Bayliss v TAC [2003] VCAT 710

1. The determination of the respondent made on 1 March 2002 is set aside and there is substituted therefor a decision that the applicant has a whole person impairment of 23 % arising out of the transport accident on 7 June 2000

3. Save for the order made on 22 May 2003 the respondent is to pay the costs of the applicant (including any reserved costs) on County Court Scale D to be taxed in default of agreement.

4. Liberty is reserved to the parties to apply within 7 days on the question of rounding off.

Applicant Mr M Scarfo of counsel instructed by Richmond & Bennison

Respondent Mr N Rattray of counsel instructed by TAC Law

1. On 7 June 2000 the applicant, Mr Shane Bayliss was involved in a head-on collision. The driver of the other car was killed and the applicant was seriously injured. He was taken to the Alfred Hospital. On arrival he was placed in the intensive care unit where he remained until 13 June 2000.

2. He was found to have a fracture of the C2 vertebra and surgery was performed by way of open reduction and internal fixation.

3. He has tears to the small bowel, the transverse colon and the caecum and these were repaired surgically whilst a litre of free blood was removed from the peritoneal cavity.

4. Lacerations to the left eyelid and right knee were repaired and an intercostal catheter was inserted by way of treatment of a left pneumothorax and left pulmonary contusion.

5. He was transferred to a general ward and on 16 June was taken to Nepean Rehabilitation Hospital for continuing care. He remained as an inpatient for 3 weeks and as an outpatient for some months.

6. On 1 March 2002 the respondent determined the applicant's impairment at 13% and the applicant now seeks to review that decision.

7. In addition to the applicant himself, the Tribunal heard evidence from Dr Glaser, Dr Stark, Mr Anstee, Dr Weissman, Mr Shannon and Mr Klug.

8. A number of reports were tendered by the parties and were thus available to us.

9. The applicant seeks compensation for injuries arising under Chapters 3, 4 and 13 of the American Medical Association Guides to the Evaluation of Permanent Impairment (4th edition) ("the Guides") as well as for psychiatric injury.

10. There is no argument that the applicant has 10% impairment of his mental status. That is the assessment made by Mr Klug and Dr Stark and the Tribunal accepts their assessment.

11. We find the applicant's impairment arising under Chapter 4 of the Guides is 10%.

12. The Tribunal heard evidence from Mr Anstee, a plastic and reconstructive surgeon who examined the applicant for medico-legal purposes. In his report dated 21 February 2002 he assessed the applicant's impairment under Chapter 13 of the Guides at 5%. The respondent did not call any evidence by way of contradiction.

13. Table 2 of Chapter 13 describes a class 1 impairment (the class in which Mr Anstee has placed the applicant) as requiring that:

Signs and symptoms of stress disorder are present or only intermittently present;

There is no limitation in the performance of few activities of daily living, although exposure to certain chemical and physical agents might increase limitation temporarily.

No treatment or intermittent treatment is required.

14. The applicant's scars are significant, particularly the one on his abdomen. They were described by Mr Anstee as "very obvious", they could be felt, they were "not macula, not flat, not supple as with ordinary skin." Mr Anstee told the Tribunal that it was contemporary wisdom that scarring of this nature should not be exposed to ultra violet rays and expressed the view that the applicant would most likely always wear a shirt when out of doors. He saw this as a restriction on the applicant's social and recreational activities. It was his opinion that the neck scar alone (considerably smaller than the abdominal one) would attract impairment. The respondent called no evidence and in the circumstances of such vivid and obvious scarring, the Tribunal considers that the assessment made by Mr Anstee is reasonable and it accepts his assessment.

15. We find 5% impairment of the skin pursuant to Chapter 13 of the Guides.

16. Overall there is little difference in the assessments of Drs Glaser and Weissman. Dr Glaser saw the applicant on 19 March 2002 and it was his opinion that the applicant had 20% impairment. In his viva voce evidence he informed the Tribunal that the 20% was apportioned -

* as to 10% arising as a `direct manifestation' of the closed head injury; and

* as to 10% by way of post-traumatic symptoms, the applicant's understanding of the circumstances of the accident and distress occasioned by pain, disability and body scarring.

