table 40 that demands that each integer (namely, a restriction in one plane of motion or even a part of one plane of motion) be treated as a separate and discrete impairment.
Intuitively, it might be thought that being restricted in each domain or plane of movement (even if only to a moderate degree) would involve a greater degree of impairment than being restricted in only one. To return to the example above at [20], a patient who had a restricted movement in flexion of the hip but otherwise normal movement might reasonably be considered to be less impaired than a person who has restrictions in each of flexion, extension, internal rotation, external rotation, abduction, adduction and abduction contracture. Further, as Kennedy JA observes, impairment is defined to mean a loss, loss of use, or derangement of any body part, system, or function. Those words are broad and intended to capture a deviation from normal functioning.
On the other hand, the purpose of the Guides is to assist in assessing a functional impact on daily living. The extent to which a restriction in one direction of movement equates with another or the extent to which, in practical terms, restrictions may be compensated by other movements so as to diminish the overall practical impact on the hip joint will be informed by expertise and judgment. For the Court to say that aggregating each integer within the column better reflects the practical level of impairment would be to trespass well beyond its legitimate remit.
Where range of motion is selected by an assessor as the appropriate method for determining impairment of a lower extremity part, what is being examined is the range of motion of that lower extremity part. We are unable to read Table 40 as mandating that a restriction in each of the principal directions of motion are required to be treated as a separate impairment of the hip with each attracting a degree of impairment of the hip. That is particularly so given that the Guides are written for application by medical practitioners. In our opinion, the context strongly points away from the degree of prescription adopted by the judge.
In circumstances where Table 40 does not expressly apportion a degree of impairment to the various directions of movement we do not consider that such an implication can reasonably be drawn. It would introduce a degree of prescription that does not reflect the nature of the document and its intended audience. The methodology adopted in relation to the shoulder, for example, uses functional units of movement of the joint and is not adopted in relation to the hip. The construction adopted by the judge requires each plane to be treated as an equivalent functional unit attracting the same level of impairment.
It must be accepted that the Guides seek to promote consistency in measuring impairment. To that end, it ascribes impairment to clinical observations or measurements. Once the Panel had selected a method of assessment, it had to apply it faithfully. That said, neither of the competing constructions of Table 40 that we have identified yield uncertainty and each proceeds on the basis of inputting empirical data. The critical issue, as we see it, is whether each column describes a constellation of measurements that together produce a range of impacts that are treated collectively as falling within a range of impairment: mild, moderate or severe, or whether they describe separate impairments that must be aggregated in accordance with the combined values chart.
In this case the Panel did not make a finding that each limitation on the various planes of motion amounted to a separate impairment. Nor, in our opinion, did Table 40 require it to come to that conclusion. Although the Panel’s reference to the use of the ‘highest rating’ is perhaps unclear, in our view it reflects a construction that we consider to be well open to the Panel, namely that each column describes a constellation of factors, any one or more of which leads to a grading of the impairment as low, medium or high.

This construction is also supported by the Guides which states that, ‘The arcs listed are examples of mild, moderate, and severe impairments and are to be used as guides’.[20] In other words, in relation to the hip, having directed the assessor to measure the range of motion across three different planes (or arcs) — flexion/extension, internal and external rotation, and abduction/adduction — the assessor is provided with three examples of particular constellations of restrictions across those planes which would fairly represent an overall finding of mild, moderate or severe impairment of the hip joint (ie the relevant lower extremity part). In turn, those characterisations represent particular percents of lower extremity and whole person impairments. These ‘examples’ serve as a ‘guide’ to the assessor when deciding whether other constellations of restrictions in range of motion across those several arcs should fall within one category of hip impairment or another.
[20]The Guides, section 3.2e.
Because the approach taken by the Panel to Table 40 was open to it, it has not been shown that the Panel did not make its assessment in accordance with the Guides. There was no legal error in the assessment made by the Panel.
For these reasons we would allow the appeal, set aside the orders of the judge and in their place order that the proceeding be dismissed.

KENNEDY JA:

Introduction

The first respondent, Ms Arik, claims to have suffered injuries to her lower back and right hip after slipping on a wet floor at Broadmeadows Central Shopping Centre (‘Centre’) on 1 December 2019. She seeks compensation from the owner and manager of the Centre, the applicant.
Following referral by the applicant of a medical question to a Panel[21] for determination, the Panel provided its certificate of determination and a written statement of reasons on 1 July 2021. The Panel found that Ms Arik did not suffer a ‘significant injury’ because her impairment was ‘not more than 5%.’ It follows that she cannot recover damages for non-economic loss in respect of her injuries.
[21]The members of the Panel comprised the third and fourth respondents, Associate Professor David Ernest, general physician, and Mr Keith McCullough, orthopaedic surgeon. The second respondent, Associate Professor Peter Gibbons, was the convenor of the Panel. The second to fourth respondents filed a notice of intention not to respond or contest this application.
Ms Arik subsequently sought judicial review of the Panel’s determination and the judge determined that the Panel’s determination was affected by jurisdictional error. In particular, she found that the Panel did not assess Ms Arik’s degree of impairment in respect of her right hip in accordance with the American Medical Association’s Guides, as required by s 28LH of the Act.[22]

[22]Arik v Vicinity Centres PM Pty Ltd [2023] VSC 94, [9], [135] (‘Reasons’).

On 15 March 2023, the judge made orders quashing the opinion of the Panel, and remitting the medical question to the Convenor of Panels (the second respondent) to be reconsidered in accordance with law.
The applicant seeks leave to appeal the orders made on 15 March 2023.
For the reasons that follow, I would grant leave to appeal, but dismiss the appeal.

