Plaintiff v Defendants

2 Mrs Bhelley provided the first defendant, Coles Supermarkets Australia Pty Ltd ('Coles'), with a medical report and certificate of assessment dated 2 February 2021 from sports and industrial physician Dr David Kennedy in support of her claim that she suffered the requisite level of impairment. Coles did not accept Dr Kennedy's certificate and, in accordance with s 28LWE of the Act, referred the matter to a Medical Panel ('the Panel') for determination of whether the degree of Mrs Bhelley's impairment resulting from her claimed physical injuries satisfied the threshold level.

3 Following an examination of Mrs Bhelley on 9 July 2021, the Panel determined that she did not satisfy the requisite level. Mrs Bhelley now seeks judicial review of the Panel's decision on the basis that the Panel made jurisdictional errors. In particular, she alleges that, in finding that her injuries did not satisfy the threshold level, the Panel either did not apply the Guides; mistook or misapplied the provisions of the Guides; or made a finding that was not open to it, or which was unreasonable.[3] Mrs Bhelley submitted that, absent such error, the Panel would have determined that her degree of whole person impairment resulting from her spinal injury was 5%, satisfying the significant injury threshold and in turn entitling her to claim non-economic loss damages.

4 Coles defended the application on the basis that the Panel, in exercising its professional knowledge and experience, assessed Mrs Bhelley in accordance with the Guides, such that there was no jurisdictional error in its determination that her impairment did not meet the threshold level.

5 For the reasons that follow_,_ I am not satisfied that there was a jurisdictional error made by the Panel, and therefore dismiss this application.

6 The purpose of the Guides is to provide standard protocols and criteria for estimating a person's degree of permanent impairment.[4]

...Evaluating the magnitude of these impairments is in the purview of the physician, while determining disability is usually not the physician's responsibility. This edition emphasizes that impairment percentages derived by using Guides criteria represent estimates rather than precise determinations. Permanent impairments are evaluated in terms of how they affect the patient's daily activities, and this edition recognizes that one's occupation constitutes part of his or her daily activities.[5]

8 There are numerous chapters in the Guides which apply to different body parts, functions or systems. Chapter 3 relates to the musculoskeletal system and was the relevant chapter in respect of the assessment of Mrs Bhelley's claimed lower back condition.

9 The Guides state that when performing an impairment evaluation in respect of the spine, the examiner should obtain a medical history of the patient's spine-related symptoms and complaints, which must:

...describe the chief complaint and the pain, numbness, weakness, anatomic location, frequency, and duration, then describe specifically how the condition interferes with daily activities...[6]

10 In respect of the examination of the patient's spine, the Guides state the examiner should 'focus attention on spine-related physical findings, such as motor abilities, reflexes, muscle atrophy, anal tone, and the need for assistive devices.'[7] Further, the Guides state that

'[t]he physician should note any physical findings that are not consistent with the medical history. The physician should identify any information based on the patient's verbal responses or interpretation and not confuse it with objective clinical findings.'[8]

11 There are two methods used to undertake an assessment of impairment to the spine, the Injury Model (also known as the 'Diagnosis-Related Estimates' ('DRE') Model and the 'Range of Motion' ('ROM') Model. The Guides explain that the DRE Model:

involves assigning a patient to one of eight categories, such as minor injury, radiculopathy, loss of spine structure integrity, or paraplegia, on the basis of objective clinical findings.[9]

12 The Guides state that if the condition to the patient's spine is listed in Table 70 of the Guides, the DRE Model should be used.[10] The parties agreed that the DRE Model was the appropriate model for the Panel to use in its evaluation of Mrs Bhelley's spinal impairment.

