Transport Accident Commission v Lincoln [2003] VSCA 67

Court of Appeal (Vic)|2003-06-05|Before: WINNEKE, P., BATT, J.A. and WARREN, A.J.A.

Accident Compensation - Transport Accident Act - Determination of impairment in accordance with "AMA Guides" - Assessment of physical impairment pursuant to Chapter 1 of the Guides and episodic neurological disorders pursuant to Chapter 2 of the Guides discussed - Whether "genuine functionally-driven physical impairment" capable of constituting impairment assessable under Chapter 1 - Whether migraine headaches stemming from neck disorder capable of assessment as "episodic neurological disorder" pursuant to Chapter 2 of the Guides - Purpose of s.46B of Transport Accident Act 1986 discussed.

(i) Whether measurement of impairment by way of restriction of body movement contemplated by Chapter 1 of the Guides comprehends restriction of body movements due to genuine psychological factors as distinct from deliberate exaggeration or malingering.

(ii) Whether headaches which are caused by or symptomatic of neck injury can be assessed under Chapter 2 of the Guides as "neurological disorders".

The appeal emanates from a decision given by a County Court judge sitting as the Vice President of the Victorian Civil and Administrative Tribunal on 26 April 2002 in the course of a review by his Honour of an assessment made of the respondent's "whole person impairment" by the Transport Accident Commission of "0%". His Honour, in re-assessing the impairment, assessed a figure of 49% "whole person impairment". The appeal, on relevant questions of law, is now brought to this Court pursuant to leave granted by Charles and Callaway, JJ.A. on 21 June 2002.

The appeal to this Court is governed by the provisions of s.148 of the Victorian Civil and Administrative Tribunal Act 1998 which by sub-s.(1) permits a party to a proceeding before the Tribunal to appeal to this Court on a question of law from an order of the Tribunal constituted by the President or a Vice President. The questions of law which are stipulated in the notice of appeal are as follows:

"(i) The following questions of law arise in this appeal, namely whether the Tribunal erred in law in deciding that, for the purposes of an impairment assessment under s.46A of the Transport Accident Act 1986 made in accordance with the American Medical Association "Guides to the Evaluation of Permanent Impairment" (2nd Edition):

(a) There was no need to differentiate between genuine organically-driven physical impairment and genuine functionally-driven physical impairment where both were the result of a transport accident;

(b) A determination, in accordance with Chapter 1 of the AMA Guides, of the degree of impairment due to restriction of movement could and should take into account restriction of movement attributable to non-organic or functionally-driven factors;

(c) An allowance could and should be made for headaches as an episodic neurological disorder, in accordance with Section 6 of Chapter 2 of the AMA Guides notwithstanding that [the respondent] had suffered no brain injury."

It is as well to set out the background against which these questions of law fall to be decided by this Court. The respondent to the appeal, Jacqueline Lincoln (to whom I shall refer hereafter as "the respondent"), was involved in what, in this State, is called a "transport accident" on 17 February 1998 when she was about 26 years of age. In this State most people who are injured and suffer disability arising from a transport accident fall, for the purposes of compensation, under the jurisdiction of the Transport Accident Commission by virtue of the provisions of the Transport Accident Act 1986. On 18 March 1998 the Transport Accident Commission ("TAC") accepted a liability for the respondent's medical and like expenses. Pursuant to s.46A of the Act, the TAC is required:-

"to determine the degree of impairment of each person who is injured as a result of a transport accident and appears to the [TAC] to be or to be likely to be entitled to an impairment benefit as at -

(a) if the person is not a minor when the accident occurred -

That determination fell to be made by the TAC in accordance with the AMA Guides[1].

Pursuant to the provisions of the Act, the TAC made a determination in accordance with the 2nd Edition of the AMA Guides which was the operative edition at the time. That determination, as I have already noted, was "0%".