17. Of the 10% which arose as a direct consequence of head injury, he told the Tribunal 5% overlapped with Table 2 of Chapter 4 (Mental Status Impairment), and 5% overlapped Table 3 of Chapter 4 (Emotional and Behavioural Impairments). The remaining 10% he divided equally between what are loosely referred to as primary and secondary elements.

18. Dr Weissman's assessment was also 20% and it was clear from the body of his report that his allocations pursuant to Chapter 4 were identical with those of Dr Glaser.

19. Where the two experts differ is in the attribution of psychiatric impairment which arises from, or is a consequence of physical injury. Dr Weissman opined that only 3% of the impairment arose from the direct consequences of the accident itself compared with 5% allocated by Dr Glaser.

20. Dr Glaser told the Tribunal that although the applicant had "an incomplete set of post traumatic stress disorder symptoms" the symptoms he exhibited were distressing to him. There is little to choose between the two experts but in the circumstances we consider Dr Glaser's 5% assessment more accurately reflects the severity of the applicant's anxiety and irrational fears. In particular Dr Glaser placed great importance on the applicant's "inappropriate cheerfulness"; the corollary of that evidence was that other practitioners might have underestimated the applicant's anxiety problems because of that masking factor. Dr Weissman told the Tribunal he thought the applicant displayed no inappropriate confidence although he conceded he might have underestimated his primary impairment because of his cheerful demeanour. We prefer the assessment of Dr Glaser and our view is to some degree further reinforced by the observations of Mr Anstee who also noted uncharacteristic optimism.

21. We find 5% psychiatric impairment. We acknowledge the submissions made by Mr Scarfo (who appeared for the applicant) that a total of 15% of the assessment is primary in nature. We reject that submission. We do so because it is clear from the evidence of both neurological experts that the assessments for psychiatric sequelae arising from the applicant's head injury clearly overlap with Chapter 4 of the Guides and are subsumed by the 10% impairment of the nervous system (see p. 4/140 of the Guides).

22. In the Second Edition of the Guides introduction to the chapter dealing with the nervous system the following instruction appeared:

Evaluation of CNS impairment is difficult because of the complex relationships between the brain and the mind. It is impossible to avoid consideration of associated mental, emotional and personality processes. When appropriate, Chapter 12 should be used in conjunction with this chapter.

23. The instruction and the concept of overlap between neurological and psychiatric impairment (and indeed other organ systems with overlapping sequelae) became the subject of several decisions in this Tribunal and some consideration in the Supreme Court (See for instance Barnett v TAC (1999) VSC 484 per Mandie J). The guiding principle of those cases was that to provide assessments for the same injury under both chapters would be to count the same impairment phenomena twice and thus indulge in double counting. And that is precisely what the instruction seeks to avoid.

24. We have been unable to locate a similar instruction in the Fourth Edition Guides but consider that the same considerations would continue to apply to the Fourth Edition. If we had any doubts about that view, they are dispelled by the underlying philosophy of the notion of "whole person impairment" and the use of the "combined values chart" is ascertaining that impairment.

25. It is common ground that the applicant sustained a fracture of the odontoid process (the dens) of C2.

26. Computerised tomography imaging of the cervical spine undertaken on 8 June 2000 reported "a type 2 fracture of the odontoid process with approximately 3mm of superior displacement of the peg in relation to the body of C2".

27. On 10 June 2000 the applicant underwent surgery for internal fixation of the fracture of the dens.

28. Radiological investigation taken later that day noted screw fixation and on 14 June 2002 the radiologist observed "two cancellus type screws are noted in situ within the dens of C2" and found alignment to be normal.

