Plaintiff v Defendants

1 The plaintiff, Mr La Rosa, alleges that he injured his leg when he slipped and fell on some stairs at a car park at Melbourne Airport. He wishes to recover damages for the injury from the third defendant, Spotless Facility Services Pty Ltd ('Spotless'), which is the entity responsible for managing the car park where the incident occurred. Part VBA of the Wrongs Act 1958 provides that Mr La Rosa is not entitled to recover damages for non-economic loss unless he has suffered a significant injury.

2 The question of whether a person has suffered a significant injury requires an assessment of the degree of impairment resulting from the injury. That question was referred to the first and second defendants (together, 'the panel'). The panel was required to assess Mr La Rosa's degree of impairment in accordance with the American Medical Association's ('AMA') Guides to the Evaluation of Permanent Impairment (4th edition) ('the Guides'). It determined that the degree of whole person impairment resulting from Mr La Rosa's injury did not satisfy the threshold level for significant injury.

3 By way of an originating motion for judicial review, Mr La Rosa seeks an order quashing the panel's determination on the ground that the panel made a jurisdictional error or an error on the face of the record. The grounds relied upon are as follows:

(a) Failing to comply with Section 28LH(1)(a) and 28LZG(1), Wrongs Act 1958 (Vic), and/or failing to properly construe and apply the AMA 4th Edition Guidelines ('AMA Guides'), in particular Chapter 3.2, Sections 3.2g and/or 3.2i, Table 62 and/or 64, in assessing impairment to the Plaintiff's right knee and ankle;

(b) Failing to comply with Section 28LH(1)(a) and 28LZG(1), Wrongs Act 1958 (Vic), and/or failing to properly construe and apply the AMA Guides, in particular Section 3.2g and Table 62, by improperly disregarding that table by reason of the incorrect assumption that Table 62 had no application to the assessment of impairment of the Plaintiff's right knee in the absence of 'direct trauma';

(c) Failing to exercise its statutory function to determine impairment of all potentially compensable injuries including to the right knee, by failing to obtain and consider current x-rays of the Plaintiff's right knee, as was required by Table 62 of the AMA Guides, in order to assess whether there was arthritis impairment;

(d) Failing to take into account relevant considerations, by failing to properly engage with and/or failing to engage in an active intellectual with the medical materials before it which indicated the Plaintiff was suffering laxity of the anterior cruciate ligament and/or the medial cruciate ligament, thereby enlivening the requirement to consider and assess impairment under Table 64 of the AMA Guides.

4 The first and second defendants did not appear at the trial of the proceeding, and will abide by the proceeding's outcome.

5 I have concluded that none of the grounds are made out and the proceeding should be dismissed. My reasons for so concluding are set out below.

B. Part VBA of the Wrongs Act

6 Part VBA of the Wrongs Act imposes thresholds in relation to recovery of damages for non-economic loss. The threshold is imposed by s 28LE:

A person is not entitled to recover damages for non-economic loss in any proceeding in a court in respect of an injury to a person caused by the fault of another person unless the person injured has suffered significant injury.

7 'Injury' is defined in s 28LB of the Wrongs Act to include 'aggravation, acceleration or recurrence of an injury or disease'.

8 'Significant injury' is defined in s 28LF and includes the following:

(1) For the purposes of this Part injury to a person (other than a psychiatric injury) is significant injury if:

(b) a Medical Panel has determined under Division 5 that the degree of impairment of the whole person resulting from the injury satisfies the threshold level; ...

9 Pursuant to s 28LH of the Wrongs Act, the degree of impairment is to be assessed by an approved medical practitioner in accordance with the Guides. In the first instance, Mr La Rosa obtained an assessment from Dr David Kennedy (the contents of which are discussed in further detail below). Pursuant to s 28LN Dr Kennedy provided Mr La Rosa with a certificate of assessment and Mr La Rosa served the certificate on Spotless pursuant to s 28LT.

10 Pursuant to ss 28LW and 28LWE of the Wrongs Act, Spotless referred a medical question in relation to the assessment to a Medical Panel for determination. The phrase 'medical question' is defined in s 28LB as follows:

in relation to a claim for damages, means a question as to whether the degree of impairment resulting from injury to the claimant alleged in the claim satisfies the threshold level.

11 Pursuant to ss 28LH and 28 LZG(1), the panel was required to assess the degree of Mr La Rosa's impairment in accordance with the Guides. Section 28LZH provides for the effect of a determination by the medical panel as follows:

(1) A determination by the Medical Panel under this Division that the degree of impairment resulting from an injury satisfies the threshold level must be accepted by a court in any proceeding on the claim as a determination of significant injury for the purposes of this Part.

(2) A determination by the Medical Panel under this Division that the degree of impairment resulting from an injury does not satisfy the threshold level must be accepted by a court in any proceeding on the claim as a determination that the injury is not significant injury for the purposes of this Part.

12 As previously noted, on 5 April 2018 Mr La Rosa, then aged 64, slipped and fell while ascending stairs in the car park at Melbourne Airport. He reported that he rotated and fell onto the right leg. He noted immediate pain especially around the right ankle. He was unable to weight-bear.

13 Following the incident Mr La Rosa's brother drove him to the Monash Medical Centre. CT and x-ray scans were performed, revealing a right ankle comminuted distal tibial butterfly-type fracture, and a proximal fibular head and neck fracture of the right leg. The fractures required surgery. His right leg was stabilised, and he was transferred to Dandenong Hospital on 7 April 2018.

14 On 8 April 2018 Mr La Rosa underwent surgery at Dandenong Hospital involving an open reduction and internal fixation with a medullary rod and proximal as well as distal screws. His foot was immobilised in a 'moon boot' and he was on crutches for three weeks. He underwent rehabilitation, involving outpatient physiotherapy and hydrotherapy at Dandenong Hospital. He ceased physiotherapy in January 2019.

15 Mr La Rosa did not work for over five months, before gradually returning to work. He used a walking stick to limit weight-bearing on the right leg. He was fully weight-bearing after 12 months. His right ankle pain improved, but his right knee pain persisted.

16 Mr La Rosa had an x-ray performed on 30 June 2018. It revealed 'mild OA [osteoarthritis] ... at all visualised joints'. A further X-ray of his right leg performed on 30 August 2018 showed as follows:

An intramedullary rod traverses the distal tibial fracture. Alignment is unchanged and remains near anatomical. Interval bony bridging callus formation has developed since the x-ray from 09/04/2018. Mildly displaced proximal fibular fracture is also unaltered in position. Radiological union of both fractures remains incomplete. Possible undisplaced distal fibular fracture below the level of the talar dome also noted.

17 Mr La Rosa's last outpatient assessment was in February 2019.

18 On 1 May 2019 Mr La Rosa was examined by Dr David Kennedy. Mr La Rosa reported the following issues to Dr Kennedy:

1. Persistent pain in the right knee joint.

1. A lump in the right lower leg at the front of the leg which can get sore and uncomfortable.

2. He has problems in the right ankle joint with discomfort and a rubbing sensation in the ankle joint.

3. Restricted with kneeling on the right knee joint and he feels quite awkward.

4. Has problems squatting and crouching on the right knee joint because it increases the pain extending down into the right leg.

6. Quite limited with negotiating ladders and stairs.

7. Needs to rest during the day because his right leg gets quite sore.

1. Unable to resume playing golf as he is quite limited swinging the club, pivoting on his right knee joint.
2. When he gets tired he walks with a limp which is noticed by other people.
3. Restricted with his jogging or running and his walking speed and distance is restricted now when compared with his peers.

