Ground 3. The judge erred in holding that it was not open to the Panel to use the arcs of motion it measured as guides when determining which impairment estimate best represented the magnitude of the impairment being evaluated, and in preferring an interpretation which gave no meaning to the statement in section 3.2e that the arcs listed in Tables 40 to 45 are examples of mild, moderate, and severe impairments and are to be used as guides.

Ground 4. The judge erred in concluding that earlier and later editions of the Guides were 'part of the relevant context for the fourth edition' and that reference to those other editions confirmed the conclusion that the Panel's impairment assessment was not in accordance with the methodology laid down by the fourth edition.

It is convenient to consider proposed grounds 1-3 which all concern whether the Panel fell into jurisdictional error by failing to perform its impairment assessment in accordance with the Guides.

1. The essence of the applicant's submission was that it was open for the Panel to use the direction of motion that provided the highest rating as it did, although it was not bound to do so. The Panel was only required to use the degrees measured as 'guides' when determining which impairment estimate 'best represents' the magnitude of the impairment being evaluated.
2. In supporting its construction, the applicant submitted:

(a) that the introductory part of section 3.2e - which states that the arcs listed in Tables 40-45 'are examples of mild, moderate, and severe impairments and are to be used as guides' - was important, but that the judge gave these words no work to do. It was not to the point that the scheme of section 3.2 overall did not involve assigning a degree of impairment into one of three classes. The various evaluation methods lay down different methods. Some required medical judgment to determine an appropriate class or rating, while others, like section 3.2f, expressly required each malposition to be combined.

(b) that in many instances section 3.2 tells assessors when different methods may be combined and when they should not be combined. Otherwise, selecting the optimal approach is a matter for the evaluator's professional judgment.

(c) that the section 3.2 direction does no more than explain that assessors should 'evaluate each specific impairment using the appropriate method or combination of methods, and then combine the whole-person estimates for the different impairments using the combined values chart.' The applicant emphasised that the proper interpretation of section 3.2e and Tables 40-45 does not involve regarding each motion restriction as itself constituting a different 'impairment' which must be combined.

1. In oral submissions senior counsel submitted that the section 3.2 direction does not have the consequence that every so-described impairment within a method must be combined. Instead, you need to look at what the method is asking you to do, bearing in mind that the goal is to find the ultimate impairment which reflects the disability. Although in some sections there was a specific direction to combine (e.g. section 3.2f), there was no such direction given in section 3.2e. It therefore followed that you do not need to combine the measures taken when using the range of motion method.
2. The applicant submitted that the Panel's approach was consistent with the purpose of the Guides, which does not dispense with clinical judgment. Further, that allowing the approach of using the arcs as guides allows for clinical judgment to be exercised as to the appropriate impairment rating to be assigned. The judge's approach meant that a Panel would be unable to modify an estimate where the medical evidence was not of sufficient weight to verify that an impairment of a particular magnitude existed. Further, in many cases, a different evaluation method may not be available. In oral submissions senior counsel also identified a number of passages in the Guides which emphasised the importance of clinical judgment.
3. The applicant further submitted that the Panel correctly carried out its evaluation using the arcs as guides. Having measured the degrees of motion which generally correlated to examples of mild impairment (abduction, adduction and internal rotation), and two measurements which correlated to examples of moderate impairment (flexion and external rotation), the Panel then needed to determine, in its professional judgment, which impairment class best represented the magnitude of the hip impairment. The Panel determined, favourably to Ms Arik, that the moderate class should be used to estimate the appropriate impairment rating. In oral submissions senior counsel suggested that the doctors constituting the Panel had formed the view that the moderate ones (flexion and external rotation) were significant aspects of the use of the hip. This was said to be a perfectly reasonable approach to take.
4. Further, the applicant submitted that the Panel's approach was consistent with its assessment that its examination revealed an overall 'mild-moderate restriction in the active range of movements'. By way of contrast, the judge's construction would result in a 'severe' degree of impairment (of 14 per cent). Such a result was discordant with the overall medical findings (of three mild ratings and two moderate ratings).
5. The applicant also submitted:

(a) that, contrary to the judge's findings, the section 3.2 direction does not direct that 'everything which can be evaluated or measured under one of the different methods for evaluating impairment in section 3.2 must be regarded as an evaluation of a different "impairment", which must be assigned an impairment rating, and then combined'. The Guides expressly stated that the evaluation methods in section 3.2c and section 3.2d are alternative methods;[67]