29. The Tribunal heard evidence in relation to the applicant's orthopaedic impairment from Dr Stark and Messrs Klug and Shannon. Each is a medico-legal expert. Mr Shannon is an orthopaedic surgeon, Dr Stark is a neurologist and Mr Klug is a neurosurgeon.

30. The first matter for consideration is the effect of the direction found at p.100 of the Fourth Edition of the Guides under the sub-heading "Evaluating Impairments: the Injury or Diagnosis-related Estimates Model". The direction in question reads as follows:

With the Injury Model, surgery to treat an impairment does not modify the original impairment estimate, which remains the same in spite of any changes in signs or symptoms that may follow the surgery and irrespective of whether the patient has a favourable or unfavourable response to treatment.

31. When Mr Shannon prepared his first impairment assessment he apparently felt constrained by this direction and assessed the applicant pursuant to DRE Category IV; that is, 25% impairment. It is fair to say that he expressed some reservations about his initial assessment and later concluded that it was not appropriate given the successful surgery and the applicant's extraordinary recovery.

32. Page 94 of the Guides states -

The evaluator assessing the spine should use the Injury Model if the patient's condition is one of those listed in Table 70(p.108). ......If none of the eight categories of the Injury Model is applicable, then the evaluator should use the Range of Motion Model.

33. It seems clear that the philosophy of the Fourth Edition is to use the Injury Model wherever possible for assessment of spinal impairment and neither counsel demurred from this notion.

34. The use of the Fourth edition of the AMA Guides is now specifically directed by section 46A(7) of the Transport Accident Act 1986 ("the Act"). This is to be contrasted with the Second Edition of the Guides, the use of which was prescribed only by regulation.

35. Before moving to consider the various submissions put by counsel, it is useful to consider the scheme for compensation provided by legislation and the propositions that underpin the scheme.

36. Victoria has a compensation scheme in respect of "persons who are injured or die as a result of transport accident" - see section 1 of the Act. In general terms this no-fault scheme provides for medical and other services, for loss of earnings and for modest compensation in relation to impairment or death caused by a transport accident. In the case before us, the particular matter is one of impairment. Section 46A of the Act provides -

The Commission must determine the degree of impairment of each person who is injured as a result of a transport accident and appears to the Commission to be or to be likely to be entitled to an impairment benefit, as at-

(a) if the person is not a minor when the accident occurred -

37. It is clear that the legislative intent is that assessment of impairment should accompany stabilization and not precede it.

38. Section 46A(2) of the Act provides that a reference to a determination of a degree of impairment is one made in accordance with the A.M.A. Guides and section 46A(7) provides that "A.M.A.Guides" means the American Medical Association's Guides to the Evaluation of Permanent Impairment (Fourth Edition). It is at this point that the concept of permanent impairment comes into play. In the foreword to the Fourth Edition of the Guides the reader is informed that-

A key tenet is that the book applies only to permanent impairments, which are defined as adverse conditions that are stable and unlikely to change.

39. Chapter 1 is headed "Impairment Evaluation" and states -

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.

40. Under the heading General Comments on Evaluation at p9 of Chapter 2, the authors state -

The Guides attempts to take into account all relevant considerations in estimating or rating the severity and extent of permanent impairment in terms of the individual's everyday activities. An impairment should not be considered "permanent" until the clinical findings, determined during a period of months, indicate that the medical condition is static and well stabilized.

41. Chapter 3 of the Fourth Edition Guides deals with the musculoskeletal system and at p.94 under the heading "The Spine" the following statement is found:

It is emphasized that if an impairment evaluation is to be accepted as valid under the Guides criteria, the impairment being evaluated should be a permanent one, that is, one that is stable, unlikely to change within the next year, and not amenable to further medical or surgical therapy (refer to definition in Guides Chapter 1 and Glossary).

42. The Glossary to the Guides provides some definitions of terms used in the assessment process. The relevant reference is set out below:

Impairment: Impairment is the loss, loss of use, or derangement of any body part, system or function.