Relevant provisions and principles

Part VBA of the Act applies to claims for the recovery of damages for non-economic loss, with exceptions as provided in s 28LC. Section 28LE provides that a person is not entitled to recover damages for non-economic loss in any proceeding in a court in respect of an injury to a person caused by the fault of another person unless the person injured has suffered significant injury.
‘Significant injury’ is defined in s 28LF. Section 28LF(1) provides that an injury to a person (other than psychiatric injury) is significant injury if, relevantly:
(a)the degree of impairment of the whole person resulting from the injury has been assessed by an approved medical practitioner in accordance with this Part as satisfying the threshold level, unless a Medical Panel has made a determination as to the threshold level under Division 5; or
(aa)a certificate of assessment has been issued under section 28LNA in respect of the injury, unless a Medical Panel has made a determination as to the threshold level under Division 5; or
(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;
…
‘Threshold level’ is defined in s 28LB to mean, in the case of injury (other than psychiatric or spinal injury), impairment of more than 5 per cent.[23]
[23]The Act, s 28LB (definition of ‘threshold level’ part (a)).
Division 3 contains s 28LH which makes provision for how the assessment of degree of impairment must be made:
How is the degree of impairment to be assessed?
(1)Subject to this Division, an approved medical practitioner must make an assessment of degree of impairment under this Part—
(a)      in accordance with—
(i)       the A.M.A. Guides; or
(ii)      the methods prescribed for the purposes of this Part; and
(b)in accordance with operational guidelines (if any) as to the use of those Guides or methods issued by the Minister.
(2)Nothing in subsection (1) prevents an assessment being made in respect of a degree of impairment of a person even if not all of the injuries to the person have stabilised.
The ‘A.M.A. Guides’ are defined to mean the fourth edition of the Guides.[24]
[24]Ibid (definition of ‘A.M.A. Guides’).
Panels are constituted under s 537 of the Workplace Injury Rehabilitation and Compensation Act2013. The function of a Panel is ‘to form and to give its own opinion on the medical question referred for its opinion’[25] with the ‘medical question’ invariably being (as in this case) ‘a question as to whether the degree of impairment resulting from injury to the claimant alleged in the claim satisfies the threshold level’.[26] Pursuant to s 28LZG(1) of the Act, a Panel must not determine the degree of impairment of a person unless it has made an assessment of the degree of impairment in accordance with div 3. A determination by the Panel about the degree of impairment must then be accepted by a court in any proceeding on the claim as a determination of significant injury for the purposes of pt VBA of the Act.[27]
[25]Wingfoot (2013) 252 CLR 480, 498–9 [47] (French CJ, Crennan, Bell, Gageler and Keane JJ); [2013] HCA 43; Colquhoun (2013) 29 VR 296, 299–300 [14]–[16], 300–1 [18] (Maxwell P, Weinberg JA and Ferguson AJA); [2013] VSCA 58; Maimonis [2019] VSCA 302, [51(1)] (Ferguson CJ, Beach and Ashley JJA).
[26]The Act, s 28LB (definition of ‘medical question’).
[27]Ibid s 28LZH.
In Saddington, Kyrou J summarised the principles relevant to the interpretation and application of the Guides by a Panel asked to determine a claimant’s degree of impairment for the purposes of pt VBA of the Act:
The interpretation of the Guides is a question of law. The determination of a degree of impairment is a question of fact.
It has been said that to the extent that an Act requires determinations of impairment to be made in accordance with the Guides, the Guides has the force of law and is a legislative document.
However, the Guides is, as its title suggests, a guide. It was written by expert medical practitioners and not by statutory draftspeople, and should not be overlaid with legalistic — or a lawyer’s precise — interpretation. It is of paramount importance to be faithful to the Guides’ plain words. The Guides should not be interpreted as if it were a statute.
The use of the Guides is designed to promote precision, certainty and consistency. Its purpose is to make as objective as possible the process of estimating impairment by reference to sufficient medical and non-medical information to justify the estimate.
If there is any inconsistency between the Act and the Guides, the Act will prevail. If there is any inconsistency between the text in the Guides and an example which seeks to illustrate what is said in the text, the text will prevail.
The meaning of the phrase ‘in accordance with’ depends on the context. It is generally taken to mean ‘in conformity with’, although in some contexts, strict compliance is not required.
In order for a medical panel to assess impairment ‘in accordance with’ the Guides as required by ss 28LZG(1) and 28LH(1)(a) of the Act, it must act in conformity with the Guides. This means that it must apply the methodologies, processes and criteria set out in the Guides for the relevant condition, body part or system and adhere to any minimum or maximum values set out in the Guides for that condition, body part or system. Where the Guides contain a table that is applicable to a condition, body part or system, an assessment based on that table will not be in accordance with the Guides unless the categories, descriptions, criteria, ranges, adjustments and other elements of the table that are relevant to the condition, body part or system are adhered to and complied with.
Once a particular methodology or table is selected, its requirements, including any limitations, must be applied in the manner set out in the Guides even if the outcome may appear sub-optimal. This is so because the role conferred by the Act on a medical panel is not to arrive at a correct or fair assessment, but rather to arrive at an assessment that is the product of the application of the Guides.[28]
[28][2013] VSC 196, [22]–[29] (footnotes omitted). Applied in other cases including: Adams v Wadesley [2018] VSC 304, [27] (Ierodiaconou AsJ); Hart v Melbourne Underwater World Pty Ltd [2018] VSC 394, [8] (Cavanough J); La Rosa v Patrick [2022] VSC 404, [50] (Walker JA).
In Gamble, this Court also stated:
(a)a plaintiff who contends that a Panel fell into jurisdictional error by failing to conduct an assessment ‘in accordance with’ the Guides must demonstrate that the Panel ‘departed from the methodology laid down by the AMA Guides to such an extent that it can be properly said of the assessment that it was not “in accordance with” the Guides’;[29] and
(b)where the Panel states in its reasons that it has carried out the assessment in accordance with the Guides there will be a ‘heavy onus’ on the challenging party to persuade a court that this statement should not be taken at face value.[30]
[29](2012) 38 VR 45, 61 [53] (Maxwell P and Cavanough AJA); [2012] VSCA 322.
[30]Ibid 61 [56] (Maxwell P and Cavanough AJA).

