Connelly v MMI Workers Compensation

8. In the end, little assistance will be gained by substituting other words for those found in the Rule itself. What an applicant for extension of time must show is that the quality of the circumstances relied upon justifies the making of the grant which is sought. It is thus not sufficient that the applicant is able to explain the failure to bring an application within the time contemplated by the Rule. Furthermore, the "circumstances which must be special must relate to a plaintiff's failure to commence a proceeding in time, not the decision sought to be reviewed."[5] The Rule permitting the grant of an extension of time to commence proceedings contemplates that proceedings will ordinarily be commenced very soon after the date of the "judgment, order, conviction, determination or proceeding" sought to be challenged. The Rule does not contemplate the granting of an extension of time merely upon explanation of a delay or failure. An explanation for the delay or failure to commence proceedings will enable a court to understand why the time was not complied with, but will not of itself suffice to constitute a special circumstance. The requirement that the circumstances justifying an extension be capable of description as "special" indicates that extensions were to be the exception rather than the rule.

11. Whether an applicant can show special circumstances must ultimately depend upon a judgment as to the quality of the facts relied upon in each case. Here the plaintiff says that proceedings for judicial review of the decision of the medical panel would have been pointless between the time that it was made (namely, 27 May 1998) and the subsequent decision of the medical panel (somewhat differently constituted) on 21 December 1998 ("the December 1998 decision"). To understand the significance of this submission it is necessary to appreciate that a fair reading of the May 1998 decision is that the medical panel was then of the view that the plaintiff's impairment for the purposes of section 93B of the Act was that only 9% of his injury was referrable to work related injury to the right knee which would entitle him to compensation under the Act. In that decision the medical panel had expressed the view that the injury to the knee had not contributed to the plaintiff's further 21% whole person impairment to the thoraco-lumbar spine. That view, clearly enough stated, was not expressly asked for from the medical panel at the time that it was given. In December 1998, however, the medical panel addressed itself to a further specific question about the causal relationship between the two injuries and concluded, on the balance of probabilities, that the plaintiff's employment was a contributing factor to his thoraco-lumbar spine condition. The causal connection between the two injuries had the effect of converting what had seemed to be only a 9% whole of person injury capable of claim under the Act, into a 28% whole of person injury in accordance with the combined values chart in the American Medical Association Guides to the Evaluation of Permanent Impairment ("the AMA Guide") which is made applicable by the Act. A 28% whole of person injury is not sufficient to come within the definition of "serious injury" in section 93B(5) (because that definition requires that the worker's degree of impairment be 30% or more), but the consequence of a 28% whole of person injury referrable to employment enlivened an argument that the AMA Guide required, or at least permitted, a rounding up to 30%. In my view that consequence, occasioned by the December 1998 decision, is a special circumstance sufficient to warrant an extension of time. The feasibility of proceedings under Rule 56 became realistic when the December 1998 decision gave substance to an argument which by the May 1998 decision alone had no real foundation. The December 1998 decision was a necessary step in giving substance to the argument which the plaintiff seeks to run in this proceeding. The proceeding was commenced on 12 March 1999. In the meantime there was a hearing before the Magistrates' Court on 15 February 1999 in which the plaintiff sought to rely upon the arguments which he seeks to raise in this proceeding. He was unsuccessful before the Magistrates' Court because it was bound by the opinion of the medical panel by reason of section 68(4) of the Act. The only option available to the plaintiff thereafter was to bring this proceeding, and in the circumstances, I am prepared to grant the extension of time which is sought.

15. The plaintiff's substantive case for review of the May 1998 depends upon his entitlement to have a rounding up of the percentage impairment found by the medical panel. The May 1998 decision had found a 9% whole person impairment referrable to the plaintiff's work related injury to his right knee and a 21% whole person impairment to the plaintiff's thoraco-lumbar spine which at the time of the May 1998 decision the panel had stated not to have been contributed to by the plaintiff's injury to his right knee or his employment. The panel combined the whole person impairment to an aggregate of 29%, although it was common ground between the parties that this was an error upon which nothing turns. The combined values table in the AMA Guide results in a combination of these two percentage impairments to be 28% rather than the 29% stated by the medical panel.

