Connelly v MMI Workers Compensation

2. I have had the advantage of reading in draft the reasons for judgment prepared by Chernov, J.A. Subject to two qualifications, I agree in them and in the disposition of the appeal that his Honour proposes.

5. Both qualifications relate to Re Coverdale and Transport Accident Commission[1] and Barnett v. Transport Accident Commission[2]. The first is that I do not think the learned trial judge could be criticized for following the observations in those cases even if they were not binding on him. Indeed he might well have been criticized for not doing so.

8. The second is that I agree with Batt, J.A., for the reasons his Honour gives at [8] that Kellam, J. erred in Coverdale and that, if the obiter dictum in Barnett is to be understood as meaning that the rounding off provision is not to be used by the Tribunal in making assessments under the Transport Accident Act 1986, it was mistaken. As Batt, J.A. explains, the rounding off provision is an integral part of the Guides, it applies whether or not the person or body making the assessment is medically qualified and the degree of impairment, expressed in significant figures, is not arrived at until rounding off has been implemented, if it is.

11. I express no opinion on the question, raised in the course of argument, whether a person or body who or which was not medically qualified would be more or less likely to exercise the power to round off. The important point is that that power should be exercised, up or down, if the person or body considers that the result of doing so is a more reliable impression of the degree of impairment. That may be so, for example, because the person or body considers that a particular figure, expressed in a gradation smaller than 5%, suggests a degree of precision, in the circumstances of the case, that is wholly illusory.

16. I agree that this appeal should be disposed of as proposed by Chernov, J.A. and, subject to what follows, I agree with his Honour's reasons.

19. In my opinion, s.91(1)(a)(i) requires the person or body making an assessment of a degree of impairment to take the American Medical Association's Guides to the Evaluation of Permanent Impairment (Second Edition) as they are, without excisions or notional amendments. That necessarily includes the Preface. (It is listed in the Table of Contents.)[3]

22. The provision in the Preface authorising rounding off is based on the recognition that the expression of levels of impairment in gradations smaller than 5 per cent is not, or at least may not be, reliable, that is, "significant".[4] Accordingly, the power or authority to round off, whether up or down, will not infrequently fall to be exercised. That is not, however, to read "may" as "must". Nor am I to be taken as suggesting that the discretion should be exercised in the same way in relation to a value of, say, 28 read from a table as in relation to a value of 29 read from that table.

25. In my respectful view, in concluding in Coverdale that he should follow the "consistent past practice" of the Victorian Civil and Administrative Tribunal of not rounding off Kellam, J. adopted as a matter of policy a self-denying ordinance and so held that the rounding off provision was not to be applied in the Tribunal, at any rate under the Transport Accident Act 1986. In that, his Honour, I consider, erred[5]. In

my view, there is - in s. 91 (1)(a)(i)- evidence of Parliament's intention that the procedure of rounding off should be applied, not automatically, but at discretion. The availability and interpretation of the rounding off provision cannot vary with the person or body making the assessment. Similarly, if the obiter remarks in Barnett are to be understood as meaning that the rounding off provision is inappropriate for use by the Tribunal in making assessments under the Transport Accident Act 1986 in accordance with the Guides, I am respectfully unable to agree, for, as already stated, the Guides are to be taken by the person or body using them as they are found, that is, with the statement in the Preface about rounding off. Further, I do not see the discretionary exercise of the power to round off upwards as effectively lowering a threshold or vice versa. Rather, the degree of impairment, expressed in significant figures, is not arrived at until rounding off has been implemented, if it is. If, for instance, a degree of impairment of 30 per cent is arrived at after rounding up, the percentage assessed in accordance with the Guides is 30 per cent, not that from which it was rounded up. Before leaving Coverdale and Barnett I should say that I agree with Callaway, J.A. that the trial judge could not be criticised for following the observations in those cases.

29. In its brief reasons for refusing special leave to appeal in Barnett v. Transport Accident Commission[6] the High Court, as it seems to me, made a point of emphasising the importance of the statement by Phillips, J.A. in Lake v. Transport Accident Commission[7] to the effect that the Guides are, as their title suggests, just that and that in their use for the making of determinations under the Transport Accident Act 1986 the Guides should not become overlaid with a lawyer's precise interpretation. No infraction of that statement is involved in this Court's exposition of the meaning and application of the rounding off provision, which is a general provision capable of application in a wide range of cases.