Permanent impairment is impairment that has become static or well stabilized with or without medical treatment and is not likely to remit despite medical treatment.

A permanent impairment is considered to be unlikely to change substantially and by more that 3% in the next year with or without medical treatment. If an impairment is not permanent, it is inappropriate to characterize it as such and evaluate it according to Guides criteria.

Evaluation of permanent impairment is acquisition and analysis of information, including clinical evaluation, that is carried out according to Chapters 1 and 2 and other applicable parts of the Guides.

43. It is clear to us that the overwhelming thrust of the Fourth Edition Guides is that any impairment is to be permanent and the equally overwhelming directive of the legislation is that impairment is to be assessed at the expiration of 18 months post-accident or when the injury stabilizes, whichever last occurs. What then is the effect of the directive on p.100 that impairment is to be assessed pre-surgery whether or not surgery has produced favourable or unfavourable results? It is hard to imagine why this paragraph has been inserted. It is difficult to envisage what logic gave rise to it. The quandary is that any impairment estimated pursuant to that directive has the potential to be wrong on two counts. Where corrective surgery has been successful, the pre-surgery assessment might over-estimate the permanent impairment; likewise where someone with an injury to the spine had unsuccessful corrective surgery and was left worse off, then the pre-surgery estimate might be a totally inadequate reflection of the applicant's stabilized and permanent condition.

44. Whatever may have been the intention of the authors, we are not satisfied that this directive, read in the context of the overall tenor of the legislation and the Guides, can stand in isolation or have any effect. To implement that directive would strike at the very heart of the underlying philosophy of the legislation and the Guides mandated by it. It follows that we do not consider the applicant's injuries justify a pre-surgery impairment rating under DRE Category IV. In coming to this conclusion we were guided to some extent by what was said by Phillips JA in Lake v Transport Accident Commission [1998] 1 VR 616 at p.625. His Honour was commenting on certain provisions in the Second Edition of the AMA Guides. He stated-

It must be remembered that the Guides are only guides, though they are to be applied as required by the regulations.

45. We were initially troubled by the slightly more elevated standing of the Fourth Edition Guides, mandated as they are by statute, and by the effect of the maxim generalia specialibus non derogant on the direction at page 100 of the Guides. Although neither counsel advanced any submissions on the subject we did give consideration to the point and concluded that in the face of such an obvious intention expressed in section 46A and in the face of the overwhelming references to permanency and stabilization in the Guides, the maxim had no place.

46. We turn now to the issues in relation to the assessment of the applicant's musculo-skeletal impairment. The difference between the practitioners who gave evidence is that Dr Stark assessed the applicant's spinal injuries at DRE III (15%) whereas Messrs Klug and Shannon have opined DRE II (5%).

47. For an applicant to fit within DRE Cervicothoracic category II, he or she must fit the following classification:

The history and findings are compatible with specific injury and include intermittent or continuous muscle guarding observed by a physician,

nonuniform loss of range of motion (dysmetria, differentiator 1, Table 71, p.109) or nonverifiable radicular complaints. There is no objective evidence of radiculopathy or loss of structural integrity.

48. Arguably the applicant fits within the descriptor because he has a specific injury (the fracture) and there is some restriction of movement in the cervical spine as noted by Messrs Shannon and Klug. This matter was not the subject of specific argument before us but see Kyriacou v TAC [2003] VCAT 441 (PM Davis) at paras 41-44 where Mr Davis held that the particular class of inclusions was not closed and that a specific injury accompanied by some limitation of movement was sufficient to enable an applicant to fall within DRE II.

49. For an applicant to fall within DRE III in relation to injury to the cervical spine, he or she must fit within the following -

The patient has significant signs of radiculopathy such as (1) loss of relevant reflexes or (2) unilateral atrophy with greater than a 2cm decrease in circumference compared with the unaffected side, measured at the same distances above or below the elbow.