19 Dr Kennedy's clinical assessment was as follows:

On examining Mr La Rosa's right knee joint, lower leg, ankle and foot there was an anterior linear surgical scar measuring 6cm over the right knee joint. There was stiffness at the extremes of movements of the knee joint and the ankle joint. There was mild to moderate laxity of the anterior cruciate ligament and mild laxity of the medial collateral ligament and knee joint. There was an anterior ankle joint linear surgical scar of 2cm. There was a prominent tender lump over the lower anterior tibia.

There was a minor Grade 4/5 strength deficit against resistance on extension and eversion at the ankle joint and hindfoot but this was quite mild when compared to the left side.

20 Dr Kennedy's opinion was, in summary and as presently relevant, as follows:

Mr La Rosa, as a consequence of an incident on or about 5 April 2018, sustained a significant injury to his right lower extremity with a fracture to the distal tibial shaft in conjunction with injuries to his right knee, ankle and hindfoot. The injuries sustained are consistent with the description of the incident that occurred on 5 April 2018 and there are no obvious discrepancies with his current symptom presentation and the clinical findings on examination.

...

Mr La Rosa needs to undergo further evaluation of his right knee joint as he has clinical signs of problems relating to the intra-articular ligamentous and extraarticular ligamentous structures supporting the right knee joint, with clinical signs of laxity of the anterior cruciate and medial collateral ligaments. Mr La Rosa needs to undergo an MRI scan of his right knee joint and be further evaluated by a consultant knee orthopaedic surgeon to determine whether he requires further evaluation, assessment and treatment.

Mr La Rosa continues to have problems with the function of his right lower extremity at the knee joint and also with his right ankle and hindfoot and after a period of five months off work he has been able to gradually return to fulltime normal occupational duties as the owner and operator of a cleaning business.

Mr La Rosa has some restrictions with certain social, sporting and recreational activities as he has been unable to return to playing golf as he is limited with pivoting and twisting on his right knee joint and he also gets very tired and walks with a limp when walking for any length of time. His walking speed and distance is now reduced when compared to prior to the incident on 5 April 2018.

Mr La Rosa has substantially stabilised in relation to the injuries sustained ... on 5 April 2018.

Mr La Rosa has been assessed in accordance with the criteria and methodology of evaluation, utilising the AMA Guides to the Evaluation of Permanent Impairment - 4th Edition, Chapter 3, Tables 62 and 64.

Mr La Rosa has a permanent whole person impairment of greater than 5%.

21 On 14 May 2019 Dr Kennedy issued a certificate stating that he was satisfied Mr La Rosa's degree of impairment was more than 5 per cent (that is, it met the threshold level). His brief description of the injury assessed was as follows:

Right knee ligamentous injuries

Fractured distal shaft of right tibia

Myofascial injuries (R) lower leg and ankle

22 Chapter 3 of the Guides deals with the musculoskeletal system. The approach to be taken by examiners to the assessment of impairment is discussed in the introduction to Chapter 3:

Examinations for determining musculoskeletal system impairments are based on traditional approaches for recording the medical history and performing the physical examination. The impairment examination and report should not be separated from the generally accepted principles of medical practice or the consensus of medical knowledge and experience.[1]

Evaluating the range of motion of an extremity or of the spine is a valid method of estimating an impairment.

...

Ancillary tests and professional opinions that help delineate the impairing condition may contribute to the musculoskeletal system evaluation. Useful diagnostic procedures may include roentgenographic studies, arthrography, computed tomographic (CT) scans, or magnetic resonance imaging (MRI). Such procedures should be done only if necessary and relevant, and they should not be ordered without consideration of costs as well as benefits.[2]

24 Impairment of the lower extremity is dealt with in Part 3.2 of the Guides. Introductory instructions in Part 3.2 include:

Anatomic, diagnostic, and functional methods are used in evaluating permanent impairments of the lower extremity. While some impairments may be evaluated appropriately by determining the range of motion of the extremity, others are better evaluated by the use of diagnostic categories or according to test criteria.

In general, only one evaluation method should be used to evaluate a specific impairment. ...

This section includes information on using some of the simpler, more reproducible methods of and tests for assessing function. It also includes examples illustrating how the physician selects the best approach to evaluate an impairment. Selecting the optimal approach or combining several methods requires judgment and experience. Also needed is careful testing that produces accurate and consistent results.[3]

25 There are 13 evaluation methods described in separate sections of Part 3.2. For present purposes, the following sections are relevant:

(a) 3.2a Limb Length Discrepancy;

(b) 3.2b Gait Derangement;

(c) 3.2c Muscle Atrophy (Unilateral);

(d) 3.2e Range of Motion;

(e) 3.2g Arthritis;

(f) 3.2i Diagnosis-based Estimates; and

(g) 3.2k Peripheral Nerve Injuries.

26 Section 3.2c, Muscle Atrophy (Unilateral) contains an example, as follows:

A 49 year-old man fractured the right tibia in a fall while mountain climbing. Twelve months later, after the patient completed rehabilitation to a stable status of the injury, examination showed an undisplaced, healed tibial fracture with 2cm of thigh muscle atrophy and 1cm of calf muscle atrophy. Manual muscle testing showed normal strength. The man was estimated to have a 3% whole-person thigh impairment and a 1% whole-person calf impairment (Table 37, p 77), which are combined to give an estimated 4% whole-person impairment (Combined Values Chart, p 322).[4]

27 Section 3.2e, Range of Motion commences with the following statement:

Evaluating permanent impairment of the lower extremity according to its range of motion is a suitable method.[5]

28 Section 3.2e contains Table 41, which deals with knee impairments; Table 42, which deals with ankle motion impairments; and Table 43, which deals with hindfoot impairments.[6]

29 Section 3.2g, Arthritis commences with the following statement:

Range of motion techniques are of limited value for estimating impairment secondary to arthritis. While there are some patients with arthritis for whom loss of motion is the principal impairment, most patients are impaired more by pain and weakness secondary to advanced joint surface degeneration but still can maintain functional ranges of motion.[7]

30 An assessment under section 3.2g involves obtaining roentgenograms (x-rays) to determine the cartilage interval in the effected joint. The level of impairment is based on the measured reduction or loss of cartilage interval with the relevant joint, in this case the right ankle. Instructions to the assessor in section 3.2g include the following:

Roentgenographic grading systems for inflammatory and degenerative arthritis are well established and widely used for treatment and scientific investigation. For most patients, roentgenographic grading is a more objective and valid method for assigning impairment estimates than physical findings, such as the range of motion of joint crepitation. Crepitation is an inconstant finding that depends on factors such as forces on joint surfaces and synovial fluid viscosity.

...

The best roentgenographic indicator of functional impairment for a patient with arthritis is the cartilage interval or joint space. The hallmark of all types of arthritis is thinning of the articular cartilage, and this correlates well with disease progression.[8]

31 The instructions in section 3.2g for the roentgenograms are relatively detailed: the patient is to be 'standing, if possible and 36 inches from the machine, with the beam at the level of and parallel to the joint surface'. There are also slightly different instructions for the knee ('the joint must be in neutral position') and for the ankle (the roentgenogram 'must be taken in a mortise view, but 10° flexion or extension is permissible').[9]

32 Section 3.2g concludes with the following statements:

If there is doubt or controversy about the suitability of a specific patient for this rating method, range of motion techniques may be used.

