Rossington v Hungry Hampers Catering [2024] VMC 6

2. Mr Rossington disputed a decision to deduct lump sum compensation received for a prior injury from his claimed entitlement for the 2018 injury (the decision).

3. The decision was made by the Agent, being the WorkCover insurer of his employer in 2018, Hungry Hampers Catering (HHC). The decision was stated to be under s.217(4) of the Act which provides, relevantly, as follows:

in respect of an injury, the amount of that compensation must be deducted from any compensation payable under this Division in respect of any impairment or total loss resulting from an injury consisting of any recurrence, aggravation, acceleration, exacerbation or deterioration of the injury in respect of which compensation has been paid under this Division ...

1. The Agent's decision followed an opinion expressed by a Medical Panel after medical questions were referred by the Agent (the opinion).

5. An issue also arose, therefore, as to whether the Agent, in making the decision, had complied with s.313(4) of the Act which provides that the opinion of a Medical Panel '...(a) is to be adopted and applied by any court, body or person; and (b) must be accepted as final and conclusive by any court, body or person...'

6. The case proceeded based on Counsel's submissions without any oral evidence being adduced.

7. By agreement, the parties tendered documents from the Joint Court Book including the Panel opinion and the reasons for opinion as well as other medical reports. I have considered all the tendered evidence but will refer to it only to the extent necessary.

8. On or about 3 October 2018, Mr Rossington suffered injury to his right shoulder in the course of his employment with HHC (the 2018 injury). He had commenced work with HHC in February 2018.

9. In about March 2020, Mr Rossington lodged an impairment benefits (IB) claim on HHC with respect to the 2018 injury.

10. The Agent issued a Notice of Entitlement dated 4 May 2020 accepting liability for the 2018 injury and determining a zero per cent whole person impairment (WPI) resulting in a $nil IB (the first notice).

11. After Mr Rossington disputed the WPI determination in the first notice, the Agent referred medical questions to the Medical Panel for opinion.

12. The Panel assessed Mr Rossington as having a 7% WPI resulting from the accepted right shoulder injury (the 2018 injury) by certificate of opinion dated 25 August 2020 (the opinion).

13. Thereafter, Agent issued a notice of entitlement dated 27 August 2020 (the second notice) in which the decision was made regarding the reduction in the following way: Mr Rossington's WPI was determined at 7% equating to a lump sum benefit of $17,216 (the 2018 lump sum), however the 2018 lump sum was reduced to $nil by reason of deduction of a prior lump sum paid to Mr Rossington (the 2013 lump sum).

14. The second notice informed Mr Rossington about the reduction under a heading 'Deductions for past payments' as follows:

As your current impairment is a recurrence, aggravation, acceleration, exacerbation or deterioration of a pre-existing Right shoulder injury (the earlier injury) and you have previously received lump sum compensation for the earlier injury, in accordance with section 217(4) of the Act the amount of that compensation must be deducted from the current impairment benefit calculation. You were previously paid $23,116 on 9 May 2013 for Right shoulder injuries sustained on 27 August 2011 (Claim number - 12110040086). Therefore, your current entitlement of $17,216 less the amount you have previously been paid of $23,116 entitles you to an impairment benefit of $nil. Please note that the later reference in this letter to your 'entitlement to compensation' is a reference to the amount of $nil.

15. Mr Rossington brought this proceeding seeking to have the second notice set aside and a determination that he has an entitlement to the full amount of the 2018 lump sum.

Question i) What is the worker's degree of permanent whole person impairment resulting from the accepted injury/s as assessed in accordance with Section 54 and is the impairment permanent?

Answer: In the Panels opinion the worker has a 7% whole person impairment resulting from the accepted Right shoulder injury when assessed in accordance with Section 54 of the Act. The degree of impairment is permanent. The degree of impairment includes a 7% whole person impairment assessed in accordance with Chapter Three of the American Medical Association's Guides to the Evaluation of Permanent Impairment (Fourth Edition).

17. Counsel for both parties referred extensively to the Panel's reasons and it is convenient to set out extracts relevant to the dispute.

18. Under 'INTRODUCTION', the Panel noted 'it is accepted that Mr Rossington sustained an injury described in the Referral as 'Right shoulder' during the course of his employment with [HHC] with a designated injury date of 3 October 2018.

19. Then, with respect to 'Relevant past history', the Panel recorded as follows:

Mr Rossington told the Panel that he had suffered an injury to the right shoulder joint around 2011. He said that he developed a frozen right shoulder on that occasion and received treatment of injections and physiotherapy. He said that the shoulder gradually improved but it took him approximately two years to fully recover.