The transport accident in which the respondent had been involved occurred at a busy intersection in Preston. The respondent was driving her vehicle which was struck on its driver's side by another car which was allegedly driven through a red light. The impact caused the respondent's vehicle to "clip" a stationary vehicle before hitting a pole. It was a significant impact in the course of which the respondent was thrown forward and hit her head on the centre pillar of her vehicle. She was trapped in the car for some time and reported that her legs were pinned and were numb and tingling. She was extracted from the vehicle by the fire brigade using the "jaws of life". The respondent was taken to the Austin Hospital where she was observed to be suffering from the following injuries:

* Parietal haematoma on the right side of the scalp;

* Chipped lower second and third incisors on the right side;

* Bruising on the left side of the chest anteriorly;

* Tenderness of the lower part of the abdominal wall on the right side;

* Bruises on the anterior surface of the right knee.

X-rays and scans showed a fracture through the manubrium sterni, dislocation of the sterno clavicular joint, a retro sternal haemotoma, and a fracture at the base of the second metacarpal bone in the right hand. X-rays of the lumbar spine and the pelvis, and an aortagram, showed no abnormality. The respondent was treated conservatively in the sense that the fracture and dislocation were assisted by placing the arm in a sling and a back-slab was applied to the right hand. Her requirements for analgesics were considerable from the outset and she required self-administration of morphine intravenously. Her treatment was provided to her at a cost to the TAC in excess of $125,000 but her symptoms did not resolve. She continued to complain of substantial ongoing physical and psychological impairment as a consequence of the accident. Her complaints included neck pain with restriction of movement, chest wall pain, migraine headaches, interscapular pain with pain around the left shoulder girdle, left arm pain, pain beneath the lower-lumbar region with significant restriction of movement, left leg pain, left knee pain, right hand pain, post-traumatic stress disorder, depression and irritability, blackouts, restriction of left arm and shoulder movements and disorders stemming from her medication.

The TAC's determination of 0% impairment was based upon a report of a Mr. Tony Kostos, Rheumatologist. In the course of his examination Mr. Kostos made "an AMA assessment" which was confined to her neck and left shoulder. His assessment was 27% "whole person impairment". He concluded, however, that the respondent had a "chronic pain syndrome" and that, therefore, he did not believe "that she was having any ongoing physical [effects] from the motor vehicle accident, and that none of the impairment assessment that has been enclosed relates to the motor vehicle accident". As a consequence, the TAC adjusted the assessment to "0% impairment". It was this "0% impairment" assessment that the respondent requested the Tribunal to review.

Upon the review, the judge - after hearing evidence from the respondent and various medical practitioners - concluded that the appropriate "whole person impairment" was 49%. In accordance with the AMA Guides he assessed relevant impairments as follows:

Applying the tables in the Guides, his Honour concluded that the progressive combined totals were 8%, 19%, 29%, 32%, 39%, 40% and 49%. Accordingly, his Honour on 26 April 2002 set aside the decision of the TAC made on 17 November 2000 and in lieu thereof made a determination of "49% WPI" (i.e. "whole person impairment"). On 13 June 2002, his Honour stayed his order of 26 April 2002 until the hearing and determination of any appeal on the proviso that "within 7 days ... the impairment benefit is paid to the applicant's solicitors to be placed by [them] in an interest bearing account and not disbursed until the stay is lifted". We are informed that the proviso has been complied with. In the event that the appeal is allowed, and it becomes necessary for the Tribunal to further consider the matter, it will become appropriate to determine whether ancillary orders should be made to protect the fund pending that further consideration.

It is the reasoning of the learned judge which led him to the conclusions to which I have referred which is the subject of this appeal. In particular, it is those aspects of the reasoning which are reflected in the questions of law (to which I have already referred) that are the subject of the issues raised in this appeal. The first two of those questions (namely (a) and (b)) are "two sides of the one coin". They relate to the proper interpretation of Chapter 1 of the AMA Guides, which, in turn, relates to the measurement of impairments of "the extremities, spine and pelvis". The appellant argues that his Honour erred in law in construing that Chapter when he decided that an impairment assessment made in accordance with it need not be confined to physical impairment having a genuine organic basis; but that functionally-driven symptoms of physical impairment could and should be taken into account in making the assessment. The appellant argues that, upon a proper interpretation of Chapter 1, the judge should have held that, in making an impairment assessment under the Chapter, functionally-driven symptoms of physical impairment should be disregarded. Question (c) asks whether his Honour erred in deciding that an impairment assessment could and should be made for headaches as "an episodic neurological disorder" in accordance with Chapter 2, Section 6 of the Guides, notwithstanding the respondent had suffered no brain injury. The appellant contends that his Honour did so err, and that no impairment could be so assessed in the absence of brain injury.