A patient who has an intra-articular fracture and then rapid onset of arthritis should be evaluated with this section and with Section 3.2i (p 84) on diagnosis-based estimates.[10]

33 Section 3.2g also contains Table 62, which is used to assign a degree of impairment following roentgenographic grading. There is a footnote to the entry for the patellofemoral joint in Table 62, which reads as follows:

In a patient with a history of direct trauma, a complaint of patellofemoral pain, and crepitation on physical examination, but without joint space narrowing on roentgenograms, a 2% whole person or 5% lower-extremity impairment is given.[11]

34 There is also an example under Table 62, as follows:

A 48-year-old dock worker had suffered a tibial fracture 23 years earlier. The fracture healed in 10° varus. The man complained now of knee pain toward the end of the day. An examination in the morning before work showed a nearly full range of motion of the injured knee, 0° through 125°, and mild crepitation. Standing roentgenograms showed the cartilage interval to be 2mm on the medial side of the knee.[12]

35 Section 3.2i, Diagnostic-based Estimates commences as follows:

Some impairment estimates are assigned more appropriately on the basis of a diagnosis than on the basis of findings on physical examination. ...

The evaluating physician must determine whether diagnostic or examination criteria best describe the impairment of a specific patient. The physician, in general, should decide which estimate best describes the situation and should use only one approach for each anatomic part. ...

Fractures in and about joints with degenerative changes should be rated either by using this section and combining ... the rating for arthritic degeneration or by using the range of motion section. It is recommended that the section providing the greater impairment estimate be used.[13]

36 The panel was comprised of two members: Dr Mark Patrick, a rheumatologist and Associate Professor Miron Goldwasser, an orthopaedic surgeon.

37 On 19 March 2019 the panel gave a certificate of determination in which it answered the medical question referred to it as follows:

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

38 The panel stated that it had before it Mr La Rosa's Prescribed Information Form, Dr Kennedy's certificate and report and relevant clinical records from Clayton Road Doctors and Monash Health, as well as information and submissions provided by Mr La Rosa and by Spotless. It also took a history from Mr La Rosa and conducted an examination of him. It did not state whether it had before it any of the medical imaging of Mr La Rosa's leg that had previously been conducted.

39 The panel commenced its reasons by noting the alleged physical injury as described on the Claimant Prescribed Information Form and in Dr Kennedy's report, as follows:

• Injury to the right leg including fracture of the distal tibia shaft surgically treated, with residual, ongoing pain, dysfunction, and limitations;

• Chronic pain.

• Right knee ligamentous injuries and

• Myofascial injuries right lower leg and ankle.

40 The panel outlined the history provided to it by Mr La Rosa, which was broadly in the same terms as summarised earlier in these reasons. The panel summarised Mr La Rosa's then current symptoms as follows:

• He has constant pain over the anterior and lateral aspect of the right knee. This is rated 6-7/10. It is localized without further radiation. It is generally better at night. It is worse with standing, walking, and weight-bearing.

• He also has right ankle soreness generally with walking only.

• The skin of his right shin is sensitive to weather change and in particular the cold.

• The knee pain is worse than the ankle problems related to the right leg.

• He mentioned no give way weakness or further falls.

• There is no colour change or general swelling. The right knee swells after walking.

41 The panel summarised Mr La Rosa's current function as follows:

• He is more limited with standing and weight-bearing. The pain in the right knee and right ankle will limiting [sic] but this can be variable from 15 minutes on certain days to an hour on other days.
• It is worse if he is using equipment for cleaning. He can only steam clean 1-2 rooms at a time now as the ankle will hurt after 30 minutes.
• He cannot use a ladder because of the right knee. It feels unsteady. It hurts.
• He would walk 6 km a day now whereas previously he walked 12 km twice a day as part of his regular exercise routine.

• He uses a handrail for any stairs or steps.

• The ankle hurts if he runs or jogs.

• He was a regular golfer with a handicap of 16 playing at least twice a week. The right knee hurts with his swing now. He is now restricted to golf once a month if that.

• He can drive.

• He is independent with self-care.

• He does what house chores need to be done but he is much slower, and all tasks are more difficult, and this includes the lawns. He does not clean his gutters because he cannot use a ladder. He can vacuum but would not do more than 20-30 minutes at a time.

42 The panel observed that there was no past history of other injury to the right knee or right ankle.

43 In the part of its reasons headed 'Medical Panel Examination and Clinical Findings' the panel made the following relevant clinical findings:

• A non-antalgic gait with preserved heel and toe walk. There was no observed extension lag of the right knee.

• A stance with neutral alignment of both knees.

• Right calf mild wasting was noted. A measured right calf wasting of 2 cm was assessed.

• A 3 cm well healed midline scar over the anterior aspect of the right ankle. A cross bolt scar related to the upper tibia which was also well healed. A barely visible 5 cm scar over the anterior aspect of the right knee.

• Crepitus right knee movement. No right knee effusion was clinically detected.

• Specific tenderness was noted over the right tibial tubercle and the right patella ligament.

• A sensory impairment to light touch and pinprick in the distribution of the infrapatellar branch of the saphenous nerve related to the right knee scar.

• A normal neurological examination in general of the right leg and lower limbs otherwise.

• Equal leg lengths.

• All joint movements assessment were undertaken with a goniometer.

• Right knee movements were flexion 130° with full extension with no fixed flexion deformity.

• The right knee lateral and anteroposterior stability was normal.

• Normal right ankle movements.

• Reduced right subtalar joint eversion of 5°.

44 The panel also set out the 'reported' medical imaging, namely the x-rays and the CT scan set out earlier in these reasons. The panel stated that it considered that 'no additional investigations were required by the Panel to complete its assessment and to answer the medical question'.

The Panel concluded Mr La Rosa is suffering from persisting right knee and ankle dysfunction following a proximal fibular head and neck fracture and a comminuted moderately displaced distal tibial fracture of the right leg, treated surgically, with open reduction and fixation using an intra-medullary rod and screws and a post-operative saphenous nerve injury.

The Panel considers the persisting right knee and ankle, and post-operative nerve injury is stable for the purposes of impairment assessment.

46 The panel stated that it had conducted an impairment assessment in accordance with the Guides, as required by s 28LH of the Wrongs Act. It also stated that it considered that no further information was required from Mr La Rosa's treating practitioners to carry out the assessment.

47 The part of the panel's reasons headed 'Impairment Assessment' was relevantly as follows:

The Panel assessed the appropriate whole person impairment for range of motion of the right hindfoot pursuant to Table 43 of Section 3.2e.

The Panel assessed impairment of the saphenous branch of the femoral nerve pursuant to Table 68 of Section 3.2k and Table 20 of Section 4.4b.

The Panel assessed the impairment for right calf wasting pursuant to Table 37 of Section 3.2c. As the Panel considers this to be to be a duplication of impairment assessed for range of motion, the Panel noted the assessment for the impairment for atrophy only as this was considered the more significant impairment for Mr La Rosa.

The Panel considered that there is no other medical condition or impairment attributable to the claimed physical injury when assessed in accordance with the Guides. The Panel considered there was no 'history of direct trauma' to the right knee indicated in the alleged injury, as described under the footnote to Table 62.

The Panel combined the whole person impairments in accordance with the formula on Page 322 of the Guides.

The Panel considered that there is no evidence of any impairment from an unrelated injury or cause that is playing a part in Mr La Rosa's impairment and which the Panel is obliged to disregard in accordance with Section 28LL(3) of the Act.

The Panel concluded the whole person impairment resulting from the physical injury to Mr La Rosa is permanent but is not more than 5%.[14]

48 The principles to be applied by this Court in an application for judicial review of a certificate of a medical panel under pt VBA of the Wrongs Act are well-established, and in large measure the parties were in agreement as to the relevant principles. It is, of course, trite to observe that the Court is not concerned with the merits of the panel's decision, but whether it made a legal error. Relevantly for present purposes, a medical panel commits a jurisdictional error if it asks itself the wrong question, takes into account an irrelevant consideration, or fails to take into account a relevant consideration.[15] The considerations that a medical panel is bound to take into account are determined by the Wrongs Act.[16] Further, the panel's decision may be reviewed for error of law on the face of the record. Pursuant to s 10 of the Administrative Law Act 1978 ('ALA'), the 'record' is the panel's reasons for its determination.

