Victorian WorkCover Authority v Syrad [2004] VSCA 234

1 In my opinion the appeal should be dismissed for the reasons stated by Phillips, J.A. I also agree with Phillips, J.A. that it appears desirable that Parliament should examine s.104B of the Accident Compensation Act 1985 to ensure that its provisions reflect Parliament's intention.

2 John Syrad, the present respondent, was born on 20 April 1960. He had been employed by Roehlen Industries for 16 years as a photo-chemical engraver when, on 19 February 2000, he was injured as a container of nitric acid exploded. He sustained acid burns to his scalp, face, left ear, left eye, right arm, chest, back, right leg, with subsequent scarring and disfigurement, and post traumatic psychological reaction. After the explosion he was taken to the Alfred Hospital and was an in-patient of the burns unit for about six weeks. He had several operations for skin grafts and for a time he suffered from decreased hearing in the left ear due to a perforated ear drum, which later healed.

3 Mr. Syrad claimed compensation under the Accident Compensation Act 1985 ("the Act"), making a written claim on 28 February 2000. The claim was accepted by the Authority and weekly payments of compensation were paid, together with medical and like expenses. On 13 November 2001, Mr. Syrad claimed compensation under s.98C of the Act and that claim, too, was accepted by Allianz Australia Workers Compensation (Victoria) Ltd., the authorised agent of the Authority. In accordance with s.104B, liability having been accepted (but subject to s.104B(11)), arrangements were made by the agent for Mr. Syrad to be examined by seven medical practitioners, including Dr. Gale, an ophthalmologist, and Mr. Marshall, a plastic surgeon.

4 The medical practitioners were instructed by the agent to assess the degree of permanent impairment according to the American Medical Association Guides to the Evaluation of Permanent Impairment, fourth edition, third reprint ("the

Guides"). In due course Mr. Marshall provided to the agent his report dated 26 April 2002 in which he expressed himself as led by the Guides "to an assessment of an 85% impairment". On 26 September 2002, the agent wrote to Mr. Marshall seeking clarification on "certain issues" which it identified as arising out of the report. This led Mr. Marshall to make a second report, dated 7 October 2002 in which he revised his assessment of the degree of impairment to 54% of the whole person. By a further letter, dated 29 October 2002, Mr. Marshall concluded that when this was combined with Dr. Gale's assessment of the degree of visual impairment as 6% of the whole person, there was "a total combined whole person impairment of 57%" and on 7 November 2002 the agent wrote to Mr. Syrad to that effect.

5 Thereafter, the Authority, through its agent, contended that Mr. Syrad was entitled to compensation in the sum of $133,900, that representing a degree of impairment of the whole person of 57%. In answer, Mr. Syrad's solicitors relied upon Mr. Marshall's first report, dated 26 April 2002, contending that their client was entitled to compensation in the sum of $302,250, that representing an 85% impairment of the whole person. The dispute was referred to the Accident Compensation Conciliation Service and, when it certified that the matter remained unresolved, Mr. Syrad commenced a proceeding in the County Court against the Authority seeking a declaration that the Authority was in breach of its obligations under s.104B(6) of the Act and, further, an order that he be paid compensation under s.98C in accordance with Mr. Marshall's first report, not the second.

6 That proceeding was heard in the County Court over five days in September 2003. In reasons for judgment delivered on 5 December 2003, the trial judge accepted, in effect, the submissions of the plaintiff, Mr. Syrad, and in consequence directed the Authority to inform the plaintiff of his entitlement to compensation under s.98C by reference to Mr. Marshall's first report, that of 26 April 2002. The Authority duly instituted an appeal against that determination and that is the appeal which is now before us.

7 On 4 October 2004, the appellant filed and served a proposed amended notice of appeal upon which it sought to rely when this appeal was called on for hearing. The respondent indicating that he did not object to the amendment, this Court gave leave accordingly. On 7 October 2004, the respondent served a notice of contention but, putting aside the details, the issue before us is much as it was at trial: was it the report of Mr. Marshall dated 26 April 2002 that constituted the relevant assessment of the whole person impairment under s.104B(5), or was it that of 7 October 2002 in which Mr. Marshall revised his estimate downwards?

Legislative framework and the medical examinations

8 We are concerned only with compensation under s.98C, of which sub-s.(1) reads thus:-

"A worker who suffers an injury which entitled the worker to compensation is, in respect of an injury resulting in permanent impairment as assessed in accordance with section 91, entitled to compensation for non-economic loss calculated in accordance with this section." [Emphasis added]

Section 91 commences:-

"(1) In this Part, a reference to the assessment of a degree of impairment in accordance with this section is a reference to an assessment -

(ii) methods prescribed for the purpose of this section -

and in accordance with operational guidelines (if any) as to the use of those Guides or methods issued by the Minister; and

(b) If the Minister has approved a training course in the application of those Guides or methods, made by a medical practitioner who has successfully completed such a training course.

(2) In assessing a degree of impairment under sub-section (1), 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."

A training course in the application of the Guides was approved by the Minister under sub-s.(1)(b) with the result that the assessment, to be in accordance with s.91, must be made by a medical practitioner qualified as described in (1)(b). By sub-s.(8), the expression "A.M.A. Guides" is defined as "the American Medical Association's Guide to the Evaluation of Permanent Impairment (fourth edition[1]) (other than Chapter 15) as modified by this Act and any regulations made under this Act".