The Guides

There are a number of editions of the Guides.[31] However, as identified already, pt VBA of the Act applies the fourth edition of the Guides, which was published in 1993.
[31]The first edition was published in 1971, while the current edition is the sixth edition, which was first published in 2008 but has been updated since then.
The Glossary to the Guides defines a number of terms used in impairment assessment, including ‘impairment’ itself which reads:
1. Impairment: Impairment is the loss, loss of use, or derangement of any body part, system, or function.
This concept of ‘impairment’ is further elaborated in Chapter 1 of the Guides, which is titled ‘Impairment Evaluation’. Section 1.1 of Chapter 1, titled ‘Impairment, Disability, Handicap’ relevantly states:
1.1 Impairment, Disability, Handicap
Impairment is defined in the Guides as an alteration of an individual’s health status. Impairment, according to the Guides, is assessed by medical means and is a medical issue. An impairment is a deviation from normal in a body part or organ system and its functioning. The Guides defines ‘permanent impairment’ as one that has become static or stabilized during a period of time sufficient to allow optimal tissue repair, and one that is unlikely to change in spite of further medical or surgical therapy.
The Guides definition of an impairment closely parallels that of the World Health Organization (WHO), which has defined an impairment as ‘any loss or abnormality of psychological, physiological, or anatomical structure or function.’
In the Guides, impairments are defined as conditions that interfere with an individual’s ‘activities of daily living,’ some of which are listed in the Glossary (p. 315). Activities of daily living include, but are not limited to, self-care and personal hygiene; eating and preparing food; communication, speaking, and writing; maintaining one’s posture, standing, and sitting; caring for the home and personal finances; walking, traveling, and moving about; recreational and social activities; and work activities.
An impairment percentage derived by means of the Guides is intended, among other purposes, to represent an informed estimate of the degree to which an individual’s capacity to carry out daily activities has been diminished.
The Guides recognizes that ‘normal’ is not a fine point or an absolute in terms of physical and mental functioning and good health. More often, normality is a range or a zone, as with vision and hearing. The normal can vary with age, sex, and other factors. For example, the physical abilities and the visual capabilities of a 21-year-old almost certainly will differ from those of a 75-year-old person. An interpretation of normal that is too strict can result in an overestimation or underestimation of impairment. What is normal must be determined by sufficient studies of representative populations carried out with valid methods.[32]
[32]The Guides, 1/1–1/2 (emphasis in original) (citations omitted).
Chapter 3 of the Guides, titled ‘The Musculoskeletal System’, provides that the Guides divides the human body into four sections and describes appropriate methods for evaluating impairment in relation to each section. Those four sections are the upper extremity, the lower extremity, the spine, and the pelvis. Relevant in this case was the ‘lower extremity’, which is further divided into six sections, being ‘the foot, the hindfoot, the ankle, the leg, the knee, and the hip.’[33]
[33]Ibid 3/13.
Section 3.2 — The Lower Extremity — was therefore the section used by the Panel to assess Ms Arik’s right hip in this case. Prior to the provision of a description of each of the individual methods applicable for evaluating impairment of the lower extremity (including the hip),[34] section 3.2 contains a number of introductory paragraphs as follows:
[34]Examples of methods described in section 3.2 include, amongst others, section 3.2a — Limb Length Discrepancy, section 3.2b — Gait Derangement, section 3.2c — Muscle Atrophy (Unilateral), section 3.2d — Manual Muscle Testing and section 3.2e — Range of Motion.
3.2 The Lower Extremity
Anatomic, diagnostic, and functional methods are used in evaluating permanent impairments of the lower extremity. While some impairments may be evaluated appropriately by determining the range of motion of the extremity, others are better evaluated by the use of diagnostic categories or according to test criteria.
In general, only one evaluation method should be used to evaluate a specific impairment. In some instances, however, as with the example on p. 77, a combination of two or three methods may be required.
This section includes information on using some of the simpler, more reproducible methods of and tests for assessing function. It also includes examples illustrating how the physician selects the best approach to evaluate an impairment. Selecting the optimal approach or combining several methods requires judgment and experience. Also needed is careful testing that produces accurate and consistent results.
To make this section easier to use, the tables of this 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).[35] 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 figures for this section, which illustrate how to measure ranges of motion, the distribution of motor and sensory nerves, and the tibia-os calcis angle, are at the end of the section (pp. 90 through 93).[36]
[35]The values in the Combined Values Chart are derived from the formula A + B (1–A) = combined value of A and B, where A and B are the decimal equivalents of the impairment ratings. In the chart all values are expressed as percents. To combine any two impairment values, the chart instructs the reader to locate the larger of the values on the side of the chart and read along that row until the reader comes to the column indicated by the smaller value at the bottom of the chart. At the intersection of the row and the column is the combined value.
[36]The Guides, 3/75. Emphasis altered.

As will become apparent, the italicised section above took on some significance in this application. Consistent with the judge’s definition, it will be referred to hereafter as the ‘section 3.2 direction’.[37]
[37]Reasons, [97].
The evaluation method used by the Panel in this case was section 3.2e — Range of motion. This method is described as follows:
Evaluating permanent impairment of the lower extremity according to its range of motion is a suitable method. Principles similar to those for manual muscle testing apply because the patient’s pain or motivation may affect the results. If it is clear to the evaluator that a restricted range of motion has an organic basis, multiple evaluations are unnecessary. If, however, multiple evaluations exist, inconsistency of a grade between the findings of two observers, or on separate occasions by the same observer, makes the results invalid. The arcs listed are examples of mild, moderate, and severe impairments and are to be used as guides.[38]
[38]The Guides, 3/77.
Section 3.2e then contains tables pertaining to ‘impairments’ of various sections of the lower extremity. Table 40 relates to ‘hip motion impairments’ as follows:[39]
Table 40. Hip Motion Impairments.
[39]Ibid 3/78.
As foreshadowed in the introduction, section 3.2 also contain various figures (in Figures 52–54) which illustrate the use of a goniometer to measure the various movements of a right hip in different directions as recorded in the first column of Table 40, above (ie, through flexion, extension, abduction, adduction, as well as internal and external hip rotation).[40]
[40]Ibid 3/90–3/91.
Section 3.2e also includes an example (the ‘section 3.2e example’) as follows:
Example: A 45-year-old woman sustained a fractured tibia in a crash. Months after the injury, when the residua were stable, she had lost half of the ankle flexion and extension motion, and she had severe, permanent stiffness of all toes.[41]
[41]Ibid 3/77.
The Guides records that the woman’s whole person impairment is estimated to be moderate (6 per cent) in terms of ankle motion and severe (2 per cent) in terms of toe impairment. The two impairments are then combined to give 8 per cent under the Combined Values Chart.[42]
[42]Ibid 3/78.