(b) that the issue in Elworthy was whether several lower extremity impairment ratings should be combined by combining the lower extremity impairment percentages (and then converting to percentage impairment of the whole person), or by combining whole person impairment percentages. It was only in that context, and not beyond, that Kaye J held that the words in the section 3.2 direction which expressly state that the whole person estimates should be combined were 'clear, unambiguous and intelligible'. Kaye J did not hold that the words required that everything evaluated under a different evaluation method must be combined; and

(c) that the section 3.2e example was consistent with the Panel's approach. The estimated impairment for loss of ankle motion (moderate) could be understood to have been derived on the basis that the loss of half of ankle extension was determined to represent mild impairment, whereas loss of half of flexion represented moderate impairment. Overall, then, the appropriate assessment was moderate.

1. Ms Arik submitted that the judge's construction was correct and generally adopted her reasoning.
2. Ms Arik emphasised that the words, 'mild, moderate or severe,' are descriptors of the severity of the impairment, but do not serve to classify the impairment itself. She highlighted that where the Guides intends that a certain type of impairment should be classified into classes the Guides expressly says so.[68] It was further not uncommon for the Guides to provide additional information which was not of itself relevant to, or part of, the method of assessment.[69]
3. The judge was also correct to find that her construction was consistent with the purpose of the Guides. The Guides states that an impairment percentage is intended to represent an informed estimate of the degree to which an individual's capacity to carry out daily activities has been diminished.
4. Ms Arik also emphasised that there would be arbitrary and capricious results with the applicant's approach. For example, a body part measured to have a 4 per cent whole person impairment in respect of each of the ranges of motion listed in Table 40 would receive the same 4 per cent result as an individual with an impairment of only one of those ranges of motion affected. The applicant submitted that a limitation in more than one direction will have a differential impact upon a person, than a person with only one restriction in movement.
5. The applicant also submitted that the appropriate way to read the Panel's reasons was that it has taken the approach that it must take the highest rating. It did not use language to suggest that it considered that the class that 'best represented' the impairment was (not) severe.
6. In relation to other matters, Ms Arik contended:

(a) that it was incorrect to suggest that the judge wrongly construed each evaluation method in section 3.2 as directed to evaluating a different type of impairment. The judge did not find that everything evaluated under a different evaluation method must be combined; and

(b) that the judge's interpretation of the section 3.2e example was correct.

1. A number of matters may be readily dismissed.
2. First, it is not a correct characterisation of the judge's reasons that she found that everything which can be measured under one of the different methods of evaluation must be combined (as alleged by proposed ground 2). Rather at [125] of the Reasons, the judge correctly found that the direction to combine several impairments of the same part applies to 'each' evaluation method.
3. It is also difficult to come to any concluded view insofar as the section 3.2e example is concerned. There appears to be no good reason as to why the flexion motion might be characterised as 'moderate' (as the applicant suggested), given the example suggests that there was an equal loss of both flexion and extension. Equally, it is difficult to positively find that there has been internal addition (as Ms Arik suggested) without knowledge as to the pre-existing state of the ankle. In any event, as the judge correctly observed, the plain meaning of the section 3.2 direction cannot be overridden by an example.[70]
4. Finally, it is true that the decision of Elworthy was concerned with a different issue as to whether several lower extremity impairment ratings should be combined by combining the lower extremity impairments percentages (and then converting them to a percentage impairment of the whole person), or by combining percentages expressed as an impairment of the whole person. However, in finding that it was the whole person estimates which were to be combined, his Honour focused on the 'plain' words of the very same section 3.2 direction the subject of this application.[71] He also rejected a submission that there could be some 'choice' as to the method given the plain words of that direction. He considered that such a choice was alien to the clear philosophy of the Guides, which is to produce 'consistent and precise results.'[72]
5. Returning then to the words used, it is worth restating the terms of the section 3.2 direction:

If the patient has several impairments of the same lower extremity part, such as the leg, or impairments of different parts, such as the ankle and a toe, the whole‑person estimates for the impairments are combined (Combined Values Chart, p. 322).

