Plaintiff v First Defendant

1 The plaintiff alleges that she injured her right ankle when she slipped and fell while descending a wet boardwalk in a national park. She wishes to recover damages for the injury from the first defendant, Parks Victoria, and the second defendant, Apteso Pty Ltd ('Apteso'). Part VBA of the Wrongs Act 1958 (Vic) ('Wrongs Act') provides that the plaintiff is not entitled to recover damages for non-economic loss unless she has suffered a significant injury.

2 The question of significant injury, which involved assessment of the degree of impairment resulting from injury to the plaintiff, was referred to the fourth defendant ('the panel'). The panel, which was required to make the assessment in accordance with the AMA Guides to the Evaluation of Permanent Impairment (4th edition) ('the Guides'), determined that the degree of whole person impairment resulting from the plaintiff's injury did not satisfy the threshold level for significant injury. The plaintiff has applied to review the panel's determination on the following grounds:

(a) the panel failed to exercise its statutory function in determining that it could complete its assessment of the plaintiff's level of impairment in accordance with the Guides without the need for additional medical imaging and thereby failed to assess an arthritis impairment based on roentgenographically[1] determined cartilage intervals pursuant to table 62 p 3/83 of the Guides; and

(b) the medical panel failed to take into account a relevant consideration, namely an arthritis impairment based on roentgenographically determined cartilage interval in accordance with table 62 p 3/83 of the Guides.

3 The third and fourth defendants did not appear at the trial of the proceeding, and will abide the proceeding's outcome.

4 The plaintiff alleges that in January 2015 she was participating in a guided walk in Great Otway National Park near the Twelve Apostles when she slipped and fell while descending a wet boardwalk, and injured her right ankle ('the injury').

5 An x-ray taken on 15 January 2015 is reported as follows:

There is a minimally displaced comminuted fracture through the distal right fibula extending into the tibiofibular syndesmosis.

Minimally displaced fracture through the posterior aspect of the distal right tibia.

Normal ankle mortise.

No widening of the right tibiofibular syndesmosis.

Moderate right ankle joint effusion.

The injury was described by treating orthopaedic surgeon Mr Miller as a right Weber B ankle fracture. On 17 January 2015, Mr Miller performed open reduction and internal fixation surgery. On 12 February 2016, a second procedure was performed to remove the fixation metalware from the plaintiff's ankle.

6 In June 2017, treating chiropractor Dr Floreani reported:

Natalie has responded very favourably to care and is very diligent with her rehab. She has residual ankle range of motion restriction, muscle weakness and recurrent back pain and shoulder pain. She's most compliant and keen to get better and I believe she will continue to improve over time, however her long term prognosis for a full recovery is guarded due to the nature and severity of the scar tissue, the injury to the ankle and the subsequent impact on full range of motion in her gait cycle.

7 In April 2017, the plaintiff's lawyers served on Parks Victoria and Apteso a certificate of assessment of the degree of impairment resulting from the injury to the plaintiff prepared by sports and industrial physician Dr Kennedy. In an associated report following the examination on 9 March 2017, Dr Kennedy expressed his opinion that:

Ms Pickett's prognosis is fair as, on the balance of probabilities, she will have further deterioration in her right ankle and hind-foot due to post-traumatic osteoarthritic changes occurring in the distal talofibular syndesmosis as well as the ankle joint and the subtalar joint. The development of osteoarthritis may result in restrictions in the movements of the right foot at the ankle joint but currently Ms Pickett has problems with the musculotendinous structures supporting her right ankle and hind-foot due to the injury sustained and the prolonged periods of immobilisation and she has ongoing problems with a Grade 4 strength deficit of extension at the ankle joint and eversion at the hind-foot.

8 Parks Victoria and Apteso responded to being served with the certificate of assessment completed by Mr Kennedy by referring to a medical panel the question of whether the degree of impairment resulting from the plaintiff's injury satisfied the threshold level for significant injury.[2]

9 The plaintiff was examined by the panel on 11 July 2017. The panel's certificate of determination dated 25 July 2017 contains the following question and answer:

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 physical injury to the claimant alleged in the claim does not satisfy the threshold level.

She currently complains of intermittent pain in the lateral aspect of the right ankle, which is aggravated by prolonged standing or walking, as well as carrying heavy weights, as she recently experienced when she moved house.

Examination of the right ankle revealed a 10 cm well-healed surgical scar over the distal fibula and lateral malleolus, with mild tenderness, but no indication of neuroma formation. Lower limb reflexes were normal, with variable non-dermatomal sensory changes. Range of motion of the right ankle and the right hindfoot was normal.

No medical imaging was made available to the Panel, but the Panel noted a report of plain X-rays of the right ankle dated 18 January 2015, which was reported to show open reduction and internal fixation of a right distal fibula fracture, with plate and screws in an appropriate position. The Panel considered that no additional medical imaging or other investigations were necessary for it to answer the medical question.