50. On the face of it the applicant does not fall within that description. There is no radiculopathy, no loss of reflexes and no atrophy.

51. At p3/99 of the Guides, the following direction is given -

Certain spine fracture patterns may lead to significant impairment and yet not demonstrate any of the findings involving the differentiators. Therefore, with the Injury Model, "structural inclusions" are included in some of the DRE categories. If the patient has a condition that meets the definition of a category that includes a structural inclusion, the physician need not determine if the other criteria for that category are present.

52. That direction points us to the "Structural Inclusions" set out in relation to DRE Cervicothoracic Category III. They are expressed relevantly as -

(1) 25% to 50% compression of one vertebral body;

(2) posterior element fracture, but not fracture of transverse or spinous process; a mild displacement disrupts the spinal canal, but the fracture is healed without loss of structural integrity. Radiculopathy may or may not be present.

53. There is no evidence of compression as contemplated by the first structural inclusion. The competing submissions in the early stages of the hearing were directed to whether or not the applicant's injury placed him within the second structural inclusion, Dr Stark opining that the applicant's fracture was to be likened to a fracture of a posterior element. In any event the matter was adjourned during the running to allow up-to-date CT scanning to occur, there being no useful contemporaneous or comparative post-accident radiology available.

54. The radiologist's report that resulted from the adjournment was dated 1 May 2003 and relevantly revealed the following -

A healed fracture is present through the base of the dens and has been transfixed with two screws. Sclerosis is present at the fracture site with healing appearing to be complete. The relationship between the dens and the arch of C1 is normal.

The top of the dens demonstrates posterior spurring and possibly a little posterior angulation, which protrudes into the anterior aspect of the neural canal at this level by approximately 3mm resulting in a very slight reduction in the AP dimension. The lateral dimensions are normal, as is the relationship between the occipital condyles and C1.

Conclusion - Healed fracture through the base of the dens which has been internally fixed. Bony spur or protuberance from the tip projecting into the anterior aspect of the neural canal by 3mm.

55. Dr Stark told the Tribunal that C2 is an atypical vertebra. There is no argument about that. In his evidence he told the Tribunal that a fracture of the dens of C2 was identifiable with a fracture of a posterior element although he agreed in cross-examination that this was a matter of interpretation. The thrust of his evidence was twofold. First, as indicated, he likened the fractured dens to a posterior element fracture. He said that interpretation would place the fractured odontoid firmly within the structural inclusions set out in Category III at p.104 of the Guides. Second, he stated that the healing of the fracture would inevitably give rise to callus, and in his opinion, that callus would represent a displacement disrupting the spinal canal.

56. And it was because of the lack of any radiology showing the formation of callus that gave rise to the adjournment and the production of the new CT scan.

57. The experts have differed in their interpretation of the new film. Dr Stark prepared a report dated 1 May 2003 in which he stated:

You will see that although the healing of the fracture has been excellent there is deformity associated with this in particular the tip of the dens protrudes into the anterior aspect of the spinal canal by approximately 3 mms resulting in a slight reduction in the anteroposterior dimension of the canal.

My view is that this would constitute "a mild displacement which disrupts the spinal canal." Clearly the fracture is healed without loss of structural integrity.

I believe therefore that the abnormality meets the definition on page 104 of the guides under the heading DRE cervicothoracic category 3, radiculopathy and under the sub-heading structural inclusions.

58. Mr Shannon viewed the new scans and stated that it was clear that the fracture was soundly united without displacement but with very slight angulation. He observed that the spur of bone did not appear to be directly associated with the fracture but concluded it was likely to be associated with the accident. Leaving aside the issue of whether or not an odontoid fracture is a posterior element fracture, it was his opinion that the spurring did not appear to represent part of the actual fracture, or any callus. He stated that although there was minimal disruption of the spinal canal, the disruption was not caused by the fracture.

