Plaintiff v Defendants

1 On 26 May 2009, the plaintiff struck his left foot on a bluestone rock ledge which formed part of a garden bed wall at the premises of the fourth defendant, Waverley RSL Sub Branch Inc ('RSL'). The third toe became infected and, after a loss of circulation, it was amputated. Unfortunately, the infection spread, necessitating the amputation of the fourth and fifth toes as well as a lateral part of the left foot.

2 The operations undertaken on the plaintiff's left foot involved the partial amputation of the third, fourth and fifth metatarsals. The third metatarsal was amputated at the level of the neck and the fourth and fifth metatarsals were amputated at the mid-shaft level.

3 For the purposes of making a claim for non-economic loss in relation to the injury, the plaintiff requested RSL to waive the requirement for a certificate of assessment of the degree of impairment under pt VBA of the Wrongs Act 1958 ('Act').[1] RSL refused to do so. The plaintiff then submitted a certificate of assessment prepared by an orthopaedic surgeon, Mr Peter Kudelka, in accordance with the fourth edition of the American Medical Association's Guides to the Evaluation of Permanent Impairment ('Guides'). The certificate stated that the degree of whole person impairment resulting from the plaintiff's injury exceeded the 5% threshold imposed by the Act.

4 RSL did not accept Mr Kudelka's certificate of assessment. Pursuant to s 28LWE of the Act, RSL referred the following medical question to a medical panel comprising the first, second and third defendants ('Medical Panel'):

Does the degree of impairment resulting from the injury to the claimant alleged in the claim satisfy the threshold level?

5 On 1 August 2012, the Medical Panel answered the medical question by way of the following determination under s 28LZG(2)(a) of the Act ('Determination'):

The panel determined that the degree of whole person impairment resulting from the injury alleged in the claim does not satisfy the threshold level.

6 The effect of the Determination was that the plaintiff was precluded from bringing a claim for damages for non-economic loss under the Act.

7 The plaintiff has sought judicial review of the Determination under O 56 of the Supreme Court (General Civil Procedure) Rules 2005 ('Rules') on the basis that the Medical Panel made a jurisdictional error by misconstruing the Guides.

8 The first, second and third defendants did not participate in the proceeding, in accordance with R v Australian Broadcasting Tribunal; Ex parte Hardiman.[2]

9 The central issue in this proceeding is whether the item 'Other metatarsals' in Table 63 of the Guides is confined to an amputation of the whole of a metatarsal or whether it extends to a partial amputation of a metatarsal.

10 For the reasons that follow, I have concluded that the Medical Panel made a jurisdictional error in its interpretation of the item 'Other metatarsals', that the Determination should be set aside, and that the medical question should be remitted to the Medical Panel for redetermination.

Relevant provisions of the Wrongs Act 1958

11 Section 28LE of the Act precludes the recovery of damages for non-economic loss in respect of an injury caused to a person by the fault of another person, unless the person injured 'has suffered significant injury.'

12 The term 'significant injury' is defined in s 28LF(1) of the Act. For present purposes, it means a determination by a medical panel 'that the degree of impairment of the whole person resulting from the injury satisfies the threshold level'.[3]

13 The 'threshold level' for a physical injury is a permanent impairment of more than 5% of the whole person.[4]

14 Section 28LZG of the Act states the following in relation to a determination by a medical panel of a medical question that is referred to it:

(1) A Medical Panel must not determine the degree of impairment of a person unless it has made an assessment of the degree of impairment in accordance with Division 3.

(2) After making the assessment, the Medical Panel must give the claimant and the respondent -

(a) its determination of the medical question in accordance with subsection (4);

...

(4) If, after making the assessment, the Medical Panel determines the degree of impairment, the determination of the medical question must state whether the degree of impairment resulting from the injury satisfies the threshold level but must not state the specific degree of impairment. ...

15 The medical panel's assessment must be in accordance with the Guides.[5]

16 A determination by a medical panel is conclusive and no appeal lies from the determination.[6] However, a determination is amenable to judicial review.

