Plaintiff v First Defendant Second Defendant Third Defendant

1 This is an application for judicial review[1] of a determination of a medical panel (the 'Panel')[2] concerning injuries sustained by the plaintiff, Ms Hazel Wilson, at the premises of the first defendant, Liquorland Australia Pty Ltd.

2 The plaintiff was born on 22 June 1954. On 10 December 2011, the plaintiff was shopping at the premises of the first defendant in Corio Village, Geelong, when she allegedly slipped on a wet floor and fell awkwardly, with her right arm becoming stuck underneath a pallet (the 'Incident'). As a result of the Incident, the plaintiff alleges she sustained injuries to her right upper arm and neck, and suffered the onset of chronic pain syndrome and/or complex regional pain syndrome and psychological injuries.

3 The plaintiff seeks to recover against the first defendant damages for non-economic loss pursuant to the Wrongs Act 1958 (Vic) (the 'Act'). To bring such an action the plaintiff must demonstrate she has suffered a 'significant injury', that is, the degree of impairment of the plaintiff resulting from the injury (or injuries) she allegedly sustained in the Incident must satisfy the relevant threshold level under the Act. In this context, the first defendant referred the question of the assessment of the impairment of the plaintiff to a medical panel for determination/opinion.[3] The second defendant, Dr John Malios as the Convener of Medical Panels, then convened the Panel to make such determination.

4 The Panel delivered a certified determination dated 29 April 2013 (the 'Determination'), which was accompanied by a statement of reasons for the Determination (the 'Reasons'). The Determination answered the following medical question:

Question: Does the degree of impairment resulting from the injury to the [plaintiff] 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 plaintiff] alleged in the claim does not satisfy the threshold level.

5 The plaintiff seeks an order in the nature of certiorari quashing the Determination[4] on the grounds that the Panel:[5]

(a) fell into jurisdictional error by taking into account an irrelevant consideration;

(b) fell into jurisdictional error by failing to take into account a relevant consideration;

(c) fell into jurisdictional error by making findings in the absence of evidence; and

(d) failed to provide adequate reasons, and failed to disclose an adequate path of reasoning.

6 Only the plaintiff and the first defendant took an active part in this proceeding. Consistent with the principle in R v Australian Broadcasting Tribunal; Ex parte Hardiman,[6] the second and third defendants did not appear at the hearing and submitted to the orders of the Court.

7 For the reasons further explained below, I am of the opinion that in this matter, the Panel's Determination should be quashed and the medical question remitted to a differently constituted medical panel to be convened in accordance with the Act.

8 Section 28LE of the Act states that a person cannot recover non-economic loss damages for personal injury unless they have suffered a 'significant injury'. Section 28LF of the Act defines significant injury by reference to the degree of whole person impairment resulting from the injury as assessed by an approved medical practitioner or, upon referral, by a medical panel.

9 To be deemed a significant injury under the Act, the permanent impairment caused by that injury must meet the required threshold level. Pursuant to s 28LB of the Act, in the case of injury (other than psychiatric injury), the relevant threshold level is impairment of more than 5%.

10 The method by which a medical panel is required to assess the impairment of injuries resulting from the same incident is set out in s 28LL of the Act, which states:

(1) If a person has more than one impairment resulting from injuries which arose out of the same incident, all of those impairments must be included in the one assessment.

(2) For the purposes of this Part, impairments, other than psychiatric impairments, resulting from injuries which arose out of the same incident are to be assessed together using the combination tables in the AMA Guides or the methods prescribed for the purposes of this Part.

(3) For the purposes of this Part, impairments from unrelated injuries or causes are to be disregarded in making an assessment.

11 Section 28LB of the Act defines the 'AMA Guides' as the:

American Medical Association's Guides to the Evaluation of Permanent Impairment (Fourth Edition) (other than Chapter 15) as modified by or under this Part [Part VBA of the Act].

12 Section 28LJ of the Act directs that a medical panel, in assessing the degree of impairment, must not pay regard to 'any psychiatric or psychological injury, impairment or symptoms arising as a consequence of, or secondary to, a physical injury'.