13 On the proper categorisation of a patient's impairment when using the DRE Model, the Guides state that:

...the physician or examiner may use certain clinical procedures or determinations in placing the patient's impairment in the proper category. These "differentiators" are described in Table 71 (p. 109) [and include inter alia guarding, loss of reflexes, decreased muscle circumference, and loss of bowel or bladder control]... No differentiator is required to place a patient in any impairment category. However, if a differentiator is present, it provides important evidence as to the category in which the patient belongs.[11]

[i]mpairment estimates are based on the history, objective findings and data, impression, and any other information collected during the evaluation.[12]

15 Further, in relation to evaluating an impairment of the spine under the DRE Model, it is noted that the 'DREs are differentiated according to clinical findings that are verifiable using standard medical procedures.'[13]

16 Section 3.3d of the Guides directs the examiner to start with Table 70 'as a guide toward the appropriate category for the spine impairment'.[14] The Guides then note a series of differentiators set out in Table 71, which describe 'clinical criteria that correlate[s] with serious physiologic dysfunction or structural change, which the physician should use to help define the patient's impairment.'[15]

17 Section 3.3f of the Guides provides specific procedures and directions when conducting a spinal assessment. It requires the taking of a 'careful history,' reviewing special studies, selecting the region that is primarily involved, and then identifying 'the patient's most serious objective findings.'[16] In this case, as Mrs Bhelley's complaints were in respect of her lower back, 3.3f directed the Panel to assess her in accordance with Table 72, which sets out the DRE lumbosacral spine impairment categories.

18 Table 70 lists numerous conditions of the spine. The two rows in this table of potential relevance to Mrs Bhelley are as follows:

Table 70. Spine Impairment Categories for Cervicothoracic, Thoracolumbar, and Lumbosacral Regions

Stenosis, or facet arthrosis or disease, or disk arthrosis

19 Table 71 describes the DRE impairment category differentiators. The purpose for this is expressed as follows:

In many cases, as with patients who have localized, severe pressure on spinal nerve roots, physicians can differentiate one type of impairment from another. But it may be difficult to reach agreement when the clinical findings are not obvious. The criteria below will help differentiate spine impairments ...[17]

20 The differentiators in this table are: guarding; loss of reflexes; decreased circumference, atrophy; electrodiagnostic evidence; loss of motion segment integrity; loss of bowel or bladder control; and bladder studies.

21 The first differentiator in Table 71 is guarding, which is defined as:

1. Guarding

Paravertebral muscle guarding or spasm or nonuniform loss of range of motion, dysmetria, is present or has been documented by a physician. Radicular complaints that follow anatomic pathways but cannot be verified by neurologic findings belong with this type of differentiator.[18]

22 The parties agreed that the Panel did not consider Mrs Bhelley to be suffering any of the Table 71 differentiators, including guarding.

23 Finally, the parts of Table 72 relevant to Ms Bhelley's application are shown in the extract below:

Table 72. DRE Lumbosacral Spine Impairment Categories

Minor impairment: clinical signs of lumbar injury are present without radiculopathy or loss of motion segment integrity ...

24 The Guides also describe the characteristics of commonly encountered impairments of the lumbosacral spine contained in Tables 70 and 72.[19] The following extracts are relevant to this application and are contained in section 3.3g:[20]

DRE Lumbosacral Category I:

Complaints or Symptoms

Description and Verification: The patient has no significant clinical findings, no muscle guarding or history of guarding, no documentable neurologic impairment, no significant loss of structural integrity on lateral flexion and extension roentgenograms, and no indication of impairment related to injury or illness.

Structural Inclusions: None.

Impairment: 0% whole-person impairment.

DRE Lumbosacral Category II: Minor Impairment

Description and Verification: The clinical history and examination findings are compatible with a specific injury or illness. The findings may include significant intermittent or continuous muscle guarding that has been observed and documented by a physician, nonuniform loss of range of motion (dysmetria, differentiator 1, Table 71, p. 109), or nonverifiable radicular complaints. There is no objective sign of radiculopathy and no loss of structural integrity. See Table 71, differentiator 1 (p.109).

Structural Inclusions: (1) Less than 25% compression of one vertebral body; (2) posterior element fracture without dislocation (not developmental spondylolysis); the fracture is healed, and there is no loss of motion segment integrity.