I think it should be said that this Court has already determined, albeit implicitly, that the proper interpretation of the AMA Guides by the Tribunal is capable of giving rise to questions of law which, with appropriate leave, are appellable to this Court[2]. Nevertheless, in respect of such appeals, it is appropriate to bear in mind the cautions set out by Phillips, J.A. in Lake v. Transport Accident Commission[3] to the effect that the Guides to the evaluation of permanent impairment are, as their title suggests, just that and are not to be "overlaid with a lawyer's precise interpretation". As Phillips, J.A. said, or at least implied, the subjection of these Guides to too much legal interpretation will render them a "legal minefield" and be of little help to doctors and lawyers alike, albeit for different reasons. Nevertheless, the appellant submits with some justification that consistent interpretation of the Guides is important, and that the two issues raised in this appeal have been the subject of different interpretations by medical practitioners and the Tribunal alike and thus call for resolution.

Questions (a) and (b) - Whether a functionally-driven impairment can be included in the assessment of physical impairment under Chapter 1 of the Guides

The issue arises because of his Honour's determination to measure the restrictions of movement in the spine and extremities pursuant to Chapter 1 of the Guides by combining restrictions due to physiological and anatomical factors with restrictions due to "functional" factors. His Honour had done that in previous cases of Forno v. Cantire Investments Pty. Ltd.[4] and Lovison v. Transport Accident Commission[5]. In those cases his Honour had concluded that if the restriction of movement was genuine, it was irrelevant for the purposes of assessment under Chapter 1 of the Guides whether the restriction of movement was attributable in part to "non-organic factors". In the course of his reasons in this case, his Honour said:

"I am not persuaded that what I said in Forno and Lovison is wrong. Nor do I see much value in attempting to put a gloss on either of those decisions. Nonetheless I wish to deal with two issues raised by [counsel for the TAC]. First he says there is inconsistency between, on the one hand, my comment in Forno (at page 11) that to adjust AMA assessments for functionally-driven symptoms would `introduce a tortuous new element into physical assessments', and, on the other hand, my preparedness to make adjustments for feigned symptoms, as well as improvements to be expected when litigation concludes. My answer to this : the fact that difficult adjustments are unavoidable is not an argument for incorporating other difficult adjustments into the legislative scheme - unless those other difficult adjustments are also unavoidable. The AMA Guides were designed for two principal purposes : first, to standardise the assessment of permanent impairment; secondly, to achieve fair assessments. As I said in Forno and in Lovison, no fair system for compensating injured persons can ignore the contribution of functionally driven symptoms. Therefore, there is no need or justification for differentiating between genuine organically-driven physical impairment and genuine functionally driven physical impairment, where both are the result of a transport accident. So long as the impairment is real (i.e. not feigned) and is causally connected to the event giving rise to the entitlement to compensation (i.e. a transport accident) I can see no logical reason, as I explained both in Lovison and Forno for making a distinction between organically-driven physical impairment and functionally-driven physical impairment. Deliberate exaggeration is an altogether different category because `symptoms' which are the result of wilful exaggeration do not in any sense represent impairment. So far as concerns adjustment for expected future improvement, the adjustment is necessarily speculative; it is also unavoidable, because what is required is an assessment of permanent impairment. The need to look into the future is well known to personal injuries law, e.g. vicissitudes of life."

His Honour concluded that, although there was an element of conscious exaggeration on the part of the respondent, he did not consider that to be "fraudulent". He said:

"But because the AMA assessment is based on actual physical capacity, one must determine the applicant's genuine capacity in everyday life rather than her exaggerated presentation at medical examinations and the hearing."

His Honour went on to say that before he could accept any suggested assessment, he would have to be satisfied that it represents the level of the applicant's permanent impairment "in the relevant sense". He said that, unless he was so satisfied, the suggested figure would be too high and "must be adjusted down until a figure is reached which meets the standard of proof". He thus concluded that in the instant case, if he were to reduce the assessments which involved restriction of movement "by approximately one-third", the result would "reflect the true level of the applicant's genuine impairment - by which I mean her genuine everyday impairment, physically and functionally-driven".