34. This is an appeal, brought pursuant to leave granted by this Court on 9 August 2002, from the decision of a judge of the Supreme Court made on 21 June 2002. His Honour dismissed the appellant's originating motion which sought to review the opinion of a medical panel given on 27 May 1998 pursuant to the Accident Compensation Act 1985 ("the Act"). The facts and circumstances in which the proceeding arose were these.

37. On 15 May 1987, whilst in the course of his employment, the appellant fell from a ladder and injured his right knee. He made a claim for compensation under the Act and, in due course, was assessed as suffering a serious injury under its provisions. As a consequence, he was paid weekly payments at the rate of 90 per cent of his pre-injury average weekly earnings. In February 1997, however, the first respondent, which is the authorised insurer of the appellant's former employer, notified the appellant of its decision to reduce his weekly payments from 90 per cent to 70 per cent of his pre-injury average weekly earnings on the ground that he no longer had a serious injury within the meaning of s.93B(5) of the Act, but was totally and permanently incapacitated within the meaning of s.93B(1)(b).[8]

41. The appellant challenged this decision by way of a proceeding in the Magistrates' Court[9] whereby he claimed that his whole person impairment arising from the accident was not less than 30 per cent and that, consequently, he had a "serious injury" for the purposes of the Act. In the course of the proceeding, at the behest of the first respondent, the magistrate referred certain medical questions to a medical panel[10] pursuant to s.45(1)(b) of the Act. The importance of this referral lies in the fact that an opinion of a panel on a medical question must be treated by the referring court as conclusive and be adopted and applied accordingly[11]. One of the questions that was referred to the panel required it to assess, under s.91 of the Act, the appellant's level of whole person impairment arising from the accident. So far as is relevant for present purposes, s.91 requires the panel to make an assessment "in accordance with ... the American Medical Association's Guides to the Evaluation of Permanent Impairment (Second Edition)" ("the Guides").

44. In the result, a medical panel ("the panel") was constituted to determine the matters arising from the referred questions. By a certified opinion, dated 27 May 1998, it stated that the appellant suffered a 9 per cent whole person impairment to the right knee and a 21 per cent whole person impairment to the thoraco-lumbar spine. It also opined[12] that the appellant's combined impairment - namely, that to the right knee and to the back - was 29 per cent[13] but, in purported response to question 1(b), said that his back condition was unrelated to the accident of 15 May 1987. The medical questions posed to the panel, however, did not call on it to express a view whether there was a relevant nexus between the appellant's back injury and the work related accident, so that its opinion on that issue was irrelevant for the purpose of s.68(4) of the Act. Nevertheless, given the panel's view that there was a lack of relevant connection between the accident and the appellant's back problem, on its face, its opinion meant that the level of the appellant's work related whole person impairment was only 9 per cent and, in the circumstances, there would have been no purpose in it considering whether it would be appropriate to apply the rounding off provision to that level of impairment.

47. The matter then returned to the Magistrates' Court and, for reasons which need not be examined for present purposes, supplementary medical questions were referred by the Court for the opinion of a medical panel. A differently constituted medical panel[14] was formed to consider these questions, and, in the result, by a certified opinion dated 21 December 1998, it effectively said that, the employment accident of 15 May 1987 was a contributing factor to his back injury. This determination, if given effect, would increase the level of the appellant's work related whole person impairment from 9 per cent to 29 per cent but, even so, the appellant would fall short of the 30 per cent serious injury threshold for which he contended. When the matter came back to the Court on 15 February 1999, the magistrate considered himself bound by the panel's opinion of 27 May 1998 that the whole person impairment of the appellant was less than 30 per cent.[15]

50. As a consequence, the appellant commenced this proceeding by way of an originating motion dated 12 March 1999 by which he sought a review of the panel's opinion of 27 May 1998 and an order that its assessment of the appellant's whole person impairment at 29 per cent be quashed. The appellant's principal case below was that the panel wrongfully failed to round up the 29 per cent level of impairment to 30 per cent in accordance with the Guides. On 25 June 1999 the proceeding was adjourned out of the list by consent of the parties to await the outcome of the appeal that was then pending in Barnett v. Transport Accident Commission[16].