A spinous or transverse process fracture with displacement without a vertebral body fracture is a category II impairment because it does not disrupt the spinal canal.

Impairment: 5% whole-person impairment.[21]

25 The Guides expressly state that spine-related complaints in DRE II 'involve mild to moderately impaired spine function but are considered to be minor impairments.'[22]

26 Under the Act, a medical panel is not permitted to specify the degree of impairment it assesses a claimant to suffer nor is it permitted to provide reasons that would enable this to be apparent.[23] Notwithstanding that provision, the parties agreed that on the material before the Panel in respect of Mrs Bhelley's spinal condition, there were only two possible impairment categories open to it: DRE I which assigns a 0% impairment rating, and DRE II which assigns a 5% impairment rating. Further, the parties agreed it can be inferred from the Opinion of the Panel that it determined that Mrs Bhelley's spinal impairment met the criteria of DRE I.

27 This judicial review turns largely on Mrs Bhelley's contention that if the Panel had correctly applied the Guides, it would have determined her impairment category to be DRE II. Coles defended the application on the basis that there was no error in the Panel's application of the Guides, and that the Panel's conclusions were open to it.

28 Mrs Bhelley was examined by Dr Kennedy on 28 January 2021. He was of the opinion that as a consequence of the fall Mrs Bhelley sustained a flap tear of posterior horn of medial meniscus injuries requiring a right knee arthroscopy, partial medial meniscectomy, and chondroplasty. Dr Kennedy also noted that Mrs Bhelley claimed that she suffered an aggravation of degenerative changes of her lumbar spine and sacroiliac joints. Dr Kennedy issued a certificate of assessment that stated that in his opinion Mrs Bhelley's impairment, arising from this fall, exceeded 5%.

29 On 17 March 2021, Mrs Bhelley's solicitor served the certificate of assessment upon Coles, together with a prescribed information form in accordance with s 28LT of the Act.

30 On 6 April 2021, Coles agreed that it was a proper respondent to the claim.

31 On 19 April 2021, Mrs Bhelley's solicitors served Coles with Dr Kennedy's medical report, together with other medical material.

32 On 13 May 2021, Coles referred Mrs Bhelley to the Panel pursuant to s 28LWE of the Act ('the referral').

33 The second defendant, Associate Professor Peter Gibbons, convened the Panel which was composed of physician Dr Roderick McRae and orthopaedic surgeon Mr Keith Elsner, the third defendants in the proceeding. As is the usual arrangement pursuant to the principles in Hardiman,[24] these defendants did not take an active role in the proceedings and indicated by way of correspondence that they would submit to orders made by the Court.

35 The referral included a number of documents provided under a Schedule of Attachments. Such documents included the certificate of assessment and medical report from Dr Kennedy, and some medical records relating to Mrs Bhelley, including medical imaging taken before and after the fall.

36 On 9 July 2021, the Panel delivered its Opinion and Reasons.

37 The parts of the Opinion relevant to this application are as follows:

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

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

38 In its Reasons, the Panel noted the documents it had been provided. It detailed the history it obtained from Mrs Bhelley, including that she had suffered back pain during pregnancies in 2014 and 2015, and also following transport accidents in 2017 and 2018. The Panel noted that by early 2019, Mrs Bhelley was working full time, was able to undertake all housework with no spinal pain and was off all regular prescribed medications. The Panel ultimately accepted Ms Bhelley's history that she had 'no active lumbosacral symptoms or condition' at the time of the fall, and that 'her past lumbosacral conditions had either fully resolved or were at worst asymptomatic.'

39 The Panel took a history from Mrs Bhelley in respect of the fall and noted that afterwards, she reported 'severe pain, particularly on the inside of her right knee joint, and a reduced range of movement of her right knee joint.' The Panel noted that on 14 July 2020, Mrs Bhelley underwent a right knee arthroscopic partial medial meniscectomy for a right knee medial meniscal tear and a chondroplasty.