9 Claims for compensation under s.98C are regulated in detail by s.104B, a section inserted into the Act by amendment in 1997 and since amended more than once. Sections 98C and 104B were both introduced together by Act No.107/1997[2] when the Kennett government abolished the right to sue at common law except for injury suffered before 12 November 1997; and s.104B was significantly amended when a subsequent government, by Act No. 26/2000[3] restored a limited right to sue (in accordance with a new s.134AB) for injury suffered on or after 20 October 1999. Section 104B was further amended by Act No.82/2001, with effect from 12 December 2001, and although the claim for compensation under s.98C was made in this case in November 2001, the County Court judge referred to s.104B as amended - as I assume the parties did. At all events no point has been made of any change wrought to s.104B in December 2001 and so in what follows, unless otherwise stated, I refer (in line with the judgment below) to all sections as amended to the end of 2001: as to which see Reprint No.12.

10 Under s.104B(4), once the Authority accepts liability in relation to a claim for compensation under s.98C -

"... the Authority ... must request the worker to attend an independent examination by a medical practitioner referred to in section 91(1)(b)".

Each of the seven medical practitioners to whom the agent referred Mr. Syrad satisfied this description, and each was a specialist in his own field. The purpose of the "independent examination" required in sub-s.(4) is spelled out in sub-s.(5), which reads:-

"(5) The purpose of the independent examination is to obtain -

(a) assessments in accordance with section 91 as to the degree of permanent impairment, if any, of the worker resulting from the injury to the worker-

(i) for the purposes of determining the entitlement of the worker, if any, to compensation under section 98C; and

(ii) for the purposes of section 134AB(3) and 134AB(15); and

(iii)[4] for the purposes of Subdivision 1 of Division 3A; and

(b) a determination as to whether the worker has an injury which is a total loss mentioned in the Table to section 98E(1)."

11 In instructing Mr. Marshall to examine Mr. Syrad, the Authority, by its agent, was acting in compliance with sub-ss.(4) and (5). Its letter of instructions, dated 14 February 2002, read as follows:-

We confirm that you are to examine the above-named worker on Friday 26 April 2002 as 12.00 noon.

This worker has claimed non-economic loss pursuant to Section 98C and E of the Act, in respect of injury to facial, L/ear, L/eye, R/arm, chest, back, R/leg, burns scarring and psychological condition, which occurred on 19/2/2000.

Liability has been accepted and this examination is for assessment of this worker's permanent impairment only.

Please examine this worker and provide your opinion on the following:

(a) An assessment in accordance with the 'American Medical Association Guides to the Evaluation of Permanent Impairment" Fourth Edition. 3rd Reprint.

(b) A determination as to whether the worker has an injury which is a total loss mentioned in the Table pursuant to Section 98E(1).

We enclose documents that may assist you in your assessment."

It may be noted that, although the letter speaks of "a determination" (as mentioned in sub-s.(5)(b)), it speaks also only of "an assessment", although sub-s.(5)(a) speaks of "assessments", and has spoken in the plural since amendment by Act No. 26/2000 when subpara.(ii) was added to para.(a), subpara.(iii) being added later still. Perhaps sub-s.(5)(a) was understood as authorising assessments for all or any of the purposes mentioned in para.(a), but there is no need to do more than note the point at this stage.

12 Now, the documents enclosed with the letter to Mr. Marshall of 14 February were medical reports and the like, including medical reports from Mr. Masterson dated 7 December 2000 and a medical report from the plastic surgeon Mr. Anstee, dated 23 August 2001. Mr. Masterson's report was as follows:

**"**The accident to Mr. Syrad has been a serious one and is totally and permanently disfiguring. The disfigurement is obvious in his face particularly affecting his eyes and the left side of his face. The scarring also extends up onto his forehead. At this stage, it cannot be stated with any certainty that he will not require further surgery to the burn scars around his eyes. It is very characteristic of such burns that over time, the scars contract and he may need further grafting in his eyelids particularly his lower eyelids to facilitate adequate eye closure. This should be taken into account for the future.

It is gratifying that Mr. Syrad has been able to return to work and it is hoped that through understanding on behalf of his employers, he will be able to remain in employment until normal retirement which is still 25 years away. Were Mr. Syrad to lose employment from Roehlen Industries, his job opportunities are likely to be limited because of his burn scars and the appearance of these.

Consequently, it must be clearly stated that this man's burn scars represent a permanent disability. This disability is difficult to quantify. It certainly does not limit Mr. Syrad's manual dexterity, it is largely a matter of the acceptance by employers of his appearance and their perception of his ability to undertake specific tasks. The only problem in relation to employment, is that Mr. Syrad may find some difficulty in working in a hot confined environment. This is because he has some limitation in capacity for sweating from his face and the top of his head."

**"**Mr. Syrad may well have been injured in the manner described, that is, burned by nitric acid. His treatment has been appropriate but he is left with grotesque scarring as described above and as depicted in the accompanying photographs. He also has significant functional problems.

Although Mr Syrad does not require surgery at present, there is some tightness in his face. On wide opening of the mouth, this tightness of the skin is emphasised. The difficulty shaving of which Mr Syrad complains is typical of deep partial thickness burns of the face.

It is a tribute to Mr. Syrad's attitude to his burns and rehabilitation that he returned to work rapidly and continues to work full time. It need hardly be stated that he would find difficulty gaining employment should his present employment fold.

I believe that he would fall into Class Five in Table 2 on page 280 of the AMA Guides to the Evaluation of Permanent Impairment, 4th edition.

(a) signs or symptoms of skin disorder are constantly present,

(b) there is limitation in the performance of most of the activities of daily living, including occasional confinement to home and

(c) intermittent to constant treatment may be required.

I would put Mr Syrad at the bottom end of this range and suggest that he has an 85% whole person impairment.

Photographs of the present situation accompany this report."