59. Mr Klug also viewed the most recent scans. He noted sound healing with no evidence of callus but agreed there was very slight angulation of the odontoid when combined with the spur. He too thought the spurring was likely to be related to the accident but thought its cause was far from clear. But in any event he was adamant the spur was not related to callus occurring at the site of the fracture.

60. The submissions put by counsel for the applicant can be summarized as follows:

* It is appropriate to deal with a fractured odontoid process as a posterior element fracture. This is because a fracture of the odontoid process is not otherwise specifically dealt with by the Guides.

* The 3mm protrusion by the odontoid into the spinal canal constitutes a mild displacement that disrupts the spinal canal.

61. We will deal with the first submission and the premise articulated by Dr Stark that the fracture is to be likened to a posterior element fracture and thus considered a "structural inclusion" for the purposes of Category III. It is clear that Dr Stark has come to this conclusion because the Guides do not specifically refer to the type of fracture sustained by the applicant. But it is our view that that thesis does not bear too much scrutiny. We say so because it is clear from Mr Shannon's evidence that had the applicant's spinal instability remained, he would have been characterised under Category IV, the descriptors of which do not specifically mention a fracture of the odontoid process even though we acknowledge the evidence that continuing instability would have been fatal. And we repeat that arguably the applicant's impairment falls within DRE II being a specific injury accompanied by diminished movement. It is true that it does not comfortably sit with DRE III but the point we make is that it is not necessary that every known fracture of the spinal process should be itemised and particularised by the Guides in order for an impairment to follow.

62. Mr Klug told the Tribunal that this was not a posterior element fracture and in his view not to be likened to one - as we understand his evidence, the odontoid is not a component of the posterior elements of the vertebral column.

63. Mr Shannon was emphatic that a fracture of the odontoid process was not amenable of such nomenclature. He explained that the odontoid is in front of the spinal cord and any fracture of it is necessarily an anterior fracture. He explained that the dens is the anterior component of C1 which has become separated developmentally.

64. We are not satisfied that Dr Stark's thesis can be maintained in the face of such clear evidence from Messrs Shannon and Klug that the fracture is an anterior fracture and in the face of their clear evidence that the applicant's injury is not akin to a posterior element fracture. We accept their evidence. In our view it is not enough to say that C2 is an atypical vertebra and not specifically alluded to in the Guides and that therefore some other "label" can be given in order to place an applicant within a particular category of impairment. It is true that this injury was extremely serious. Indeed Mr Shannon pointed out that quadriplegia does not emanate from a fractured odontoid, rather if the fracture is displaced and sufficiently impinges the spinal canal, death inevitably follows. But the applicant in the case received prompt and, it seems, expert surgical treatment, and has sustained a remarkable recovery with no neurological sequelae and few after-effects.

65. We are not satisfied that the fracture of the odontoid process can properly be categorised as equating to a posterior element fracture. But that is not necessarily the end of the matter. Although it was not argued before us, it is possible that the words "a mild displacement disrupts the spinal canal, but the fracture is healed without loss of structural integrity" are to be read in the alternative to "(2) posterior element fracture, but not fracture of the transverse or spinous process;" so that if there is any displacement at all that disrupts the spinal canal, category III applies. It would be fair to say that neither of us had much enthusiasm for the possibility but we felt bound to consider it. A possible corollary of that is that the "displacement" referred to might not be restricted to the site of the healed fracture but might contemplate the instant position - that is, the spurring on the dens. We say we have no enthusiasm for the possibility because of the surrounding tenor of the structural inclusions which clearly contemplate an injury by way of fracture. But in any event we propose to consider whether there is, in this case (either at the fracture site or at the site of the spurring) a displacement which disrupts the spinal canal.