Panel’s reasons

The question referred to the Panel, and the Panel’s answer in response, was as follows:
Question 1: 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 not satisfy the threshold level.
The reasons of the Panel record that it formed its opinion having regard to certain identified documents,[43] Ms Arik’s history, as well as its own examination of Ms Arik.
[43]The documents and information referred to in Enclosures A and B.
The findings of the Panel on examination included the following:
On physical examination the Panel noted the claimant walked with a normal gait, and she was able to stand alternately on each leg with support. Trendelenburg’s sign was absent when single leg standing on each side. The leg lengths were equal and she stood with a normal lumbar lordosis.
…
Examination of the right hip revealed a mild-moderate restriction in the active range of movements and there was no fixed flexion deformity. There was restriction in the range of movements of right hip flexion (60 degrees), abduction (20 degrees), adduction (10 degrees) external rotation (15 degrees) and internal rotation (20 degrees). There was no significant right thigh muscle wasting present on formal measurement.
Under the ‘analysis’ section the Panel stated:
The Panel, on the basis of the claimant’s history, the materials provided with the referral and its examination findings concluded that the claimant is suffering from persisting lower back symptoms and right hip pain and movement restriction following a soft tissue injury.
The Panel considers this condition is ‘referable to the fault of another person whose conduct the complainant complains of.’[44]
[44]Emphasis in original.
Under the heading of ‘impairment assessment’ the Panel said:
The Panel also assessed impairment of the right hip in accordance with Section 3.2 of Chapter Three. Active joint ranges of movement were measured using a goniometer in accordance with the instructions in the Guides.
The Panel considered the most appropriate method to assess impairment of the right hip was by range of motion in accordance with Section 3.2e.
As the process of rating range of motion deficits of the lower extremity is based on a classification of mild, moderate or severe, the Panel is of the opinion that the direction of motion of the right hip that provides the highest rating[45] is used to determine impairment for that joint.
The Panel assessed the appropriate whole person impairment due to restriction of movement of the right hip in accordance with Table 40 of Chapter Three.
[45]Hence it appears that the Panel used a moderate rating (of 4 per cent) which did not reach the threshold of more than 5 per cent given the Panel also appears to given a 0 per cent whole person impairment in respect of the lumbosacral spine impairment.
The Panel combined the whole person impairments using the formula prescribed on page 322 of the Guides. It concluded that the degree of whole person impairment resulting from the spinal injury was ‘not 5% or more’. Further, that after combining the whole person impairments attributable to all of the physical injuries the degree of whole person impairments was ‘not more than 5%’.