13 It will be seen that Mr. Anstee himself suggested an 85% whole person impairment. Mr. Marshall, when reporting on 26 April 2002, wrote as follows:-

"Thank-you for your letter dated 14th February, 2002 and for the enclosures, which I have read. I saw Mr. Syrad today for the purpose of conducting an impairment assessment in accordance with the AMA Guides, fourth edition.

On the 19th February, 2000 Mr. Syrad suffered severe chemical burns to the face in the course of his employment. A mixture of nitric acid and a chlorine based substance exploded and he was showered on the head and limbs with the corrosive mixture.

He was admitted to the Alfred Hospital where he was an inpatient in the burns unit for approximately six weeks. He was subjected to a number of operative procedures, including skin grafts to his arms.

He was later discharged from hospital and returned to work.

He subsequently received further plastic surgery from Mr. Brett Archer, who performed whole skin grafts to both lower eyelids. He continues to work as a photo chemical engraver, but as a result of the injuries, has suffered serious facial disfigurement.

Examination reveals there is a loss of the pigmentation of the skin over the whole of the face and in particular, the forehead and scalp is deathly white. There are several keloid scars on the left side of the face, which are particularly disfiguring. There are areas of pallor over the right side of his cheek, extending as lines onto his neck where the fluid produced a deeper burn. The nose is distorted by loss of skin and scarring and is deviated to the left with distortion of both nostrils. There are large areas of de-pigmentation on the neck, extending from the angle of the jaw to the clavicle on the right side.

There are areas of scarring on each arm. There is an area of scar on the right arm, with a well healed area of split skin graft on the anterior surface of the right elbow. There is also a skin graft on the left upper forearm.

There are other areas of scarring on his right thigh and lower right leg and also patchy areas of scar on the front and back of his trunk.

The most significant area of scarring is on his face. The skin grafts on the eyelid have healed well, but he still has problems of exposure of the left eye, particularly in dry and windy conditions. His wife notes that when he is asleep, his eyes are open, particularly the left.

From the plastic surgery point of view, there is a permanent impairment. Plastic surgery reconstruction has been carried out as far as is reasonable and further treatment is unlikely.

The present situation can be regarded as final from the point of view of the scarring.

In my view, the impairment can be most reasonably assessed as a class 5 impairment, as described on page 280 of the AMA Guides.

He requires constant protection from the sun and must wear protective cover when he is outside. A comparison with examples cited in the Guides, leads me to an assessment of an 85% impairment.

In my view, no other specialist opinion is required.

The scarring has stabilised and further surgery is unlikely, but he will require constant protection of the areas of de-pigmentation and scarring on the face.

I do not believe there is a total loss as in the table pursuant to section 98E1."

That was Mr. Marshall's response to the letter of instructions based upon sub-s.(5). His report purported to contain both the requested assessment (in the singular) of the degree of permanent impairment and the determination about total loss.

Legislative framework after assessment

14 According to the statute, once "the assessments [sic] and determination" have been received, the Authority is bound to act under sub-s.(6), action which is designed to enable the worker in turn to respond under sub-s.(7). Those two subsections read as follows:-

"(6) The Authority or self-insurer must within 60 days[5] of obtaining the assessments and determination advise the worker of the assessments[6] and the entitlement to compensation, if any, under section 98C or 98E and of the consequences as specified in sub-section (11A) of confirming in writing that he or she wishes to receive any compensation to which he or she is entitled.

(7) The worker must within 60 days[7] of being advised under sub-section (6) advise the Authority or self-insurer as to whether the worker accepts or disputes each of the assessments, whether or not the worker accepts or disputes the entitlement to compensation, if any, under section 98C or 98E and if the worker accepts the entitlement to compensation, whether or not he or she wishes to receive the compensation to which he or she is entitled."

15 If the worker advises the Authority that he or she accepts "both of the assessments[8] and the entitlement to compensation", then payment must follow according to sub-s.(8): that is, payments in accordance with s.98D if the entitlement is under s.98C, or, if under s.98E, payment of the amount specified there for total loss. It is sub-s.(9) that spells out what shall happen if the worker notifies a dispute under sub-s.(7). Sub-section (9) reads thus:-

"(9) The Authority or self-insurer must within 14 days of being advised by the worker that the worker disputes either of the assessments[9] refer the medical questions as to the degree of permanent impairment resulting from the injury to the worker for the relevant purposes specified in sub-section (5)(a) and whether the worker has an injury which is a total loss mentioned in the Table to section 98E(1) to a Medical Panel for its opinion under section 67."

16 To complete the legislative framework: under sub-s.(10), when the opinion of the Medical Panel has been obtained, the worker must be advised of the opinion and the entitlement of the worker, if any, under s.98C or s.98E, and payments must be made accordingly if entitlement exists. Sub-section (12) prohibits an appeal to any court or tribunal "from an assessment or opinion" as to the degree of permanent impairment or as to whether the worker has an injury which is a total loss within s.98E(1).

17 Despite the statutory injunction in s.104B(6) that the Authority shall, within the prescribed number of days after "obtaining the assessments and determination" described in sub-s.(5), advise the worker of those "assessments and the [worker's] entitlement to compensation, if any, under section 98C or 98E", Mr. Marshall's report of 26 April 2002 prompted no such reaction. Perhaps that was because all of the relevant medical practitioners to whom Mr. Syrad had been referred had not yet provided their reports to the agent. Whether or not that was so, Mr. Syrad's solicitors sent a letter dated 28 January 2002, noting that the plaintiff had now attended various examinations and requesting copies of the reports, but the letter elicited no response from the agent. On 31 July, 6 August and 16 August 2002, Mr. Syrad's solicitors wrote again requesting copies of the independent medical examiners' impairment assessments, and again the agent did not reply. (Of course the Authority now contends that Mr. Marshall's report of 26 April was not a valid assessment under s.104B(5)).