40 The Panel noted that Mrs Bhelley stated that whilst she was receiving physiotherapy treatment for her right knee, she noticed lower back pain which she said involved the same symptoms as she had experienced previously. It noted that Mrs Bhelley had ongoing sacroiliac joint pain, but no sciatica or any lower extremity sensory changes.

41 The Panel then summarised Mrs Bhelley's description of her current restrictions, relevant to her lower back injury:

Ms Bhelley can sit for about an hour in a car seat to complete a lesson. She can stand for about 10 minutes before she has to stretch her back. She can walk for about 30 minutes. After about 500 m she notices mild right knee pain, so stops walking to sit or stand for about 10 minutes. She has not run because of a fear of her right knee and/or her lower back becoming painful. She can traverse stairs without difficulty, using alternate stair treads for both ascending and descending, with no lower back or right knee issues. She can drive an automatic transmission vehicle without difficulty for about one hour, after which she notices some lower back pain. She has no lower back symptom changes with a cough or sneeze. She has no issues with bowel or bladder awareness or control. She has reduced her attendance at concerts, general socialising, and attendance at her temple, which requires long periods of sitting. She generally sleep [sic] well, but if she rolls she can wake about four to five times every night due to lower back pain, but this has not altered compared to prior to the incident.

42 The Panel conducted a physical examination of Mrs Bhelley, and in respect of her lower back it noted the following:

Ms Bhelley had a normal gait and associated arm swing, with no limp, a horizontal pelvis, and equal time on each foot with an even weight distribution. She could walk on her toes, and on her heels. Standing, she had substantial adipose tissue present, but normal spinal curvatures maintained, and no features of scoliosis. She had normal right lower extremity alignment and no obvious muscle wasting was present. Downwards pressure on her vertex and upper borders of her Trapezius muscles was not associated with any symptoms. She identified a pain band across her lumbar spine. She was not tender to moderate force palpation in the midline and over the facet joint lines of the lumbar spine. There was no muscle spasm detected.

Back flexion was such that her fingertips reached to the junction of her upper and middle one thirds of her legs bilaterally. Back extension was not reduced and considered to be in the normal range. Lateral flexion was symmetrical bilaterally, with her fingertips reaching to her knee joint lines bilaterally, with a report of pain at the extreme of these movements. Rotation to the left and right was symmetrical, and assessed as normal. No movement was associated with muscle spasm, and all movements were smooth in their execution.

She was able to sit herself on the edge of the examination couch without assistance and could alter her position on it as requested without assistance by supporting her body weight on her hands and wriggling her buttocks backwards, which involved some flexion, extension and rotary movements of her lumbar spine and flexion of her hip joints beyond 90° without difficulty. She was able to sit with her hips flexed at 90° without symptoms...

...

At the end of the examination, Ms Shelley sat to 90° unassisted, reaching forwards with her hands onto her outstretched lower extremities, and with normal lumbar flexion, but the movement was associated with a report of her usual lower back pain. She requested water to assist her to take a Panadeine Forte, which she had withheld that morning for the examination.

43 The Panel reviewed the reports of medical imaging relevant to Mrs Bhelley's lumbar spine. It noted:

• The reports of CT-guided depo-steroid injection in the right sacroiliac joint on 31 July 2015, 1 April 2016, 19 April 2018, on 11 February 2021, and the left sacroiliac joint dated 15 April 2016 and 8 February 2021;
• a report of a CT of the lumbar spine dated 23 March 2016 which referred to a history of 'chronic lower back pain', and reported there was bony sclerosis on both sides of the sacroiliac joints bilaterally and no focal disc lesion or canal stenosis;
• a report of a CT of the lumbar spine dated 31 December 2020 which stated there were degenerative changes at the lower lumbar facet joints, mild osteophytic lipping in the mid-lumbar levels and sclerotic changes at the sacroiliac joints bilaterally.