Judge’s reasons

After setting out the relevant background matters and dealing with a number of preliminary matters,[46] the judge turned to the central contention made by Ms Arik in the case. This was that the Panel was wrong to assess the degree of impairment of Ms Arik’s hip by using the ‘highest rating’ of the range of motion deficits recorded on examination and that, instead, the Panel was required to combine the whole person impairment percentages in accordance with the section 3.2 direction.[47]
[46]These preliminary matters were an objection by Ms Arik to Vicinity’s subpoena for production addressed to the Proper Officer of AMA Victoria, admissibility of evidence (opinions expressed by medical practitioners) not before the Panel, an application by Ms Arik to amend the origination motion and whether extrinsic materials (extracts of other editions of the Guides) can be used as an aid to interpreting the Guides.
[47]Reasons, [95].
The judge set out the Panel’s examination findings in relation to Table 40 as follows:[48]
[48]Ibid [96].
Ms Arik submitted that, if the Panel had correctly combined the above percentages for the whole person impairment, that calculation would have produced a total whole person impairment percentage of 14 per cent, which is above the threshold level of more than 5 per cent. The judge recorded that, in so doing, Ms Arik relied on what Kaye J had said in Elworthy about the effect of the section 3.2 direction which he had described as ‘standing alone, clear, unambiguous and intelligible.’[49]
[49][2007] VSC 48 [22].
The applicant did not challenge Ms Arik’s calculations, but defended the Panel’s approach on the basis that it was entitled to determine the impairment as it did (by taking the highest moderate rating). In particular, the applicant emphasised the last sentence in the introductory paragraph to section 3.2e that: ‘The arcs listed are examples of mild, moderate, and severe impairments and are to be used as guides’. The judge recorded the applicant’s submission as follows:
It said that Tables 40 to 45 classify arcs or grades of loss of motion into columns representing either mild, moderate, or severe impairment.[50] The tables require the exercise of medical judgment in determining the range of motion impairment class that best represents the extent to which range of motion of the relevant part is impaired. The exercise is not a strictly mathematical one. [The applicant] stressed that adjustment may be required where the assessor considers that the range of motion measurements are affected by a patient’s pain, motivation, or some other subjective factor.[51]
[50]Except in Tables 43 and 45 the moderate and severe categories are combined.
[51]Reasons, [110].
In considering the competing submissions, the judge observed that, while the proper interpretation of the Guides is a question of law, it is important not to burden it with legalistic interpretations. She referred to two matters identified by Kaye J in Elworthy.[52] First, that the rationale of the Guides is to make as objective as possible the process of estimating impairment.[53] Secondly, that it is important not to overlay the Guides with legalistic interpretation.
[52]Ibid [121], citing Elworthy [2007] VSC 48, [20]–[21].
[53]Citing Gillat v Transport Accident Commission [2003] VSC 15, [47] (Nettle J).
Beginning with the words of section 3.2, the judge considered that there is a ‘clear direction’ given in the fifth paragraph of the introduction about the method to be used for assessing a patient with several different impairments of the lower extremity.[54] The judge agreed with Kaye J that the plain meaning of those words is ‘clear, unambiguous and intelligible’. She observed that they apply in circumstances where a patient has several impairments of the same lower extremity part. In those circumstances, the assessor is directed to combine the whole person estimates for each of those impairments. The example given is the leg, but the direction applies equally to the other lower extremity parts — namely, the hip, the knee, the ankle, the hindfoot and the foot.[55]
[54]Reasons, [122]. See [64] above.
[55]Ibid [123].
By contrast, the judge considered that the meaning contended for by the applicant is not supported by the plain meaning of the section 3.2 direction, or the words of section 3.2e — Range of Motion. She considered that the applicant’s interpretation is the ‘more legalistic and technical’ of the two competing interpretations and stated:
It would involve ignoring the plain words of the Section 3.2 direction, while also reading words in to Section 3.2e. In particular, Section 3.2e does not instruct assessors to disregard the Section 3.2 direction when using the range of motion method, and nor does it say to take the highest rating where there are several impairments of the same lower extremity part. The words in Section 3.2e that were emphasised by [the applicant] — ‘The arcs listed are examples of mild, moderate, and severe impairments and are to be used as guides’ — do not carry those meanings. [The applicant’s] interpretation would involve overlaying Section 3.2 of the Guides with a legalistic interpretation, and for that reason is not to be preferred.[56]
[56]Ibid [124].
The judge then considered the structure of section 3.2, which provided relevant context supporting the interpretation advanced by Ms Arik. She observed that the section 3.2 direction appears in the introduction to section 3.2, and so applies to the entire section. She further observed:
It is the case that the direction is repeated or elaborated upon in the description of some evaluation methods, in particular Section 3.2f — Joint Ankylosis, Section 3.2i — Diagnosis-based Estimates, Section 3.2k — Peripheral Nerve Injuries and Section 3.2m — Vascular Disorders. However, that does not mean that the Section 3.2 direction does not apply to those evaluation methods where it is not specifically restated. In addition to Section 3.2 — Range of Motion, there is no specific direction to combine estimates for several impairments of the same lower extremity part in Section 3.2c — Muscle Atrophy (Unilateral), or Section 3.2d — Manual Muscle Testing. Both of those evaluation methods contemplate that the same lower extremity part may be impaired in different ways. Equally, the Range of Motion evaluation method in Section 3.2e provides a method for assessing various impairments of each of the lower extremity parts. The direction to combine several impairments of the same part applies to each evaluation method.[57]
[57]Ibid [125].
The judge considered that further context is provided by the headings to the various tables that correspond with the different evaluation methods provided in section 3.2. She observed that the heading of each of Tables 40–45 in section 3.2e — Range of Motion refers to ‘Impairments’ of the relevant body part, in the plural. In each case, the different types of impairments are listed in the left hand column of the table. The right hand column lists the whole person impairment estimates that can be assigned to each of the several impairments. Within the right hand column are two or three sub-columns for the different degrees of impairment — mild, moderate and severe. The same structure is used for many other tables in section 3.2. By contrast, Table 36, in section 3.2b — Gait Derangement and Tables 46–59 in section 3.2f — Joint Ankylosis, each of which concerns only one possible impairment, use the singular ‘Impairment’ in the headings.[58]
[58]Ibid [126].
She did not accept the applicant’s submission that the plural ‘Impairments’ in the headings to tables in section 3.2 refers to the spectrum of impairments in terms of mild, moderate and severe. The scheme of section 3.2 as a whole does not involve assigning a patient’s degree of impairment of the lower extremity to one of those three categories. It provides various evaluation methods for estimating the patient’s degree of whole person impairment, expressed as a percentage. While some of those methods use the categories of mild, moderate and severe, others do not. For example, Table 35 in section 3.2a — Limb Length Discrepancy provides five different ranges, depending on the length of the discrepancy. Similarly, Tables 38 and 39 in section 3.2d — Manual Muscle Testing provide five different grades of muscle function, with percentage whole person impairment estimates for all five grades across each of the different impairments listed in the left hand column. Table 64 in section 3.2i — Diagnosis-based Estimates uses mild, moderate, and severe for some impairments, while for others it uses different ranges, such as partial or total, good result or poor result, and degrees of angulation.[59]
[59]Ibid [127].
The judge considered that the section 3.2 direction is ‘expressed in clear and emphatic terms’ and its plain meaning cannot be overridden by an example, consistent with Mountain Pine.[60] However, the judge considered that in this case there is no apparent conflict since the section 3.2e example is consistent with the plain meaning of the words of the section 3.2 direction. Assuming that the woman in the section 3.2e example had normal range of motion in her ankle before the injury, loss of half of her flexion and extension motion would be a mild or 3 per cent whole person impairment of each range of motion. Combining these impairments gives a moderate or 6 per cent impairment of ankle motion. It is only possible to interpret the section 3.2e example in a way that is consistent with the ‘take the highest’ approach by assuming facts that do not appear from the text of the section 3.2e example — for example, that the woman had a less than normal range of motion in her ankle before the injury.[61]
[60](2007) 16 VR 659, 669 [33] (Nettle JA, Vincent JA agreeing at 660 [1] and Ashley JA agreeing at 671 [45]); [2007] VSCA 146.
[61]Reasons, [128].
The judge further considered that the interpretation of the section 3.2 direction advanced by Ms Arik is consistent with the Guides’ purpose of promoting objectivity and consistency in evaluating the degree of impairment. She noted that section 3.2 requires the exercise of medical judgment, first and foremost in the selection of the most appropriate evaluation method to evaluate the particular impairment. However, once the range of motion method has been selected, section 3.2e provides a measurement‑based method for evaluating impairment. Where an assessor obtains reliable and consistent measurements from a patient, Tables 40–45 allow for an objective and consistent evaluation of the patient’s degree of impairment. Where several impairments of the same lower extremity part have been measured, the section 3.2 direction provides an objective and consistent means of evaluating the overall whole person impairment.[62]
[62]Ibid [129].
The judge observed that there remains room for clinical judgment about the reliability of the measurements obtained. As stated in section 3.2e, there is no need for multiple evaluations if it is clear to the assessor that a range of motion restriction has an organic basis. If the assessor has doubts, those doubts may be removed by consistent measurements taken on more than one occasion. If the assessor forms the view that the results are affected by subjective factors such as pain or motivation, a different evaluation method may be more appropriate.[63]
[63]Ibid [130].
The judge also found that the conclusion she had reached based on the text, context and purpose of section 3.2 of the Guides was ‘confirmed’ by reference to the other versions of the Guides (save for the sixth edition).[64] In particular, she observed that those editions all provide for combinations of impairment estimates of range of motion deficits in several directions for the same lower extremity part, and that none takes a ‘take the highest’ approach.[65]
[64]Ibid [131]–[132], citing the Guides second, third and fifth editions.
[65]Reasons, [133].
The judge therefore concluded that the Panel did not assess Ms Arik’s degree of impairment in accordance with the Guides, as required by s 28LH of the Act, and that this amounted to a jurisdictional error in the formation of the Panel’s opinion.[66]
[66]Ibid [135].