18 On 26 September 2002, however, the agent wrote again to Mr. Marshall. That letter was as follows:-

"Thank you for your report dated 26 April 2002 regarding Mr. Syrad's chemical burn injuries. Following a detailed review of your report we have identified certain issues, which require clarification. To assist us in reviewing the assessment to ensure that Mr. Syrad receives his correct entitlement to compensation under section 98C/E, we request that you clarify for us the following matters contained in your report.

We note from your examination of the above worker you have confirmed he sustained 'severe chemical burns to the face in the course of his employment; a mixture of nitric acid and a chlorine based substance exploded and he was showered on the head and limbs with the corrosive mixture'.

You have proceeded to assign a 85% whole person impairment rating by virtue of Table 2 of Chapter 13 of the Guides: 'The Skin'.

We refer you to p.13/278 of the Guides under the heading '13.2 Methods of Evaluating Impairment', in particular the third paragraph. We confirm the Guides have directed that 'the appropriate impairment class' (Table 2, p280) should be determined by primarily considering the impact of the skin condition on the individual's daily activities. Further, 'the frequency and the intensity of signs or symptoms, as well as the frequency and complexity of the needed medical treatment, may be used to determine the appropriate percentage and estimate within any impairment class.'

We draw your attention to the criteria of Classes 4 and 5 of Table 2. For a patient to be considered as having a rateable assessment within these classes, it must be established that:

Signs and symptoms of skin disorder are constantly present.

There is limitation in the performance of many (class 4), or most (class 5) of the activities of daily living.

Including intermittent (class 4) or occasional to constant (class 5) confinement at home or other domicile, and

Intermittent to constant treatment may be required.

We confirm Mr. Syrad has returned to full time employment with his pre-accident employer and that there would appear to be minimal limitation with regard to his performance of activities of daily living. (In this regard we refer you to p.317, the Glossary definition). In addition, it would appear that Mr. Syrad does not require confinement to his home or 'other domicile', as described in the Guides.

We refer you to Example 4, on p.283 of the Guides where a worker sustained very similar injuries under similar circumstances to those sustained by Mr Syrad. In this instance, a class 2 or 20% whole person impairment has been assigned. If you should maintain the above named worker has a class 5 impairment assessed as 85% of the whole person, we would be grateful for the provision of your reasoning for same.

Your assistance in considering the above matters is most appreciated. We look forward to receiving your further comments.

Should you have any further queries, please do not hesitate to contact Christine Rizzo, (Impairment Benefit Specialist) on 9234 3529."

19 The agent did not send a copy of this letter to Mr. Syrad or his solicitors. Mr. Marshall's response, dated 7 October 2002, read thus:-

"Thank you for your letter dated 26th September, 2002.

The assessment of disfigurement is one of the least satisfactory in the AMA Guides. The assessment is subjective and the attempt to categorise disfigurement is extremely difficult.

The impression one gains when examining Mr. Syrad is that he is an extremely well motivated man, with very severe facial scarring. There is extensive de-pigmentation of the forehead and face and both lower eyelids have been replaced. There is extensive hypertrophic scarring of the cheeks, with distortion of the nose, all of which constitutes to an experienced plastic surgeon, a very major facial disfigurement. Despite this, it is difficult to categorise according to the AMA Guides.

If, for instance, as he has returned to full time employment with his pre-accident employer, we assume there is minimal limitation with regard to his performance of the activities of daily living, I believe we are being unfair to the patient. Most patients with the degree of scarring suffered by Mr. Syrad, would not return to work, but would become reclusive.

Even though he has returned to full time employment he has severe sun sensitivity in the areas which were burned and he must wear a hat on all occasions.

The eyelids have been badly scarred and his eyes water so that he must wear sun glasses all the time and he has considerable difficulty in dry and windy conditions. Again, most patients with this type of scarring would remain indoors.

Having read your letter and re-reading the various criteria, I have difficulty in finding an appropriate impairment. As a plastic surgeon of many years experience, I regard his facial disfigurement as extremely severe, despite his ability to continue working. There are certainly signs and symptoms of skin disorder constantly present.

There is limitation in the performance of many activities of Mr. Syrad's daily living. He has difficulty in playing golf. There is extreme sun sensitivity, so he needs to wear a hat all the time and his eyes water under dry windy conditions. He requires eye protection and skin protection, which I would regard as intermittent to constant treatment.

I have read the example 4, on page 283 and there are similarities, but Mr. Syrad also required skin grafts to the eyelids and there are extensive keloid scars on the cheeks and the nose is distorted and is quite unsightly.

Reading the examples given on page 288, suggests to me my assessment of 85% for Mr. Syrad was somewhat generous and a figure between the examples is probably more appropriate.

After due consideration, I think a class 3, of 54% whole person impairment would be more reasonable."

20 The agent then sent to Mr. Marshall Dr. Gale's impairment assessment of hearing loss as 6% of the whole person, and asked him to combine the assessments according to the appropriate value chart and, as already noted, Mr. Marshall responded on 29 October 2002 that the "total combined whole person impairment [was] 57%" which formed the basis for the agent's calculation of the respondent's entitlement to compensation. That was the step which the respondent challenged in the County Court, and challenged successfully.