44 The Panel then provided its diagnosis and stated as follows:

Based upon Ms Bhelley's history, examination findings and review of diagnostic imaging reports and information contained in the Referral materials, the Panel concluded Ms Bhelley suffered aggravation of age-related constitutional degenerative changes of her lumbar spine and sacroiliac joints in the later part of her physiotherapy treatment associated with the rehabilitation treatments of her right knee, without radiculopathy, conservatively treated. She suffers residual discomfort, without dysmetria or radicular changes. She now suffers from intermittent lumbosacral pain, with no features of radiculopathy, conservatively treated.

The Panel considers that due to the nature of Ms Bhelley's physical injuries and the length of the history, her current condition is stable.

45 The Panel conducted an impairment assessment of Mrs Bhelley's lumbosacral spine, right knee, and surgical scarring in accordance with the Guides. As the Panel's assessment of the impairment to her knee and scarring is not in issue, and is not material to the grounds of judicial review, it is not necessary to detail the Panel's findings in respect of these two conditions.[25]

46 In relation to Mrs Bhelley's lumbar spine, the Panel was satisfied that her impairment was permanent, and considered use of the ROM Model inappropriate as impairment could be adequately assessed under the DRE Model. The Panel stated that it assessed Mrs Bhelley's impairment in accordance with section 3.3f of the Guides, and Tables 70 and 72 of chapter 3.

47 In its analysis, the Panel noted that while on 2 February 2021 Dr Kennedy had obtained a similar history in respect of the fall, he conducted his examination remotely and considered there was 'asymmetrical loss of active range of motion in her lumbosacral region', which the Panel did not observe at its examination on 1 June 2021.

• the degree of whole person impairment resulting from the lumbosacral spinal injury to the claimant alleged in the claim is permanent, but is not 5% or more and therefore does not satisfy the threshold level prescribed by Section 28LB of the Act as amended.
• after combining the whole person impairment attributable to all of the physical injuries to the claimant alleged in the claim using the formula prescribed on page 322 of the Guides, the degree of whole person impairment resulting from the spinal injury and/or the physical injuries to the claimant alleged in the claim is permanent, but is not more than 5%.

49 When considering an application for judicial review of a medical panel, the following well established principles are relevant:

(a) this is a matter of judicial review, and not merits review;[26]

(b) I should not be overly zealous in considering the Panel's Reasons;[27]

(c) I should be mindful that the Panel is comprised of medically qualified professionals, not lawyers or judges;[28] and

(d) the Reasons of the Panel should be given a beneficial construction.[29]

50 Further, I am assisted by the High Court's description of the medical panel's statutory function in Wingfoot Australia Partners v Kocak:[30]

...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.[31]

51 The principles governing the interpretation of the Guides are well established. In HJ Heinz Co Australia Ltd v Kotzman ('Heinz'),[32] Kyrou J (as he was then) summarised the general principles, and those principles, were subsequently approved by the Court of Appeal in Gamble v Emerald Hill ('Gamble')[33] and Victorian WorkCover Authority v Elsdon.[34]

52 The relevant principles from Heinz are as follows:[35]

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.[36]

...

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]' ... 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.

... 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 ...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.[37]

53 The Court of Appeal in Gamble observed that for an applicant to successfully contend that a medical panel fell into jurisdictional error, it is necessary to establish that the panel's assessment of the injury:

departed from the methodology laid down by the AMA Guides to such an extent that it can be properly said of the assessment that it was not 'in accordance with' the Guides.[38]

There is a further consideration. Where, as here, the medical panel states in its reasons that it has carried out the assessment in accordance with the AMA 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. The 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.[39]

Mrs Bhelley's submissions as to why the Panel committed a jurisdictional error

55 Mrs Bhelley submitted that the Panel erred in not assigning her spinal injury to the category of DRE II, and in opining that her degree of impairment did not satisfy the threshold level. She submitted that, in doing so, the Panel committed jurisdictional error in that it did not apply, or mistook or misapplied, the provisions of the Guides.