The Panel noted the instructions on page 3/14 of Chapter Three describing the use of diagnostic procedures that states: "such procedures should be done only if necessary and relevant, and they should not be ordered without consideration of costs as well as benefits." The Panel further noted there is no clinical indication of an arthritic process in play that would warrant the use of ionising radiation, to assess permanent impairment of the right ankle. The Panel considered that weight bearing X-rays (performed in accordance with Section 3.2g of Chapter Three of the Guides) of the right ankle are not clinically indicated and would be unlikely to provide additional information for the purposes of impairment assessment, and therefore are unnecessary and irrelevant in this instance.

The Panel concluded that the claimant is suffering from persisting symptoms in the lateral aspect of the right ankle, as a consequence of a healed fracture of the right distal fibula, treated surgically ...

The Panel conducted an impairment assessment according to the methods prescribed in the American Medical Association Guides to the Evaluation of Permanent Impairment (Fourth Edition) ("the Guides") as required by Section 28LH of the Wrongs Act 1958 ("the Act"). The Panel considered that no further information was required from the claimant's treating practitioners to carry out the assessment.

The Panel considered that the most appropriate method of assessment of the claimant's right ankle and hindfoot impairments was by reference to range of motion pursuant to Section 3.2e.

The Panel assessed the appropriate whole person impairment for loss of range of motion of the right ankle and the right hindfoot pursuant to Tables 42 and 43 of Chapter Three.

Part VBA of the Wrongs Act

11 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.

12 Significant injury is defined by s 28LF and includes:

(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; ...

Impairment is to be assessed in accordance with the Guides.[3]

13 In this case, the process of compliance with pt VBA commenced by the plaintiff serving on Parks Victoria and Apteso the certificate of assessment completed by Dr Kennedy.[4] Parks Victoria and Apteso each referred a medical question in relation to the assessment to a Medical Panel for determination.[5] Medical question is defined in pt VBA:

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.[6]

14 The panel was required to assess the degree of the plaintiff's impairment in accordance with the Guides.[7] The effect of a determination by the medical panel is dealt with in s 28LZH:

(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.

There is no right of appeal on the merits from an assessment or determination of a Medical Panel.[8] The effect of the panel's determination is that the plaintiff is not entitled to recover damages for non-economic loss in relation to the injury from Parks Victoria or Apteso.

15 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.

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.

16 Impairment of the lower extremity is dealt with in 3.2, which includes description of 13 different evaluation methods. Introductory instructions in 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.

17 The following instruction is contained in 3.2e Range of Motion:

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

18 The method in 3.2g Arthritis involves obtaining 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 3.2g Arthritis include:

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.

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.

19 After the panel's determination was received, the plaintiff's solicitors arranged for her injuries to be assessed by orthopaedic surgeon Mr Edwards. In a report dated 18 September 2017 and an affidavit sworn by him on 19 December 2017, Mr Edwards stated he arranged, as part of the assessment, to obtain standing x-rays of the plaintiff's right foot and ankle. Mr Edwards' opinion was that the x-rays demonstrated ankle joint space of at most 2mm. Based on that radiological finding, Mr Edwards assessed impairment using table 62, which appears in 3.2g Arthritis, at six percent of the whole person. In oral submissions, the plaintiff accepted the only use which could be made of Mr Edwards' evidence was to demonstrate the utility of granting relief if jurisdictional error by the panel was made out.

20 A medical panel commits jurisdictional error if it asks itself the wrong question, takes into account an irrelevant consideration, or fails to take into account a relevant consideration.[9] The considerations a medical panel are bound to take into account are determined by the empowering legislation, in this case the Wrongs Act.[10]

21 As I stated above, the Wrongs Act required the panel to make an assessment of the degree of impairment "in accordance with" the Guides. In HJ Heinz Company Australia Limited & Anor v Kotzman & Ors,[11] Kyrou J concluded that interpretation of the Guides is a question of law,[12] use of the Guides was designed to promote precision, consistency and certainty[13] and that a legalistic approach should not be taken to interpretation of the Guides.[14] His Honour described the obligations imposed on a medical panel by the legislation[15] and the Guides as follows:

1. 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.
2. 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.
3. 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.
4. The Guides itself makes it clear that the protocols and methodologies it sets out are intended to be standardised processes which produce similar outcomes irrespective of who conducts the assessment. In particular, the statement in s 1.2 of the Guides which I have set out in [11] highlights that in order for an assessment to be in accordance with the Guides, the panel must follow the protocols and tables in the Guides.