The issue for determination

21 As I apprehend it, the arguments before us on appeal were much the same as they were before the trial judge. For Mr. Syrad, Mr. O'Loghlen submitted that Mr. Marshall's report, dated 26 April 2002, contained a relevant assessment "in accordance with section 91 as to the degree of permanent impairment" as mentioned in s.104B(5); it was the result of "an independent examination by a medical practitioner referred to in section 91(1)(b)" as required by sub-s.(4); and, accordingly, it was an assessment of which the Authority was bound to notify the worker under sub-s.(6). His submission was that the Authority had no power, once a medical practitioner had delivered an assessment, to approach the medical practitioner on its own account, and in particular no power to approach the medical practitioner "for the purpose of inviting him to change his assessment", for that was how counsel characterised the agent's letter of 26 September. It was not open to the Authority, said Mr. O'Loghlen, to make that approach to one who was supposed to be "independent" and to do so behind the back, as it were, of the worker. Accordingly, the further report of Mr. Marshall, dated 7 October 2002, should simply be ignored for the purposes of s.104B.

22 For the Authority, Mr. Gorton submitted that Mr. Marshall's report of 26 April did not contain any relevant assessment "in accordance with section 91 as to the degree of permanent impairment" in that the so-called assessment of 85% whole person impairment was, on examination, not "made in accordance with ... the A.M.A. Guides", as s.91(1)(a)(i) required in this instance.

23 First, counsel pointed to Chapter 13 of the Guides which, dealing with "The Skin", commenced thus:-

"This chapter provides criteria for evaluating the effects of permanent impairments of the skin and its appendages. These are considered especially in terms of the effects they may have on an individual's ability to carry out daily activities, including those related to employment."

Counsel submitted that by this and like expressions in Chapter 13 the Guides required the medical practitioner to consider the impact of the relevant impairment "on an individual's ability to carry out daily activities", and more particularly those daily activities which were listed in a Table to be found in the Glossary. That Table read thus:-

"Table. Activities of Daily Living, with Examples

Hearing, speaking, reading, writing, using keyboard

Intrinsic: Standing, sitting, reclining, walking, stooping, squatting, kneeling, reaching, bending, twisting, leaning

Functional: Carrying, lifting, pushing, pulling, climbing, exercising

Hearing, seeing, tactile feeling, tasting, smelling

Grasping, holding, pinching, percussive movements, sensory discrimination

Riding, driving, travelling by airplane, train or car

Participation in individual or group activities, sports, hobbies

If an assessment was to be upheld as "in accordance with the Guides" (the argument ran), each of the foregoing activities had to be addressed in turn in the practitioner's report, or at least the report had to show on its face that each of them had been addressed by the practitioner in arriving at the degree of impairment.

24 Further, Chapter 13 itself contained a Table setting out five classes of skin disorders, depending upon three criteria, one of which turned on whether there was a consequent limitation in the performance of "few activities of daily living", "some of the activities of daily living", "many of the activities of daily living", or "most of the activities of daily living". Mr. Gorton submitted that Mr. Marshall's report of 26 April had not addressed this criterion (or indeed any of the three criteria), despite the note at the foot of the Table:-

"The impact of the skin disorder on daily activities should be the primary consideration in determining the class of impairment."

25 Mr. Gorton's submission was that, without a detailed consideration in the report of all the steps that the Guides pointed to, the report could not fairly be characterised as "in accordance with the Guides". He contended that paragraph 2.1 of the Guides spelled out three steps to be taken by the medical practitioner in making a relevant assessment of impairment. The first was to gather historical information and to carry out a medical evaluation; the second, to analyse the history and the clinical and laboratory findings to determine the nature and extent of the impairment; and the third (to quote from the Guides):-

"... is comparing the results of the analysis with the criteria specified in the Guides for the particular body part, system or function. This comparison is distinct from the preceding clinical evaluation and need not be performed by the physician who did that evaluation; rather any knowledgeable person can compare the clinical findings with the Guides' criteria and determine whether or not the impairment estimates reflect those criteria."

As I followed him, Mr. Gorton's submission was that if an assessment was to be fairly described as "in accordance with the Guides", the clinical findings and the like must be set out in such detail that "any knowledgeable person" will be able to apply the Guides' criteria to see if the "impairment estimates" do reflect those criteria.

26 In my opinion, this submission should be rejected. I do not read the Guides as requiring any such detailed, clinical analysis to be set forth in the report of the medical practitioner engaged under s.104B(4). True it is that the assessment, being obtained under s.104B, is to be an assessment "in accordance with section 91 as to the degree of permanent impairment", and true it is that s.91(1)(a) requires, in a case like this, that the assessment be made "in accordance with the A.M.A. Guides". But in referring to "any knowledgeable person" paragraph 2.1 of the Guides is doing no more than spelling out the extent of the evaluation to be made by the medical practitioner. The reference to "any knowledgeable person" is not for the purpose of enabling the final assessment of the relevant degree of impairment to be made by such person: it is for the purpose of ensuring that the medical practitioner carries through his medical evaluation in sufficient detail, and nothing requires that detail to be spelled out in the report.

27 Nor did I find persuasive Mr. Gorton's submission that Mr. Marshall's report of 26 April did not contain a relevant assessment because there was no evidence in that report that Mr. Marshall had considered, one by one as it were, the various daily activities listed in the Table set out in the Glossary to the Guides. Mr. Marshall plainly did consider the impact of Mr. Syrad's injuries on his daily activities: for not only was that impact canvassed in the reports supplied to Mr. Marshall with his instructions, but he specifically referred to the need for "constant protection from the sun" and the need to "wear protective cover when he is outside", which were part and parcel of the daily activities in question. It does not follow that Mr. Marshall did not consider the daily activities mentioned in the Glossary simply because he did not mention them seriatim in his report. Indeed, to require the medical practitioner to mention in his formal report each and every step which one part or another of the Guides seems to require would impose upon a medical practitioner an onerous task which in many cases, if not always, would probably not be carried out without an omission of one kind or another. That is not the purpose of the Guides, nor is it the purpose of s.91(1)(a), as I read it.