Grounds of appeal

The applicant advanced the following four proposed grounds of appeal:
Ground 1. The judge erred in concluding that the Panel’s assessment of the first respondent’s degree of impairment departed from the methodology laid down by the Guides to such an extent that it was not ‘in accordance with’ the Guides.
Ground 2.The judge erred in holding that the reference in section 3.2 of the Guides that whole person estimates for several impairments of the same or different lower extremity body parts are combined constituted a direction which mandated that everything which can be evaluated or measured under one of the different methods for evaluating impairment in section 3.2 must be regarded as an evaluation of a different ‘impairment’, which must be assigned an impairment rating, which must then be combined.
Ground 3.The judge erred in holding that it was not open to the Panel to use the arcs of motion it measured as guides when determining which impairment estimate best represented the magnitude of the impairment being evaluated, and in preferring an interpretation which gave no meaning to the statement in section 3.2e that the arcs listed in Tables 40 to 45 are examples of mild, moderate, and severe impairments and are to be used as guides.
Ground 4.The judge erred in concluding that earlier and later editions of the Guides were ‘part of the relevant context for the fourth edition’ and that reference to those other editions confirmed the conclusion that the Panel’s impairment assessment was not in accordance with the methodology laid down by the fourth edition.

Proposed grounds 1, 2 and 3

It is convenient to consider proposed grounds 1–3 which all concern whether the Panel fell into jurisdictional error by failing to perform its impairment assessment in accordance with the Guides.

Submissions of the applicant

The essence of the applicant’s submission was that it was open for the Panel to use the direction of motion that provided the highest rating as it did, although it was not bound to do so. The Panel was only required to use the degrees measured as ‘guides’ when determining which impairment estimate ‘best represents’ the magnitude of the impairment being evaluated.
In supporting its construction, the applicant submitted:
(a)that the introductory part of section 3.2e — which states that the arcs listed in Tables 40–45 ‘are examples of mild, moderate, and severe impairments and are to be used as guides’ — was important, but that the judge gave these words no work to do. It was not to the point that the scheme of section 3.2 overall did not involve assigning a degree of impairment into one of three classes. The various evaluation methods lay down different methods. Some required medical judgment to determine an appropriate class or rating, while others, like section 3.2f, expressly required each malposition to be combined.
(b)that in many instances section 3.2 tells assessors when different methods may be combined and when they should not be combined. Otherwise, selecting the optimal approach is a matter for the evaluator’s professional judgment.
(c)that the section 3.2 direction does no more than explain that assessors should ‘evaluate each specific impairment using the appropriate method or combination of methods, and then combine the whole-person estimates for the different impairments using the combined values chart.’ The applicant emphasised that the proper interpretation of section 3.2e and Tables 40–45 does not involve regarding each motion restriction as itself constituting a different ‘impairment’ which must be combined.
In oral submissions senior counsel submitted that the section 3.2 direction does not have the consequence that every so-described impairment within a method must be combined. Instead, you need to look at what the method is asking you to do, bearing in mind that the goal is to find the ultimate impairment which reflects the disability. Although in some sections there was a specific direction to combine (e.g. section 3.2f), there was no such direction given in section 3.2e. It therefore followed that you do not need to combine the measures taken when using the range of motion method.
The applicant submitted that the Panel’s approach was consistent with the purpose of the Guides, which does not dispense with clinical judgment. Further, that allowing the approach of using the arcs as guides allows for clinical judgment to be exercised as to the appropriate impairment rating to be assigned. The judge’s approach meant that a Panel would be unable to modify an estimate where the medical evidence was not of sufficient weight to verify that an impairment of a particular magnitude existed. Further, in many cases, a different evaluation method may not be available. In oral submissions senior counsel also identified a number of passages in the Guides which emphasised the importance of clinical judgment.
The applicant further submitted that the Panel correctly carried out its evaluation using the arcs as guides. Having measured the degrees of motion which generally correlated to examples of mild impairment (abduction, adduction and internal rotation), and two measurements which correlated to examples of moderate impairment (flexion and external rotation), the Panel then needed to determine, in its professional judgment, which impairment class best represented the magnitude of the hip impairment. The Panel determined, favourably to Ms Arik, that the moderate class should be used to estimate the appropriate impairment rating. In oral submissions senior counsel suggested that the doctors constituting the Panel had formed the view that the moderate ones (flexion and external rotation) were significant aspects of the use of the hip. This was said to be a perfectly reasonable approach to take.
Further, the applicant submitted that the Panel’s approach was consistent with its assessment that its examination revealed an overall ‘mild-moderate restriction in the active range of movements’. By way of contrast, the judge’s construction would result in a ‘severe’ degree of impairment (of 14 per cent). Such a result was discordant with the overall medical findings (of three mild ratings and two moderate ratings).
The applicant also submitted:
(a)that, contrary to the judge’s findings, the section 3.2 direction does not direct that ‘everything which can be evaluated or measured under one of the different methods for evaluating impairment in section 3.2 must be regarded as an evaluation of a different “impairment”, which must be assigned an impairment rating, and then combined’. The Guides expressly stated that the evaluation methods in section 3.2c and section 3.2d are alternative methods;[67]
(b)that the issue in Elworthy was whether several lower extremity impairment ratings should be combined by combining the lower extremity impairment percentages (and then converting to percentage impairment of the whole person), or by combining whole person impairment percentages. It was only in that context, and not beyond, that Kaye J held that the words in the section 3.2 direction which expressly state that the whole person estimates should be combined were ‘clear, unambiguous and intelligible’. Kaye J did not hold that the words required that everything evaluated under a different evaluation method must be combined; and
(c)that the section 3.2e example was consistent with the Panel’s approach. The estimated impairment for loss of ankle motion (moderate) could be understood to have been derived on the basis that the loss of half of ankle extension was determined to represent mild impairment, whereas loss of half of flexion represented moderate impairment. Overall, then, the appropriate assessment was moderate.

Submissions of Ms Arik

[67]Proposed ground 2. It made particular criticism of Reasons, [125].

