Plaintiff v Defendant

Plaintiff v Defendant - [2007] VSC 48 - VSC 2007 case summary — Zoe

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The Defendant's Contentions

17 In response, Dr Freckelton, who appeared for the defendant, submitted, as his primary point, that the words of section 3.2 of the Guides (at p.75) are clear, unambiguous and unequivocal. In plain terms they state that if the patient has several impairments of the same lower extremity part, then the "whole person estimates for the impairments are combined". Dr Freckelton submitted that the Guides could not be expressed in any clearer terms. He further submitted that that mandate, in respect of lower extremity impairments, is in direct contrast to the method prescribed by the Guides for assessing multiple impairments of the upper extremity. He submitted that the contrast between the two methods, each clearly expressed, emphasises and reinforces the proposition that the Guides require and intend that several impairments of the lower extremity part are to be combined as whole person estimates, and not as estimates of the lower extremity. Dr Freckelton further submitted that the text of section 3.2 contains a number of examples (pp.76, 78, 81 and 83) in which two or more lower extremity impairments are combined (using the combined values chart) to produce the whole person impairment of the patient. Those examples further reinforce the clear terms of the passage in section 3.2, referred to above, which states that the whole person estimates for lower extremity impairments are to be combined.

18 Dr Freckelton acknowledged that the senior member did err in two respects in paragraph 18 of her reasons.[1] First, she erred in inferring that, when dealing with multiple joint impairments, it is necessary first to combine the lower extremity ratings before converting to the whole person by multiplying by a factor of 0.4%. In fact as pointed out by Dr Freckelton, at paragraphs 19 to 23 of the reasons, the senior member did not apply that methodology, but, rather, applied the whole person impairment method which, he submitted, was the correct methodology. Secondly, Dr Freckelton accepted that the senior member erred in observing that application of either of the two methodologies - the extremity impairment method and the whole person impairment method - would produce the same result. In fact, as I have already stated, application of the two tests, in the case of the defendant, produces different results. Nonetheless, Dr Freckelton submitted that neither of those errors by the senior member impacted on her ultimate decision. For, she correctly applied the whole person impairment test, which, Dr Freckelton submitted, is the only correct test applicable under the Guides.

19 Dr Freckelton then proceeded to make submissions in rebuttal of the eight points proffered by Mr Masel as follows:

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(1) Dr Freckelton submitted that the inclusion, in the tables, of the lower limb impairment percentage (in parentheses) can be explained by the policy of the Guides to be user friendly, and to provide transparency of information. The inclusion of those percentages in brackets assists the reader to understand how the whole person impairment has been derived.

(2) The sentence on p.75, which relates to impairments of both lower extremities, does not qualify the plain meaning of the sentence which precedes it, which requires the combination of whole person estimates of the lower extremity. The second sentence is not otiose. Rather it is included as an abundance of caution, to make it clear to the practitioner how to implement the impairment methodology when there are impairments to both limbs.

(3) The section on gait derangement (p.76) is clearly a distinctive category of its own. That section is a combination of a number of different types of lower extremity impairments, and thus it would be obviously impermissible to combine other impairments with gait derangement. The fact that the table does not, in parentheses, also provide a lower extremity impairment calculation, does not take the argument of the plaintiff anywhere.

(4) The example on p.84, which only utilises the extremity impairment method, is to be distinguished because it is an example where there is only one injury, and the impairments are different manifestations of it.

(5) It may well be that, in certain instances, the whole person impairment method does produce an impairment in excess of 40% (which is the equivalent to an impairment in excess of 100% for the lower extremity). However there is an express ceiling stipulated in the Guides of 40%. Thus if the impairment assessment, using the combined values tables, produced a result in excess of 40%, it would, under the Guides, be reduced to 40%.

(6) The fact that different assessment methods are used in relation to neurology (Chapter 4) and cardiovascular disorders (Chapter 6) simply highlights the intention of the authors of Chapter 3.2 that the impairment assessment method for the lower extremity is to be different.

(7) Equally, the prescription, by the Guides, of the extremity impairment method for the upper extremity, makes it all the more significant that the whole person impairment method is expressly prescribed for assessing impairment of the lower extremity.