22 The plaintiff pointed to the following matters which were known by the panel. First, clinical examination by the panel revealed no loss of range of motion in the ankle or hind-foot, meaning there was no assessable impairment under the range of motion method. Second, examination revealed no crepitus. Third, the panel obtained a history of intermittent pain aggravated by prolonged standing and walking, and by carrying heavy weights. Fourth, the injury was severe, and involved intra-articular fractures. Fifth, Dr Kennedy expressed the opinion that the plaintiff suffered post traumatic osteoarthritic changes in her right ankle, and Dr Floreani was of the view that the long-term prognosis was guarded. Sixth, the only radiology the panel referred to was taken only five days post-injury, and could not possibly have demonstrated loss of cartilage interval as a consequence of degenerative arthritis which existed at the date of the panel's examination two and a half years later, in July 2017.

23 Next, the plaintiff drew attention to the description of the method of impairment in 3.2g of the Guides. First, the Guides instruct that range of motion techniques are of limited value in estimating impairment secondary to arthritis because most patients are impaired more by pain and weakness, but can still maintain a range of motion. Joint crepitation is also an inconsistent finding. Second, the Guides instruct that assessing cartilage interval loss using x-rays is a more objective and valid method of grading impairment than estimation based on physical findings such as range of motion or joint crepitation.

24 The plaintiff noted the introductory remarks to 3.2 of the Guides pointed to the need for the panel to select the optimal evaluation method for assessment of her impairment. The plaintiff submitted the demonstrated nature of the injury involving fractures of the distal fibula and tibia requiring surgical fixation, the complaints of increasing pain with activity, the findings on examination of no loss of range of motion or crepitus, and the instructions in 3.2 combined to oblige the panel to consider assessment of impairment using the method described in 3.2g Arthritis. The only radiological evidence before the panel was a report of the x-ray taken on 18 January 2015, only five days after injury. Proper construction of the Guides obliged the panel to have regard to the method of assessment described in 3.2g. In the circumstances of this case, that required the panel to obtain and consider current x-rays in order to assess whether there was impairment by reason of cartilage interval loss in the right ankle. Failure by the panel to take that step amounted either to a failure to exercise its statutory function to determine impairment in accordance with the Guides, or a failure to take into account a relevant consideration, namely an arthritis impairment based on current x-rays to determine cartilage interval loss.

25 The plaintiff relied on Kyrou J's observation in Heinz:

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 an impairment by reference to sufficient medical and non-medical information to justify the estimate.[16]

The plaintiff submitted that another panel assessing the same injury would, because it had access to current x-rays, give a different answer to the medical question. The need for 'precision, certainty and consistency' required that the panel obtain and consider x-rays of the plaintiff's right ankle in order to be able to select the optimal method of assessment and to assess the impairment using the method described in 3.2g of the Guides.

26 The plaintiff submitted Mr Edwards' report demonstrated there was utility in granting the relief she sought.

27 Parks Victoria and Apteso submitted, first, that the panel exercised its judgment and experience to select the optimal method for assessment of impairment to the plaintiff's right ankle, as was required by 3.2 of the Guides. Second, some, but not all of the available methods for assessment of impairment of the lower extremity required reference to radiological investigations. The panel followed the instruction on the Guides and determined, as it was entitled to do, that further x-rays were neither necessary nor relevant and accordingly, on a cost/benefit analysis, should not be obtained. Where the panel assessed the desirability of obtaining x-rays in accordance with instructions in the Guides, there can be no jurisdictional error.

28 Third, the panel was a specialist medical tribunal comprised of accredited medical practitioners with expertise relevant to the referral, who were required to apply their medical experience and clinical judgment in the performance of their function.[17] X-ray investigations that would be required to assess impairment under 3.2g Arthritis, were not necessary where the panel concluded there was no clinical indication of arthritis, and impairment to the lower extremity could be assessed under 3.2e Range of Motion. Self-evidently, the decision about whether further investigations are required is made without the benefit of the result of those investigations, and is a decision which must be made by the panel in light of the information, history and examination findings.

29 Fourth, 3.2g Arthritis must be read with care in light of the panel's conclusion that there was no clinical indication of an arthritic process in play. However, even if it had some application, that part includes the following instruction:

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

This instruction stands in the way of the plaintiff's contention that the Guides require the panel to obtain x-rays and to assess impairment using the arthritis method. The Guides repeatedly instruct that evaluating range of motion is a valid and suitable method of assessing impairment. Accordingly, the panel cannot fall into error by using that method.

30 Fifth, consistency required that the panel exercise its clinical judgment when considering whether further x-rays were necessary and relevant, and when determining what method of assessment should be used. Because the panel followed the instructions in the Guides, and answered the medical question in accordance with the Guides, no question of inconsistency arose.