28 In my opinion, s.91(1)(a) usefully maps out the pathway by which the medical practitioner, making his independent examination, is to proceed. If he does not follow that pathway, his consequent report and "assessment" will not be "in accordance with section 91". That was the difficulty in Von Bruhl v. Victorian WorkCover Authority[10], where the medical practitioner, in assessing hearing loss, proceeded by reference to the A.M.A. Guides, instead of the guidelines provided by the National Acoustic Laboratory. In this case, I agree with Mr. O'Loghlen, that there is nothing in Mr. Marshall's report to indicate that he did not follow the proper pathway and indeed there is much in the report to suggest he did. In the result I consider that the report of 26 April 2002 did contain an "assessment in accordance with section 91" within the meaning of s.104B(5)(a).

29 That being the case, I see no basis in the wording of s.104B for concluding that the Authority retains some power to invite the medical practitioner to reconsider his assessment in a significant fashion: indeed the thrust of the section is quite to the contrary, especially the requirement in sub-s.(6) that the Authority advise the worker of the assessments (and the entitlement to compensation) within a certain number of days after obtaining them. The scheme of the Act was much clearer in this regard when s.104B was first enacted in 1997. The first four subsections were in much the same form as now, but the next five subsections were much simpler and more easily comprehended. Subsections (5) and (6) then read thus:-

"(5) The purpose of the independent examination is to obtain -

(a) an assessment in accordance with section 91 as to the degree of permanent impairment, if any, of the worker resulting from the injury to the worker; and

(b) a determination as to whether the worker has an injury which is a total loss mentioned in the Table to section 98E(1).

(6) The Authority or self-insurer must within 14 days of obtaining the assessment and determination advise the worker of the assessment and the entitlement to compensation, if any, under section 98C or 98E."

Subsection (7) required the worker to advise the Authority whether he or she accepted or disputed "the assessment and the entitlement to compensation" and then, depending upon the workers' response, it was sub-s.(8) or sub-s.(9) that governed what followed (much as under the present wording[11]). There was no suggestion here that the Authority might demur as to the doctor's assessment. Section 104B contemplated an "independent examination" by a medical practitioner, "an assessment in accordance with section 91" by that practitioner, and advice to the worker of the contents of that assessment within 14 days of its being obtained by the Authority. There was no room for the Authority to argue with the doctor over the assessment made, or to invite reconsideration of the assessment in any significant fashion, and despite the complications introduced into the wording of the section by subsequent amendment, I think that such is still the case.

30 As s.104B stipulates, the assessment is to be made after "independent" examination, and that plainly enough means independent of both the worker and the Authority. If the Authority were to retain some power to invite reconsideration of the impairment assessment made by the nominated medical practitioner "in accordance with section 91" and in response to the Authority's request for independent examination, the independence of the process could be threatened, as witness the terms in which the request for reconsideration was made in this case. Perhaps clarification of the doctor's report on impairment can sometimes be sought by the Authority, if, for instance, something in the report was ambiguous or in doubt, and so much seems to have been accepted without demur in Wilson. But clarification does not involve departure and in this case departure is what resulted - and (I think it fair to say) departure at the invitation of the Authority, as Mr. O'Loghlen submitted. As I read the Act, the Authority was bound, upon receipt of Mr. Marshall's report of 26 April, to accept the doctor's assessment of impairment and, it being an assessment within the meaning of s.104B(5), to take the steps spelled out by s.104B(6) at the appropriate time.

31 I say at the appropriate time because on this occasion there was more than one medical practitioner involved, each expressing an opinion within his own field of expertise: Mr. Marshall, the plastic surgeon, and Dr. Gale, the ophthalmologist. Each provided to the Authority, as requested by it, an assessment of the degree of impairment in relation to the claim under s.98C and at least Mr. Marshall provided also a determination as mentioned in para.(b). As to the degree of impairment relevant to the claim for compensation under s.98C, it was necessary, after each doctor had reported, to combine the assessments into "a total combined whole person impairment" according to the Combined Values Table in the Guides. That step was a necessary prerequisite to calculating compensation, as indeed sub-s.(5B) appears to recognise. That subsection provides that where, as here, the worker suffers more than one injury in the same event, "all of those injuries must be included in the one assessment" - which is logical enough when the calculation of the compensation depends upon it. Because of s.91, it seems to follow from the context surrounding sub-s.(5B) that that single and derivative assessment is to made by a medical practitioner, and hence no doubt the request by the Authority to Mr. Marshall which led him to state, on 29 October, the "total combined whole person impairment". That combined assessment cannot stand as it was based in part upon Mr. Marshall's own revised impairment assessment, but the process was otherwise in line, I think, with what s.104B required.

32 As, by virtue of sub-s.(6), the worker is to be advised by the Authority of "the assessments and the entitlement to compensation", I imagine that, where the worker has been requested to attend more than one practitioner for independent examination and it is necessary to apply the Combined Values Chart to the individual results, the Authority will be in position to give that advice only once the several assessments from the different doctors have been so combined and the compensation calculated. Focussing for present purposes on the assessment for the purpose of the claim for compensation under s.98C, the Authority is surely required by sub-s.(6) to inform the worker of not only the combined assessment and the entitlement, if any, to compensation under s.98C, but also the individual assessments underlying that end result. And as I understood him in argument, Mr. Gorton accepted that that was so. That is not to deny the status of assessment to each individual doctor's report; for each is and remains an assessment which is (or should be) "in accordance with section 91". It is to do no more than recognise that when each is put together into a combined value assessment for the sake of calculating entitlement to compensation, the worker should be advised of the contributing reports as well as the ultimate assessment ("the one assessment" under sub-s.(5B)), in order that the advice required by sub-s.(6) is meaningful and the worker can fairly make a decision as required by sub-s.(7). In the result, however, time will probably start to run under sub-s.(6) (for the giving of that advice) from the Authority's obtaining the combined assessment where one is needed, not from its obtaining any individual assessment when such must be combined with an other or others before entitlement to compensation can be calculated.