1. The 'plain' words of the section 3.2 direction, then, direct an examiner to combine estimates, not only where there are impairments of different parts, but also where there are several impairments of the same (lower extremity) part. Given that a 'part' includes the hip,[73] provided that the individual measurements for the different hip motions specified in Table 40 are properly considered to be 'impairments', the section 3.2 direction appears to have application.
2. The Guides contains a very broad concept of an 'impairment'. As identified earlier, the Glossary defines it as 'the loss, loss of use, or derangement of any body part, system or function.' Chapter 1.1 also describes an impairment as a 'deviation from normal in a body part or organ system and its functioning.'
3. The words and context of the Guides suggest that the measurements specified in the first column of Table 40 are intended to come within this broad concept of an 'impairment'. The natural reading of Table 40 is that each hip motion specified (as reflected by the figures) reflects a different loss of the movement or use of the hip - or its function - in each separate direction. The table itself suggests that the relative value of each hip restriction is relevant as part of the overall assessment of impairment. The heading, 'Hip Motion Impairments' (plural), also supports this conclusion (as the judge found).
4. The applicant in this case did not effectively challenge the proposition that each of the movements specified in Table 40 would come within the broad concept of an 'impairment' as defined in the Guides. It in fact conceded that each of the movements specified could be regarded as 'deficits', but submitted that they were not also impairments of a kind 'that require combination.' However, a 'deficit' may be defined as the amount by which something 'falls short' - at least by reference to a sum of money.[74] Insofar as physical capacity is concerned, a 'deficit' may be defined as a 'lack or impairment in an ability or functional capacity'.[75] The concept of a 'deficit' therefore has a substantially identical meaning to an impairment (or 'loss').
5. Given that each of the measurements taken by the Panel in this case may be regarded as 'impairments', the plain words of the section 3.2 direction will apply. This is even though there is no specific repetition of the words of the section 3.2 direction in section 3.2e. The section 3.2 direction appears in the introductory paragraphs of section 3.2 and, as the judge also found, is clearly intended to have application to the entire section (absent indication to the contrary). The repetition of the direction in some sections, out of an abundance of caution, does not detract from the overall controlling nature of the section 3.2 direction.
6. In reality, the only justification proffered for the applicant's construction was the statement in section 3.2e that the 'arcs listed are examples of mild, moderate, and severe impairments and are to be used as guides.' However, as the judge also found, the scheme of section 3.2 as a whole is intended to provide various evaluation methods for estimating the patient's degree of whole person impairment, expressed as a percentage - and not by assigning a degree of impairment of the lower extremity by reference to one of three categories. The fact that a measurement might be viewed as an 'example' of a 'mild' impairment by way of 'guide' is, like a number of the examples, intended to provide additional information to assist in understanding the Guides.[76] If it was really intended that assessors were entitled to ignore the section 3.2 direction, and instead apply a classification approach, it would be expected that very different language would be utilised.[77] The words cited by the applicant do not do so.
7. I therefore agree with the judge that section 3.2e does not instruct assessors to disregard the section 3.2 direction and that she made no error in finding that the words emphasised by the applicant - 'The arcs listed are examples of mild, moderate, and severe impairments and are to be used as guides' - do not carry that meaning.[78]
8. I also agree with the judge that her construction is consistent with the purpose and objective of promoting objectivity and consistency. Although there are references to clinical judgement - for example, in the taking of measurements and choice of evaluation method - the Guides is intended to produce 'consistent and precise results'.[79] Once an evaluation method is settled on and reliable measurements have been taken, the assessor is obliged to follow the section 3.2 direction. An assessor cannot simply choose to ignore that direction on the basis of a 'best fits' approach, and certainly cannot simply substitute a 'highest rating' approach.
9. It is noteworthy in this respect that the applicant appeared to accept that assessors might be bound by directions in certain circumstances to combine results, and thereby (presumably) unable to substitute their own 'best fits' approach. For example, it accepted that the results obtained in respect of section 3.2f - Joint Ankylosis - should be combined. In the context of a scheme intended to promote objectivity and consistency, there is no justification for an approach whereby only some directions are followed, but not others.
10. As to alleged perversity of results, while the judge's construction might have the result that the impairment in this case is, on one view, 'severe', for reasons given already, the classification of impairments into 'mild', 'moderate' or 'severe' is not the focus of the exercise. The applicant's construction may also lead to unfair results. Thus, as highlighted by Ms Arik, on the applicant's construction, a mild movement in every direction may be given the same whole person percentage as a person with a mild restriction in only a single direction. More relevantly, however, it is ultimately not up to this Court to assess the wisdom of the methods for assessment of impairments laid down in the Guides, but only the meaning of the Guides. The role of the Panel is also not necessarily to arrive at a 'fair' assessment, however that may be subjectively viewed. Rather, the methodologies prescribed in the Guides must be applied even if the outcome may appear sub-optimal.[80]
11. Having regard to the words, context, and purpose of the Guides, I therefore consider that the judge's construction was correct. In such circumstances the Panel did not act 'in accordance with the Guides' - as the judge found - and fell into jurisdictional error.[81] Given the Panel stated that the direction which provided the highest rating 'is used', it appears highly probable that the Panel simply chose to adopt the highest rating. However, even if this not correct, and it adopted some 'best fits' approach, this was also contrary to the section 3.2 direction and not permitted by the Guides.
12. Proposed grounds 1-3 are not sustainable.