It was these conclusions which were attacked by the appellant. Mr. Maxwell (who appeared with Mr. Solomon for the appellant) submitted that the AMA Guides proceed on the footing that assessable impairment derives, in a case such as this, from either a physical disorder or a mental disorder. Thus, he contended, Chapter 1 concerns itself with the evaluation of an impairment due to organic or physical causes, whilst Chapter 12 concerns the evaluation of "impairment due to mental or behavioural disorder". He pointed to the fact that each section of Chapter 1 deals with the techniques of measurement and includes tables for impairments which are due to restriction of active motion, ankylosis, amputations and fractures; and describes methods for combining and relating the various impairments. He also points to the fact that the introduction to the Chapter stipulates that:

"The criteria used to develop the relative impairment ratings in this Chapter involve analysis of anatomic and physiological factors underlying the function of the joint ... ."

Mr. Maxwell submitted that the many tables annexed to the Chapter relating to the measurement of various impairments are seemingly concerned with measurement of restrictions due to physiological factors, and that no mention is made in the

Chapter of restriction due to functional or psychosomatic causes. Functional restrictions which are genuinely based, he submitted, fall to be considered and measured as "mental and behavioural disorders" under Chapter 12.

Mr. Casey (who appeared with Mr. Catlin for the respondent) submitted that Chapter 1 of the Guides simply commands an assessment of impairment through restriction or loss of movement by use of approved instruments and does not distinguish between genuine restrictions of movement due to physiological and functional factors. Thus, he said, the Guides do not provide that an examiner should, when making an impairment assessment under Chapter 1, do anything more than follow the techniques of measurement set out in the Chapter or that he should seek to make a judgment whether the restricted movement of a joint is caused exclusively by physiological factors or psychological disturbance, or a combination of both. Such a distinction, he submitted, if it is to be made at all, is for the legislature which adopts the Guides. He also pointed to the fact that the Guides provide that the users of them must give careful attention to the definitions listed in the "Glossary". The Glossary defines "impairment" as the "loss of, loss of use of, or derangement of any body part, system or function", and further defines evaluation or rating of impairment as "an assessment of data collected during a clinical evaluation and the comparison of those data to the criteria contained in the Guides". Once again, Mr. Casey submitted, there is no statement there that the examiner should assess a restriction of movement based upon a judgment as to what is attributable entirely and exclusively to physical injury and exclude "genuine functionally-driven physical impairment". He submitted that it can be inferred from the methods employed in the Guides that the examiner will determine the genuineness of a patient's complaints when establishing the patient's clinical status; and, having done that, the task becomes one of assessing the degree of impairment of the genuine restriction found. So long as assessments of impairment exclude deliberately exaggerated loss of function, it matters not that the genuine loss of function is organically-driven or functionally-driven. Mr. Casey submitted that if the Guides envisaged a discount of a physical impairment measured under Chapter 1 for psychological factors one would have expected a formula by which that could be done, or at least it should be widely accepted by the medical profession. Mr. Casey pointed to his Honour's statement, made in the course of giving his reasons, that he was aware of very few doctors who sought to exclude, when measuring impairment under Chapter 1, genuine functional factors. His Honour said:

"There may be a few; but the majority of medical examiners, undoubtedly, make the assessment without reduction for unconscious functionally-driven symptoms. I don't say they always do it willingly or happily; they not infrequently protest the result it produces. But they do it nonetheless."

I did not understand Mr. Casey to submit otherwise than that the "genuine functionally-driven factors" restricting the plaintiff's movement amounted to a functional element that was consequential upon, and secondary to, the injuries which she received in the accident (my emphasis). Thus they fell to be assessed by his Honour, in my opinion, under Chapter 12 as secondary psychological consequences separate and distinct from the post-traumatic stress disorder, also suffered by the respondent, which arose directly from the accident itself and was thus a "primary" psychological or psychiatric disorder. His Honour assessed the "primary" psychological injury (that is the stress disorder) at 15%, and the secondary or functional consequences flowing from the injury at 20%. Thus it happened that the secondary functional elements, which in fact were the ones driving the "genuine functional impairment", fell to be assessed under Chapter 12, but were not permitted to form part of the impairment assessment under that Chapter because of strictures imposed by the Act. Section 46B(1) of the Transport Accident Act provides that:

"In determining a degree of impairment of a person, regard must not be had to any psychiatric or psychological injury, impairment or symptoms arising as a consequence of, or secondary to, a physical injury."