49 As noted above, the Wrongs Act required the panel to make an assessment of the degree of impairment 'in accordance with' the Guides. In HJ Heinz Co Australia Ltd v Kotzman, Kyrou J held as follows:

The interpretation of the Guides is a question of law. The determination of a level of impairment is a question of fact.

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 and is a legislative document.

However, the Guides is, as its title suggests, a guide. 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. It is of paramount importance to be faithful to the Guides' plain words. The Guides should not be interpreted as if it was a statute.

The use of the Guides is designed to promote precision, certainty and consistency. 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.

... 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.[17]

50 Heinz concerned panel determinations under the Accident Compensation Act 1985 ('AC Act'), but in Saddington v Kotzman Kyrou J held that the same principles apply to panel determinations under the Wrongs Act.[18]

51 Kyrou J described the obligations imposed on a medical panel by the legislation and the Guides as follows:

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.

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 ... 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.[19]

52 In order for Mr La Rosa to obtain an order in the nature of certiorari on any of his grounds, he must demonstrate either that there was error of law on the face of the record or that the panel fell into jurisdictional error. On either approach, given the nature of the grounds of review on which he relies, he must demonstrate that the panel's assessment of his injury departed from the methodology laid down by the Guides to such an extent that it can be properly said of the assessment that it was not 'in accordance with' the Guides.

53 It is also necessary to bear in mind the function of the panel, which was described by the High Court in Wingfoot Australia Partners Pty Ltd v Kocak as follows:

The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.[20]

54 Thus a panel is free to exercise its clinical judgement, and accord a matter whatever weight it sees fit.

55 Bearing in mind that function, the opinions expressed by a panel on medical questions of fact raised by the questions asked of it will necessarily be informed by expertise that the Court does not possess. It follows that the Court cannot approach judicial review in the same way in which it would approach a decision of a non-expert administrative body; and it will be difficult to conclude that an opinion was not open to a medical panel if the opinion was materially informed by that panel's expertise.[21]

56 Although, as noted above, the parties agreed in large measure as to the relevant principles, they diverged, to some extent, in relation to the nature of the process that the panel must undertake when performing its function. In particular, Mr La Rosa submitted that the panel was required to engage in an 'active intellectual process' in considering all the 'fundamental' or 'central' issues that were raised in the referral materials.[22] In contrast, Spotless submitted that the language of 'fundamental issues' had been disapproved of by the Court of Appeal in Chang v Neil.[23]

57 Chang concerned judicial review for error of fact, not judicial review for a failure to take into account a relevant consideration. In the context of review for an error of fact, the Court of Appeal said that the language of 'fundamental error' (used by J Forrest J in Karabinis v Bendrups[24] as the test for determining whether a factual error constitutes jurisdictional error) is 'best avoided'.[25] However, in the context of review for a failure to take into account a relevant consideration, the Court was more circumspect; it referred to Omerasevic v Kotzman,[26] which had introduced the concept of a 'fundamental issue', and observed that in that case Riordon J had incorrectly attributed support for the concept to Ryan v The Grange at Wodonga Pty Ltd.[27] But the Court then pointed out that that case concerned a different alleged error.[28]

58 On my reading of Chang, the Court of Appeal did not express any view on whether or not the language of 'fundamental issue' is to be avoided in the context of a failure to take into account a relevant consideration. That reading is supported by the more recent decision in Sidiqi, where the Court of Appeal stated that 'a medical panel will commit jurisdictional error if it fails to give genuine consideration to ... fundamental issues raised by the facts of the case'.[29] For that proposition it cited Chang. Thus I consider that Mr La Rosa's submission that the panel was required to give genuine consideration to fundamental issues raised by the materials before it was correct.

59 The parties also diverged, to some extent, in relation to the role of the panel's reasons in a matter governed by the Wrongs Act. In particular, they disagreed as to whether, where a panel fails in its reasons to refer expressly to a relevant consideration, that can support an inference that that consideration was not taken into account. This issue is complicated by the fact that, under the Wrongs Act (unlike the AC Act), the panel has no obligation to provide reasons for its decision.[30]

60 In the present case there is nothing to indicate that Mr La Rosa made a request to the panel for a statement of reasons under s 8 of the ALA. Rather, it seems that, consistently with long-standing practice of such panels,[31] the statement of reasons was provided voluntarily by the panel. As counsel for Mr La Rosa accepted, the fact that the panel is not required to provide reasons means that the fact that the panel's reasons do not expressly refer to a matter does not necessarily lead to an inference that the panel failed to have regard to that matter. However, he submitted that in the present case there were features of the panel's reasons that supported an inference that the panel did not engage with certain matters. He also accepted the uncontroversial proposition that Mr La Rosa bears the onus of proof in a matter such as the present.

61 Ultimately, both parties accepted that the Court can consider the content of the panel's reasons in determining whether the panel committed jurisdictional error. Further, as noted above, pursuant to s 10 of the ALA, the panel's reasons form part of the record for the purposes of determining whether there is an error of law on the face of the record.

62 Finally, I note that the Court of Appeal has observed that, where a medical panel states in its reasons that it has carried out an assessment in accordance with the Guides, 'there will be a heavy onus on the challenging party to persuade the reviewing court that this statement should not be taken at face value', and that a court will 'ordinarily be most reluctant to conclude that medical practitioners, who have stated that they followed the assessment methodology laid down by the Guides, did not in fact do so'.[32] That is, of course, correct. However, I do not consider that the Court of Appeal was suggesting that the recitation of such a statement will insulate a panel determination from review. It will always be for the court conducting the judicial review to determine whether, considering the reasons as a whole, the panel has carried out its assessment in accordance with the Guides.

G. Grounds (a) and (b): failing to properly construe and apply the Guides

63 Grounds (a) and (b) each allege that the panel failed to comply with ss 28LH(1)(a) and 28LZG(1) of the Wrongs Act and/or failed to properly construe and apply the Guides. Ground (a) was described by counsel for Mr La Rosa as an 'umbrella ground', whereas ground (b) is more specific and focuses on the panel's reference to the footnote to Table 62 as the basis for identifying error. It is, however, convenient to deal with these two grounds together. Each ground requires consideration of the panel's reasons to ascertain whether it failed to properly construe and apply the Guides in assessing impairment to Mr La Rosa's right knee and ankle; and each alleges error in relation to section 3.2g and Table 62 of the Guides. In addition, ground (a) alleges error in relation to section 3.2i and Table 64 of the Guides.

(1) The parties' submissions concerning grounds (a) and (b)

64 Mr La Rosa submitted that the panel erred by failing to properly construe and apply sections 3.2g and 3.2i, and Tables 62 and 64, to the assessment of impairment of both his right knee and his right ankle. He submitted that, other than the 'bare reference' to the lack of a 'history of direct trauma' to the right knee, nothing in the panel's reasons indicates that the panel engaged in any meaningful consideration of the application of either section 3.2g or Table 62 to the right knee and the right ankle, including whether it turned its mind to whether the development of arthritis post-accident in either body part was potentially compensable (and thus ought to be assessed in accordance with that table). He observed that the instructions in the Guides state that 'a patient who has an intra-articular fracture and then rapid onset of arthritis should be evaluated with this section and with Section 3.2i (p.84) on diagnosis-based estimates'.[33] He submitted that the materials before the panel demonstrated that there was 'rapid onset arthritis' between April and August 2018, such that the panel was required to consider and apply Tables 62 and 64 to its assessment of impairment of the right ankle. In not doing so, he submitted, the panel erred.