13 Section 28LZI(2) of the Act preserves the jurisdiction of this Court to grant the relief sought by the plaintiff in this proceeding.

14 Following the Incident, the plaintiff sought an assessment of the degree of impairment arising from the injuries she allegedly sustained. On 8 September 2012, Professor Kenneth Myers, a surgeon and an approved medical practitioner, assessed and certified[7] the plaintiff's degree of whole person impairment satisfied the threshold level; that is, the plaintiff's whole person impairment was more than 5% after assessment as required under the AMA Guides.[8]

15 On 1 October 2012, the first defendant referred the question of the assessment of the impairment of the plaintiff to a medical panel. The referral stated that the plaintiff had suffered the following injuries arising from the Incident:

(a) right shoulder injury, being inflammatory changes in the rotator cuff tendons, and degenerative changes in the articular cartilage of the shoulder joint; and

(b) cervical spine injury, being degenerative intervertebral disc disease of C4/5, C5/6 as well as spondylitis.

16 The Panel jointly examined the plaintiff on 2 April 2013.

17 The Panel stated in its Reasons it had considered the listed documents and information provided to it.[9] These documents included the first defendant's incident report, the report and certificate of Dr K. Myers, various radiological and neurological investigations and general practitioner medical records.

18 Further, the Panel stated it had taken into account the history provided to the Panel by the plaintiff and examination findings of the Panel consequent upon their examination of 2 April 2013. The Reasons then set out the Panel's conclusions and the reasons for those conclusions. The Panel, prior to undertaking the required impairment assessments, 'concluded that the [plaintiff] is suffering from a regional chronic pain syndrome of the right upper quadrant and cervical spondylosis without radiculopathy, and that the condition has stabilised'.

19 The Panel stated it assessed the appropriate whole person impairments of the cervico-thoracic spine in accordance with Tables 70 and 73 of Chapter 3 of the AMA Guides. The use of the Tables involved assessment of cervico-thoracic spine impairments by the Panel using Diagnosis Related Estimates (the 'DRE Model'). The Panel, by utilising the DRE Model, determines if the plaintiff's condition conforms with the category of spinal condition in Table 70 and then uses Table 73 to evaluate whole person impairment. This decision was not in issue in this proceeding.[10] The Panel assessed upper extremity impairment due to abnormal range of motion of the right shoulder in accordance with figures 38, 41 and 44 of s 3.1j of Chapter 3 of the AMA Guides. The Panel used Table 3 of Chapter 3 of the AMA Guides to convert the right upper extremity impairment to whole person impairment. Again, this methodology was not in dispute in this proceeding.

20 The Panel's conclusion after applying the DRE Model was that the plaintiff's degree of whole person impairment resulting from the physical injury after the Incident was permanent but not more than 5%. Thus, the Panel determined the degree of whole person impairment resulting from the physical injury to the plaintiff did not satisfy the threshold level required under the Act.

Irrelevant consideration and s 23LL(3) of the Act

21 It was not disputed that the Panel was obliged to disregard any impairment not related to the subject injury. But here the issue was whether a pre-existing asymptomatic radiological finding constituted such impairment.[11] It was submitted by Mr Ingram, leading counsel for the plaintiff, that by taking into account a pre-existing but non-impairment producing pathology, the Panel has fallen into jurisdictional error, has taken into account an irrelevancy. The issue in this matter turns on the question of whether the Panel has correctly disregarded impairment caused by the incident but related to asymptomatic 'constitutional spondylosis' pursuant to s 28LL(3) of the Act.

22 A report of the CT scan of the plaintiff's cervical spine dated 2 August 2012 (the 'CT scan Report'), reproduced in the Reasons, recorded the following observations:

Mid to lower cervical spondylosis with reversal of the lordosis. Central superiorly extending disc extrusion at C4/5 with mild central canal AP diameter reduction. Left paracentral disc protrusion at C6/7 with mild canal narrowing. Uncovertebral joint osseous lipping with minor right C6 foraminal narrowing.