(8) In respect of Mr Masel's submissions concerning rounding, Dr Freckeleton took issue with Mr Masel's construction of s.46C. The Guides (Chapter 2, p.9) state that a final estimated whole person impairment percentage may be rounded to the two nearest values ending in 0 or 5. Section 46C was designed to prevent that type of rounding, and only to permit "rounding" of figures with decimals to the nearest number. Dr Freckelton further pointed out that, in any event, there is a degree of imprecision involved in using the extremity impairment method, which involves a combination exercise from the impairment to the extremity impairment assessment, and hence to the whole person impairment. Thus, either method necessarily involves a degree of mathematical imprecision.

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Conclusion

20 The question raised by this appeal centres on the correct construction of the AMA Guides and, more particularly, on the part of section 3.2 of the Guides, which states that if the patient has several impairments of the same lower extremity part, "the whole-person estimates for the impairments are combined" (using the combined values chart). The effect of s.46(2)(a)(i) of the Act is to require any determination of impairment to be made in accordance with the Guides, and thus to give the Guides, to that extent, the force of law. In construing those Guides two points are important. First, as observed by Nettle J in Gillat v Transport Accident Commission,[2] the rationale of the Guides is " ... to make as objective as possible the process of estimating impairment by reference to sufficient medical and non-medical information to justify the estimate of impairment." Thus the use of the Guides is designed to promote precision, certainty and consistency.

21 The second point is that the Guides have been written, not by statutory draftsmen, but by medical practitioners who are expert specialists in the various fields covered by the Guides. They comprise a document written by medical practitioners for use by medical practitioners. It is true that the Tribunal, and, on appeal, the Court, are the final arbiters of the correct assessment of the impairment of a particular individual. However those decisions are based upon, and informed by, the evidence of expert medical practitioners who are required to base their estimates on the Guides. In that context it is important to bear in the mind the admonition of the Court of Appeal[3] that it is important not to overlay the Guides with legalistic interpretation, for, to do so, would be to render the Guides a legal "minefield" which would be of little utility to doctors and lawyers. Ordinarily, in any area of statutory construction, the plain ordinary meaning of words used by an instrument is preferred. In the context of the Guides, it is, I consider, of paramount importance to be faithful to the plain words used by the text, and to avoid "torturing" those words by a technical and legalistic approach.

22 With those principles in mind, the central starting point in this case must be the plain words used by the Guides. As Dr Freckelton correctly points out, the key sentence in section 3.2 (that if the patient has several impairments of the same extremity part then the whole person estimates for the impairments are combined) is, standing alone, clear, unambiguous, and intelligible. The plain meaning of those words is to require the practitioner (and thus the Tribunal and now the Court) to assess the degree of impairment to an individual, resulting from several impairments of the same lower extremity part, by combining (using the combined values chart) the whole person estimates for each of those impairments. That construction is reinforced by comparing and contrasting it with the methodology expressly prescribed for combining multiple impairments of the upper extremity to obtain the impairment percentage of the whole person (p.65 of the Guides). By contrast to the method prescribed for the lower extremity (p.75), the method specified for the upper extremity is the extremity impairment method of assessment. The express requirement that for the use of different methods of assessment for the two different units of the musculoskeletal system cannot be ignored. It is particularly significant that the authors of the Guides, having selected the extremity impairment method for the upper extremity, have specifically selected a different method, the whole person method, for the lower extremity.

23 The plain construction of the words in question is, I consider, further reinforced by the circumstance, that in each of the tables provided in relation to section 3.2, the primary estimate for each deficit or discrepancy is stated in terms of the whole person impairment. It is not coincidental that the lower extremity impairments are only included in parentheses. Further, with one exception, all of the examples contained in the text in section 3.2 use and apply the whole person impairment method, and not the extremity impairment method (See pp.78, 81, 83). The one exception is to be found in section 3.2(i), that section being entitled "Diagnosis based estimates". The example in that section does use the extremity impairment method, and not the whole person impairment method. I agree with Mr Masel that it is no answer to the point which he makes to suggest, as Dr Freckeleton has, that the injury in the example postulated was one injury, and the impairments were but two manifestations of it. In a number of the other examples provided in the text under section 3.2, the same comment could be made. It is not clear to me why the example given on p.84 in section 3.2(i) only uses the extremity impairment method. However that one example does not contradict the plain words on p.75 of the Guides; nor does it overcome the effect of the other examples contained in the text of section 3.2 in which the whole person impairment method is used, and not the extremity impairment method.