53. It is convenient to refer to that decision and that of Kellam, J., sitting as the President of the Victorian Civil and Administrative Tribunal ("the Tribunal") in Re Coverdale and Transport Accident Commission[17]. In the latter case, Kellam, J. had to consider whether the appellant, who sustained injuries to his head and shoulders as a result of a collision with a motor vehicle suffered any, and if so, what degree of impairment for the purpose of determining the level of benefits to which he was entitled under the Transport Accident Act 1986 ("the Transport Accident Act"). The Transport Accident Commission ("the TAC") had assessed the appellant's impairment at the level of 7 per cent and the appellant had sought a review of that determination by the Tribunal. In that context, his Honour considered the appellant's injuries arising from the above incident including the relevant medical evidence and, ultimately, calculated a whole person impairment of 29 per cent. His Honour rejected the submission of the appellant's counsel that he should, consistently with the claimed practice in the County Court in WorkCover cases, "express the impairment to the nearest 5 per cent", in other words, round it up to 30 per cent. He considered that the rounding up of the assessment, as proposed by counsel, would be a substantial departure from the previous practice of the Tribunal. His Honour said[18] that the discretion given to the assessors by the Guides, "by itself", did not mean that this mode of assessment was obligatory or "indeed even necessarily suitable for the TAC regime". In accordance with past practice, said his Honour, he declined to round up the assessment as was sought by the appellant's counsel.

56. Barnett was also decided in the context of the operation of the Transport Accident Act. The case came before Mandie, J.[19] by way of an appeal under s.148 of the Victorian Civil and Administrative Tribunal Act 1998 from an order of the Tribunal which upheld an appeal against the determination by the TAC that the appellant's whole person impairment was 12 per cent. The Tribunal substituted a whole person impairment of 43 per cent. One of the claims before his Honour was that the Tribunal had failed to express the final impairment value "in terms of the nearest 5 per cent".[20] In support of the claim that the Tribunal should have done so, attention was drawn to the acknowledgment in the Guides of the imprecise nature of the impairment assessment process, the implication being that the final assessment should have been expressed to the nearest 5 per cent. It was said that the word "may" in those provisions was not simply discretionary, but mandatory. It was argued that, had the Guides intended that the rounding off provision conferred a mere discretion, they would have prescribed criteria for its exercise. Since no such criteria were provided, it was claimed, the provision should be read as imposing a mandatory obligation on the Tribunal to round off the assessed level of impairment to the nearest 5 per cent. Mandie, J., however, considered that the word "may" in the rounding off provision did not mean "must" and that there was no warrant in construing the Guides as imposing an obligation on the assessor to apply the rounding off provision.

59. An appeal from that decision was dismissed by this Court.[21] The learned President, who delivered its judgment,[22] considered that the decision of Mandie, J. "was correct and for the reasons given by his Honour". The President added that the Court agreed with Kellam, J. in Coverdale that the provision in the Guides which allowed the whole person impairment to be expressed in terms of the nearest 5 per cent was hardly appropriate "to the function of the Tribunal" under the legislative scheme in question.

62. Following this Court's decision in Barnett the present proceeding was brought on before the primary judge. The appellant's claim before his Honour that the rounding off provision was mandatory was rejected by him. The judge noted that this argument was contrary to what was decided in Barnett and Coverdale. His Honour went on to say that, when the panel in this case was making its decision on 27 May 1998, it "did not in fact consider whether it should round up to 30%" because it took the view that the 15 May 1987 accident had not contributed to his back problem. The learned judge said:

"... 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 ... [i]t would have been a pointless exercise for [it] 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 regard to any discretion which it may have had under the AMA Guide to round up to the nearest 5%."