23 The Panel in its Reasons stated that it had 'considered the findings of the [CT scan Report] and concluded that there was some level of impairment related to constitutional spondylosis that was due to unrelated causes and which the Panel should disregard pursuant to s 28LL(3) of the Act'. The Panel in its Reasons did not (and it was not required to) provide a percentage value in respect of the level of pre-existing impairment which was to be disregarded. As stated above, the Panel determined that the plaintiff had sustained some degree of whole person impairment as a consequence of the physical injury sustained in the Incident, but after disregarding impairment relating to 'constitutional spondylosis that was due to unrelated causes', determined that although such impairment was permanent, it was not more than 5%. In doing so the Panel disregarded not the pre-existing impairment, but rather, impairment resulting from the Incident caused by the aggravation of pre-existing cervical degeneration; it is 'some level of impairment' caused by the Incident related to pre-existing asymptomatic 'constitutional spondylosis' that the Panel says should be disregarded.

24 It should be noted here that the history taken by the Panel from the plaintiff was that: 'she had not experienced any pain or injury to her right shoulder or neck prior to the [Incident]'. This history was not contradicted. There is no evidence that the plaintiff had any pre-existing impairment of the neck or shoulder.

25 In Chua v Lowthian ('Chua'),[12] Osborn J considered the manner in which a medical panel should approach s 23LL(3) of the Act. His Honour observed that a medical panel 'was required to disregard any pre-existing impairment which reduced the net degree of impairment which could be said to flow from the subsequent injury'.[13] In commenting on the operation of s 23LL(3) of the Act in the circumstances of the case before him, his Honour stated: 'Put another way, the impairment which the Panel assessed arose from circumstances arising after (and allegedly as a result of) treatment of the claimant by Dr Chua'.[14] The impairment 'was the result of subsequent events allegedly necessitated by his negligence'.[15] In the application of s 23LL, his Honour stated the section requires a medical panel 'to disregard pre-existing impairment which is established by evidence to have resulted from a cause other than the relevant injury'.[16] His Honour emphasised the need for pre-existing impairment to be evidence-based.[17]:

It cannot simply be speculative. The Panel must have an evidentiary basis on which it can be positively satisfied of a pre-existing impairment which it then disregards. The Panel is not bound by rules or practices as to evidence but it must act on the basis of evidence of some sort.[18]

26 In Alcoa Holdings Ltd v Lowthian ('Alcoa'),[19] J. Forrest J on the same issue stated that:

[I]f the evidence is sufficient to demonstrate the existence of a pre-existing impairment from an unrelated injury or cause, then the Panel must, as best it can, determine the extent of that impairment so it can be disregarded and evaluate the impairment related solely to the compensable injury.[20]

27 The need for established pre-existing impairment is underscored by the reasoning in the above cases. A comparison of the plaintiff's condition pre and post the Incident establishes that the plaintiff had no pre-existing impairment of her cervical spine or right shoulder.

28 The Panel in its Reasons recognised that it 'must have an evidentiary basis on which it can be positively satisfied of pre-existing impairment which is to be disregarded'. The Panel stated it took into account the plaintiff's medical history and the referral material 'to determine if there is any impairment that the Panel considers is from unrelated causes or injuries' to be disregarded. The Panel also stated it had considered the Victorian Supreme Court judgments of Alcoa and Chua, and further stated that it 'understands that, in performing the task of assessing any pre-existing impairment, the Panel must have an evidentiary basis on which it can be positively satisfied of pre-existing impairment which is to be disregarded'.

29 Whilst the Panel correctly identified the legal principles, in my opinion it failed to properly implement those principles in determining pre-existing impairment of the plaintiff's cervical spine to be disregarded. There was no evidentiary basis by which the Panel could derive a positive satisfaction of a pre-existing impairment. An underlying asymptomatic degenerative change does not provide any such evidentiary basis; it is not an impairment. The 'constitutional spondylosis' demonstrated by the CT scan Report alone, with no evidence of any associated injury, pain or impairment, could not be considered as providing such evidentiary basis. I do not accept that an impairment arising from an aggravation of a pre-existing, silent, cervical degeneration can be said to be an impairment from an unrelated cause. In my opinion, s 28LL(3) of the Act cannot be interpreted as permitting an injury and impairment in fact caused by the Incident to be disregarded.