Ms Arik submitted that the judge’s construction was correct and generally adopted her reasoning.
Ms Arik emphasised that the words, ‘mild, moderate or severe,’ are descriptors of the severity of the impairment, but do not serve to classify the impairment itself. She highlighted that where the Guides intends that a certain type of impairment should be classified into classes the Guides expressly says so.[68] It was further not uncommon for the Guides to provide additional information which was not of itself relevant to, or part of, the method of assessment.[69]
[68]Citing section 3.2m — Vascular Disorders and Table 69: Guides, 3/89; section 3.11 — Impairment Due to Vascular Disorders of the Upper Extremity and Table 17: Guides, 3/57.
[69]Citing Elworthy [2007] VSC 48, [24].
The judge was also correct to find that her construction was consistent with the purpose of the Guides. The Guides states that an impairment percentage is intended to represent an informed estimate of the degree to which an individual’s capacity to carry out daily activities has been diminished.
Ms Arik also emphasised that there would be arbitrary and capricious results with the applicant’s approach. For example, a body part measured to have a 4 per cent whole person impairment in respect of each of the ranges of motion listed in Table 40 would receive the same 4 per cent result as an individual with an impairment of only one of those ranges of motion affected. The applicant submitted that a limitation in more than one direction will have a differential impact upon a person, than a person with only one restriction in movement.
The applicant also submitted that the appropriate way to read the Panel’s reasons was that it has taken the approach that it must take the highest rating. It did not use language to suggest that it considered that the class that ‘best represented’ the impairment was (not) severe.
In relation to other matters, Ms Arik contended:
(a)that it was incorrect to suggest that the judge wrongly construed each evaluation method in section 3.2 as directed to evaluating a different type of impairment. The judge did not find that everything evaluated under a different evaluation method must be combined; and
(b)that the judge’s interpretation of the section 3.2e example was correct.

Consideration

A number of matters may be readily dismissed.
First, it is not a correct characterisation of the judge’s reasons that she found that everything which can be measured under one of the different methods of evaluation must be combined (as alleged by proposed ground 2). Rather at [125] of the Reasons, the judge correctly found that the direction to combine several impairments of the same part applies to ‘each’ evaluation method.
It is also difficult to come to any concluded view insofar as the section 3.2e example is concerned. There appears to be no good reason as to why the flexion motion might be characterised as ‘moderate’ (as the applicant suggested), given the example suggests that there was an equal loss of both flexion and extension. Equally, it is difficult to positively find that there has been internal addition (as Ms Arik suggested) without knowledge as to the pre-existing state of the ankle. In any event, as the judge correctly observed, the plain meaning of the section 3.2 direction cannot be overridden by an example.[70]
[70]Reasons, [128] citing Mountain Pine (2007) 16 VR 659, 669 [33] (Nettle JA, Vincent JA agreeing at [1], Ashley JA agreeing at [45]). See also Saddington [2013] VSC 196, [26] (Kyrou J) (set out at [58] above).
Finally, it is true that the decision of Elworthy was concerned with a different issue as to whether several lower extremity impairment ratings should be combined by combining the lower extremity impairments percentages (and then converting them to a percentage impairment of the whole person), or by combining percentages expressed as an impairment of the whole person. However, in finding that it was the whole person estimates which were to be combined, his Honour focused on the ‘plain’ words of the very same section 3.2 direction the subject of this application.[71] He also rejected a submission that there could be some ‘choice’ as to the method given the plain words of that direction. He considered that such a choice was alien to the clear philosophy of the Guides, which is to produce ‘consistent and precise results.’[72]
[71]Elworthy [2007] VSC 48, [30].
[72]Ibid [33].
Returning then to the words used, it is worth restating the terms of the section 3.2 direction:
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).
The ‘plain’ words of the section 3.2 direction, then, direct an examiner to combine estimates, not only where there are impairments of different parts, but also where there are several impairments of the same (lower extremity) part. Given that a ‘part’ includes the hip,[73] provided that the individual measurements for the different hip motions specified in Table 40 are properly considered to be ‘impairments’, the section 3.2 direction appears to have application.
[73]The Guides, 3/13.
The Guides contains a very broad concept of an ‘impairment’. As identified earlier, the Glossary defines it as ‘the loss, loss of use, or derangement of any body part, system or function.’ Chapter 1.1 also describes an impairment as a ‘deviation from normal in a body part or organ system and its functioning.’
The words and context of the Guides suggest that the measurements specified in the first column of Table 40 are intended to come within this broad concept of an ‘impairment’. The natural reading of Table 40 is that each hip motion specified (as reflected by the figures) reflects a different loss of the movement or use of the hip — or its function — in each separate direction. The table itself suggests that the relative value of each hip restriction is relevant as part of the overall assessment of impairment. The heading, ‘Hip Motion Impairments’ (plural), also supports this conclusion (as the judge found).
The applicant in this case did not effectively challenge the proposition that each of the movements specified in Table 40 would come within the broad concept of an ‘impairment’ as defined in the Guides. It in fact conceded that each of the movements specified could be regarded as ‘deficits’, but submitted that they were not also impairments of a kind ‘that require combination.’ However, a ‘deficit’ may be defined as the amount by which something ‘falls short’ — at least by reference to a sum of money.[74] Insofar as physical capacity is concerned, a ‘deficit’ may be defined as a ‘lack or impairment in an ability or functional capacity’.[75] The concept of a ‘deficit’ therefore has a substantially identical meaning to an impairment (or ‘loss’).
[74]Oxford English Dictionary (online at 30 November 2023) ‘deficit’ is defined as ‘a falling short, a deficiency; the amount by which a sum of money, or the like, falls short of what is due or required; the excess of expenditure or liabilities over income or assets.’
[75]Merriam-Webster Dictionary (online at 30 November 2023) ‘deficit’ (def 1a(2)) (emphasis added).
Given that each of the measurements taken by the Panel in this case may be regarded as ‘impairments’, the plain words of the section 3.2 direction will apply. This is even though there is no specific repetition of the words of the section 3.2 direction in section 3.2e. The section 3.2 direction appears in the introductory paragraphs of section 3.2 and, as the judge also found, is clearly intended to have application to the entire section (absent indication to the contrary). The repetition of the direction in some sections, out of an abundance of caution, does not detract from the overall controlling nature of the section 3.2 direction.
In reality, the only justification proffered for the applicant’s construction was the statement in section 3.2e that the ‘arcs listed are examples of mild, moderate, and severe impairments and are to be used as guides.’ However, as the judge also found, the scheme of section 3.2 as a whole is intended to provide various evaluation methods for estimating the patient’s degree of whole person impairment, expressed as a percentage — and not by assigning a degree of impairment of the lower extremity by reference to one of three categories. The fact that a measurement might be viewed as an ‘example’ of a ‘mild’ impairment by way of ‘guide’ is, like a number of the examples, intended to provide additional information to assist in understanding the Guides.[76] If it was really intended that assessors were entitled to ignore the section 3.2 direction, and instead apply a classification approach, it would be expected that very different language would be utilised.[77] The words cited by the applicant do not do so.
[76]Elworthy [2007] VSC 48, [24].
[77]Cf section 3.1m — Impairment Due to Other Disorders of Upper Extremity which expressly provides that carpal instability is to be ‘classified as mild, moderate, or severe’: Guides, 3/61. Further, section 3.1m provides that only one category of severity should be selected ‘based on the ‘greatest severity’ and that the severity percentages ‘should not be added or combined’: Guides, 3/61.
I therefore agree with the judge that section 3.2e does not instruct assessors to disregard the section 3.2 direction and that she made no error in finding that the words emphasised by the applicant — ‘The arcs listed are examples of mild, moderate, and severe impairments and are to be used as guides’ — do not carry that meaning.[78]
[78]Cf proposed ground 3.
I also agree with the judge that her construction is consistent with the purpose and objective of promoting objectivity and consistency. Although there are references to clinical judgement — for example, in the taking of measurements and choice of evaluation method — the Guides is intended to produce ‘consistent and precise results’.[79] Once an evaluation method is settled on and reliable measurements have been taken, the assessor is obliged to follow the section 3.2 direction. An assessor cannot simply choose to ignore that direction on the basis of a ‘best fits’ approach, and certainly cannot simply substitute a ‘highest rating’ approach.
[79]Elworthy [2007] VSC 48, [33]; Saddington [2013] VSC 196, [25] (set out at [58] above).
It is noteworthy in this respect that the applicant appeared to accept that assessors might be bound by directions in certain circumstances to combine results, and thereby (presumably) unable to substitute their own ‘best fits’ approach. For example, it accepted that the results obtained in respect of section 3.2f — Joint Ankylosis — should be combined. In the context of a scheme intended to promote objectivity and consistency, there is no justification for an approach whereby only some directions are followed, but not others.
As to alleged perversity of results, while the judge’s construction might have the result that the impairment in this case is, on one view, ‘severe’, for reasons given already, the classification of impairments into ‘mild’, ‘moderate’ or ‘severe’ is not the focus of the exercise. The applicant’s construction may also lead to unfair results. Thus, as highlighted by Ms Arik, on the applicant’s construction, a mild movement in every direction may be given the same whole person percentage as a person with a mild restriction in only a single direction. More relevantly, however, it is ultimately not up to this Court to assess the wisdom of the methods for assessment of impairments laid down in the Guides, but only the meaning of the Guides. The role of the Panel is also not necessarily to arrive at a ‘fair’ assessment, however that may be subjectively viewed. Rather, the methodologies prescribed in the Guides must be applied even if the outcome may appear sub-optimal.[80]
[80]Saddington [2013] VSC 196, [29] (set out at [58] above).
Having regard to the words, context, and purpose of the Guides, I therefore consider that the judge’s construction was correct. In such circumstances the Panel did not act ‘in accordance with the Guides’ — as the judge found — and fell into jurisdictional error.[81] Given the Panel stated that the direction which provided the highest rating ‘is used’, it appears highly probable that the Panel simply chose to adopt the highest rating. However, even if this not correct, and it adopted some ‘best fits’ approach, this was also contrary to the section 3.2 direction and not permitted by the Guides.
[81]Cf proposed ground 1.
Proposed grounds 1–3 are not sustainable.