1. The applicant submitted that the judge should not have considered other versions of the Guides. In particular, it submitted that the express statement about adding range of motion impairments in the fifth edition cannot assist in the construction of the fourth edition (where no such statement exists in section 3.2e).[82] The applicant also cited the remarks of Nettle JA in Mountain Pine that one may 'look no further' than the fourth edition in construing the Guides (as mandated by the Act).[83]
2. I do not consider it necessary or desirable to have regard to other versions of the Guides. In particular, I am unable to be satisfied that the fifth edition can elucidate the proper meaning of the terms contained in the fourth edition.
3. Although the judge made reference to other versions, including the fifth edition, she formed her conclusions based on the text, context and purpose of the fourth edition. She expressly stated that her conclusions were only 'confirmed' by reference to the other editions of the Guides.
4. Consistent with the judge's finding, senior counsel for the applicant fairly accepted that it could not succeed based on proposed ground 4 alone. Given that I have formed my views without reference to the other versions of the Guides, it is hence unnecessary to consider proposed ground 4 further.

1. For the above reasons I consider that the judge was correct to quash the opinion of the Panel.

• ASSOCIATE PROFESSOR PETER GIBBONS, AS THE
• CONVENOR OF MEDICAL PANELS

[1] [2013] VSC 196, [28] ('Saddington').

[2] [2009] VSC 311, [46] ('Heinz').

[3] (2012) 38 VR 45; [2012] VSCA 322 ('Gamble').

[4] Ibid 61 [56] (Maxwell P and Cavanough AJA).

[5] Ibid 62 [58] (Maxwell P and Cavanough AJA).

[6] (2007) 16 VR 659; [2007] VSCA 146 ('Mountain Pine').

[8] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480, 498-9 [47] (French CJ, Crennan, Bell, Gageler and Keane JJ); [2013] HCA 43 ('Wingfoot'); Colquhoun v Capitol Radiology Pty Ltd [2013] VSCA 58; (2013) 39 VR 296, 299-300 [14]-[16], 300-1 [18] (Maxwell P, Weinberg JA and Ferguson AJA); [2013] VSCA 58 ('Colquhoun'); Maimonis v Bourke [2019] VSCA 302, [51(1)] (Ferguson CJ, Beach and Ashley JJA) ('Maimonis').

[9] Chevron USA Inc v Natural Resources Defense Council Inc, [1984] USSC 140; 467 US 837 (1984); City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5.

[10] The combined values chart does not simply cumulate each variable.

[11] The Guides, section 1.1.

[12] Ibid. See also definition of 'daily living activities' in Glossary.

[13] Ibid section 1.3.

[19] [2007] VSC 48 ('Elworthy').

[21] The members of the Panel comprised the third and fourth respondents, Associate Professor David Ernest, general physician, and Mr Keith McCullough, orthopaedic surgeon. The second respondent, Associate Professor Peter Gibbons, was the convenor of the Panel. The second to fourth respondents filed a notice of intention not to respond or contest this application.

[22] Arik v Vicinity Centres PM Pty Ltd [2023] VSC 94, [9], [135] ('Reasons').

[23] The Act, s 28LB (definition of 'threshold level' part (a)).

[24] Ibid (definition of 'A.M.A. Guides').

[25] Wingfoot [2013] HCA 43; (2013) 252 CLR 480, 498-9 [47] (French CJ, Crennan, Bell, Gageler and Keane JJ); [2013] HCA 43; Colquhoun (2013) 29 VR 296, 299-300 [14]-[16], 300-1 [18] (Maxwell P, Weinberg JA and Ferguson AJA); [2013] VSCA 58; Maimonis [2019] VSCA 302, [51(1)] (Ferguson CJ, Beach and Ashley JJA).

[26] The Act, s 28LB (definition of 'medical question').

[28] [2013] VSC 196, [22]-[29] (footnotes omitted). Applied in other cases including: Adams v Wadesley [2018] VSC 304, [27] (Ierodiaconou AsJ); Hart v Melbourne Underwater World Pty Ltd [2018] VSC 394, [8] (Cavanough J); La Rosa v Patrick [2022] VSC 404, [50] (Walker JA).