His Honour then turned to consider whether the panel had a discretion "under the Act" to round up to the nearest 5 per cent "as [was] apparently permitted by the AMA Guide". After referring, inter alia, to the decisions at first instance and on appeal in Barnett and to the decision of Kellam, J. in Coverdale, his Honour concluded that the observations in those cases compelled him "to a view which I would not myself have reached unaided by authority", namely, that the medical panel was "not permitted to consider whether to round up to 30 per cent". In the circumstances, the learned judge held that no reviewable error was shown in the opinion of the panel of 27 May 1998, although he added that he "would have reached the opposite conclusion had [he] been free to do so".

68. The appellant's notice of appeal contains only one ground and that was amended pursuant to leave given at the commencement of the hearing before us so as to allege that the learned judge below erred in holding that the medical panel was not permitted to consider the exercise of a discretion to round off.

71. The basis on or the criteria by which an assessor is required to determine the level of whole person impairment for the purposes of the Act is prescribed by s.91 of the Act, sub-s.(1) of which is in the following terms:

"91. Assessment of impairment (1) In this Part, a reference to the assessment of a degree of impairment in accordance with this section is a reference to an assessment- (a) made in accordance with- (i) unless regulations referred to in sub-paragraph (ii) are in force, the [Guides]; or (ii) methods prescribed for the purposes of this section- and in accordance with operational guidelines (if any) as to the use of those Guides or methods issued by the Minister; and (b) if the Minister has approved a training course in the application of those Guides or methods, made by a medical practitioner who has successfully completed such a training course."

75. So far as is relevant, on its face, the section requires those who assess the degree of impairment of a claimant to do so in accordance with common criteria, namely, those contained in the Guides,[23] which provide a methodology for assessing, in numerical terms, the level of impairment suffered by a person as a result of an injury, including the assessment of the degree of whole person impairment. Importantly, for present purposes, they contain, in the preface, the following provision ("the rounding off provision"): [24]

"Rating of the whole person: The final step in rating medical impairment takes into account all relevant considerations in order to reach a `whole person' impairment rating. The final impairment value, whether the result of single or combined impairments, may be expressed in terms of the nearest 5%."

79. Mr. Maxwell, for the appellant, submitted that, on its proper construction, the rounding off provision gives the assessor the power or discretion to round off a whole person impairment level that has been otherwise calculated in accordance with the Guides to the nearest 5 per cent. In my view, Mr. Maxwell's submission should be accepted.

82. There are a number of considerations that lead to that conclusion. First, that the rounding off provision is merely an empowering provision was accepted in Barnett by Mandie, J. and by this Court. Kellam, J. in Coverdale also accepted that it is "expressed in discretionary terms". Secondly, it seems clear enough that the word "may" in the rounding off provision is there used in the permissive sense given the primary meaning of the word and the fact that the context in which it appears in the Guides does not call for a different conclusion. Speaking of the meaning of the word "may" in an Act of Parliament, Windeyer, J. said in Finance Facilities Pty. Ltd. v. Federal Commissioner of Taxation[25]:

"While Parliament uses the English language the word `may' in a statute means may. Used of a person having an official position, it is a word of permission, an authority to do something which otherwise he could not lawfully do. If the scope of the permission be not circumscribed by context or circumstances it enables the doing, or abstaining from doing, at discretion, of the thing so authorized." [26]

In my view, his Honour's observations as to the ordinary meaning of "may", although expressed in the context of the construction of a statute, are apposite to the interpretation of that word in the rounding off provision (even though the verb is in the passive voice). Unlike the situation in Finance Facilities, however, there is nothing in the context in which that word appears in the rounding off provision which compels one to read it as "shall".

87. Furthermore, it is evident from the underlying purpose and the operation of the Guides that the word "may", as it appears in the rounding off provision, is to be understood in its permissive sense. The Guides provide a structured and standardised set of medical criteria on the basis of which there are established, in numerical terms, ratings of permanent impairment, which are set out, in the case of a single impairment, in the text or in the form of tables or, in the case of two or more impairments, in the Combined Values Chart.[27] But the Guides also recognise that such ratings are not precise and that a particular rating derived from the Guides may slightly overstate or understate the true level of impairment. Thus, for instance, the publication acknowledges that, when the Guides are "used properly, permanent impairment can be rated with reasonable accuracy and uniformity"[28] (emphasis added). Consequently, 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.