30 Further, in my opinion, the definition of 'impairment' and 'permanent impairment' contained in the AMA Guides[21] supports the conclusion that the Panel has improperly disregarded 'some level' of impairment related to constitutional spondylosis as an unrelated cause. Impairment as defined concerns 'the loss, loss of use or derangement of any body part, system or function'. Permanent impairment as defined is an impairment that is static, not likely to remit despite medical treatment.[22] It cannot be said the plaintiff suffered from any such impairment prior to the Incident.

31 Mr Wicks, counsel for the first defendant, submitted the Panel in its reasons did not regard the plaintiff's neck condition of 'cervical spondylosis without radiculopathy' as an aggravation injury impacting upon an underlying pathology. Rather, it was submitted '[The Panel] assessed the whole condition (cervical spondylosis without radiculopathy) according to the [AMA Guides]. It then disregarded the impairment from unrelated cause (being the underlying degenerative pathology). It was open to the [Panel] to so find and that is unimpeachable on judicial review'.[23] I do not agree that the reasoning is unimpeachable.

32 Mr Wicks contended during the course of submissions that the Panel would 'know what an aggravation is', and because the Panel did not describe or specifically find aggravation of the degenerative condition, 'it's reasonable to conclude the Panel didn't find there was an aggravation'. That the Panel did not use the word 'aggravation' does not alter what, in my opinion, is the only logical explanation for the Panel's finding. The Panel has found that previously asymptomatic spondylosis, as a consequence of the Incident, is now productive of some level of permanent impairment. The Panel's reasoning is best summarised as the Incident being responsible for the triggering of the injury causing incapacity. 'Aggravation' is a word commonly used to describe such an event.

33 The submission on behalf of the first defendant that I should conclude the Panel did not find the Incident triggered or caused an aggravation of pre-existing spinal pathology would leave no other explanation of the plaintiff's permanent impairment. A consequence of such a conclusion is that I would be compelled to find that the Panel failed to properly explain its 'actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve an error of law'.[24] Such a failure 'is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion'.[25]

34 The Panel concluded the Incident was productive of cervical spondylosis without radiculopathy, and that the Incident resulted in the spondylosis producing a level of impairment. These findings do not permit a conclusion that some part of the impairment is due to unrelated cause and should be disregarded. The impairment is due to the Incident activating an otherwise quiescent pathology.

35 Mr Wicks pointed to the lack of complaint by the plaintiff to her General Practitioner concerning any neck and shoulder pain until May 2012 and thus, he contended, it was open to the Panel to find it was not a condition rendered symptomatic by the Incident. I do not accept this submission. The Panel did not make such a finding. The Panel in fact made an assessment of the appropriate whole person impairments of the cervico-thoracic spine in accordance with Tables 70 and 73 of the AMA Guides. The Panel also assessed upper extremity impairment due to abnormal range of motion of the right shoulder and converted the right upper extremity impairment to whole person impairment in accordance with the AMA Guides. These were assessments made of injuries the Panel determined arose out of the Incident. The Panel's reasoning was based on an acceptance that these injuries were caused by the Incident.

36 The AMA Guides focus on the importance of history in assessing pre-existing impairment. The AMA Guides state:

From historical information and previously compiled medical data, determine if there was a pre-existing impairment. If the previously compiled data can be verified as being accurate, they may be used in apportionment (see Glossary). The percent based on the previous findings would be subtracted from the percent based on the current findings.[26]

The direction is specifically relevant to the use of the DRE Model and is consistent with the manner in which s 23LL(3) of the Act should be applied. As stated above, there is no history of any pain or restriction of the plaintiff's neck or right shoulder prior to the Incident. This direction, in my opinion, is supportive of my conclusion that the Panel was in error in disregarding any contribution of a pre-existing, asymptomatic degeneration of the spine to current incapacity.