18. A fair reading of the May 1998 decision, as I have said, is that the compensable percentage impairment found by the medical panel was only 9%. That is because the medical panel erroneously expressed a view, which it was not asked to express, that the condition to the thoraco-lumbar spine was not contributed to by the work related injury sustained by the plaintiff to the right knee on 15 May 1987. That error may be seen from, and appears on, the face of the record as constituted by the questions and answers which the panel gave. The conclusion that the compensable injury was 9% is compelled by the erroneous view which the panel expressed about the causal relationship between the plaintiff's thoraco-lumbar spine condition and the plaintiff's employment related injury to his knee. It is clear from the questions asked of the medical panel that it had not been asked about the causal relationship between the two conditions and therefore that it addressed itself to a matter that was not before it for consideration. Although I do not consider it necessary to do so, it may also be seen from the December 1998 decision that the May 1998 decision was wrong on the question of causation.

21. The plaintiff's challenge to the May 1998 decision, however, does not rest, nor can it rest, merely with an error about the combined impairment found by the panel for the purposes of the Act. That is so because the combined whole person impairment of the plaintiff after taking into account the correct causal relationship between the thoraco-lumbar spine condition and the work related injury is still less than the 30% required by the definition of "serious injury" in section 93B of the Act. For that reason the plaintiff contends that the medical panel was bound by the AMA guidelines to round up its finding of 28% to the nearest 5%, namely, 30%. That view is based upon what appears at page viii of the AMA Guide where it is stated that:

"The final impairment value, whether the result of single or combined impairments, may be expressed in terms of the nearest 5%."

The plaintiff's first argument in this context is that the word "may" must be understood as being mandatory. I cannot accept that proposition and, in any event, it is contrary to a number of cases recently decided.[6] The AMA Guide is concerned with professional judgments which need to be made by qualified experts. There is no foundation to read the word "may" in the preface to the published work as a direction to narrow the professional judgment of people who may be called upon to form a judgment in a wide variety of cases. More importantly, perhaps, I can see no foundation in the Act that it sought to adopt a mandatory role for the word "may" in the AMA Guide.

26. It is next submitted that the panel had a discretion to round up the percentage impairment to 30% and either that it failed to do so or that it ought to have given the plaintiff an opportunity to adduce arguments about whether it should do so. The view that I have reached about the proper reading of the May 1998 decision compels me to conclude that the medical panel did not in fact consider whether it should round up to 30% either its stated combined finding of 29% or the combined finding which it should have found in accordance with the combined values table of 28%. My conclusion is based upon the view stated by the medical panel that the injury the plaintiff had sustained on 15 May 1987 had not contributed to the condition of the plaintiff's thoraco-lumbar spine nor that the injury to the plaintiff's right knee had contributed to the condition of the plaintiff's thoraco-lumbar spine. A consequence of that view, in my opinion, is that there could have been no occasion for the medical panel in May 1998 to give consideration to whether there should have been a rounding up to 30%, since the percentage work related impairment reached by the medical panel at that time was only a 9% compensable degree of impairment for the purposes of the definition of "serious injury" in the Act. It would have been a pointless exercise for the medical panel to consider a rounding up of the 9% of compensable injury to the nearest 5% and I have no reason to assume that the panel would have engaged in a pointless exercise. Accordingly, it follows the medical panel, in my view, did not have regards to any discretion which it may have had under the AMA Guide to round up to the nearest 5%.

29. The critical question, however, is whether the medical panel has a discretion under the Act to round up to the nearest 5% as apparently permitted by the AMA Guide. The issue has been considered indirectly in a number of cases dealing with the Transport Accident Act 1986 but not the Act in question. In Barnett v Transport Accident Commission[7] Mandie J said:

"In my view, while accepting the imprecision of, and the subjective elements affecting, the medical assessment of impairment which is involved under the Guides and which is highlighted by these two sentences, there is no warrant in the context of the Guides to treat this 'provision' as obligatory and depart thereby from the ordinary and natural meaning of the words. I consider that the 'provision', insofar as applicable at all, is permissive and discretionary and that in this instance 'may' does not mean 'must'. I need not decide whether the rounding-off 'provision' is applicable at all..."[8]

Earlier, Kellam J had said in Coverdale v Transport Accident Commission[9]:

"Whilst the Transport Accident (Impairment) Regulations 1988 (Vic) require use of the Guides in respect of impairment determinations, the Guides are neither a statute nor a regulation. Furthermore, the Guides were not specifically tailored for the compensation regime established by the Transport Accident Act 1986 (Vic). The provision by the authors of the Guides for a specific mode of assessment to be used at the discretion of assessors does not mean by itself, that this mode of assessment is obligatory or indeed even necessarily suitable for the TAC regime. The Transport Accident Act provides for a number of impairment assessment percentages to have some significant effect. Under s 47 of the Act no impairment benefit lump sum is payable unless the impairment assessment exceeds 10 per cent. Under s 53(4) the limit for the loss of earning capacity benefits of three years from the date of the accident does not apply if the applicant's impairment assessment is rated at 50 per cent or more. Under s 93 an applicant may bring a proceeding for damages (assuming that the common law requirements for the success of such a claim are made out) if the person's impairment assessment is of 30 per cent or more. The effect of employing a 'rounding off method' as urged upon the Tribunal by Mr Tobin would be to modify each of those benchmark figures respectively to 8 per cent, 48 per cent and 28 per cent. In my view had Parliament intended these percentages to be the benchmarks it would have directly said so. The consistent past practice of this Tribunal and its predecessor, the General Division of the Administrative Appeals Tribunal in relation to transport accident claims involving use of the Guides has been to apply the percentage impairment established by the evidence and not to "round off" to the nearest 5 per cent. In the circumstances of such long standing practice and in the circumstances where there is no evidence of any direct intention of Parliament that such a procedure should be adopted, I conclude that I should follow the previous practice and decline to 'round' the final impairment figure to the nearest 5 per cent."[10]

In Chilcott v Transport Accident Commission[11] Deputy President Galvin had declined to round up an assessment of injury concluding that the assessment of 28% appeared to be appropriate on the facts before him. On appeal from the decision of Mandie J in Barnett v Transport Accident Commission[12] the President, speaking for the court, said:

"Although Mandie J deliberately refrained from expressing an opinion on the decision in Coverdale v Transport Accident Commission (1999) 15 VAR 240, we think that the learned president of the tribunal was correct when he said in that case (at 243-4) that the provision in the Guides which allowed that the whole person impairment 'may be expressed in terms of the nearest 5%' was hardly appropriate to the function of the tribunal under the legislative scheme granted by the Transport Accident Act 1986 (Vic)."[13]

These observations compel me to a view which I would not myself have reached unaided by authority. In my view parliament has clearly evinced an intention that the AMA Guide was to be adopted in its entirety for the purpose of professionals making difficult judgments about the degree of impairment suffered by individuals. It is of the essence of the exercise being undertaken that there be a professional judgment about the matter and the AMA Guide adopted by the legislature states clearly that the judgment to be exercised may be expressed in terms of the nearest 5% where the person making the judgment considers that to be appropriate. There is, in my view, no question about the benchmark being raised but, rather, only a question about whether the benchmark is capable of being reached by a rounding up where those authorised to make the judgment consider that they should exercise a discretion given to them by the AMA Guide to exercise the discretion by rounding up to the benchmark. It is my view that the AMA Guide, as adopted by the Act, does permit a rounding up to the nearest 5% where the person exercising the judgment considers it appropriate. That may be to do little more than to acknowledge that matters of judgment are frequently inexact and that guides, like the AMA Guide, embody imprecisions that should be applied slavishly.

38. The issue, however, is not free from authority and, although not precisely on the Act with which I am concerned, the reasons in the authorities bind me to a like result. Accordingly the conclusion I am reluctantly compelled to reach is that the medical panel was not permitted to consider whether to round up to 30%. In that event no reviewable error is shown although I would have reached the opposite conclusion had I been free to do so.

(a) That the time allowed under Rule 56 for the commencement of this proceeding be extended to 12 March 1999.

(b) That the proceeding be dismissed.

(c) That the plaintiff pay the costs of the first defendant.

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[1] [1996] VicRp 65; [1996] 2 VR 221

[3] [1999] VSC 137

[4] [2001] VSC 215; (2001) 3 VR 114

[5] Denysenko v Dessau [1996] VicRp 65; [1996] 2 VR 221 at 224; Carra v Hamilton [2001] VSC 215; (2001) 3 VR 114 at 121

[6] Coverdale v Transport Accident Commission (1999) 15 VAR 240; Barnett v Transport Accident Commission [1999] VSC 484 (Mandie J), see also [2001] VSCA 12; (2001) 34 MVR 26 (Court of Appeal)

[7] [1999] VSC 484

[8] Ibid at para 29 citing _Coverdale v TAC (_VCAT, 12/2/99, Kellam J) at 18-20

[9] (1999) 15 VAR 240

[12] [2001] VSCA 12; [2001] 34 MVR 26