The AMA Guides to the Evaluation of Permanent Impairment

17 The parties agreed that the only section of the Guides which is relevant to the dispute is s 3.2h of ch 3. That section provides as follows:

3.2h Amputations

Impairments of the lower extremity due to amputations are estimated according to Table 63 (below).

Whole-person (lower extremity) [foot] impairment (%)

18 The Medical Panel's reasons for its Determination relevantly stated:

The Panel concluded that the claimant is suffering from persisting dysfunction of the left forefoot, as a consequence of amputations of the third, fourth and fifth toes and partial amputations of the third fourth and fifth metatarsals of the left foot. The Panel concluded that the claimant's physical condition has stabilised.

The Panel conducted an impairment assessment according to the methods prescribed in the [Guides], as required by Section 28LH of the Wrongs Act 1958.

The Panel assessed the left foot in accordance with Section 3.2 of Chapter Three of the Guides.

The Panel considered that the most appropriate method of assessment of the claimant's left foot impairment was by reference to amputations pursuant to Section 3.2h of Chapter Three.

The Panel assessed the appropriate whole person impairment for amputations of three lesser toes at the metatarso-phalangeal joint and for the partial amputation of other metatarsals.

...

The Panel followed the required procedure for combining of the whole person impairments in accordance with the instructions in [the] Guides and concluded that the degree of whole person impairment resulting from the injury to the claimant alleged in the claim is not more than 5% and is permanent.

19 The Panel observed that there was a well-healed transverse scar on the plaintiff's left foot. Neither party sought to rely on or challenge the Panel's assessment of the scar.

Having found:

(a) that the plaintiff suffered amputation of the third, fourth and fifth toes of the left foot together with amputations of the third, fourth and fifth metatarsals of the left foot; and

(b) that the assessment of impairment was to be made pursuant to Section 3.2h of Chapter Three of the [Guides], which in turn directed [that] assessments were to be made in accordance with Table 63 of Chapter Three of the Guides;

the Medical Panel fell into jurisdictional error when it failed to ascribe the values of degree of impairment to each and all of the amputations of the three toes together with the values of the degree of impairment for each and all of the amputations of the three metatarsals as required by Table 63 of the Guides so as to lead to a Whole Person Impairment of six per cent or more.

Principles relating to judicial review of a decision of a medical panel

21 In HJ Heinz Company Australia Ltd v Kotzman,[7] I summarised the general principles for interpreting the Guides in the context of the Accident Compensation Act 1985. Those principles are equally applicable to the Act. In the context of the Act, the principles may be restated as follows.

22 The interpretation of the Guides is a question of law.[8] The determination of a degree of impairment is a question of fact.[9]

23 It has been said that to the extent that an Act requires determinations of impairment to be made in accordance with the Guides, the Guides has the force of law[10] and is a legislative document.[11]

24 However, the Guides is, as its title suggests, a guide.[12] It was written by expert medical practitioners and not by statutory draftspeople, and should not be overlaid with legalistic - or a lawyer's precise - interpretation.[13] It is of paramount importance to be faithful to the Guides' plain words.[14] The Guides should not be interpreted as if it were a statute.[15]

25 The use of the Guides is designed to promote precision, certainty and consistency.[16] Its purpose is to make as objective as possible the process of estimating impairment by reference to sufficient medical and non-medical information to justify the estimate.[17]

26 If there is any inconsistency between the Act and the Guides, the Act will prevail. If there is any inconsistency between the text in the Guides and an example which seeks to illustrate what is said in the text, the text will prevail.[18]

27 The meaning of the phrase 'in accordance with' depends on the context. It is generally taken to mean 'in conformity with', although in some contexts, strict compliance is not required.[19]

28 In order for a medical panel to assess impairment 'in accordance with' the Guides as required by ss 28LZG(1) and 28LH(1)(a) of the Act, it must act in conformity with the Guides. This means that it must apply the methodologies, processes and criteria set out in the Guides for the relevant condition, body part or system and adhere to any minimum or maximum values set out in the Guides for that condition, body part or system. Where the Guides contains a table that is applicable to a condition, body part or system, an assessment based on that table will not be in accordance with the Guides unless the categories, descriptions, criteria, ranges, adjustments and other elements of the table that are relevant to the condition, body part or system are adhered to and complied with.