90. The learned primary judge in this case would also have concluded that the rounding off provision conferred a mere power or discretion on the assessor but for his view that the President's observations in Barnett about Coverdale and the decision of Kellam, J. in that case effectively precluded him from doing so. But neither the President's observations nor the decision of Kellam, J. were binding on his Honour. Coverdale was the decision of the President of the Tribunal while the observations of Winneke, P. in Barnett were clearly obiter. The question whether it would have been appropriate for the Tribunal to round up the assessment did not fall for consideration in Barnett either at first instance or on appeal. The relevant issue in that case was whether the assessor had to round off the impairment rating which was initially determined by reference to the Chart in the Guides. As I have said, this argument was rejected by Mandie, J. and his decision was upheld on appeal. Thus, neither case required the primary judge here to reach the conclusion that the panel was not entitled to consider whether to round up the rating of the appellant's whole person impairment to 30 per cent.

93. I doubt, in any event, whether those cases say that the assessor is not entitled to round up an impairment assessment in an appropriate situation. In refusing to round up the assessment level that he had determined, Kellam, J. did so in the context of rejecting the submission of counsel that a rounding up should take place as a matter of course. His Honour said, in effect, that if such a submission were accepted, it would have the consequence of modifying the benchmark figures prescribed by the Act. And, in my view, his Honour was correct in that observation. If a round up of an assessment, otherwise determined in accordance with the Guides, were to occur automatically, that would usually have the effect of lowering the relevant benchmark. But it should also be noted that his Honour recognised, as I have said, that the rounding off provision is "expressed in discretionary terms". I think that all that his Honour meant by the statement that the discretionary method of assessment contemplated by the Guides was "not ... necessarily suitable for the TAC regime" was that, ordinarily, he and others who might constitute the Tribunal are not necessarily qualified to exercise the judgment contemplated by the rounding off provision. I do not read his Honour's decision as seeking to lay down a hard and fast rule that an assessment of impairment made for the purposes of the Transport Accident Act can never be rounded off pursuant to the exercise of discretion given to the assessor by the Guides. Such a view would be inconsistent with the judge's own acceptance that the rounding off provision is discretionary and that it cannot be automatically invoked to round up an assessment that was otherwise determined pursuant to the Guides. It would not be surprising if the learned President in Barnett interpreted Kellam, J.'s decision along those lines. But if Kellam, J. meant by that passage that the Tribunal can never exercise the rounding off discretion in the context of making an impairment assessment under the Transport Accident Act, then, for the reasons I have given, such a view would be erroneous.

96. The primary submission of Mr. Gorton, who appeared for the respondent, was that, on a proper construction of s.91 of the Act, a reference in the section to the Guides was a reference to them absent the rounding off provision and, for that reason, the panel had no power to round up the 29 per cent whole person impairment assessed by it on 27 May 1998. Counsel argued that this followed from the fact that a fundamental aim of s.91 was to provide standard criteria by which the level of impairment would be assessed for the purposes of the Act, whether the assessor be a medical panel, or a lay person such as a representative of the Commission, or the Tribunal, or a Court. It was said that, on its proper construction, the rounding off provision was directed only to medical practitioners and not to lay assessors so that, if the provision were to operate for the purposes of s.91, the criteria by which levels of impairment would be assessed would differ depending on whether the assessor was a medical panel - in which case it could round off the rating determined by reference to the chart - or a lay assessor - in which case, no such rounding off could occur. Such lack of uniformity in the standard by which the level of impairment was to be determined, it was said, would clearly run counter to the policy of the section. In order to avoid such a result, Mr. Gorton submitted, it was necessary to construe s.91 as effectively excluding the rounding off provision from the Guides for the purpose of any assessment that might be undertaken pursuant to that section.

99. That the rounding off provision is directed to medical panels only, said counsel, is made plain by the terms of the Guides and in particular, to the statement in the preface[29] (which contains the rounding off provision) that only medical panels may carry out "an authoritative medical evaluation that assesses the individual's health." It is also the case, so it was said, that other parts of the Guides contain passages which apparently contemplate that medical practitioners will make assessments of impairment levels.