This sub-section was introduced into the Act by s.35 of the Accident Compensation (Further Amendment) Act 1996, and, by s.46B(2), applies to determinations made on or after 14 November 1996. At the same time a similar sub-section was introduced into the Accident Compensation Act as s.91(2). It was the introduction of the sub-section which has produced the practice, followed by assessing psychiatrists and psychologists, of dividing the psychiatric or psychological consequences flowing from an accident or injury into "primary" and "secondary".

It was submitted by Mr. Casey that s.46B of the Act was introduced to prevent "double counting" in the sense that, if the genuine functional factors resulting in restriction of movement form part of the assessment of impairment under Chapter 1, they are not also to be taken into account under Chapter 12. In support of that submission, he referred to certain remarks made by Smith, J., albeit in a somewhat different context, in Pezzaniti v. Industrial Automation (Australia) Pty. Ltd.& Ors.[6]. Mr. Casey submitted that if the genuine functional component of the respondent's impairment was not to be included at all, the result would be unjust and the respondent would be deprived of fair compensation for a genuine impairment. He submitted that it would lead to an interpretation of legislation, intended to be beneficial, which would produce results contrary to the social good which the legislation seeks to promote[7].

Although there is much to be said on both sides of the argument, I am satisfied that the appellant's submissions on this issue are to be preferred. Chapter 1 of the Guides requires, as it seems to me, assessment of permanent impairment flowing from restrictions of movement due to anatomical or physiological factors, and not functional factors. So much can be gleaned not only from the words of the introduction to Chapter 1, but also from the contents of the tables which are part of the Chapter. Those tables refer to impairments due to physical factors. The argument that the words of the Chapter do not expressly exclude restrictions on impairments due to genuine functional factors does not seem to me to be of much consequence. The exclusion of such factors is to be found, not only from the whole of the contents in Chapter 1, but also by a construction of the Guides as a whole, including Chapter 12 in particular, which is concerned to assess impairments flowing from mental and behavioural disorders of which functional disorders are part. In my view, the implication which is to be derived from the structure of the Guides as an "entire impairment assessment directive" is that functionally-driven impairments are to be measured in accordance with Chapter 12 to the exclusion of physical or organic impairments, which are to be measured in accordance with Chapter 1; and vice versa. I agree with appellant's counsel that there is a well recognised distinction between an impairment which is referable to an organic cause (that is, anatomic and/or physiological factors) on the one hand and a functional overlay on that impairment on the other[8]. In psychiatric parlance a "functional overlay" is defined as "an emotional aspect of an organic disease". It may appear as "an over-reaction to an illness, and is characterised by symptoms that continue long after clinical signs of the disease have ended"[9]

It is clear that the Tribunal itself was aware of the conceptual distinction between an impairment of function due to physical factors and an impairment of function due to psychological or functional factors because it referred to "organically-driven physical impairment" on the one hand and "functionally-driven physical impairment" on the other. It is obvious, therefore, that the latter symptoms have no organic basis and are not symptoms of a physical disorder, which, in my view, Chapter 1 is designed to measure. It seems to me to have been accepted by his Honour, as it is by Mr. Casey, that these functionally-driven symptoms are to be assessed under Chapter 12 of the Guides. However, it is said that they can also form part of the impairment assessment under Chapter 1. It is that latter submission that I cannot accept. Secondary functional aspects flowing from an injury, in my view, can form no part of permanent physical restrictions, which are the essence of assessments under Chapter 1 and, indeed, Chapters 2 to 11. His Honour's reasons for concluding that they could, appear to me to be based not so much upon construction of the Guides but on the basis of policy. To this end, I repeat an extract from those reasons to which I have previously referred:

"The AMA Guides were designed for two principal purposes : first, to standardise the assessment of permanent impairment; secondly, to achieve fair assessments. As I said in Forno and in Lovison, no fair system for compensating injured persons can ignore the contribution of functionally-driven symptoms. Therefore, there is no need or justification for differentiating between genuine organically-driven physical impairment and genuine functionally-driven physical impairment, where both are the result of a transport accident." (my emphasis)

Contrary to his Honour's view, the "need" and "justification" for making the "differentiation" to which he referred is to be found in the AMA Guides themselves, which the legislation declares to be the exclusive code in accordance with which impairment assessments are to be made. The introduction to Chapter 12 provides that:

"The discussion in the Chapter (i.e. Chapter 12) is general enough to apply to persons who may have mental or behavioural disorders resulting from physical impairment of other organ systems, as well as to those whose mental or behavioural disorders do not involve organic dysfunction."