29 Once a particular methodology or table is selected, its requirements, including any limitations, must be applied in the manner set out by the Guides even if the outcome may appear suboptimal. This is so because the role conferred by the Act on a medical panel is not to arrive at a correct or fair assessment, but rather to arrive at an assessment that is the product of the application of the Guides.

30 In Heinz, I stated the following in relation to an application for judicial review of a determination of a medical panel on the ground of jurisdictional error:[20]

A medical panel is amenable to judicial review.[21] Its opinion can be quashed if it makes a jurisdictional error.[22] It does not commit a jurisdictional error merely because it employs illogical reasoning.[23] However, if its reasoning demonstrates that it asked itself the wrong question, took into account irrelevant considerations or failed to take into account relevant considerations, then it commits a jurisdictional error.[24] What factors a medical panel is bound to consider in forming its opinion is determined by construction of the statute conferring its jurisdiction ...[25]

31 In the present case, it was common ground that, if on its proper construction the item 'Other metatarsals' in Table 63 includes a partial amputation of a metatarsal, then the Medical Panel made a jurisdictional error. It was also common ground that the error is apparent on the face of the record of the Medical Panel's decision[26] and that this Court could grant relief under O 56 of the Rules.

32 Both parties accepted that the amputation of a lesser toe at the metatarso-phangeal ('MTP') joint is to be assessed at 1% whole person impairment. Similarly, the amputation of a metatarsal, other than the first metatarsal, is to be assessed at 2% whole person impairment. The parties were in agreement that Table 63 operates in such a way that, when both a metatarsal (other than the first metatarsal) and the corresponding toe are amputated, a value of 2% whole person impairment should be ascribed to that amputation.

33 The dispute is confined to whether the item 'Other metatarsals' in Table 63 includes a partial amputation of a metatarsal. The plaintiff submitted that 'Other metatarsals' refers to the amputation of a metatarsal at any point along the shaft of that bone. A partial amputation of a metatarsal would, on this interpretation, be assessed at 2% whole person impairment. Given the Medical Panel's finding that the plaintiff had undergone partial amputations of the third, fourth and fifth metatarsals, this interpretation would produce an assessment of 6% whole person impairment.

34 Counsel for the plaintiff identified aspects of Table 63 which were said to be indicia in favour of the plaintiff's argument. It was submitted that Table 63 provides for specific measurements in some instances, which was said to suggest that the length of the bone that was amputated was relevant to those items. The items 'Above knee' and 'Below knee' are examples of this, since they provide distances and measurements. Since the item 'Other metatarsals' is not qualified by any reference to length, it was contended that the term ought to be read to include an amputation at any point along the metatarsal.

35 It was further submitted that in some instances Table 63 refers to amputation at a particular point, such as the item 'Knee disarticulation', or at a particular joint, such as the item 'All toes at metatarso-phangeal (MTP) joint'. There is no item in Table 63 which describes the metarsocuneiform joint, the joint at the opposite end of each metatarsal from the MTP joint. It was submitted on behalf of the plaintiff that this suggests that the reference to a metatarsal includes a reference to a partial amputation of a metatarsal. If Table 63 was intended to refer only to amputations of metatarsals in their entirety, so it was said, the clearest way in which this could have been done would be to refer specifically to the joint at the commencement of the metatarsal bone.

36 The plaintiff also relied on the fact that Table 63 allows for an assessment of 16% whole person impairment in respect of a 'Transmetatarsal' amputation, being an amputation of all metatarsals across the foot. In the plaintiff's submission, a transmetatarsal amputation includes the partial amputation of all five metatarsals.