Conclusion

33 I mention two further things. First, Mr. O'Loghlen submitted that the question whether the report of 26 April contained the relevant "assessments in accordance with section 91" for the purposes of s.104B was, at root, a question of fact, not law and that, as an appeal under s.52 of the Act was permitted on a question of law only, no appeal lay from the decision of the County Court judge in this instance. I am not persuaded by that submission. It seems to me that, in a case like this, the question whether Mr. Marshall's report of 26 April comprised the relevant "assessment" or whether it consisted of one or other or both of the subsequent reports, depended upon whether or not the first answered the relevant statutory description. The difficulty lay not in the contents of the report - which was a matter of fact - but in the relevant statutory description, and what was meant by "assessments in accordance with section 91" was a matter of law.[12]

34 Secondly, I have not overlooked the fact that if the trial judge was correct, there seems to be a lack of correspondence in the position of the worker and the position of the Authority under s.104B ("asymmetry**"** Callaway, J.A. called it in Wilson). While the worker, by disputing the assessments and/or the entitlement to compensation may compel the Authority to refer the matter to a Medical Panel for opinion, which opinion will be binding, the Authority has no corresponding or like power to initiate such review. If the Authority obtains what are in truth "assessments in accordance with section 91", then it is bound to accept those assessments for the purpose of determining entitlement to compensation. If that seems unfair, it should be remembered that it is not the worker but the Authority which chooses the medical practitioners to whom the worker shall be referred for the purpose of independent examination, and it may be that step which is seen as bringing some balance into the scheme as a whole.[13] Be that as it may, I think that the scheme is so clear in sub-ss.(6), (7), (8) and (9) as to justify the submissions made on behalf of Mr. Syrad and accordingly to justify the conclusion reached by the County Court judge.

35 In so concluding, I say nothing about the possibility of the Authority's being able to review the opinion of the medical practitioner, or indeed a relevant "assessment", by some kind of judicial review under Order 56 of Chapter 1 of the Rules of this Court or review under the Administrative Law Act 1978. In her reasons for judgment, the trial judge referred to the possibility of the Authority's seeking some such review and in its original notice of appeal the Authority challenged that conclusion as error, asserting that there was no such possibility open to the Authority. In its amended notice of appeal, this ground of appeal was omitted and in consequence it was not argued before us. For myself, I entertain some doubt whether judicial, or indeed administrative, review could properly be sought, if, as I assume, the medical practitioner is engaged by the Authority by simple contract. But, as the matter was not argued, I express no opinion on it.

36 For the reasons I have given I would dismiss the appeal. If, however, these reasons reflect the views of the other members of the court, it means that s.140B operates differently in relation to the "assessments" required by s.104B(5) and in relation to the "determination", by reason of the majority opinion in Wilson. In view of that difference and in view of other difficulties inherent in the present wording of s.104B (to some of which I have made reference in passing) there is a need, if I may say so, for Parliament to reconsider generally the provisions contained within s.104B, the better to express the legislative intention.

37 The questions of law raised in the amended notice of appeal which were argued on appeal are as follows:

A. Did the report of Mr Marshall dated 26 April 2002, in the circumstances, amount to an assessment in accordance with s. 91 of the Act incorporating the American Medical Association's Guides to the Evaluation of Permanent Impairment, 4th Edition ("AMA Guides"), there being on the face of the report no finding of or consideration given to limitation in the performance of activities of daily living?

B. Did the learned Trial Judge err in holding that the independent medical examiner had no power to reconsider and/or alter and/or determine afresh an impairment assessment made by him pursuant to s. 91 of the Act?

38 With respect to the first question, I agree with the conclusions and reasons set out in the judgment of my brother Phillips.

39 The second question invites a consideration of the status of Mr Marshall's April report in terms of the Act.

40 By s. 104B(4), the Authority is obliged to request the worker "to attend an independent examination by a medical practitioner" who has completed the prescribed training course. Two aspects of this statutory obligation warrant

comment.

41 First, the examination is to be independent, that is, it is to be undertaken by the medical practitioner without bias towards or interference from either the Authority or the worker. This is a matter which requires most careful attention because, as we were told, it is the Authority who selects the medical practitioner from those qualified and it is the Authority who pays the practitioner. The Authority must, therefore, act with scrupulous care to ensure that, even inadvertently, it does not cause the medical practitioner to compromise this independence.

42 Second, the statute speaks of one examination by one medical practitioner. It follows from this, for example, that the Authority cannot, therefore, send a worker with a back injury to a number of orthopaedic surgeons and select from their reports that which is most favourable to its interest. In the case where the worker suffers multiple injuries or the injuries produce differing functional conditions or affect the worker in different bodily organs, as in the present case, it may be appropriate for the Authority to require the worker to attend a number of examinations, each by a medical practitioner who is an expert in a different specialty.

43 Returning to the simple case where one examination only is required, the purpose of the medical practitioner's examination is to make an assessment of the degree of permanent impairment in accordance with s. 91. Section 104B(5) speaks of the purpose as that of obtaining the assessment; s. 91(1)(b) shows that the assessment is made by the medical practitioner. I conclude, therefore, as a matter of construction, that the assessment is to be made by the medical practitioner and received by the Authority whose obligation then is to make the calculation of compensation payable required by s. 98C. The Authority is then to advise the worker pursuant to s. 104B(6) of both the assessment and of the results of the calculation which produces the amount of the worker's entitlement to compensation, if any, under the section.