102. In my view, however, Mr. Gorton's argument proceeds on a false premise. True it is that some parts of the Guides are addressed primarily to medical practitioners and contemplate that they will use them for the purpose of making impairment assessments. For example, the four steps for rating an impairment,[30] to which I have referred, are primarily directed to medical practitioners, but looking at the Guides as a whole it is plain that they are not addressed only to medical practitioners. Rather, they recognise that relevant assessments will also be made by lay persons. Thus, the passage from the preface on which Mr. Gorton relied and to which reference has been made in the immediately preceding paragraph says no more than that it is only a medical practitioner who can carry out an authoritative evaluation that assesses a person's health. There can be no dispute with that proposition. But this passage in the Guides does not exclude, directly or by implication, the assessment by lay assessors of a person's level of impairment in reliance on, inter alia, medical reports that have evaluated that person's health. On the contrary, the Guides contemplate that an impairment assessment made by a medical practitioner may be revised by a lay person in accordance with the criteria set out in the Guides, including the rounding off provision. Thus, it is said:[31] "The report that supports a permanent impairment rating should contain sufficient information to allow a knowledgable reviewer to understand the rating and to assess its validity for its intended use." Furthermore, the foreword makes it plain that the Guides have been prepared for use not only by assessors who are medically qualified, but also by lay assessors. Thus, it states:[32]

"By providing clinically sound and reproducible criteria for rating permanent impairment, the Guides have continued to be useful to physicians, attorneys and adjudicators in fulfilling their responsibilities to patients, clients and applicants seeking benefits from agencies and programs serving the disabled."

No distinction being drawn in that paragraph between the rounding off provision and the remainder of the Guides, it can be assumed that it applies to the whole publication, including the rounding-off provision. It is also apparent from other language in the publication that all assessors are expected to have regard to, inter alia, the rounding off provision. For example, the foreword urges[33] "all readers" of the Guides (which necessarily includes lay assessors) to become familiar with the terminology in the field of impairment and disability; they are also urged to read, inter alia, the preface to the Guides which, as I have mentioned, contains the rounding off provision, as well as the report on the terminology used in the Guides, before proceeding to make an assessment in accordance with its terms. It seems plain enough, therefore, that the rounding off provision is addressed as much to the lay assessor as it is to the medical practitioner.

107. Moreover, as Mr. Maxwell pointed out, if the rounding off provision is directed only to medical practitioners simply because some parts of the Guides speak of functions that medical practitioners are expected to perform in the context of the assessment process, it would follow that the whole of the publication should be treated as being directed solely to medical practitioners. Thus, it was said, that, on Mr. Gorton's argument, the whole of the Guides should be excluded for the purposes of s.91(1)(a) of the Act in order to ensure uniformity or standardisation in the making of impairment assessments. Such an outcome, said Mr. Maxwell, is one that is clearly not contemplated by the provisions of the Act.

110. There are other reasons why Mr. Gorton's argument must be rejected. First, as Mr. Maxwell submitted, if Parliament intended to excise the rounding off provision from the Guides this could have been simply stated in the section. Secondly, s.91(a)(ii) contemplates that a method of assessment other than that provided for in the Guides may be prescribed. Thus, it was open to the Minister effectively to remove the rounding off provision from the Guides. That neither step was taken militates against the respondent's construction of the section.

113. In support of his case that the rounding off provision has no application under s.91, Mr. Gorton also relied on the observations of this Court in Barnett and on the decision of Kellam, J. in Coverdale to which reference has already been made. It is not necessary to consider those submissions because, for reasons which I have expressed, these decisions do not support the respondent's claim in that regard.