37 RSL submitted that the term 'Other metatarsals' only refers to complete amputations of metatarsals other than the first metatarsal. On this basis, the plaintiff, who did not have any metatarsal completely amputated, would only be entitled to an assessment of 1% whole body impairment for each of the three lesser toes amputated. This interpretation would produce an assessment of 3% whole person impairment.

38 RSL submitted that there are indicia in Table 63 to demonstrate that the item 'Other metatarsals' contemplates only complete amputations. It was said that Table 63 comprises a series of reference points. The first relevant reference point is the MTP joint and the next relevant reference point is the metarsocuneiform joint. According to RSL, this must mean that the item 'Other metatarsals' refers to the entirety of those bones, otherwise there would be no reference point with respect to the length of the foot until the item 'Midfoot'. It also followed, so it was said, that a 'Transmetatarsal' amputation necessarily involves the complete removal of all five metatarsals.

39 In my opinion, on its proper construction, the item 'Other metatarsals' in Table 63 includes a partial amputation of a metatarsal. In reaching this conclusion, I have substantially adopted the plaintiff's submissions.

40 Table 63 is a logical and self-contained provision of the Guides. It lists impairments resulting from amputations in descending positions along the lower extremity. The higher the point at which an amputation takes place along the lower extremity, the greater is the percentage of the whole person impairment. Conversely, the lower the point at which an amputation takes place, the smaller is the percentage of whole person impairment. The highest whole person impairment for the leg is 40% for an amputation at the proximal point above the knee. The lowest whole person impairment is 1% for an amputation of a lesser toe at the MTP joint.

41 Below the item 'Other metatarsals' in Table 63 are four items which refer to particular joints. Where an amputation occurs at one of these joints, there can be no doubt that all of the bones below that joint are excised. In my opinion, the four references to particular joints are a strong indication that, where Table 63 intends for an item to require an entire bone to be amputated, it unambiguously provides for this. If the Guides had intended for the 2% whole person impairment for an amputation of a metatarsal (other than the first metatarsal) to be confined to an amputation of the whole metatarsal, then it would be expected that it would have specified the metarsocuneiform joint. The fact that Table 63 does not do so but simply refers to 'Other metatarsals' strongly suggests that this item includes an amputation anywhere along a metatarsal bone.

42 The items dealing with amputations above and below the knee are another indication that Table 63 uses language to identify particular sites on the lower extremity when it is intended that an item be confined to a particular part of a bone. The items 'Less than 3 inches' and '3 inches or more' below the knee identify specific positions. So do the items 'Proximal', 'Midthigh' and 'Distal' above the knee. These items are to be contrasted with the item 'Other metatarsals' which is capable of applying to any point along a metatarsal.

43 The item 'Midfoot', like the item 'Other metatarsals', does not identify a specific site in a bone structure and is capable of applying to any point of the Midfoot.

44 It follows that Table 63 deliberately uses contrasting language for items that are intended to specify a particular site and for items that are intended to include any point along a particular bone structure. As the item 'Other metatarsals' does not identify a particular site, it is wide enough to include an amputation at any point of a metatarsal.

45 RSL's submissions cannot be accepted because they would require this Court to ignore the strong indicators in Table 63 that the item 'Other metatarsals' is not intended to be confined to an amputation of an entire metatarsal. I reject RSL's submission that Table 63 contains any contrary indications.

46 It follows that, properly construed, the Guides provides for a 2% whole person impairment for a partial amputation of a metatarsal other than the first metatarsal. As three of the plaintiff's metatarsals were partially amputated, the only assessment that the Medical Panel could have made if it had properly construed and applied the Guides in respect of those amputations is a whole person impairment of 6%.

47 The fact that the Medical Panel determined that the plaintiff's whole person impairment did not satisfy the threshold level of 5% means that the Medical Panel misconstrued and misapplied the Guides.

48 This in turn means that the Medical Panel made a jurisdictional error because it failed to assess the plaintiff's impairment 'in accordance with' the Guides as required by ss 28LZG(1) and 28LH(1)(a) of the Act. It follows that the Determination must be set aside.