Whilst one can understand the basis of the lament that genuine functionally-driven impairments should be capable of assessment and therefore compensable, that result does not seem to me to be what the Act or the Guides require. It is true that, over the years, courts which have been called upon to interpret compensation statutes have repeatedly said that the underlying scheme of those Acts is "beneficial" and ought to be interpreted broadly in favour of the applicant. In this State those words are achieving a "hollow ring" because one of the primary objects of the present legislation is to "reduce the cost to the Victorian community of compensation for transport accidents"[10]. Consistently with that object, the Act has, since 1996, excluded from consideration - in determining the degree of impairment of "the whole person" - psychiatric or psychological symptoms secondary to a physical injury[11]. I find it difficult to accept the submission made on behalf of the respondent that this section was introduced to avoid "double counting". It seems to me to have been introduced to exclude from any assessment of impairment to the person functional symptoms secondary to an injury, whether genuine or not. It may be, as his Honour said, that medical assessors do incorporate such functional elements in their Chapter 1 assessments; although, as he also said, they do not always do it "willingly or happily". It is my opinion that, in future, they should not do so.

During the hearing of the appeal, the Court was concerned to know whether the AMA Guides were exclusively used in other jurisdictions, as in this State, for the purpose of assessing impairments arising from injury. Furthermore the Court was interested to know whether there was, or had been, any judicial interpretation of the Guides made in the American States, whence they emanate, which might throw light on the issues raised on this appeal. In response, appellant's counsel forwarded a written memorandum to the Court on 22 May 2003, a copy of which had been - we were informed - forwarded to the respondent's counsel. The memorandum annexed copies of a number of authorities reported in various States of America which, as counsel submitted (correctly in my view), are of little assistance to this Court in determining the issues raised by the appeal. Some of the authorities emanating from the United States make it clear that the legislation governing the determination of injury compensation in those States does not tie the impairment assessment exclusively to the AMA Guides[12]. Insofar as these decisions provide any guidance upon the proper interpretation of Chapter 1 of the Guides, it can be said that they are not "at odds" with the construction of that Chapter which I prefer.

For the reasons given, I am of the view that the Tribunal did err in the manner referred to in sub-paragraphs (a) and (b) of Question 1 as stipulated in the notice of appeal.

Question (c) - Headaches as an "episodic neurological disorder" in accordance with Section 6 of Chapter 2 of the Guides

This question asked whether the Tribunal erred in law in deciding that for the purposes of an impairment assessment made under the Transport Accident Act in accordance with the AMA Guides, an allowance could and should be made for headaches as an episodic neurological disorder in accordance with Section 6 of Chapter 2 of the Guides, notwithstanding that the respondent had suffered no brain injury.

As a result of the motor car accident the respondent had developed a type of "migrainous headache" which, according to the evidence of the relevant neurologist (Dr. Stark), derived from the neck injury; but which was "based on some degree of innate pre-disposition to migraine which had not previously been expressed". The issue was whether such headaches deriving from an injury to the neck could be assessed for impairment purposes pursuant to Chapter 2 of the Guides. As the witness himself said, this was a controversial issue which the Tribunal had considered "many times". The witness further said that "Table 2.1 relates to disorders of the brain, and migraine is certainly a disorder of the brain". He continued:

"We know that there are changes in blood flow in various areas of the brain during the course of a migraine attack. The issue really reverts to, I guess, a legal one rather than a medical one - that is, where there has not been a direct brain injury to cause the migraine but where a condition which is innately a brain condition is produced by an accident even though it is not through an injury to the brain. Does that warrant an impairment from Table 2.1 or not?"