On specific questioning by the Panel, Mr Rossington said that the shoulder improved gradually and his symptoms of pain and reduced range of movement fully resolved by late 2013. Thereafter, he had a full range of movement, full strength and physical function and did not have any specific problems with the shoulder until the injury on 3 October 2018. Specifically, Mr Rossington told the Panel that during the entire period of his work with [HHC], he was fully physically fit for all his preinjury duties without restriction, was able to perform repetitive manual tasks with the right upper limb including all the tasks associated with his storeman duties. He said he had not had any symptoms of any kind in the right shoulder for some years prior to the injury sustained on 3 October 2018. ...

20. As for 'Present symptoms and function' relevant to his right shoulder, the Panel recorded Mr Rossington's current complaints which, in summary, included 'near constant pain', restricted range of movement and decreased strength in his right arm. In the same section, the Panel also recorded:

[Mr Rossington] said that the pain and reduced range of movement is similar to the symptoms he had between 2011 and 2013 but not identical.

21. The Panel then set out extensive findings on physical examination. Observations included that: Mr Rossington had 'cooperated fully' with the examination; active movements of right shoulder were restricted when measured with a goniometer; and, that the Panel was satisfied his active movements represented genuine and maximum effort by him at the time of assessment.

22. 'Medical imaging reports' included in the referral were noted as follows:

MRI of the right shoulder dated 29 August 2012 which reportedly showed mild findings of adhesive capsulitis with minor subacromial and subdeltoid bursal oedema.

Ultrasound of the right shoulder joint dated 29 November 2018 which reportedly showed evidence of subacromial bursitis with impingement.

MRI of the right shoulder dated 14 March 2019 which reportedly showed signs consistent with a right deltoid sprain, right AC joint sprain and early glenohumeral arthrosis. There were reportedly no MR criteria for capsulitis but there was mild scarring of the anterior inferior glenohumeral ligament.

23. As for 'Diagnosis', the Panel concluded Mr Rossington was suffering from 'adhesive capsulitis of the right shoulder, partially resolved, relevant to the accepted right shoulder injury'. The condition was opined to be stable and permanent.

24. The Panel then recorded its impairment assessment[2] based on the examination. The Panel assessed a 12% upper extremity assessment of the right shoulder which equated to a 7% WPI under the Guides.

25. Under the heading 'Apportionment', the Panel set out its observations regarding the assessed impairment and the role of the 2011 injury. I have set out this section in full:

The Panel considered the extent to which there is impairment from an unrelated injury or cause which is playing a part in Mr Rossington Rossington's current impairment. The Panel understands that, in performing the task of assessing any unrelated impairment, the Panel must have an evidentiary basis on which it can be positively satisfied of an unrelated impairment, which is to be disregarded.

The Panel noted Mr Rossington's history of an injury to the right shoulder in 2011 and the significantly protracted period of recovery from the injury. The Panel also noted in the referral documents a report from Mr lan McInnes, General Surgeon, dated 25 June 2012, in which he found significant reduced range of movement following the injury in 2011 and consistent with the presence of adhesive capsulitis. The Panel also noted in the referral documents a report from Mr Peter Kudelka, Orthopaedic Surgeon, dated 14 March 2013, in which he reported a significantly restricted range of movement of the right shoulder joint consistent with adhesive capsulitis and due to the injury sustained in 2011. Mr Kudelka assessed a 12% whole person impairment at that time due to the right shoulder condition. He also gave the prognosis as guarded and the clinical condition was unlikely to change significantly in the future.

The Panel noted Mr Rossington's statement that he had recovered fully from the injury in 2011 and had regained full function of the right shoulder without residual impairment. The Panel also noted the report of his treating surgeon, Mr Eng, in which he confirmed that the previous episode of adhesive capsulitis sustained after the injury in 2011 fully resolved. Mr Eng also gave a more favourable prognosis regarding his current condition with an expectation that the right shoulder would improve over the next few months/years with conservative treatment as is the usual clinical course of adhesive capsulitis. The Panel also noted Mr Rossington's ability to perform pre-injury duties without restriction up until the date of the injury and accepted Mr Rossington's statement that the right shoulder condition sustained in 2011 resolved completely and he did not have any disabling symptoms in the right shoulder in the years prior to working for [HHC] or in the period immediately prior to the accepted injury on 3 October 2018.