24 Each of the matters to which I have referred above is strong support for the construction contended for by the defendant, namely, that the passage on p.75 of the Guides be given its plain literal meaning. I do not consider that the submissions made by Mr Masel warrant displacing that meaning, and, in effect, ignoring the plain words on p.75, or, even worse, rewriting them. The fact that the lower extremity impairment is (with one exception) also set out in each table in section 3.2, in parentheses, is susceptible of a single explanation. The Guides are intended to be used by a wide audience. They are designed, as Dr Freckelton stated, to be "user friendly". In that context, the inclusion of the lower extremity impairment in parentheses in round brackets is, I consider, part of the process of assisting in the understanding of the Guide, and providing additional information to the reader. In a similar manner, a number of the tables in section 3.2 (such as tables 39, 42, 43, 44, 45 and 55 to 60) also provide, in square brackets, the "specific part impairment" percentage. It is not suggested that that process be used, either as the method of the assessment, or as an alternative method. It is clear that the provision of information in parentheses is designed simply to provide extra information, and not to form part of the process of impairment assessment in section 3.2.

25 I also consider that table 36, relating to the gait impairment assessment, works neither in favour of, nor against, the construction contended for by the defendant. The Guides expressly provide that gait derangement is a stand-alone assessment, and is not to be combined with any impairment. That is, no question of combining several impairments arises. Accordingly the fact that the impairment is expressed as a whole person impairment is plainly neutral in determining the question raised by this appeal.

26 Mr Masel submitted that if the passage on p.75, requiring the combination of whole person estimates, is to be given its literal meaning, then the sentence following it is otiose. I reject that submission. The first sentence deals with the combination of impairments to the same lower extremity part. The second sentence relates to a different topic. It deals with the combination of impairments to both lower extremity parts. It is clearly intended out of an abundance of caution, to make it plain that the whole person method is confined to each of the lower extremities specifically, and not collectively. Thus understood, the second sentence is neither superfluous, nor does it reflect upon or affect the plain construction of the first sentence.

27 The next submission made by Mr Masel is that examples can be postulated whereby the application of the whole person impairment method produces an impairment greater than 40 percent of the whole person, which is excess of the maximum prescribed by the Guide. That may well be so. Nonetheless the Guides make it clear that the maximum whole body impairment which might be assessed in relation to the lower extremity is 40 percent. That limit, or ceiling, is not only expressly stated in a number of parts of section 3.2, but is necessarily implicit from the opening section at page 75, which states that the multiplication of a lower extremity impairment by 0.4 yields the whole person impairment percent. The fact that on some occasions that maximum might, in theory, be exceeded, is not to the point. In those instances, the maximum whole body impairment (40 percent) would be applied, so that the combined whole body impairment of the lower extremity would not exceed that limit.

28 Mr Masel also relied on other parts of the Guides (Chapter 4, the Peripheral Nervous System, and Chapter 6, the Cardiovascular System) as evidence of a policy of the Guides to apply the extremity impairment method. However the simple answer to that proposition is that those sections stand in clear contradistinction to the plain words in section 3.2, which specify the use of the whole person impairment method in respect of the lower extremity. The use of the extremity impairment method in Chapters 4 and 6, as contrasted with the express stipulation for the use of the whole person method in section 3.2 for the lower extremity, only serves to highlight the point that a different methodology be adopted in respect of lower extremity impairment.