Indeed, as the witness perceived, this is an issue upon which no common ground has yet been found by the Tribunal. The judge in this case, as he had in other cases, concluded that migrainous-type headaches could be assessed under Table 2.1 of Chapter 2. The question at issue has been whether brain injury or disorder is a pre-requisite to the use of Chapter 2 as demonstrative of headaches being "an episodic neurological disorder". In many cases the Tribunal has in the past required such an injury or disorder as a pre-requisite to impairment assessments for headaches being made under Chapter 2[13].

On the other hand, in Aresti v. Transport Accident Commission[14], Kellam, J., in his capacity as President of the Tribunal, expressed the view that the "classic migraine headaches" which were there in issue, did arise from a dysfunction of the brain even though their primary cause was a neck injury His Honour took the view that the headaches were, therefore, "an episodic neurological disorder" within Chapter 2 of the Guides.

"It is clear from page 61 of the Guides that the form of impairment intended to be compensated under the category `episodic neurological disorders' is impairment resulting from disorder of the brain. The three examples given in the classification are syncope, epilepsy and convulsive disorders." "Migrainous headaches are not compensable under this heading unless - like syncope, epilepsy and convulsions - they result from a brain disorder. But brain disorder does not necessarily involve brain injury. For example, syncope can occur in the absence of brain injury. Therefore "injury" and "disorder" should not be used interchangeably. This reasoning is entirely consistent with Aresti. ... Dr. Stark made no allowance for episodic neurological disorder in the form of migrainous headaches in his first assessment made on 27 April 2000. The applicant had described symptoms of migraine, but Dr. Stark was then under the impression that no allowance could be made in the absence of brain injury (as distinct from brain disorder). He said that he had been disabused of this notion by the time he made his second assessment on 7 May 2001."

His Honour then made an impairment assessment under Chapter 2 for "episodic neurological disorder" of 10%. It is this assessment which is now challenged on this appeal. As counsel for the appellant rightly contends, a definitive decision in respect of this matter is required in order to achieve standardisation of approach within the Tribunal.

Chapter 2 of the Guides specifies in its introduction that:

"This chapter provides criteria for the evaluation of permanent impairment resulting from dysfunction of the brain, spinal cord, and cranial and peripheral nerves."

"The more common categories of impairment resulting from brain disorders and the order in which they will be discussed are:- ... (6) episodic neurological disorders. .... More than one category of impairment may result from brain disorders. In such cases the various degrees of impairment from the several categories are not added or combined, but the largest value, or greatest percentage of the seven categories of impairment, is used to represent the impairment for all of the types."

Mr. Maxwell submitted that his Honour was in error in considering that there was a difference between a brain injury on the one hand and a "brain disorder" on the other; and in determining that impairment could be assessed by reference to categories of "episodic neurological disorder". It was his submission that impairment referable to episodic neurological disorders is assessable under Chapter 2 only where the impairment is the result of a disorder to the brain. He pointed to the wording of the introduction to Chapter 2 which provides "criteria for the evaluation of permanent impairment resulting from dysfunction of the brain ..." and to the fact that the category of "episodic neurological disorders" is one of the seven categories of "impairment resulting from brain disorders". Thus, he submitted, the relevant category (namely category 6) is one of the categories listed under the general heading of "The Brain". Accordingly, he contended that headaches can only be relevant for a Chapter 2 assessment if they "result from a brain disorder". And it is no answer, so it was said, to the proper construction of Chapter 2 to do as his Honour did, and seek to redefine migraine headaches as a brain disorder in themselves. There is, he submitted, simply no warrant in Chapter 2 for the recognition of a new sui generis category of brain disorder constituted by migraine headaches. On the contrary, Mr. Casey for the respondent submitted that the headaches constitute "something which is happening in the brain" which is in itself a disorder. That must be so because the headache is produced by an alteration of blood flow, thus making migraine a "disorder of the brain". He submitted that "episodic disorders" are specifically included within the chapter and that that must mean that such disorders are not necessarily predicated upon "brain disorder".