The Panel also noted the mild degenerative changes evident radiologically in the right shoulder in the MRI report of 14 January 2019 and further notes that the degenerative changes were not reported in the MRI scan dated 29 August 2012. The Panel considers these changes to be a constitutional condition which was asymptomatic prior to the injury and therefore not contributing to the current impairment of the right shoulder.

As the Panel is of the opinion that there was no pre-existing functional impairment prior to the accepted date of injury of the right shoulder and if the Panel estimated a pre-existing impairment strictly using the information in the report from Mr Kudelka contained in the referral, the Panel concluded that this would result in an inaccurate evaluation of the pre-existing impairment and therefore would be considered to be capricious, arbitrary and irrational.

The Panel used its clinical judgement, it examination of Mr Rossington and the material provided with the referral to estimate that Mr Rossington's pre-existing right shoulder condition resulted in a 0% whole person impairment.

The Panel is therefore of the opinion that there is no physical impairment from an unrelated injury or cause which is playing a part in Mr Rossington's current physical impairment and which ought to be disregarded in accordance with Section 53(2)(b) of the Act.

The Panel therefore concluded that Mr Rossington has a 7% whole person impairment resulting from the accepted right shoulder injury when assessed in accordance with Section 54 of the Act. The degree of impairment is permanent.

The degree of impairment includes a 7% whole person impairment assessed in accordance with Chapter Three of the American Medical Association's Guides to the Evaluation of Permanent Impairment (Fourth Edition).

26. Finally, the Panel made observations regarding a report of Dr Tony Kostos, rheumatologist and independent medical examiner, dated 30 April 2020 obtained by the Agent as follows:

The Panel noted the report of Dr Tony Kostos ... in which he considered Mr Rossington to be suffering from adhesive capsulitis possibly with osteoarthritis of the right shoulder and assessed his whole person impairment as 6%. Dr Kostos also considered that his conditions of adhesive capsulitis +/- osteoarthritis were not work-related and therefore, after apportionment, assessed a 0% whole person impairment. At the time of its assessment, the Panel obtained a clear history of association between Mr Rossington's condition of adhesive capsulitis and the injury on 3 October 2018 and considers the condition to be a sequela of that injury. Whilst acknowledging that clinical assessments may vary from time to time according to the presentation at the time of assessment, based on the experience and expertise of the Panel in disorders of the shoulder, and for the above stated reasons, the Panel disagreed with Dr Kostos' assessment regarding Mr Rossington's condition and its relation to his work and the subsequent apportionment.

27. I turn now to submissions which I will set out in the order in which they were delivered.

28. From the outset, the Agent had accepted liability for the 2018 injury. Moreover, the whole of the evidence, including the medical evidence, established that the 2018 injury was a new injury. It followed that Mr Rossington was entitled to the full amount of the 2018 lump sum. He was injured in a frank incident, which was under a new claim number, the 2018 injury having occurred on a different date in different circumstances with a different employer to the 2011 injury.

29. After taking a full history and having considered specifically the question of apportionment as regards the 2011 injury, the Panel had concluded there was no impairment from an unrelated injury or cause which ought to be disregarded.

30. In essence, having decided the 2011 injury had completely resolved, the Panel proceeded to attribute the entirety of the WPI assessment found on examination to the 2018 injury. In other words, the Panel considered there was no recurrence, aggravation, acceleration, exacerbation or deterioration of a pre-existing right shoulder injury.

31. Mr Rossington was therefore entitled to the relief sought on two bases:

a. The Agent had, unlawfully, failed to adopt and apply the opinion in accordance with s. 313(4) of the Act and failed to accept the opinion as final and conclusive; and/or

b. The Agent had applied s.217(4) impermissibly because the requisite element of 'recurrence, aggravation, acceleration, exacerbation or deterioration of the injury' was absent.

32. Submissions for HHC that the 2018 injury was a 'recurrence' ought to be rejected. If that approach were to be followed to its logical conclusion, that would lead to a circumstance whereby it might be asserted the Parliament intended to preclude workers from claiming IB lump sum compensation in respect of the same body part for which compensation had been paid in the past. That could not be the case.

33. The case argued by the Agent regarding the operation of s.217(4) did not accord with well-settled principles of statutory construction enunciated in Project Blue Sky Inc v Australian Broadcasting Authority[3] and Lacey v Attorney-General of Queensland[4]. In referring to the 'recurrence, aggravation, acceleration, exacerbation or deterioration' of 'the injury', the Parliament was referring plainly to 'the injury' being that which was pre-existing and 'in respect of which compensation has been paid under this Division' previously.