56 In relation to Table 70, it was noted that Mrs Bhelley's CT scan of 31 December 2020 was reported as demonstrating degenerative changes at lower level facet joints, in particular at L4/5. The Panel accepted that Mrs Bhelley's injury involved this degenerative condition. Mrs Bhelley's counsel submitted her radiology was therefore consistent with 'facet disease' as referred to in Table 70, and thus DRE I and II were both applicable categories.

57 In relation to the DRE lumbosacral spine impairment categories set out in Table 72, Mrs Bhelley submitted that there were clinical signs of lumbar injury present on her examination by the Panel, which, if the Guides had been applied correctly, would have resulted in an assessment of category DRE II, not DRE I.

58 It was noted that the term 'clinical signs'[40] was part of the description for DRE II in Table 72, but was not defined in the Guides. Mrs Bhelley submitted that clinical signs are those which are apparent on a 'clinical evaluation,' a term which is defined in the glossary of the Guides, and which includes the collection of relevant data for the purposes of, inter alia, assessing the health status of an individual. Such data includes 'information obtained by history; findings obtained from a physical examination; and findings from laboratory and other types of tests and procedures....'[41] It was put that, 'clinical evaluation' could be closely equated with 'clinical signs' and it was said that this was a broader concept than 'simple objective clinical findings'.

59 Applying this to the Panel's evaluation of Mrs Bhelley, it was noted that the Reasons referred to 'clinical signs', such as Mrs Bhelley's intermittent lumbosacral pain, and its impact on her activities of daily living, which included her reduced working hours. Mrs Bhelley submitted that if the Panel had understood the DRE II descriptions properly, it would have considered that such signs amounted to 'clinical signs of lumbar injury present without radiculopathy' and would have categorised Mrs Bhelley at this level. Instead, she contended that the Panel incorrectly considered only objective clinical findings and there was nothing in section 3.3g of the Guides (characteristics of commonly encountered impairments of the lumbosacral spine) to support such a narrow focus. Mrs Bhelley submitted that, if the Panel had properly applied the categories, then all of the effects of her injury on her life ought to have been considered sufficient clinical signs for her impairment to be categorised as DRE II.

60 Finally, Mrs Bhelley submitted that it would be 'absurd, capricious or irrational' if the Panel, having diagnosed an injury to Mrs Bhelley's spine, applied the Guides to conclude there was a nil degree of impairment caused by the fall. In her written submissions, Mrs Bhelley relied upon the decision of Lingenberg v Gallichio & Ors ('Lingenberg') as an example of a Court quashing a medical panel's determination, when the panel's 'slavish adherence'[42] to the methodology in the Guides was seen as 'producing arbitrary, capricious or irrational results.'[43]

Coles' submissions as to why the Panel did not commit a jurisdictional error

61 Coles submitted that the determination of Mrs Bhelley's level of impairment under the Guides was a question of fact, which involved the application of the Panel members' medical knowledge and experience. Further, Coles submitted that differentiating between DRE categories I and II depended on the identification of clinical findings that, in the Panel's professional judgement, were consistent with the specific injury to the spine.

62 Coles noted that one of the purposes of the Guides is to make the process of estimating impairments as objective as possible, such that assessments by different clinicians are more likely to lead to similar results.[44] Further, I was taken to section 3.3 of the Guides, which focused on objective clinical findings, and those clinical findings that are verifiable using standard medical procedures. Coles emphasised that the Guides state that the DRE Model for evaluating impairment of the spine involves assigning a patient's condition to one of eight categories 'on the basis of objective clinical findings.'[45]

63 Coles submitted that there was a distinction between the medical history which an examiner takes from the patient, including a history of symptoms and complaints, and the findings which the examiner is to focus on after conducting an examination. It was put that having conducted an examination of Mrs Bhelley, the Panel was not bound to find that there were clinical signs of lumbar injury present, without radiculopathy or loss of motion segment instability, nor a clinical history and examination findings compatible with a specific injury. These were matters of medical evaluation and judgement, and not something which the Panel was bound to find on the basis of the complaints made by Mrs Bhelley to it.

