Plaintiff v Defendants

Plaintiff v Defendants - [2014] VSC 347 - VSC 2014 case summary — Zoe

[62]

The panel concluded that the claimant is suffering from unresolved exacerbation of diplopia in the setting of pre-existing, long-standing strabismus, surgically treated.

The Panel also concluded that for the purposes of impairment assessment, the claimant's current physical condition is stable.

The Panel conducted an impairment assessment using the American Medical Association's Guides to the Evaluation of Permanent Impairment (4th Edition, 3rd Printing) ('the Guides') as required by Section 28LH of the Wrongs Act 1958 ("the Act").

The Panel assessed the claimant's left eye in accordance with Section 8.3 of Chapter Eight of the Guides.

The Panel assessed the claimant's diplopia and concluded that the most appropriate method to assess impairment was by assessment of Abnormal Ocular Motility and Binocular Diplopia pursuant to Section 8.3 of the Guides. The Panel assessed the left eye impairment.

The Panel concluded that it was unnecessary to determine whether there was any additional impairment when assessed in accordance with the Guides, in order to answer the medical question.

In making an assessment of impairment, the Panel took into account the claimant's history and referral material to determine if there is any impairment that the Panel considers is from unrelated causes or injuries and which the Panel ought to disregard in accordance with Section 28LL(3) of the Act.

The Panel concluded, on the basis of the information available, that there is evidence of impairment of the left eye arising from the claimant's unrelated pre-existing diplopia, and which is playing a part in the Claimant's current impairment and which ought to be disregarded pursuant to Section 28LL(3) of the Act.

The Panel considered that it has sufficient information to enable the Panel to estimate the range of the claimant's pre-existing impairment of the left eye, in accordance with the Guides. The Panel therefore estimated the range of the claimant's pre-existing impairment of the left eye.

The Panel disregarded that part of the Claimant's impairment which the Panel considers arises from the Claimant's pre-existing left eye condition, in accordance with Section 28LL(3) of the Act and concluded that the degree of whole person impairment resulting from the physical injury to the claimant alleged in the claim is more than 5% and is permanent.

[101]

In order for a medical panel to assess impairment 'in accordance with the [Guides]' as required by s 91 of the AC 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.

Some provisions of the Guides, including some tables, provide alternative methodologies or set out ranges, and require the exercise of professional judgment in selecting the most appropriate methodology or in determining where in the range the relevant condition or body part falls. However, the Guides does not permit the exercise of professional judgment at large, unconstrained by the specific requirements of each methodology or table that it sets out. 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 sub-optimal. This is so because the role conferred by the AC Act on a 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.

The Guides itself makes it clear that the protocols and methodologies it sets out are intended to be standardised processes which produce similar outcomes irrespective of who conducts the assessment. In particular, the statement in s 1.2 of the Guides which I have set out in [11] highlights that in order for an assessment to be in accordance with the Guides, the Panel must follow the protocols and tables in the Guides.

[103]

The meaning and effect of the phrase 'impairments from unrelated injuries or causes are to be disregarded' in s 28LL(3) of the Act are important issues in the present case. That phrase also appears in s 91(7) of the Accident Compensation Act 1985 ('AC Act').

In Alcoa Holdings Ltd v Lowthian, J Forrest J considered s 91(7)(c) of the AC Act in the context of the fourth edition of the American Medical Association's Guides to the Evaluation of Permanent Impairment ('Guides') and the two-step procedure in cl 9 of s 3.3f of the Guides for apportioning impairments resulting from unrelated injuries or causes. His Honour set out the following principles:

[T]he statutory command to the Panel is to evaluate only the impairment related to the compensable injury and to put to one side any impairment produced by non-related injuries or causes. Accordingly, if the evidence establishes a pre-existing impairment from an unrelated injury or cause, then the Panel is obliged to consider that impairment and to ensure its estimate of the current impairment disregards any pre-existing impairment (or for that matter, any subsequent impairment flowing from an unrelated injury or cause).

... I do not accept ... that the evaluation of [an] unrelated impairment must be carried out applying the tests laid out in the Guides.

...

The Act ... does not permit any discretionary evaluation. The previous impairment from an unrelated injury or cause must be disregarded. Nor does the Act insist upon the historical information and previously compiled medical data being 'verified as being accurate'. Rather, it obliges the Panel to evaluate the unrelated impairment on the material presented to it.

In engaging in its statutory task the Panel must do the best it can to evaluate the extent to which impairment from the unrelated injury or cause is playing a part in the worker's current impairment. If the evidence enables it to determine the extent of the present impairment and that of the pre-existing impairment, then it must make allowance for the pre-existing impairment.

...

... it may be that the Panel using its collective expertise and knowledge simply attributes an estimate of the compensable injury related impairment after taking into account (and disregarding) the non-related contribution to the impairment.

[131]

The objective, within the scheme of the Act, of requiring the medical panel to give a written statement of reasons for that opinion can therefore be seen to be that persons affected by the opinion automatically be provided with a written statement of reasons adequate to enable a court to see whether the opinion does or does not involve any error of law. There is an obvious benefit in requiring a written statement of reasons for an opinion always to meet that standard. The benefit is that it enables a person whose legal rights are affected by the opinion to obtain from the Supreme Court an order in the nature of certiorari removing the legal effect of the opinion if the medical panel in fact made an error of law in forming the opinion: an error of law in forming the opinion, if made, will appear on the face of the written statement. To require less would be to allow an error of law affecting legal rights to remain unchecked. To require more would be to place a practical burden of cost and time on decision-making by an expert body for no additional legal benefit and no identified systemic gain.

The standard required of a written statement of reasons given by a medical panel under s 68(2) of the Act can therefore be stated as follows. The statement of reasons must explain the actual path of reasoning by which the medical panel in fact arrived at the opinion the medical panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law in the way the medical panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion.

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