34. As a matter of public policy, it could not have been the Parliament's intention to preclude a worker such as Mr Rossington, who had suffered a new injury, from receiving lump sum compensation. Moreover, such an outcome would not accord with the Act's objectives which included to 'ensure appropriate compensation ... is paid to injured workers in the most socially and economically appropriate manner...' as provided at s.10(d) of the Act.

35. The starting point was that the Agent had accepted (contrary to what was submitted for Mr Rossington) that the opinion was final and conclusive pursuant to s.313(4) of the Act. That was evident from the second notice in which the Agent determined there was a 7% WPI consistent with the Panel opinion. The Agent on that basis calculated an IB lump sum of $17,216.

36. Thereafter, the Agent had, as it was obligated to do under s.217(4), applied a deduction of a past lump sum paid to the worker from the lump sum benefit.

37. Submissions for Mr Rossington as to the current IB claim relating to the 2018 injury, which had a different claim number, injury date and employer to that of the 2011 injury, were a 'side-show' and should be rejected as irrelevant.

38. Simply put, the Agent's approach in Mr Rossington's case was both straight-forward and correct as a matter of law: (i) IB lump sum compensation had been paid previously in respect of an injury to the right shoulder being the 2011 injury; (ii) the 2018 injury was a 'recurrence, aggravation, acceleration, exacerbation or deterioration' of the pre-existing right shoulder injury; (iii) the prior lump sum had to be deducted from the subsequent IB lump sum.

39. As for the Panel's discussion and observations of under the heading 'Apportionment', the Panel was obliged (as it stated) to consider 'the extent to which there was impairment from an unrelated injury or cause ... playing a part in Mr Rossington's current impairment' and, if satisfied there was, to disregard it.

40. However, the concept of 'apportionment' in that sense went to the exercise of apportioning the degree of WPI where related and unrelated causes played a role in the WPI. Yet Mr Rossington's situation was not a case calling for apportionment in that sense. Rather, there was a prior impairment which, despite being purportedly 'permanent' at the time, had ultimately resolved.

41. Section 217(4) was a straightforward and unambiguous provision mandating a process whereby prior lump sum compensation, 'must be deducted' in the event of a 'recurrence, aggravation, acceleration, exacerbation or deterioration'.

42. Indeed, the soundness of the Agent's approach was supported, overwhelmingly, by the medical evidence as follows:

a. Dr McInnes, general surgeon, in an IME report of 25 June 2012, opined that, clinically, there was a right rotator cuff lesion probably amounting bursitis.

b. Mr Kudelka, orthopaedic surgeon, in an IME report of 14 March 2013, considered the 2012 right shoulder MRI showed bursitis and some adhesive capsulitis.

c. As for prior treating practitioners, Ms McNeill, physiotherapist, in a report dated 15 October 2012 found 'quite a dense frozen shoulder' and Dr Ng, GP, in his report of 16 October 2012, diagnosed adhesive capsulitis.

d. Dr Griffiths, rheumatologist and physician, in an IME report of 26 March 2019, opined that the chronic bilateral shoulder pains were due most likely to rotator cuff degeneration and possibly related to prior work injuries but the current exacerbation had arisen as a consequence of the 2018 injury.

e. As for current treating practitioners, Mr Seignior, physiotherapist, in his report of 1 February 2020 considered the current right shoulder presentation was consistent with a degenerative rotator cuff with subsequent subacromial bursitis and impingement, a chronic condition that had become symptomatic after excessive loading.

f. Dr Kostos, rheumatologist, in the IME report dated 30 April 2020 referred to there being 'considerable confusion' about the condition adhesive capsulitis otherwise known as frozen shoulder. He noted the 'natural history' of improvements in pain and stiffness over time after the previous episode of adhesive capsulitis and that the likelihood was Mr Rossington had had a further episode of adhesive capsulitis.

43. Before considering the operation of s.217(4), I turn first to submissions regarding the Panel opinion.

44. As submitted by Counsel for HHC, that was really the 'starting point' of where the parties diverged. In other words, there was a fundamental disagreement as to whether the Agent, with respect to its approach in the second notice, had or had not complied with s.313(4) of the Act.

45. The principles enunciated by the Court of Appeal in Ajinvan Pty v Fry[5] on the effect of a Medical Panel opinion are well-known.[6]

46. In that case, as Phillips J noted on appeal, the trial Judge made a decision, mindful of the effect of a Panel opinion, that was considered to be open to the Court in the sense of not being in conflict with the opinion (regarding the worker's condition up until a specific date)[7].