64 Coles noted that the descriptions of the DRE categories in Table 72 are more fully set out in s 3.3g of the Guide. It was said that DRE category II is differentiated from DRE category I by the identification on physical examination of the lumbosacral spine of the types of clinical findings set out under 'guarding' - the first differentiator in Table 71. If there are merely complaints or symptoms, and no significant clinical findings, including those set out under 'guarding' in Table 71, then the examiner is directed by the Guides to place the impairment in DRE category I. Coles submitted that differentiating between the DRE categories in this way is consistent with the Guides' emphasis on the assessment of impairment on the basis of objective clinical findings and not merely subjective complaints or symptoms.

65 Further, it was put by counsel for Coles that the medical imaging of Mrs Bhelley's lumbar spine taken after the fall showed similar degenerative changes to those identified prior to it, with there being no evidence of traumatic injury. It was put that on physical examination of Mrs Bhelley's lumbosacral spine, the Panel found no muscle spasm or dysmetria, and found that her gait, reflexes, sensation, muscle tone, and power in the lower limbs were normal, and there was no atrophy, nor any features of radiculopathy. As such, it was open to the Panel, exercising their medical skill and judgement, to assess Mrs Bhelley's degree of impairment as most appropriately being placed in DRE category I and not DRE category II.

66 According to its Reasons, the Panel obtained a history from Mrs Bhelley, reviewed the medical imaging reports and other medical material, and then conducted a physical examination of her. Having taken those steps as required under 3.3f, the Panel stated that it assessed Mrs Bhelley's impairment in accordance with Tables 70 and 72 of the Guides. This was an orthodox approach to an assessment of spinal impairment, conducted in accordance with the methodology set out in Chapter 3. As was noted in Gamble,[46] where a Panel has stated in its Reasons that it has carried out the assessment in accordance with the Guides, there is a heavy onus on the challenging party to successfully contend otherwise.

67 As a starting point, it was for the Panel, using its collective expertise and knowledge[47] to determine if Mrs Bhelley's spinal condition was one of those listed in Table 70. I considered the submission by Mrs Bhelley's counsel that her radiology could be described as 'facet disease' within the meaning of one of the spinal conditions listed in Table 70, a clear example of a medical consideration. To repeat the words of the Court of Appeal in Gamble, the interpretation and application of such words or medical conditions in the Guides, 'is for doctors, not judges.'[48]

68 Mrs Bhelley conceded that at the time of the Panel's assessment, none of the clinical differentiators in Table 71 were present in her spine. Therefore, as that table did not directly assist in the categorisation of her impairment, the Panel went on to consider Table 72 in accordance with section 3.3d of the Guides.

69 In determining which DRE impairment category under Table 72 was most appropriate for Mrs Bhelley's lumbar spine, it was reasonable for the Panel to obtain guidance from 3.3g, which describes the characteristics of each DRE category.

70 For a patient's spinal condition to fit under DRE II, 3.3g states such findings may include significant, intermittent, or continuous muscle guarding that has been observed and documented, or non-verifiable radicular complaints. The description for this category also expressly refers to Table 71, differentiator 1, being guarding. Whilst these are not expressed as mandatory requirements, they are offered as example findings for the examiner to consider in determining the appropriate impairment category.

71 For a patient's spinal condition to fit under DRE I, 3.3g states the patient has no significant clinical findings, no muscle guarding or history of guarding, and no indication of impairment related to the injury. Once again, although not mandatory requirements, these are characteristics offered to assist the examiner in determining the appropriate category.

72 It was for the Panel, after taking a history, examining Mrs Bhelley, and reviewing all pertinent material, to use its collective expertise and knowledge to determine whether category DRE I or II was most appropriate for Mrs Bhelley's spinal impairment, having regard to the descriptions for each. That included the Panel determining whether there were any clinical signs of lumbar injury without radiculopathy. If the Panel considered there were none, then it was open for it to determine that Mrs Bhelley's spinal impairment be categorised as DRE I and assign a 0% impairment rating. As I have already said, this is a matter of medical judgement, and is not a matter with which I will readily interfere.