29 Finally, I do not consider that Mr Masel's submission concerning "rounding" is sound. It is clear that s.46C was introduced to overcome the effect of the passage in Chapter 2 of the Guides (p.9) which permit "rounding" of estimates to the nearest values ending in 0 or 5. Before 2003, the Court of Appeal had construed the Guides as reposing a discretion in the hands of the assessor, and the Tribunal, to round a figure to the nearest 0 or 5.[4] Such a rounding could produce unintended effects, particularly in respect of an assessment of an impairment for the purposes of determining whether a particular person had suffered a "serious injury" under Part 6 of the Act. Thus s.46C was introduced to, as it were, repeal that part of the Guides. It is, I consider, stretching s.46C impermissibly to describe it as evidencing a broad statutory policy against "rounding" per se. Further, I agree with Dr Freckelton that, whether the extremity impairment method or the whole person impairment method is implemented, there is introduced a degree of inexactitude. That element is inherent, particularly in the use of the combined values tables. However, whether the degree of inexactitude is greater by using the whole person method than by using the extremity impairment method, that consideration does not displace the plain words of section 3.2.

30 For those reasons I consider that the plain words of section 3.2 must prevail, so that the correct construction of section 3.2 is that it not only permits, but requires that, if the patient has several impairments of the same lower extremity part, the whole person estimates for the impairment are to be combined by reference to the combined values chart at p.322 of the Guides. I do not consider that any matters argued by Mr Masel, either alone or in combination, displace the ordinary meaning which is to be given to the passage in question on p.75 of the Guides. My conclusion is reinforced by the principles which I referred to earlier in these reasons, namely, the principles which emphasise the importance of avoiding an overly legalistic or technical construction of plain words used in the Guides. None of the submissions made on behalf of the plaintiff can alter or detract from the plain words (on p.75) at the commencement of section 3.2, namely that:

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Those words are plain and unambiguous. They mean what they say.

31 Mr Masel, as an alternative, submitted that section 3.2 of the Guides provides the decision-maker with a choice in assessing lower extremity impairment. The decision-maker may choose between applying the extremity impairment method or applying the whole person method. Mr Masel submitted that in the present case the senior member made a choice between the two methods based on an irrelevant and erroneous consideration, namely, that application of either method would produce the same result. Mr Masel further contended that in this case, and indeed in any case, the "overwhelmingly correct or preferable" decision would be to use the extremity impairment method, and not the whole person impairment method.

32 Mr Masel's alternative proposition was, at least implicitly, a recognition that, whatever arguments he might mount, nonetheless the clear words on p.75 of section 3.2 of the Guides remain, and expressly mandate the application of the whole person impairment method to the assessment of a combination of lower extremity impairments. Whatever arguments might be made against the application of the whole person method, nonetheless those words remain, and cannot be wished away. Thus the plaintiff was forced to rely, at least as an alternative, on the secondary proposition put by Mr Masel.

33 For the reasons I have already advanced, I do not consider that, on the correct construction, the Guides do provide any "choice" as to the method of assessment of impairment in respect of a combination of lower extremity impairments. First, the words of section 3.2 are clear and unambiguous. They require the application of the whole person method. Secondly, the concept of the assessor having a "choice" between alternative methods would be quite alien to the clear philosophy of the Guides, namely, to produce consistent and precise results. If the decision-maker were, in each case confronted with a choice, then, a fortiori, each decision would be contentious. Mr Masel submitted that the "overwhelmingly correct or preferable decision" was to use the extremity impairment method. However, such a proposition was really a reversion by Mr Masel to his first major submission, namely, that on the proper construction of the Guides, the extremity impairment method is to be applied when combining multiple lower extremity impairments. For the reasons which I have already canvassed at length, I reject that proposition.

34 For those reasons I consider that the correct construction of the Guides is that contended for by the defendant. It is true that, in paragraph 18 of her reasons, the Tribunal member appears to have misstated the applicable test. However, and notwithstanding that, the senior member clearly implemented the correct test, namely, the whole person impairment test, in assessing the impairment to the defendant's lower left extremity. Accordingly, she came to the correct conclusion by applying the correct test.

35 It follows that the plaintiff's appeal must be dismissed. As I have already noted the plaintiff has agreed to pay the defendant's solicitor-client costs. Subject to hearing from counsel I therefore propose to make the following orders:

At a glance

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Judgment (30 paragraphs)

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Legislation Cited (16)