Once again, in my view, the appellant's submissions in this regard must be accepted. Chapter 2 of the Guides clearly relates to assessments of "brain disorders". For headaches to be assessable there must be a brain disorder which produces the symptom of "headaches". Thus if the headache is a symptom of a neck disorder, then it is not a symptom of a brain disorder - it is a symptom of a neck disorder. The relevant question, as it seems to me, is to ask "What is it in the brain which is causing these symptoms to happen?". If, for example, there was a brain tumour which was causing headaches, that would be an assessable episodic neurological disorder. On the other hand, it seems to me to be circular to assert that "headache is a disorder, therefore it is a brain disorder". The headaches cannot be both the symptom (the impairment) and the cause (brain disorder). If the headaches are precipitated by structural changes in the neck they are not assessable under Chapter 2 as "episodic neurological disorders". It may be that such headaches can be taken into account in assessing the degree of permanent impairment in the spine, but in my view they cannot provide a basis for the evaluation of "permanent impairment resulting from the dysfunction of the brain ..." because they are not "a category of impairment resulting from a brain disorder". The "dysfunction" referred to is, as a matter of plain English, an "abnormality or impairment of function" of the brain itself[15].

Consistently with these reasons, I am of the view that his Honour did err in the assessments which he made under Chapters 1 and 2 and that the questions of law set out in paragraph 1 of the notice of appeal should be answered in the affirmative. It follows that it is my opinion that the appeal should be allowed, the order of the Tribunal of 26 April 2002 be set aside, and the matter be remitted to the Tribunal to be heard and decided again in accordance with these reasons. I would hear the parties as to the treatment of the funds in the interest bearing account.

[1] Sub-s.(9) of s.46A of the Act provides that:

"This section as in force, and the Transport Accident (Impairment) Regulations 1988 as in force, immediately before the commencement of s.8 of the Transport Accident (Amendment) Act 1998 continue to apply for the purpose of determining the degree of impairment in respect of an injury as a result of a transport accident before the commencement of the Transport Accident (Amendment) Act 1998 as if those Regulations formed part of this section."

This accident happened three months before the commencement of s.8 of the Amendment Act. Accordingly, in this case -and for the purposes of determining the degree of impairment - s.46A applies as if it provided, relevantly, as follows:

"The methods to be used in determining a percentage for the purpose of establishing the degree of impairment of a person as a result of a transport accident are those described in [the AMA Guides]." (Regulation 6(1) Transport Accident (Impairment) Regulations 1988; S.R.255 of 1988.)

[2] See Barnett v. Transport Accident Commission [2001] VSCA 12; [2001] 17 V.A.R. 339.

[3] [1998] 1 V.R. 616 at 626 (quoted with approval by Gummow and Kirby, JJ. in their brief reasons following the application for special leave from this Court in the matter of Barnett v. Transport Accident Commission on 14 December 2001).

[6] [2000] VSC 388, particularly at paragraphs [24], [29] and [30].

[7] Cf. Dodds v. Executive Air Services [1975] VicRp 66; [1975] V.R. 668; J. Odlin Shop Fitting v. Kaljanac (1993) 29 N.S.W.L.R. 632 at 639-40.

[8] Cf. Richards v. Wylie [2000] VSCA 50; [2000] 1 V.R. 79 at 86, 89 and 90.

[9] See Mosby's Medical, Nursing and Allied Health Dictionary (5th Ed.), 665.

[10] See ss. 8(a), 11(a) Transport Accident Act.

[12] Cf. Kroeplin v. North Dakota Workmen's Compensation Bureau 415 N.W. 2d. 807 at 808, 810 (N.D. 1987), Supreme Court of North Dakota; Florida Sheriffs Youth Fund & Anor. v. Harrell 438 So. 2d. 450 (1983) at 451-2 (Florida District Court of Appeal); Patterson v. Wellcraft Marine & Anor. 509 So. 2d. 1195 (1987) at 1196-7 (Florida District Court of Appeal).

[13] See, for example, Long v. T.A.C., 8 July 1997 per Presiding Member Mrs. A. Coghlin; Singh v. Transport Accident Commissioner, 12 August 1997 per Deputy President Preuss; Cummings v. T.A.C., 9 March 1998 per Deputy President Megay; Thatcher v. Transport Accident Commission, 16 April 1998, per Deputy President Galvin; Storer v. Transport Accident Commission, 5 February 1999, per Deputy President Galvin.

[15] Cf. Shorter Oxford English Dictionary on Historical Principles, Vol.1.

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