31 For a number of reasons, I have concluded that the panel assessed the plaintiff's degree of impairment and answered the medical question in accordance with the Guides, and in doing so did not commit jurisdictional error by failing to take into account a relevant consideration. First, the instructions in Chapter 3 of the Guides emphasised the need for an assessor to use recorded medical history and the results of physical examination, and to apply medical knowledge, experience and judgment when determining musculoskeletal impairment. The plain meaning of the words used in the Guides direct an assessor to use that process when determining each step necessary for assessment of impairment. Relevantly, the assessor is instructed that judgment and experience are required to select the optimal method of assessment of the lower extremity. Further, the Guides instruct the assessor that diagnostic procedures such as x-rays "should be done only if necessary and relevant" and "should not be ordered without consideration of cost as well as benefits". Choosing the optimal method of assessment and determining whether x-rays are necessary and relevant require the assessor to apply medical knowledge, experience and judgement.

32 Second, that approach to construction of the Guides is consistent with authority as to the function of the panel. In Wingfoot the High Court observed:

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 [57]. 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.[18]

33 Third, the Guides give the assessor the option of using the range of motion method to assess impairment. The introduction to Chapter 3 instructs that recording the range of motion of an extremity is a valid method of estimating impairment. The introduction to 3.2 Lower Extremity explains that some impairment may be evaluated appropriately by the range of motion model. In 3.2e Range of Motion the Guides instruct the method is suitable and in 3.2g Arthritis they instruct that if there is doubt about the suitability of the arthritis method, range of motion may be used. Fourth, 3.2g of the Guides is directed to assessment of arthritis specifically.

34 Fifth, the panel was comprised of an occupational physician and an orthopaedic surgeon, both of whom I infer have specialist medical knowledge and experience relevant to answering the medical question. Sixth, the reasons of the panel indicate that it performed its function in the manner instructed by the Guides. The panel considered the material provided to it with the referral, obtained a history from the plaintiff relevant to the injury to her right ankle, and performed a physical examination. Having done so, the panel reached the following conclusions:

(a) there was no clinical indication of arthritis;

(b) weight-bearing x-rays of the right ankle were unlikely to provide additional information relevant to assessment of impairment, and were unnecessary and irrelevant;

(c) the plaintiff is suffering persisting symptoms in the lateral aspect of the right ankle as a consequence of the healed fracture of the right distal fibular, treated surgically; and

(d) the appropriate method for evaluation of impairment was 3.2e Range of Motion.

35 The panel considered, as it was obliged to do, which of the available methods should be used to evaluate impairment of the plaintiff's right leg. The reasons demonstrate that in undertaking that evaluation, the panel considered whether 3.2g Arthritis might be the appropriate method, but determined that it was not because it found no clinical indication of arthritis. Assessment of whether the plaintiff was suffering arthritis was within the medical experience and expertise of the panel. The panel also considered whether x-rays of the plaintiff's right ankle should be taken and determined they were unnecessary and irrelevant because they were "not clinically indicated and would be unlikely to provide additional information for the purposes of the impairment assessment". The reasons demonstrate that the process followed by the panel to reach the conclusions accorded with the instructions in the Guides. Having reached their conclusion that there was no arthritic process in play, and that weight-bearing x-rays were unnecessary and irrelevant, there was no basis for the panel to use the method for evaluation of arthritis in 3.2g.

36 Seventh, I accept the submission of Parks Victoria that the panel performed its function in accordance with instructions and methodologies in the Guides, and therefore no question of inconsistency arises.

37 Because I have concluded that the plaintiff has not made out either ground for review of the panel's determination, this proceeding will be dismissed. I will hear from the parties as to costs.

[2] Wrongs Act 1958 (Vic) s 28LWE.

[3] Ibid ss 28LH, 28LZG(1).

[4] Ibid s 28LT.

[5] Ibid ss 28LW, 28LWE.

[6] Ibid s 28LB.

[7] Ibid ss 28LH, 28LZG(1).

[8] Ibid s 28LZI(1).

[9] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 39-41; Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163.

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

[11] [2009] VSC 311 (31 July 2009) ('Heinz').

[15] In Heinz [2009] VSC 311 (31 July 2009) the empowering legislation was the Accident Compensation Act 1985 (Vic), however, there is no material difference with the empowering provisions in this case.

[16] [2009] VSC 311 (31 July 2009) [27].

[17] Wingfoot Australia Partners Pty Ltd & Anor v Kocak & Ors [2013] HCA 43; (2013) 252 CLR 480 [47] (French CJ, Crennan, Bell, Gageler and Keane JJ) ('Wingfoot').

[18] Ibid; see also Taylor v Mountain Pine Furniture Pty Ltd [2006] VSC 499 (15 December 2006) [21] (Bongiorno J). (This decision was upheld on appeal see Mountain Pine Furniture Pty Ltd v Taylor [2007] VSCA 146; [2007] 16 VR 659.)