47. That circumstance is loosely analogous to how Counsel for HHC put the case here: that the Agent had accepted the opinion in terms of the determination of 7% WPI and, at the same time, made a decision open to the Agent and, it was submitted, required by s.217(4) regarding the lump sum benefit payable to Mr Rossington.

48. As to the extent to which a decision may be made which is different from a Panel opinion, Phillips J. stated that 'will surely depend upon the nature and extent of the difference'[8].

49. It is true that, whereas the Agent's first notice determined a zero WPI and an entitlement to a lump sum of $nil, the Agent's second notice, in contrast, and consistent with the Panel opinion, determined there was a WPI of 7% and an entitlement to a lump sum of $17,216. Yet, as part of the same notice of decision, it seems to me the Agent proceeded to effectively disregard, and take a step that conflicted with, the opinion.

50. In applying the reduction, the Agent decided (as the second notice stated) that the current impairment was 'a recurrence, aggravation, acceleration, exacerbation or deterioration of a pre-existing Right shoulder injury'; thereby reducing his entitlement to an IB lump sum from the 2018 injury was $nil.

51. The Panel's reasons (as I said earlier) were admitted into evidence, by agreement, on the grounds they contained admissible evidence about a fact in issue: Yirga-Denbu v Victorian WorkCover Authority[9].

52. An ambiguity had arisen given the parties diverged on whether it was open to the Agent to decide there was 'a recurrence, aggravation, acceleration, exacerbation or deterioration of a pre-existing Right shoulder injury' or whether, in so deciding, was in conflict the opinion.

53. I must reject the submission of Counsel for HHC that it was open to the Agent, as a matter of law, to so decide. That is because I find there was a conflict that was substantive in 'nature and extent' between the decision of the Agent in the second notice and the opinion expressed by the Panel.

54. To that extent I turn to the reasons. As was evident from the reasons (as extracted previously), the Panel considered: the past injury history and protracted history of recovery; current findings on physical examination; 'before' and 'after' imaging (the MRI reports from 2012 and 2018) and, finally, 'the extent to which there is impairment from an unrelated injury or cause which is playing a part in Mr Rossington's current impairment'.[10]

55. The Panel noted the lack of 'any disabling symptoms in the years prior to working for HHC or immediately prior to the 2018 injury', the mild but asymptomatic constitutional changes seen on the later MRI; then opining 'there was 'no pre-existing function impairment' prior to the 2018 injury. The Panel observed that to estimate a pre-existing impairment (in the way Mr Kudelka had done) would be 'capricious, arbitrary and irrational'.

56. The conflict between, on the one hand, the Panel findings in reaching its opinion (expressed in answer to medical question 1) and, on the other hand, the Agent's decision in the second notice is quite stark: first, the Agent stated: '...your current impairment is a recurrence, aggravation, acceleration, exacerbation or deterioration of a pre-existing Right shoulder injury....'; and, second, the Agent went on to state, '...your current entitlement of $17,216 less the amount you have previously been paid of $23,116 entitles you to an impairment benefit of $nil. Please note that the later reference in this letter to your 'entitlement to compensation' is a reference to the amount of $nil.'

57. It goes without saying that a re-consideration, effectively or actually, of an opinion expressed by the Panel is impermissible for this Court (as it was for the Agent). In Lianos v Inner Eastern, the Court of Appeal had this to say (omitting citations):

The judgment of the President in Masters makes it clear that the relevant scheme of the Act is for medical panels to supplant the court in respect of the determination of medical questions under the Act in the sense that the panel's opinion on the relevant questions effectively binds the court. As Phillips, J.A. noted in Isuzu, the Act is designed to have medical people answer medical questions in place of the courts. ...

And as Smith, J. pointed out in McDonald v. Kotzman, after referring to Masters,:

"There is no place under the statutory scheme for the opinion to be reconsidered by the magistrate in the light of any reasons. The Act makes it clear he is to act upon the opinions expressed. If there is any error of law contained in such an opinion which is revealed by the reasons, that is a matter to be taken up in a superior court where application might be made to set aside the opinion ..."[11]

58. Simply put, had the Agent wanted to challenge the Panel opinion, it ought to have taken the matter up with a superior court. However, the Agent did not do that.

59. To my mind, the submission for HHC that Panel's observations and approach under the heading of 'Apportionment' ought be disregarded because the 'did not call for apportionment as such' amounted to seeking, in effect, a reconsideration. Similarly, submissions urging the Court to accept medical opinions contained in the tendered medical reports that differed to the Panel opinion must be rejected.