73 I therefore reject Mrs Bhelley's assertion that she must fall under the DRE II category in Table 72, as it was said that at the time of her examination by the Panel, clinical signs of lumbar injury were present without radiculopathy or loss of motion segment integrity. As stated above, whether or not clinical signs were present, and the significance of them to the patient, is a medical question for the Panel to answer.

74 It is worth noting that although DRE I equates to 0% impairment, that is not to say a patient categorised in this way has no symptoms or complaints. To the contrary, DRE I expressly contemplates a patient who has symptoms and complaints albeit in circumstances where the examiner is satisfied the patient has no significant clinical findings. For the reasons given above, it was open to the Panel to determine that Mrs Bhelley's complaints and symptoms were most appropriately categorised under DRE I.

75 For the sake of completion, I also reject Mrs Bhelley's suggestion that the interpretation of the words 'clinical signs', and 'clinical findings', are informed by the defined term of 'clinical evaluation'. As I have previously outlined, the authorities have clearly established the interpretation and application of medical terms in the Guides is best left to medical practitioners who are trained in the application of the Guides.

76 Finally, unlike the circumstances in Lingenberg, which involved a medical panel disregarding a plaintiff's pre-existing impairment in accordance with the Guides, and not following the requirements of the Accident Compensation Act 1985 (Vic), I consider there is no such error or 'absurd' outcome arising from the Panel's determination of Mrs Bhelley's impairment.

77 In view of the above, there is no basis for Mrs Bhelley to complain that the Panel either erred in its application of the Guides or reached a determination not open to it.

78 As I am not satisfied the Panel committed jurisdictional error, I dismiss Mrs Bhelley's application.

79 I will hear from the parties in respect of what orders are sought.

[1] Wrongs Act 1958 (Vic), s 28LB(a) ('the Act').

[2] Ibid, s 28LB(c).

[3] Mrs Bhelley's written submissions were not confined to these claimed errors, and included an assertion that the Panel had erred in its construction of s 28LL(3) of the Act. Coles conceded in its written submissions that if Mrs Bhelley was successful in her primary complaint of judicial review, being that the Panel erred in not assessing her as having a 5% whole person impairment in respect of her spine, there was no unrelated impairment to deduct, and she would therefore have satisfied the statutory threshold.

[4] H J Heinz Company Australia Ltd v Kotzman [2009] VSC 311 [10] citing the Guides Foreword and pp 2/7, 2/9 ('Heinz').

[23] Section 28LZG(4) of the Act; Colquhoun v Capitol Radiology Pty Ltd [2013] VSCA 38, [46] citing Georgiou & Ors v Capital Radiology Pty Ltd & Ors [2011] VSC 158 [73], [81].

[24] R v The Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13, 35.

[25] It can be inferred from Mrs Bhelley's submissions, that she accepted that the impairment from her knee and scarring, was not capable, either individually or when combined, of satisfying the statutory threshold in the absence of her spine impairment being determined at 5%.

[26] Sidiqi v Kotsios [2021] VSCA 187, [30] ('Sidiqi').

[27] Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272; Dunbar v Bas [2019] VSCA 315, [51].

[28] Ryan v Grange at Wodonga Pty Ltd [2015] VSCA 17, [109].

[29] Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259, 271; Ryan v Grange at Wodonga Pty Ltd [2015] VSCA 17, [109].

[30] [2013] HCA 43; (2013) 252 CLR 480.

[31] Ibid, 498-9 [47] (citation omitted).

[33] [2012] VSCA 322; (2012) 38 VR 45, 60 [52] ('Gamble').

[34] [2013] VSCA 235; (2013) 42 VR 434, 446 [49].

[42] Lingenberg v Gallichio & Ors [2013] VSCA 143; (2013) 40 VR 60, 68 [30].

[47] Alcoa Holdings Ltd & v Lowthian & Ors and De Haas [2011] VSC 245, [75].

[48] Gamble (n 33), 62 [58] (citations omitted).