[29] [2012] VSCA 322; (2012) 38 VR 45, 61 [53] (Maxwell P and Cavanough AJA); [2012] VSCA 322.

[30] Ibid 61 [56] (Maxwell P and Cavanough AJA).

[31] The first edition was published in 1971, while the current edition is the sixth edition, which was first published in 2008 but has been updated since then.

[32] The Guides, 1/1-1/2 (emphasis in original) (citations omitted).

[34] Examples of methods described in section 3.2 include, amongst others, section 3.2a - Limb Length Discrepancy, section 3.2b - Gait Derangement, section 3.2c - Muscle Atrophy (Unilateral), section 3.2d - Manual Muscle Testing and section 3.2e - Range of Motion.

[35] The values in the Combined Values Chart are derived from the formula A + B (1-A) = combined value of A and B, where A and B are the decimal equivalents of the impairment ratings. In the chart all values are expressed as percents. To combine any two impairment values, the chart instructs the reader to locate the larger of the values on the side of the chart and read along that row until the reader comes to the column indicated by the smaller value at the bottom of the chart. At the intersection of the row and the column is the combined value.

[36] The Guides, 3/75. Emphasis altered.

[43] The documents and information referred to in Enclosures A and B.

[45] Hence it appears that the Panel used a moderate rating (of 4 per cent) which did not reach the threshold of more than 5 per cent given the Panel also appears to given a 0 per cent whole person impairment in respect of the lumbosacral spine impairment.

[46] These preliminary matters were an objection by Ms Arik to Vicinity's subpoena for production addressed to the Proper Officer of AMA Victoria, admissibility of evidence (opinions expressed by medical practitioners) not before the Panel, an application by Ms Arik to amend the origination motion and whether extrinsic materials (extracts of other editions of the Guides) can be used as an aid to interpreting the Guides.

[49] [2007] VSC 48 [22].

[50] Except in Tables 43 and 45 the moderate and severe categories are combined.

[52] Ibid [121], citing Elworthy [2007] VSC 48, [20]-[21].

[53] Citing Gillat v Transport Accident Commission [2003] VSC 15, [47] (Nettle J).

[54] Reasons, [122]. See [64] above.

[60] [2007] VSCA 146; (2007) 16 VR 659, 669 [33] (Nettle JA, Vincent JA agreeing at 660 [1] and Ashley JA agreeing at 671 [45]); [2007] VSCA 146.

[64] Ibid [131]-[132], citing the Guides second, third and fifth editions.

[67] Proposed ground 2. It made particular criticism of Reasons, [125].

[68] Citing section 3.2m - Vascular Disorders and Table 69: Guides, 3/89; section 3.11 - Impairment Due to Vascular Disorders of the Upper Extremity and Table 17: Guides, 3/57.

[69] Citing Elworthy [2007] VSC 48, [24].

[70] Reasons, [128] citing Mountain Pine [2007] VSCA 146; (2007) 16 VR 659, 669 [33] (Nettle JA, Vincent JA agreeing at [1], Ashley JA agreeing at [45]). See also Saddington [2013] VSC 196, [26] (Kyrou J) (set out at [58] above).

[71] Elworthy [2007] VSC 48, [30].

[74] Oxford English Dictionary (online at 30 November 2023) 'deficit' is defined as 'a falling short, a deficiency; the amount by which a sum of money, or the like, falls short of what is due or required; the excess of expenditure or liabilities over income or assets.'

[75] Merriam-Webster Dictionary (online at 30 November 2023) 'deficit' (def 1a(2)) (emphasis added).

[76] Elworthy [2007] VSC 48, [24].

[77] Cf section 3.1m - Impairment Due to Other Disorders of Upper Extremity which expressly provides that carpal instability is to be 'classified as mild, moderate, or severe': Guides, 3/61. Further, section 3.1m provides that only one category of severity should be selected 'based on the 'greatest severity' and that the severity percentages 'should not be added or combined': Guides, 3/61.

[79] Elworthy [2007] VSC 48, [33]; Saddington [2013] VSC 196, [25] (set out at [58] above).

[80] Saddington [2013] VSC 196, [29] (set out at [58] above).

[82] Citing Nicholls v Corlett [2010] VSC 115, [36(c)] (Beach J).

[83] Mountain Pine [2007] VSCA 146; (2007) 16 VR 659, 669 [31] (Nettle JA, Vincent JA agreeing at [1], Ashley JA agreeing at [45]); [2007] VSCA 146.