44 Section 104B generally[14] speaks of assessments in the plural, or of two assessments[15]. This has been held[16] to be a reference to an assessment for the purpose of a claim for non-economic loss under s. 98C and to an assessment for the purposes of determining whether the worker has a serious injury and, therefore, entitled to bring a common law claim under s. 134AB. In the preceding paragraph I have used the singular, for this case concerns only an assessment for the purposes of s. 98C under s. 104B(5)(a)(i).

45 In the case of a multiple disciplinary medical examination, where more than one medical practitioner is involved, each of the medical practitioners is required to report the extent of whole body impairment resulting from the impact of the injury or injuries upon the bodily organ or condition with which the practitioner is concerned. Each of these impairment ratings, as they are referred to in the AMA Guidelines, is expressed as a percentage of a total whole person impairment. These percentages are then combined into an overall whole person impairment estimate using the Combined Values Chart in the Guide. Although this last process appears to be an essentially mathematical function, it is the practice of the Authority to submit to one of the medical practitioners various impairment ratings provided by the several medical practitioners for them to be combined to produce the overall impairment assessment. This may be because there is some element of professional judgment involved in the performance of this task or because of the requirement of s. 91(1)(b) that the assessment be made by an authorised medical practitioner. In terms of s. 98C, it is clear that this overall impairment assessment is an "assessment".

46 It was accepted in argument on appeal that, in such a case, the impairment rating of each of the individual practitioners is itself also an assessment within the meaning of s. 104B(6). On that basis, the worker is provided with a copy of each of these assessments as well as the overall impairment assessment which is used by the Authority for the purposes of calculating the compensation under s. 98C.

47 I respect, of course, this concession made by very experienced practitioners in this area of law. It does, however, point up yet another difficulty in the drafting and the construction of s.104B in the case of a claim under s. 98C involving multiple injuries or a single injury which affects the worker in different bodily organs or functions. This is as to the meaning of the word "assessment" or "assessments" in this section.

48 Section 104B(5) contemplates one assessment in such a case.[17] This is presumably the overall impairment assessment the obtaining of which by the Authority marks the commencement of the period within which it must advise the worker under s. 104B(6). Then, each medical examination will produce a report from the practitioner, including an impairment rating referable to the medical specialty. This will be used to make the overall impairment assessment for the purposes of s.98C. These ratings are likewise spoken of as "assessments" in the jargon of this area of law and also, it would seem in s. 91. And so, in this case, Mr Marshall's report was said by all to contain his assessment of the worker's whole of body impairment as a consequence of the injury to his skin.

49 The fact that a word in this legislation has more than one meaning may be not a cause for surprise and, when appreciated, may not cause any difficulty in its operation. What is important, however, is the requirement of s. 104B(6) that the worker be advised of the assessments which have been obtained. This must be a requirement that the worker be provided, not only with the final whole of body overall impairment assessment, but also with all assessments which have been obtained in the course of the medical investigation process contemplated by s. 104B(4). It is only after receiving and examining these that the worker can form a view whether to accept or dispute them pursuant to s. 104B(7).

50 Against this background, it is not difficult to conclude, as did the trial judge, that each of these assessments[18], as a product of an independent medical examination, cannot be rejected by the Authority or returned to the medical practitioner for reconsideration or for a fresh assessment. I leave to one side the need to correct some slip or even, perhaps, to cure some ambiguity or uncertainty. Subject to this, the Authority is bound by the assessment as, indeed, is the worker. In the latter case, however, the worker has a right of review under s. 104B(9).

51 I, too, would for these reasons answer the second question of law in the negative.

[1] The second edition is still to be used for some statutory purposes: see s.91(10) which preserves s.91 as reproduced in Reprint No.7.

[2] Accident Compensation (Miscellaneous Amendment) Act 1997.

[3] Accident Compensation (Common Law and Benefits) Act 2000.

[4] Added by Act No.82/2001 s.6(a), with effect from 12 December 2001.

[5] Amended from 14 days by Act No.82/2001 s.20(1), with effect from 12 December 2001.

[6] But not the "determination", as was noted in V.W.A. v. Wilson [2004] VSCA 161.

[7] Amended similarly to sub-s.(6), as from 12 December 2001.

[8] Although the expression "both of the assessments" was introduced by Act No.26/2000 when subpara.(ii) was added to s.104B(5)(a), it strangely remained unaltered when subpara.(iii) was added by Act No.86/2001. This is awkward.

[9] According to the majority in Wilson, as expressed at [3] and [27]-[29], this subsection should be read as if the words "or the entitlement to compensation" followed immediately after the words "either of the assessments".

[10] Unreported, County Court of Victoria, Judge Lewis, 31 January 2003.

[11] As Callaway, J.A. pointed out in Wilson, in footnote 15, sub-s.(9) originally referred expressly to the worker's disputing "the assessment and the entitlement to compensation", the last five words of this phrase being omitted (apparently by mistake) when the Act was amended by Act No.26/2000 and the subsection recast.

[12] S v. Crimes Compensation Tribunal [1998] 1 V.R. 83 at 88-90.

[13] Wilson at [45] per Nettle, J.A. (dissenting).

[14] Other than in sub-ss. (5A) and (5B)

[15] Section 104B sub-s.(7)

[16] VWA v Wilson [2004] VSCA 161 at [5], per Winneke P and at [23], per Callaway JA

[17] See too s. 104B(5E)

[18] Including the overall impairment assessment.