49 Although the effect of these reasons is that the plaintiff satisfies the threshold level, it would be inappropriate for this Court to substitute its own determination for the Medical Panel's Determination. The correct procedure is for the medical question to be remitted to the Medical Panel for redetermination in accordance with these reasons. That is so, notwithstanding that these reasons permit of only one answer.

50 I propose to make an order granting the application for review, setting aside the Determination and remitting the medical question to the Medical Panel for redetermination according to law.

51 I will hear from the parties on the precise form of the order to be made by this Court and on the question of costs.

[2] [1980] HCA 13; (1980) 144 CLR 13, 35-6.

[4] See definitions of 'impairment' and 'threshold level' in s 28LB of the Act.

[7] [2009] VSC 311 (31 July 2009) ('Heinz').

[8] Barnett v Transport Accident Commission [1999] VSC 484; (1999) 15 VAR 414, 429-30 [30]; aff'd and reasons adopted in Barnett v Transport Accident Commission [2001] VSCA 12; (2001) 34 MVR 26.

[9] Gillat v Transport Accident Commission [2003] VSC 15; (2003) 38 MVR 463, 469 [27] ('Gillat').

[10] Transport Accident Commission v Elworthy [2007] VSC 48 (7 March 2007) [20] ('Elworthy').

[11] State Trustees Ltd v Transport Accident Commission [2002] VSC 428; (2002) 6 VR 359, 365 [25].

[12] Lake v Transport Accident Commission [1998] 1 VR 616, 626 ('Lake'); Connelly v MMI Workers Compensation (Vic) Ltd [2003] VSCA 60; (2003) 6 VR 555, 557 [9] ('Connelly').

[13] Lake [1998] 1 VR 616, 626; Connelly [2003] VSCA 60; (2003) 6 VR 555, 557-8 [9]; Elworthy [2007] VSC 48 (7 March 2007) [21].

[14] Elworthy [2007] VSC 48 (7 March 2007) [21].

[15] Martinez v Dynamic Engineering Construction Co Pty Ltd [2005] VSC 204 (9 June 2005) [10].

[16] Elworthy [2007] VSC 48 (7 March 2007) [20].

[17] Gillat [2003] VSC 15; (2003) 38 MVR 463, 473 [47].

[18] Mountain Pine Furniture Pty Ltd v Taylor [2007] VSCA 146; (2007) 16 VR 659, 669 [33].

[19] See, eg, Waycott v Koffler (1983) 25 NTR 1, 8; Hutchins v Commissioner of Taxation (1987) 14 FCR 510, 529; Australian Capital Television Pty Ltd v Minister for Transport and Communications (1989) 86 ALR 119, 1478; Walker v Wilson [1991] HCA 8; (1991) 172 CLR 195, 207-8; Re La [1993] FCA 62; (1993) 41 FCR 151, 158.

[20] See Heinz [2009] VSC 311 (31 July 2009) [38].

[21] Masters v McCubbery [1995] VICSC 209; [1996] 1 VR 635 ('Masters').

[22] Masters [1995] VICSC 209; [1996] 1 VR 635.

[23] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 355-6; Roads Corporation v Dacakis [1995] VicRp 70; [1995] 2 VR 508, 517-20; Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220, 257 [146]; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, 626 [40], 627-8 [44]-[45]; Willcocks v Comcare [2001] FCA 1315; (2001) 66 ALD 119, 120-1 [6]; Berbers v Transport Accident Commission [2002] VSC 211; (2002) 19 VAR 201, 209-12 [28]-[34]; Bell Corp Victoria Pty Ltd v Stephenson [2003] VSC 255; (2003) 20 VAR 280, 294 [34]; Lucas v Transport Accident Commission [2003] VSC 97 (31 March 2003) [10].

[24] Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 179.

[25] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 39.

[26] In accordance with s 10 of the Administrative Law Act 1978, the record includes the Medical Panel's reasons for the Determination.