65 In contrast, Spotless submitted that the panel had not erred in the manner alleged. The panel expressly stated that it had carried out its impairment assessment in accordance with the Guides and Spotless submitted that the matters raised by the plaintiff did not provide any basis for concluding that the panel had not done so. It submitted that, when the panel referred to there being no history of direct trauma to the right knee indicated in the plaintiff's fall, the panel was explaining why it had not applied the footnote to Table 62, and not Table 62 itself.

66 In relation to Table 64, Spotless submitted that the plaintiff's distal tibial fracture had healed in near anatomical alignment, thus there was no malalignment which would give an impairment rating when assessed under Table 64.

67 In addition, under cover of ground (a) Mr La Rosa submitted that the panel failed to assess the range of motion in relation to his right knee, in accordance with Table 41, which it was required to do. He pointed out that there was no express reference to Table 41 in the reasons.

68 In contrast, Spotless contended that, properly understood, the panel's reasons revealed that the panel had decided that there was no rateable knee range of motion impairment under Table 41. In those circumstances, the panel determined that the appropriate method to measure the plaintiff's impairment was to use section 3.2c for muscle atrophy, which did derive an impairment rating having regard to the panel's examination finding that there was 2cm of right calf wasting. This was reflected in the panel's statement that calf wasting was a duplication of impairment assessed for range of motion, and thus it had noted the assessment for muscle atrophy only, because this was the more significant impairment for Mr La Rosa. Spotless contended that the panel's approach was in accordance with the example under section 3.2c of the Guides in which the impairment of a man with an undisplaced healed tibial fracture was rated based on muscle atrophy.[34]

69 In response, Mr La Rosa submitted that the panel's assessment of 'muscle atrophy' of the right calf was compared to the assessment of range of motion for the right hindfoot (not the right knee).

70 It is appropriate to commence consideration of grounds (a) and (b) by explaining my conclusions about how the panel approached its task and how its assessment is reflected in its reasons.

71 While the panel's reasons are not expressed with perfect clarity, I consider that the panel's reasons read as a whole reveal that, as a general proposition, it undertook the following process in recording its reasons for its assessment of Mr La Rosa's injury:

(a) in the early parts of its reasons, the panel turned its mind to the various issues that may potentially require assessment pursuant to the Guides;

(b) the panel determined that some of those potential issues would result in a finding of impairment under one of the sections or tables in the Guides, but others would not;

(c) for those matters that it had determined would not result in a finding of impairment under one of the sections or tables, the panel did not then set out or deal with that matter in the Impairment Assessment part of its reasons;

(d) however, if the panel had determined that an issue would result in a finding of impairment under one of the sections or tables, then it set out that matter and its assessment in the Impairment Assessment part of its reasons.

(a) In the Examination and Clinical Findings part of its reasons, the panel considered Mr La Rosa's leg lengths and noted that they were equal. Thus it clearly had regard to that issue. But neither there, nor in the Impairment Assessment part of its reasons, did it make reference to section 3.2a of the Guides, Limb Length Discrepancy. Plainly it could not be concluded from that failure to refer to section 3.2a that the panel had failed to have regard to either that part of the Guides, or to limb length discrepancy as a possible impairment arising from the injury. Rather, because there was no difference in limb length, there could be no impairment requiring assessment under section 3.2a.

(b) In the Examination and Clinical Findings part of its reasons, the panel considered Mr La Rosa's gait, and observed no issues with it.[35] Thus it clearly had regard to his gait. But neither there nor in the Impairment Assessment part of its reasons, did it make reference to section 3.2b of the Guides, Gait Derangement. Plainly it could not be concluded from that failure to refer to section 3.2b that the panel had failed to have regard to either that part of the Guides, or to gait derangement as a possible impairment arising from the injury. Rather, because there was no observable problem with Mr La Rosa's gait, there could be no impairment requiring assessment under section 3.2b.

This pattern was repeated for scarring associated with the injury.

73 In contrast, where the panel considered that an issue identified in its diagnosis was such as to require assessment under a particular section or table of the Guides, then it identified that in the opinion part of its reasons.

(a) In the Examination and Clinical Findings part of its reasons, the panel observed 'reduced right subtalar joint eversion of 5°' (which concerns the hindfoot). Later, in the Impairment Assessment part of its reasons, it stated that it had assessed 'impairment for range of motion of the right hindfoot' pursuant to Table 43 of section 3.2e.

(b) In the Examination and Clinical Findings part of its reasons, the panel observed '[a] sensory impairment to light touch and pinprick in the distribution of the infrapatellar branch of the saphenous nerve related to the right knee scar'. Later, in the Impairment Assessment part of its reasons, it stated that it had assessed 'impairment of the saphenous branch of the femoral nerve' pursuant to Table 68 of section 3.2k and Table 20 of section 4.4b.

(c) In the Examination and Clinical Findings part of its reasons, the panel observed 'measured right calf wasting of 2cm'; later, in the Impairment Assessment part of its reasons, it stated that it had assessed 'impairment of right calf wasting pursuant to Table 37 of Section 3.2c'.

74 Thus, the pattern or structure of the panel's reasons revealed that the fact that the panel had not referred to a particular section or table of the Guides, did not mean that it had failed to consider the issues relevant to that section or table; rather, it meant that the panel had not found it necessary to apply that section or table. That is, where the panel had considered a matter in the Examination and Clinical Findings part of its reasons, but had determined that it did not need to go on and assess impairment under the Guides, it did not say so expressly; it simply did not advert to that issue again. In contrast, where it considered a matter and decided that it was then required to go on and assess impairment under the Guides, it said so.

75 When the panel's reasons are understood in that way, it is not possible to accept the submissions put by the applicant to the effect that the panel's failure to apply Table 62 or Table 41 revealed error.

(i) Did the panel fail to consider range of motion for the knee and Table 41?

76 It is convenient to commence with the question concerning Table 41. In order to understand this aspect of Mr La Rosa's argument, it is necessary to consider the part of the panel's reasons where it stated that it considered the impairment for calf wasting to be a duplication of impairment for range of motion, and so it noted the impairment for atrophy only, because this was the more significant impairment.

77 An issue arises at this point in the panel's reasons as to whether the reference to 'range of motion' here was to range of motion for the hindfoot (which had been referred to two paragraphs earlier as having been assessed pursuant to Table 43 of section 3.2e, Range of Motion), or whether this was a reference to range of motion for the knee. Mr La Rosa contended that this was a reference to range of motion for the hindfoot; and that the panel ought to have, but did not, assess range of motion for the knee under Table 41. In contrast, Spotless contended that this was a reference to range of motion for the knee.

78 I accept Spotless' submission that the range of motion referred to in this paragraph of the panel's reasons was that for the knee. That is for the following reasons:

(a) First, the panel had quite clearly and distinctly stated that it had assessed whole-person impairment for range of motion of the right hindfoot. I do not think it is correct to understand its reasons as, shortly thereafter, discarding that assessment.

(b) Secondly, that first proposition is supported by the panel's statement that it combined the impairments it had found, which I understand to be a reference to combining the impairment of the hindfoot, the impairment of the femoral nerve and the impairment of the calf wasting.

(c) Thirdly, I consider it to be unlikely that the panel, composed of experienced medical experts, simply failed to assess of Mr La Rosa's range of motion for his knee. Bearing in mind the need to construe the panel's reasoning without an eye attuned to error, and that the panel stated that it had carried out its assessment in accordance with the Guides, such that I should be '"most reluctant" to conclude that [the panel] ... did not in fact do so',[36] I consider that the preferable understanding of the panel's reasons is that it:

(i) assessed impairment of range of motion for Mr La Rosa's right knee (which was reflected in the Examination and Clinical Findings part of its reasons, where it recorded that 'right knee movements were flexion 130° with full extension with no fixed flexion deformity', which produces no rateable impairment under Table 41[37]);

(ii) considered that impairment for range of motion for the right knee was duplicated by impairment for right calf wasting;

(iii) considered that the impairment for right calf wasting was more significant than impairment for range of motion for the right knee; and

(iv) thus took account of impairment for right calf wasting only, in its assessment of impairment.