60. I have concluded the Agent did fail to accept the opinion expressed by the Panel as 'final and conclusive' in making the decision that it did in the second notice.

61. Further, the Agent failed to 'adopt and apply' the opinion expressed by the Panel in the ordinary, accepted meanings of those words.

62. I refer to the definitions found in the Macquarie Dictionary (fifth ed).

63. To 'adopt' means to 'choose or take to oneself; make one's own by selection or assent'. To 'apply' means 'to bring to bear; put into practical operation, as a principle, law, rule, etc' or 'to put to use; employ...'

64. The Agent has acknowledged the opinion in the second notice in the determination of 7% by re-stating it, however the Agent has not made the opinion its own or nor put into practical operation. Indeed, that is precisely what the Agent opted not to do.

65. For these reasons, I conclude that the Agent has, unlawfully, failed to comply with s.313(4) of the Act and on that basis the second notice should be set aside.

66. Counsel for HHC submitted that, were I to find in favour of Mr Rossington, the second notice ought not be set side given the determination of 7% WPI was consistent with the opinion; however, I am of the view that it must be set aside given the Agent's statement that '...reference in this letter to your 'entitlement to compensation' is a reference to the amount of $nil'.

67. For the reasons already stated, it was not open to the Agent to apply s.217(4) because the opinion expressed by the Panel had to be accepted as final and conclusive. In deciding to apply s.217(4) - which required that 'any impairment or total loss resulting from an injury consisting of any recurrence, aggravation, acceleration, exacerbation or deterioration of the injury in respect of which compensation has been paid under this Division' - the Agent has not accepted the binding nature of the opinion.

68. For completeness, given the prominence given in submissions to the operation of s.217(4), I make some further brief observations.

69. Counsel were in agreement that this was a novel case and neither Counsel could point to authorities that have considered the operation of s.217(4) nor am I aware of any relevant to this matter[12].

70. There was nothing to assist the Court in the Explanatory Memorandum nor the Second Reading Speech specific to sub-section 217(4). There was a general observation that clause 217 was 'intended to limit the maximum lump sum payment payable under this Division in relation to an injury'; as was also evident from the provision's heading ('Limits on compensation').

71. As for clause 217(3) which concerns certain specific diseases and hearing loss, the Memorandum states that provision was intended to ensure 'that a worker is not entitled to a double payment in relation to the same injury'.

72. For reasons already stated, the consequence of adopting and applying the opinion expressed by the Panel ought to have been that Mr Rossington had an entitlement to the 2018 lump sum in full. He would not have been receiving a 'double payment in relation to the same injury' (as the Parliament put it although in regard to s.217(3)).

73. Finally, for completeness, I must also reject submissions by Counsel for HHC that Mr Rossington was 'double-dipping' because the current impairment was a recurrence of adhesive capsulitis based on various medical reports, including that of Dr Kostos (regarding which the Panel specifically addressed). As I said previously, those submissions amounted to, effectively, urging this Court to undertake a reconsideration of the Panel opinion which is impermissible as a matter of law. That is plain from the principles set out in authorities referred to previously in these reasons.

74. The Court adopts and applies the Panel opinion of 25 August 2020.

75. I order that the notice dated 27 August 2020 be set aside and determine that the plaintiff is entitled to impairment benefit compensation of $17,216 with respect to the accepted 2018 injury.

76. I will otherwise hear from the parties regarding the ancillary orders noting the prayer for relief included interest and costs.

[1] The second medical question asked whether, in the alternative, Mr Rossington had suffered a 'total loss' to which the answer was no, a matter not relevant to this dispute.

[2] Conducted in accordance with the AMA Guides (Fourth Edition) to the Evaluation of Permanent Impairment (the Guides) as required by s.54 of the Act

[3] [1998] HCA 35; (1998) 194 CLR 355

[4] [2011] HCA 10; (2011) 242 CLR 573

[5] [2001] VSCA 148; (2001) 3 VR 644

[6] Although concerned with s.68(4) of the Accident Compensation Act 1985, the principles enunciated remain applicable to the equivilent provision in the current Act.

[9] [2018] VSCA 35

[11] [2001] VSCA 53; (2001) 3 VR 136 at [22]

[12] Although the Court of Appeal in VWA v Del Borgo considered the operation of s.98C(9) being the equivalent provision in the Accident Compensation Act 198513 that case concerned industrial deafness and a prior award under the Workers Compensation Act.