37 The reasons of a medical panel are entitled to a beneficial construction, are not to be scrutinised over-zealously.[27] Nevertheless, the reasons of a medical panel are subject to judicial review, and jurisdictional error may lead to the opinion being quashed. This may happen in a number of ways. It was stated in Craig v The State of South Australia ('Craig'):

If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.[28]

38 In Minister for Immigration and Multicultural Affairs v Yusuf, the High Court referred to the above statement in Craig and stated:

The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.[29]

39 In my opinion, the Panel has fallen into jurisdictional error. The error is not identified through over-zealous scrutiny of the Reasons. Rather, the error is fundamental. In disregarding a level of impairment the Panel determined was due to pre-existing, asymptomatic constitutional spondylosis, the Panel has relied upon an irrelevant consideration, applied a wrong legal test and reached an erroneous conclusion which invalidates its decision and the answer to the question before it.

40 Mr Wicks, in submissions, referred me to Colquhoun v Capital Radiology Pty Ltd[30] in which the Court of Appeal determined that relevant provisions of the Act imposed no statutory obligation on a medical panel to provide reasons for its decision and, as a consequence, inadequacy of a panel's reasons could have no legal consequence.[31] The submission is not relevant to this matter. This is not a case concerning inadequacy of reasons. The reasons provided by the panel disclose jurisdictional error and consequently I am not constrained in the exercise of jurisdiction conferred by O 56 of the Supreme Court (General Civil Procedure) Rules 2005.

41 Mr Wicks made submissions concerning the Panel's findings of chronic regional pain syndrome of the right upper quadrant - the plaintiff's right shoulder injury. In the light of my findings, it is not necessary to consider this submission.

42 I find that the Panel fell into jurisdictional error, order that the Panel's Determination be quashed and that the medical question be remitted to a differently constituted medical panel to be convened in accordance with the Act. I will hear the parties concerning any other necessary additional orders.

[1] Pursuant to O 56 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic).

[2] The Panel is the third defendant in this proceeding, and was constituted by Dr Peter Jasek, general practitioner, Dr Jennifer Harmer, rheumatologist, and Mr Peter Dohrmann, neurosurgeon.

[3] Pursuant to the Wrongs Act 1958 (Vic) (the 'Act') s 28LWE.

[4] Together with any other relief as the Court shall think fit.

[5] See the Originating Motion Between Parties filed on behalf of the plaintiff on 28 June 2013 at [8] ('Originating Motion').

[6] [1980] HCA 13; (1980) 144 CLR 13 at 45 - 46 (Gibbs, Stephen, Mason, Aickin and Wilson JJ).

[7] Pursuant to the Act s 28LN.

[8] Pursuant to the Act s 28LH.

[10] If injury or impairment falls outside those conditions listed in Table 70 of the AMA Guides, then the Range of Motion Model set out in the Guides is to be used.

[12] [2011] VSC 468.

[19] [2011] VSC 245.

[21] See Glossary to AMA Guides at 316.

[22] As noted above, the Panel in fact determined the plaintiff has sustained a permanent whole person impairment as a consequence of the Incident, but that after disregarding what the Panel stated were unrelated causes, the permanent impairment was not more than five per cent.

[23] See written submissions of the first defendant at [27].

[24] Wingfoot Australia Partners Pty Ltd v Kocak ('Wingfoot') [2013] HCA 43; (2013) 303 ALR 64 at 79 (French CJ, Crennan, Bell, Gageler and Keane JJ).

[25] Wingfoot [2013] HCA 43; (2013) 303 ALR 64 at 79 (French CJ, Crennan, Bell, Gageler and Keane JJ).

[27] Gruma Oceanic Pty Ltd v Bakar [2014] VSCA 252 at [29] (Neave, Santamaria, and Kyrou JJA).

[28] [1995] HCA 58; (1995) 184 CLR 163 at 179 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).

[29] (2001) 206 CLR 323 at 351 (McHugh, Gummow and Hayne JJ).

[30] [2013] VSCA 58 (Maxwell P, Weinberg JA and Ferguson AJA).

[31] Ibid at [45]. Note, s 68(3) of the Accident Compensation Act 1985 (Vic) specifically provides for the medical panel to provide reasons. There is no equivalent provision in the Act.