79 That is sufficient to dispose of one aspect of Mr La Rosa's case, namely that the panel erred by failing to assess the impairment of his knee under table 41.

(ii) Was the panel required to apply section 3.2g and Table 62?

80 Turning first to section 3.2g and Table 62, the panel referred to Table 62, although it referred only to the footnote to that Table (a matter to which I return later). However, it did not deal in detail with either section 3.2g or Table 62.

81 Importantly, however, it is clear from the Guides that the panel was not required to apply section 3.2g when assessing Mr La Rosa's impairment. As Keogh J observed in Pickett v Parks Victoria, the Guides give the assessor the option of using the range of motion method to assess impairment.[38] Of particular relevance to the present case, section 3.2g states that '[i]f there is doubt or controversy about the suitability of a specific patient for this rating method, range of motion techniques may be used'.[39] That is, section 3.2g leaves it to the judgement of the assessor as to whether to use section 3.2g in a particular case, or whether to use range of motion. That is reinforced in section 3.2i, Diagnosis-based Estimates, which states that '[t]he physician, in general, should decide which estimate best describes the situation and should use only one approach for each anatomic part'.[40] Section 3.2i goes on to state that '[f]ractures in and about joints with degenerative changes' should be rated either using section 3.2i combined with section 3.2g, or 'by using the range of motion section', coupled with a recommendation to use the section providing the greater impairment estimate.[41]

(iii) Was the panel required to apply section 3.2g and Table 62 in combination with section 3.2i and Table 64?

82 One aspect of Mr La Rosa's argument was that the panel was required to use section 3.2g in combination with section 3.2i, because he had 'an intra-articular fracture and then rapid onset of arthritis', which section 3.2g says 'should be evaluated with' sections 3.2g and 3.2i (in the final paragraph of section 3.2g).[42] There are two reasons why I do not accept this submission.

(a) First, as I have already observed, both sections 3.2g and 3.2i are clear that the panel may, in the exercise of its judgement, resolve to use range of motion rather than those sections. I do not consider that those aspects of sections 3.2g and 3.2i are overridden or displaced by the final paragraph of section 3.2g. That is, I do not consider that that paragraph removes the element of expert medical judgement that these sections contemplate falls to be exercised in determining the appropriate methodology for assessing impairment. The Guides do not require the panel always to use section 3.2g and section 3.2i where an intra-articular fracture and rapid onset arthritis are present if, in the panel's clinical judgement, range of motion is more appropriate.

(b) Secondly, there was no material before me to support a conclusion that Mr La Rosa had rapid onset arthritis. The panel did not make such a diagnosis; nor was such a diagnosis expressly articulated in any of the medical reports that were before the panel and before me. It is not appropriate for me to assume that Mr La Rosa suffered from such a condition, nor is it appropriate for me in effect to diagnose such a condition based on the materials before me. That would be to stray into impermissible territory.

83 Mr La Rosa also submitted that the panel was required to assess his impairment under Table 64 because there was the potential for, or possibility of, malalignment of his fractured tibia. This submission was based on the x-ray taken on 30 August 2018, the report of which recorded that the radiological union of the fractures was incomplete. However, the report also described the alignment of the fracture as 'near anatomical'. In my opinion the panel was entitled to rely on that report as indicating that there was no malalignment of the tibia; it was not required to go behind that report and make its own finding about what the x-ray showed. Nor should I speculate as to the potential medical consequences of the finding that the radiological union of the fractures was incomplete. Thus I reject this aspect of Mr La Rosa's arguments.

84 Ultimately, in my opinion, if the panel determined, in the exercise of its expert judgement, not to use section 3.2g to evaluate Mr La Rosa's impairment, and not to use section 3.2g in combination with section 3.2i, but to use range of motion instead, that would not be a failure to assess his impairment 'in accordance with the Guides'. Rather, it would reflect the fact that sections 3.2g and 3.2i 'provide alternative methodologies' and 'require the exercise of professional judgment in selecting the most appropriate methodology' (to use Kyrou J's language in Heinz[43]).

85 The more difficult question in relation to the panel's reasons is whether it did in fact determine not to assess Mr La Rosa's impairment of his right knee under section 3.2g, Arthritis; but, following the permissive language of that section and section 3.2i, used range of motion instead. That is because the panel's reasons suggest that it may have done both, because it referred to both range of motion and to the footnote to Table 62 (which is in section 3.2g).

(iv) The significance of the panel's reference to the footnote to Table 62

86 Following its short description of its assessment of right calf wasting, the panel went on to state that it considered that there is 'no other medical condition or impairment attributable to the claimed physical injury when assessed in accordance with the Guides'. The panel then said that it 'considered there was no "history of direct trauma" to the right knee indicated in the alleged injury, as described under the footnote to Table 62' (emphasis in original).

87 Mr La Rosa submitted that this passage reveals that the panel improperly disregarded Table 62 because it incorrectly assumed that Table 62 had no application to the assessment of impairment of the Plaintiff's right knee in the absence of 'direct trauma'. In order to assess this issue it is necessary to give some more detailed consideration to the panel's reference to footnote to Table 62. That is the issue raised by ground (b).

88 Mr La Rosa argued that the panel's reference to the footnote to Table 62 revealed that the panel had failed to apply Table 62 because it considered that 'direct trauma' was a 'precondition' to it having regard to Table 62, and that the Court should infer that the panel then did not go on and consider Table 62, vis-a-vis Mr La Rosa's knee or ankle. Thus, he submitted:

Beyond the bare reference to the lack of a 'history of direct trauma' to the right knee, nothing on the Reasons indicates the Panel engaged in any meaningful consideration as to the appropriateness of conducting an assessment under Table 62 to either the right knee or right ankle including whether it turned its mind to whether the development of arthritis post-accident in either body part was potentially compensable (and thus ought to be assessed in accordance with that table), and/or the necessity and relevance of requesting further diagnostic procedures such as roentgenographic (x-ray) studies to either the right knee or the right ankle. Having expressly raised Table 62 in its Reasons as a table it considered to have potentially application [sic] on the facts of this case, the Panel opened itself up to critique as to whether it then correctly applied that Table and accompanying AMA Guides methodologies, processes and criteria, and the Court can infer here that the Panel did not comply with its obligation to engage with those issues.[44]

89 In oral argument Mr La Rosa submitted that the panel had plainly had regard to Table 62 (as demonstrated by the discussion of the footnote), and so it must have accepted that there was arthritis in the knee, but that because its sole reference to Table 62 was to the footnote, I should infer that it had erroneously interpreted the Table, and hence the Guides, which amounted to jurisdictional error.

90 In contrast, Spotless submitted that section 3.2g (Arthritis) and Table 62 only applied if the impairment in question was secondary to arthritis, and that this was a matter about which there needed to be a clinical judgement. It submitted that the panel's reasoning process ought to be understood in the following way:

(a) First, in conformity with sections 3.2g and 3.2i of the Guides, the panel used range of motion, rather than section 3.2i combined with section 3.2g or section 3.2g alone.

(b) Second, having found no rateable impairment of range of motion, the panel then went to atrophy, which was more favourable for Mr La Rosa.