116. I mention for completeness that Mr. Maxwell directed the Court to a statement made on 10 December 1996 by the Minister for Finance[34] at the Committee Stage during discussions concerning the Accident Compensation (Further Amendment) Bill. Counsel submitted that the following observations of the Minister support the view that Parliament intended that an impairment assessment under s.91 was to be made in accordance with the Guides, including the rounding off provision. In the course of the discussion at the Committee Stage the Minister referred to a hypothetical scenario in which an impairment rating of 28 per cent was ascribed to someone who had a leg amputated. He said that the impairment level in respect of that injury may be brought within the statutory serious injury threshold of 30 per cent by means of the application of the rounding off provision. The Minister said[35]:

"Because there will always be someone at the margin, the American Association guidelines provide for the impairment rating to be rounded to the nearest 5 per cent. Once again the opposition has consistently put to the chamber that an amputation of a leg below the knee, which is rated at 28 per cent, would not qualify as a serious injury. In fact, the guidelines permit that impairment rating to be rounded up to 30 per cent."

Whilst I agree that, on its face, the Minister's statement is supportive of the appellant's contention in that regard, it is unnecessary to rely on it given my firm conclusion that, on its plain reading, s.91 does not operate to prevent an assessor from applying the rounding off provision for the purpose of assessing the impairment of a particular claimant.[36]

121. Two additional points were raised by Mr. Gorton in support of the contention that Parliament intended that the rounding off provision should not apply for the purpose of assessments made under s.91. First, Mr. Gorton argued that the rounding off provision can sometimes operate to disadvantage a claimant whose impairment level, having been assessed in accordance with the Guides, has satisfied the statutory benchmark for entitlement to benefits under the Act. Counsel referred us to a number of sections of the Act, such as s.98C, which provide that benefits are only payable if the level of impairment exceeds the statutory benchmark. It was pointed out that a rounding down of an impairment level which was 2 per cent or less above such a benchmark would have the effect of depriving the claimant of a statutory benefit that would otherwise have been available. It was said that this could not have been in the contemplation of the legislature and that it is more likely that it intended that the rounding off provision would not apply for the purpose of s.91 assessments. In my view, however, the mere fact that an exercise of discretion under the rounding off provision will have such consequences in the circumstances postulated does not lead to the conclusion contended for. Counsel's argument may have been stronger if the Guides required that the rounding off provision be applied as a matter of course for assessment purposes. But for reasons I have given that is not the case, and it is a matter of judgment for the assessor in each case whether the limited discretion afforded by the rounding off provision should be exercised. In some instances the exercise of the discretion will be of advantage to the claimant whereas in some cases it will have the opposite effect. In the circumstances, however, as I have said, this does not demonstrate that Parliament intended that the rounding off provision be notionally excised from the Guides for the purposes of s.91 of the Act. I have already mentioned that, in my view, what the Guides seek to do is to provide standard criteria by which impairment assessments are to be made, leaving some scope for the exercise of judgment by the assessor to fix what he or she considers to be the true level of impairment.

124. Secondly, Mr. Gorton contended that the rounding off provision could not sensibly or fairly operate in respect of benefits that are payable under certain provisions of the Act, such as s.98(1)(e) and s.98C. The amount of the benefit under these sections varies directly with the stated level of impairment, which is not expressed in multiples of five, rather, the amount of the benefit varies with each degree of the assessed impairment level. Counsel said that it would plainly be inconsistent with such a regime for the rounding off provision to apply to an assessment that is made for the purposes of these sections and that this was yet another indication that the legislature intended that, for the purposes of s.91(1) of the Act, the rounding off provision be treated as excised from the "Guides". It was pointed out by Mr. Gorton that, where the level of impairment was assessed in respect of these benefits at a level that was more than one degree above or below a figure which is a multiple of five, the application of the rounding off provision would be inconsistent with the policy of these provisions because the benefit would be calculated, not by reference to a single figure impairment level but by reference to an impairment level that is a multiple of five. Moreover, counsel submitted, a claimant in such a situation would obtain either a significantly lower benefit than would otherwise have been the case, or a windfall, depending on whether the assessment was rounded down or up. Neither situation was contemplated by the legislature, said Mr. Gorton. But this argument, like the immediately preceding one, assumes that the rounding off provision will be applied in respect of each assessment whereas, for reasons already given, the provision does no more than give the assessor the power to round off, and it cannot be assumed that it will be applied in each case.

127. It follows, therefore, that the respondent's claim that s.91 effectively excludes the rounding off provision from the Guides, must fail.