Proposed ground 4

The applicant submitted that the judge should not have considered other versions of the Guides. In particular, it submitted that the express statement about adding range of motion impairments in the fifth edition cannot assist in the construction of the fourth edition (where no such statement exists in section 3.2e).[82] The applicant also cited the remarks of Nettle JA in Mountain Pine that one may ‘look no further’ than the fourth edition in construing the Guides (as mandated by the Act).[83]
[82]Citing Nicholls v Corlett [2010] VSC 115, [36(c)] (Beach J).
[83]Mountain Pine (2007) 16 VR 659, 669 [31] (Nettle JA, Vincent JA agreeing at [1], Ashley JA agreeing at [45]); [2007] VSCA 146.
I do not consider it necessary or desirable to have regard to other versions of the Guides. In particular, I am unable to be satisfied that the fifth edition can elucidate the proper meaning of the terms contained in the fourth edition.
Although the judge made reference to other versions, including the fifth edition, she formed her conclusions based on the text, context and purpose of the fourth edition. She expressly stated that her conclusions were only ‘confirmed’ by reference to the other editions of the Guides.

Consistent with the judge’s finding, senior counsel for the applicant fairly accepted that it could not succeed based on proposed ground 4 alone. Given that I have formed my views without reference to the other versions of the Guides, it is hence unnecessary to consider proposed ground 4 further.

Conclusion

For the above reasons I consider that the judge was correct to quash the opinion of the Panel.
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SCHEDULE OF PARTIES

VICINITY CENTRES PM PTY LTD Applicant

and

MELEK ARIK First respondent

ASSOCIATE PROFESSOR PETER GIBBONS, AS THE

CONVENOR OF MEDICAL PANELS
Second respondent

ASSOCIATE PROFESSOR DAVID ERNEST Third respondent

MR KEITH MCCULLOUGH Fourth respondent

Mild: 2% (5%)	Measurement example 1	Measurement example 2
Flexion	Less than 100	90	90
Extension	10–19 flexion contracture	15	15
Internal Rotation	10–20	15	5
External Rotation	20–30	25	25
Abduction	15–25	20	20
Adduction	0–15	10	10
Abduction Contracture	0–5	2	2

VICINITY CENTRES PM PTY LTD	Applicant
and
MELEK ARIK	First respondent
ASSOCIATE PROFESSOR PETER GIBBONS, AS THE CONVENOR OF MEDICAL PANELS	Second respondent
ASSOCIATE PROFESSOR DAVID ERNEST	Third respondent
MR KEITH MCCULLOUGH	Fourth respondent

[2023] VSCA 295

5 December 2023