91 As for the footnote, Spotless contended that the reference to the footnote did not bespeak error. It submitted that, when the panel referred in its reasons to there being no history of direct trauma to the right knee, 'the Panel was explaining why it had not applied the footnote to Table 62, and not Table 62 itself'. Spotless submitted that the footnote provided an entirely separate basis on which to find impairment, apart from the Tables. It submitted that it would be open for the panel to reason that it did not regard 'mild osteoarthritis in all visualised joints' as clinically significant or relevant, that it did not consider this was likely to be post-traumatic arthritis, or that it did not believe that there was likely to be any significant cartilage interval present that could be attributed to the fall and the injury suffered. Thus it was not necessary for the panel to have considered Table 62. But, Spotless submitted, it was nonetheless appropriate for the panel to consider the footnote to Table 62. That is, even if the panel considered Table 62 not to be applicable, it was nonetheless obliged to consider the footnote and consider whether it applied. That was particularly so given that two of the indicia in the footnote were present: reported pain and crepitation on physical examination. That, Spotless submitted, was what the panel had done in the present case. But the panel correctly concluded that the footnote was not engaged because there was no history of direct trauma to the knee.

92 Spotless also submitted that the panel should be understood as having expressly referred to the footnote to Table 62 because that was what Dr Kennedy had done. That is, Spotless submitted that Dr Kennedy had based his conclusion on the footnote to Table 62, thus the panel was recording that it disagreed with Dr Kennedy. The basis for this submission was not anything express in Dr Kennedy's report concerning the footnote, but rather a submission that Dr Kennedy must have based his conclusion on the footnote, because he had referred to Table 62, but had not diagnosed Mr La Rosa as suffering from arthritis, or arranged for any x-rays to be taken so as to enable him to measure any loss of cartilage.

93 As explained above in relation to ground (a), I accept that where the panel had considered a matter in the Examination and Clinical Findings part of its reasons, but had determined that it did not need to go on and assess impairment under a particular section of the Guides, it did not say so expressly; it simply did not advert to that section of the Guides. In contrast, where it considered a matter and decided that it was then required to go on and assess impairment under the Guides, that was reflected in the Impairment Assessment part of its reasons.

94 However, its approach to arthritis in the right knee, in the context of the footnote to Table 62, was not as clear-cut. The panel did not deal with arthritis in the Examination and Clinical Findings part of its reasons. But in the Medical Imaging and Investigations part of its reasons it stated, in relation to an x-ray of the right tibia and fibula dated 30 August 2018, 'Mild osteoarthritis is noted at all visualised joints'. It was thus plainly aware of the presence of arthritis in Mr La Rosa's right knee.

95 The panel did not state that it had made reference to section 3.2g, Arthritis, but it plainly did have regard to that section - and to Table 62 - because it addressed itself to the footnote to Table 62. The fundamental issue raised by ground (b) is whether the reference only to the footnote, and not to the table proper, or to section 3.2g more generally, reveals that the panel misunderstood its task and, in particular, whether it thought that, because the footnote did not apply, none of Table 62 applied.

96 I am not prepared to infer that the panel erred in the manner alleged. My reasons for that conclusion are as follows:

(a) First, as Mr La Rosa accepted, the panel considered Table 62, given that the footnote to which it referred is a footnote to that table.

(b) Second, the footnote applies in circumstances where Table 62 does not lead to a finding of impairment. In that regard, it is beneficial to the person being assessed, by providing a pathway to a finding of impairment even where the roentgenograms do not reveal a relevant cartilage interval. Thus, even if the panel had determined that it was not required to assess Mr La Rosa under Table 62, because it was using range of motion instead, it was not an error for it to consider the footnote as a potential pathway for finding impairment in circumstances where Table 62 did not lead to such a finding. That is, there is an explanation for the panel's consideration of the footnote, without any express consideration of the Table proper, that does not involve error.

(c) Third, the error alleged by Mr La Rosa is one involving a fundamental misunderstanding of Table 62. However, the panel stated that it had conducted its assessment in accordance with the Guides. While, as I explained above, that does not of itself insulate the panel from a finding that it misconstrued or misapplied the Guides, it nonetheless makes it more difficult for Mr La Rosa to discharge his onus. And, given that a court should be 'most reluctant' to infer error in those circumstances;[45] where there is an interpretation of the panel's reasons that does not involve error, that interpretation ought, in my opinion, to be preferred.

97 I record for completeness that I do not accept Spotless' submission that the panel referred to the footnote to Table 62 because Dr Kennedy had relied on the footnote. Dr Kennedy's report made no reference to the footnote, and it is not at all clear on what basis he reached his conclusion. Nor am I prepared to infer that the panel attributed a particular reasoning process to Dr Kennedy as a part of its own reasoning process.

98 For the reasons set out above, I consider that Mr La Rosa has not discharged his onus of proving the errors asserted under grounds (a) and (b). In summary, the better view of the panel's reasons is as follows:

(a) The panel evaluated Mr La Rosa's knee and ankle using section 3.2e, Range of Motion rather than using section 3.2g, Arthritis and/or section 3.2i, Diagnosis-based Estimates. That was expressly permitted by the Guides.

(b) When assessed using range of motion, the panel found that there was no rateable impairment for either the knee or the ankle (in contrast to the hindfoot).

(c) The panel considered that impairment for calf wasting, which was present, was a duplication of impairment for range of motion for the knee, so it used the assessment based on calf wasting only, because this was more beneficial to Mr La Rosa.

(d) The panel considered whether some separate impairment might be found by applying the footnote to Table 62, but considered (correctly) that the footnote was not engaged.

99 This process of reasoning did not, in my opinion, involve any misconstruction or misapplication of the Guides or the Wrongs Act.

H. Ground (c): failure to obtain and consider current x-rays

100 By ground (c), as drafted, Mr La Rosa alleged that the panel erred by 'failing to obtain and consider current x-rays of the Plaintiff's right knee, as was required by Table 62 of the AMA Guides, in order to assess whether there was arthritis impairment'. In oral argument, Mr La Rosa made it clear that he did not submit that the panel had erred by failing to obtain further x-rays of Mr La Rosa's knee. Rather, this ground was directed at its failure to obtain and consider Mr La Rosa's existing x-rays.

101 Mr La Rosa contended that the panel did not have Mr La Rosa's x-rays before it - it only had the reports about those x-rays by other radiologists. He pointed out that the panel stated that it had formed its opinion by having regard to the documents in Enclosures A and B[46] and by reference to the history provided by Mr La Rosa and the examination findings elicited by the panel at its examination of him. The documents listed in Enclosures A and B did not include the x-rays. He further pointed to the sub-heading under 'Medical Imaging and Investigations', which was 'Reported Medical Imaging' (emphasis added). Finally, he submitted that the panel had simply reproduced the findings made by the reporting radiologist. Thus, he submitted, the panel had simply relied upon the reports provided to it and had not evaluated Mr La Rosa's x-rays itself.

102 The consequence was, Mr La Rosa submitted, that the panel could not have properly applied Table 62, because it could not have measured the cartilage intervals in order to assess impairment in the manner required by Table 62. That would be an error of the kind identified in Heinz.

103 In contrast, Spotless contended that the panel did have Mr La Rosa's x-rays before it. That was because the panel's description of the x-ray dated 30 August 2018 was different in some respects from the report of that imaging. In particular, Spotless pointed out that the radiologist's report in relation to that x-ray did not refer to arthritis, whereas the panel's description of the x-ray included the statement 'mild osteoarthritis is noted at all visualised joints'. Spotless asked, rhetorically, how could the panel have made that finding, if it had not looked at the x-rays itself? Spotless also contended that, even though the documents listed by the panel did not include the x-rays, it was possible that Mr La Rosa had taken his x-rays with him to the panel examination. This was not a matter within Spotless's knowledge. Rather, Mr La Rosa was in the best position to give evidence about whether he had provided his x-rays to the panel, but he had not done so.