130. It will be recalled that the panel which gave its opinion on 27 May 1998 wrongly undertook, of its own volition, the determination of the question whether there was a relevant nexus between the appellant's work related accident of 15 May 1987 and his back injury. Its conclusion on that question resulted in it not considering whether the rounding off provision should be applied to an assessment of 29 per cent whole person impairment. In the circumstances, I consider that the appeal should be allowed, and orders substituted that the above opinion of the panel, in so far as it purports to answer medical questions 1(b) and 2(c), be quashed and that those questions be referred back to the panel for determination according to law.

[1] (1999) 15 V.A.R. 240 at 243-244.

[2] [2001] VSCA 12; (2001) 17 V.A.R. 339 at 340.

[3] In addition to the general authorisation in the Preface, within the various chapters themselves rounding to the nearest 5 per cent is contemplated, if not authorised, in several cases, for instance, under Tables 9 and 20 on p.10 and p.23 respectively.

[4] This is clear in cases where the Guides give a range of percentages for the whole person impairment, as in the chapter on The Cardiovascular System. The fact that s.98C of the Accident Compensation Act 1985, by using the degree of impairment expressed as a number, permits of values that are not divisible by 5 does not gainsay the statement in the text, for that is a statement about the Guides, not the Act, and the Guides are extrinsic to and independent of the Act.

[5] Mr. Gorton pointed out that in the case of s. 47(1)(b) in order to qualify when rounding off was applied a claimant needed a pre-rounding assessment of 13 per cent, not 8 per cent as his Honour stated. (When rounding off was not applied, 11 per cent would of course suffice.)

[6] Unreported, High Court of Australia (Gummow and Kirby, JJ.), 14 December 2001.

[7] [1998] 1 V.R. 616 at 626.

[8] It was common ground that the relevant legislation is contained in Reprint No. 8 of the Act.

[9] See ss.39(1) and 43(1) of the Act.

[10] See Division 3 of Part III of the Act.

[11] Section 68(4) of the Act.

[12] This opinion was expressed in answer to Question 2(c).

[13] Based on the panel's findings, the combined impairment should have been expressed at a level of 28 per cent, but nothing turns on this error for present purposes.

[14] The medical panel was made up of the original two members and one other.

[15] There was no issue between the parties whether the magistrate's decision in that regard was correct.

[16] The appeal was determined on 23 February 2001 - it is reported in [2001] VSCA 12; (2001) 17 V.A.R. 339.

[17] (1999) 15 V.A.R. 240.

[19] [1999] VSC 484.

[20] Had the Tribunal rounded up the impairment to 45 per cent, the applicant would have been entitled to a greater benefit under the Act.

[21] An application for special leave to appeal against that decision was refused by the High Court on 14 December 2001.

[22] The other two members of the Court were Phillips and Charles, JJ.A.

[23] The version of the Guides to which reference is made in these reasons (and which was considered in Coverdale and Barnett) is the second edition which was then current.

[25] [1971] HCA 12; (1970) 127 C.L.R. 106 at 134. In the circumstances of that case, however, his Honour considered that "may" as it appeared in the statute was circumscribed by the context and should be read as "must".

[26] See also Malika Holdings Pty. Ltd. v. Stretton (2001) 204 C.L.R. 290 at 299-300 per McHugh, J. and at 329 per Kirby, J. as to the ordinary meaning of "may". The question whether "may" in a subordinate piece of legislation in New South Wales conferred a mere statutory power or imposed a duty to exercise it was considered in Samad v. District Court of New South Wales [2002] HCA 24; (2002) 209 C.L.R. 140 at 151-154 per Gleeson, C.J. and McHugh, J. and at 160-164 per Gaudron, Gummow and Callinan, JJ.

[30] At pp.viii and ix. See further example at p.x.

[35] At 1246 of Hansard of 10 December 1996**.**

[36] See Catlow v. Accident Compensation Commission [1989] HCA 43; (1989) 167 C.L.R. 543 at 549-552 per Brennan and Gaudron, JJ. and Mills v. Meeking [1990] HCA 6; (1989) 169 C.L.R. 214 at 223 per Mason, C.J. and Toohey, J.