66. Certainly Dr Stark has maintained this is so. It seem that all three witnesses conclude that any displacement in this case is by way of change of shape. As we understand the evidence, the odontoid is adjacent to the spinal canal and separated from it by layers of ligaments. The function of the spinal canal is to protect the spinal cord. Mr Klug in his early evidence (before the new CT) indicated that it was possible that the shape of the canal (referring to the bony dimensions of the spinal canal) could be slightly altered if callus were to protrude but he thought there would be no residual distortion of the canal if the fracture were well healed. But he was quite adamant that for there to be "disruption" there would need to be some fetter on the function of the canal. And in his opinion this had not occurred. He (and Mr Shannon) told the Tribunal that the space (that is, the canal) is quite wide at the site of C2; in fact Mr Shannon's most recent report states it to be 18mm at the particular level.

67. The evidence of all three practitioners is that the fracture is soundly united and alignment is good. Dr Stark's original thesis was that there would have been formation of callus as a result of the healing process and that callus would have represented a displacement which in his view disrupted the spinal canal. This seems to have been abandoned following the recent CT scan when it became clear that there was some spurring at the tip of the dens and this spurring indented the spinal canal by 3mm.

68. Assuming that the "displacement" called for means the spurring and angulation of the dens (as it is clear that the fracture site itself is well healed and undisplaced), then can it be said to disrupt the spinal canal? We think there is much to said for the evidence of Mr Klug that a mere change of shape in the circumference would produce no distortion and would not result in any interference with the function of the canal and that the notion of disruption must be considered in relation to function. The Guides use the term "disrupt", not "indent" or "impinge" or "encroach" or some other more benign term. And whilst the Guides are not the product of statutory drafting we assume the word was chosen with some care. The word "disrupts" seems to us to bear some more violent connotation. The definition provided in the Oxford English Dictionary is "(1) to burst asunder" or "(2) to break or burst asunder; to break in pieces, shatter; to separate forcibly". We conclude that, using the ordinary sense of the word, "disrupts" connotes something more than a mere alteration of the shape of the space unaccompanied by any fetter on the function of the spinal canal. There is no evidence from any of the experts that the function of the spinal canal is subject to any impediment of function.

69. It follows from that that we accept the evidence of Messrs Klug and Shannon and find that the applicant's musculoskeletal impairment is 5%.

70. The applicant's collective impairment is 23% arrived at by applying the combined values chart to the impairments of 10% (mental status) + 5% (psychiatric) + 5% (skin) + 5% (musculoskeletal).

71. Since the completion of this hearing we have had an opportunity to read the recent decision of the Court of Appeal in Connelly v MMI Workers Compensation (Vic) Ltd & Ors [2003] VSCA 60 (27 May 2003), a decision involving "rounding-off" as that term was employed in the Second Edition of the Guides. A similar paragraph is to be found in the Fourth Edition of the Guides at p.9 where it states that "a final estimated whole-person impairment percent, whether it is based on the evaluation of one organ system or several organ systems, may be rounded to the nearer of the two nearest values ending in 0 or 5.".

72. In paragraph 25 of the judgment of Chernov JA stated -

...the rounding off provision enables the assessor to exercise judgment and effect minor variations to the rating found in the Guides so as to identify more accurately the level of impairment that applies to the particular claimant. Consistently with this aim, the discretion whether to round off is described in the Guides as being the last of the series of steps and procedures that are to be undertaken for the purpose of ascertaining the level of whole person impairment. It is when all these earlier steps have been completed that the assessor is effectively empowered by the rounding off provision to consider whether the impairment rating, otherwise determined in accordance with the Guides should be modified to the extent permitted so as to reflect more accurately what the assessor considers to be the true level of impairment.

73. Our tentative view is that the level of impairment found by us in this case reflects the applicant's true level of impairment. We are concerned however that we have not had the benefit of counsels' submissions on the matter and in those circumstances we reserve the right of the parties to address the Tribunal on the single issue of rounding off should they consider it desirable.

1. The determination of the respondent made on 1 March 2002 is set aside and there is substituted therefor a determination that the applicant has a whole person impairment of 23% arising out of the transport accident on 7 June 2000.

3. Liberty is reserved to the parties to apply within 7 days on the question of rounding off.