104 In reply on this question, Mr La Rosa submitted that the statement 'mild osteoarthritis is noted at all visualised joints' was found in a report of a different x-ray (dated 30 June 2018), and that the better way to understand the panel's reasons was that it had simply taken the language from that report and included it (erroneously) in its description of the report of the 30 August 2018 x-ray. Mr La Rosa accepted that, as a general proposition, a claimant may provide their x-rays to a panel at the time of their examination, but submitted that, if that had occurred in the present case, the x-rays would have been included in Enclosures A and B and provided to the parties on the judicial review application. Because the x-rays were not listed in the Enclosures, and in light of the wording of the panel's reasons, he contended that I should infer that the panel had not viewed the x-rays.

105 I am not prepared to make a positive finding that the panel did not obtain and consider Mr La Rosa's x-rays (although nor I am I prepared to make a positive finding that it did view Mr La Rosa's x-rays). The evidence is equivocal and ultimately unclear. Mr La Rosa bears the onus of proof, and he was also in the best position to provide evidence on the question of whether he provided a copy of his x-rays to the panel, but he did not do so. Thus I do not consider that Mr La Rosa can make good a claim of error based on the panel's failure to obtain and consider his existing x-rays for the purposes of applying Table 62.

106 In any event, because I have concluded that the panel did not use Table 62 to assess impairment, but used range of motion instead (as permitted by the Guides), it follows that neither the existing x-rays (nor any fresh x-rays) were required for it to carry out its assessment in accordance with the Guides. Thus even if it had not had the x-rays before it, that would not of itself reveal reviewable error. That is consistent with the panel's statement that it considered that 'no further information was required from Mr La Rosa's treating practitioners to carry out the assessment'.

107 For these reasons I consider that ground (c) is not made out.

I. Ground (d): laxity of the cruciate ligaments

108 By ground (d) Mr La Rosa alleged that the panel erred by failing to properly engage with the medical materials before it that indicated he was suffering laxity of the anterior cruciate ligament and/or the medial cruciate ligament, thereby enlivening the requirement to consider and assess impairment under Table 64 of the Guides. This ground was dealt with in Mr La Rosa's written submissions, but not developed in oral argument.

109 Mr La Rosa submitted that, because Dr Kennedy had identified mild to moderate laxity of the anterior cruciate ligament and mild laxity of the medical collateral ligament and knee joint, it was necessary for the panel to actively engage with this finding, and that its reasons do not reveal that it did so.

110 In contrast, Spotless pointed out that Dr Kennedy had carried out his examination of Mr La Rosa almost two years before the panel's examination. The panel's reasons record that, when it carried out its physical examination, it found right knee lateral and anteroposterior stability was normal: that is, it did not identify any laxity. Spotless submitted that the fact that the panel's findings and assessment were different from Dr Kennedy's does not demonstrate error on the part of the panel. It submitted that the panel's task was to make its own findings on examination and to then apply those findings in the selection of the most appropriate method to evaluate the plaintiff's impairment. Having found no laxity, the basis to derive a rating under Table 64 for laxity did not arise.

111 In response, Mr La Rosa submitted that there was evidence before the panel of knee ligament laxity which was causing impairment (that is, looseness of the ligaments causing issues with instability or support) in addition to that noted by Dr Kennedy. He submitted that the history the panel took from him revealed that he experienced limitations with standing and weight-bearing due to right knee pain, and that he could not use a ladder because his right knee felt unsteady. The panel also noted crepitus on examination and tenderness over the right patella ligament.

112 In my opinion this ground cannot be sustained. The panel engaged with the question of whether Mr La Rosa was suffering from laxity of the ligaments or right knee in its examination of him. It recorded that 'right knee movements were flexion 130° with full extension with no fixed flexion deformity' and that the 'right knee lateral and anteroposterior stability was normal'. It was not required to prefer Dr Kennedy's opinion (particularly given that Dr Kennedy expressed his opinion nearly two years earlier). I accept Spotless' submission that, having found no laxity, the panel was not required to apply Table 64.

113 For these reasons, I consider that ground (d) is not made out.

114 For the above reasons, I would reject each ground of review and dismiss Mr La Rosa's originating motion.

[15] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39-41 (Mason J); [1986] HCA 40 ('Peko-Wallsend'); Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 179 (Brennan, Deane, Toohey, Gaudron and McHugh JJ); [1995] HCA 58.

[16] Peko-Wallsend (1986) 162 CLR 24, 39 (Mason J); [1986] HCA 40.

[17] [2009] VSC 311, [24]-[28] (citations omitted) ('Heinz'); referred to with approval in Gamble v Emerald Hill Electrical Pty Ltd [2012] VSCA 322; (2012) 38 VR 45, 60-1 [52] (Maxwell P and Cavanough AJA); [2012] VSCA 322 ('Gamble') and Victorian WorkCover Authority v Elsdon [2013] VSCA 235; (2013) 42 VR 434, 446 [49] (Bongiorno JA and Dixon AJA); [2013] VSCA 235.

[18] [2013] VSC 196, [21]-[30].

[19] [2009] VSC 311, [44]-[47] (emphasis added) (citations omitted)

[20] [2013] HCA 43; (2013) 252 CLR 480, 498-9 [47] (French CJ, Crennan, Bell, Gageler and Keane JJ); [2013] HCA 43 (emphasis added) (citations omitted). Again, that articulation of the function of the panel concerned the AC Act regime, but there is no reason to doubt that it applies to the function of a medical panel under the Wrongs Act.

[21] Sidiqi v Kotsios [2021] VSCA 187, [34]-[37] (Beach , Kaye and Osborn JJA) ('Sidiqi').

[22] See, eg, Sensis Pty Ltd v Jones [2018] VSC 754, [60] (Ginnane J); Vellios Electrical Contractors v Barton [2014] VSC 664, [79] (Cavanough J); La'Brooy v Jensen [2021] VSC 89, [73] (Moore J).

[23] (2019) 62 VR 174; [2019] VSCA 151 ('Chang').

[24] [2017] VSC 648.

[25] Chang [2019] VSCA 151; (2019) 62 VR 174, 203 [105] (Maxwell ACJ, Beach and Kyrou JJA); [2019] VSCA 151.

[26] [2016] VSC 383.

[27] [2015] VSCA 17.

[28] Chang [2019] VSCA 151; (2019) 62 VR 174, 203 [104] (Maxwell ACJ, Beach and Kyrou JJA); [2019] VSCA 151.

[29] [2021] VSCA 187, [61] (Beach , Kaye and Osborn JJA).

[30] Colquhoun v Capitol Radiology Pty Ltd [2013] VSCA 58; (2013) 39 VR 296, [6] (Maxwell P and Weinberg JA and Ferguson AJA); [2013] VSCA 58.

[31] Ingle v Australia Pacific Airports (Melbourne) Pty Ltd [2021] VSC 50, [24] (Cavanough J).

[32] Gamble [2012] VSCA 322; (2012) 38 VR 45, 61 [56] (Maxwell P and Cavanough AJA); [2012] VSCA 322.

[35] The panel stated 'A non-antalgic gait with preserved heel and toe walk. There was no observed extension lag of the right knee'.

[36] Gamble [2012] VSCA 322; (2012) 38 VR 45, 61 [56] (Maxwell P and Cavanough AJA); [2012] VSCA 322.

[37] Guides, 78. In oral argument, Mr La Rosa accepted that the panel's findings about right knee movement and stability suggested that the panel had 'turned their mind' to this issue.

[38] [2018] VSC 473, [33].

[43] Heinz [2009] VSC 311, [46].

[45] Gamble [2012] VSCA 322; (2012) 38 VR 45, 61 [56] (Maxwell P and Cavanough AJA); [2012] VSCA 322.

[46] Enclosures A and B were two bundles of documents attached as schedules to the panel's reasons. They included various medical reports relevant to Mr La Rosa's claim, as well as the parties' submissions and other correspondence with the panel.