Wight v Transport Accident Commission [2003] VSC 214

5. Having reviewed the defendant's decision the VCAT Senior Member substituted a whole person impairment of 48% for the 27% assessed by the defendant.

8. Dissatisfied with the VCAT assessment the plaintiff, by originating motion issued 11 April 2002, sought leave to appeal to this Court. Such leave was granted by Master Wheeler on 13 May 2002. The appeal to this Court in such circumstance is confined to a question or questions of law.[1]

11. The plaintiff's grounds of appeal relate to alleged errors of law made by the Senior Member who reviewed the defendant's assessment, in the application of Chapters 2 and 12 of the Guides to the Evaluation of Permanent Impairment of the American Medical Association (the AMA Guides) and a failure by the Senior Member to extend procedural fairness to the plaintiff in relation to her findings based upon the evidence of a particular specialist psychiatrist.

14. The Senior Member commenced her reasons for the order she made by noting that certain matters were not in dispute between the plaintiff and the TAC, namely that the plaintiff had a 3% whole person impairment consequent upon the fracture of his first lumbar vertebra and a 6% whole person impairment consequent upon the fracture of his twelfth thoracic vertebra. She also stated that counsel for the plaintiff had "conceded" that the plaintiff had no primary psychiatric impairment under Chapter 12 of the Guides. Thus, said the Senior Member, the dispute before her was confined to the question of the plaintiff's impairment assessed under Chapters 1 and 2 of the Guides. Chapter 12 of the AMA Guides provides assessment criteria for mental and behavioural disorders whilst Chapter 1 deals with physical injuries to the extremities, the spine and the pelvis and Chapter 2 is concerned with the nervous system.

17. When the matter first came on for hearing at VCAT in August 2001 Dr Michael Epstein, psychiatrist, gave evidence that the plaintiff should be rated under Chapter 2 of the AMA Guides as being towards the higher end of Class 2 in that Chapter with an impairment rating of 35% to 40% for emotional disturbance. Subsequently, however, in a report dated 4 September 2001, before the hearing had been completed, Dr Epstein revised his opinion of the plaintiff, stating that in addition to his symptoms of adjustment disorder with depressed mood, the plaintiff had an organic personality disorder and an organic mood disorder. He increased his assessment of the plaintiff's level of impairment under Chapter 2 for emotional disturbances to 45%, the highest rating which can be attributed to someone falling within Class 2 of the category of impairment entitled "Emotional Disturbances". He also stated that in his view these emotional disturbances did not overlap with a separate assessment he gave with regard to Chapter 12. That assessment, which was contained in a report dated 16 February 2001, was that the plaintiff had a level of impairment of 15% for psychiatric reasons of which 5% was attributable to the direct or non-secondary effect of the accident. In that report Dr Epstein acknowledged the existence of overlap between Chapter 2 and Chapter 12 of the Guides for people with an acquired brain injury and stated that he attempted to discount for this overlap.

20. Other doctors whose opinions were before the Senior Member, Dr L Sedal, neurologist, and Professor R Ball, psychiatrist, conceded that the plaintiff could perhaps be assessed as having a 20% impairment for emotional disturbances if certain conditions were met. Dr Sedal would allow such an assessment if the evidence of the plaintiff's mother and another witness, Mr Lowe, was accepted by the Tribunal. Professor Ball would allow the same assessment if there was no question of substance abuse.

23. In reaching an assessment in which she attributed an impairment of 30% to the plaintiff for emotional disturbance the Senior Member adverted to the question of overlap and expressed a reservation about the extent to which Dr Epstein was able to properly evaluate that question in reaching his assessment of 45% which she considered too high. In stating her finding the Senior Member expressed herself as

". . . having regard to the need to avoid any overlap between Chapters 2 and 12 . . ."

26. The plaintiff in this appeal complained that in referring to the question of overlap in the way that she did the Senior Member committed an error of law. He submitted that there was no evidence before her that any of the assessments proffered by the various medical practitioners were, in the circumstances, affected by any overlap between Chapters 2 and 12 of the Guides and that even if they were so affected there was no evidence as to the extent or nature of that overlap so as to enable the Senior Member to make an appropriate adjustment on an intellectually rational basis. He further complained that the Senior Member did not state or make any finding herself as to these matters before proceeding to discount Dr Epstein's assessment by 15%.

29. In his argument on behalf of the plaintiff Mr G Nash QC made much of the fact that counsel for the plaintiff before the Senior Member had conceded that the plaintiff pressed no claim pursuant to Chapter 12 of the Guides. Thus, so his argument went, no occasion arose for the Senior Member to consider Chapter 12 at all. Presumably the plaintiff's concession in this regard was made having regard to s 46B of the Transport Accident Act 1986 which precludes any psychiatric or psychological injury, impairment or symptoms arising as a consequence of, or secondary to, a physical injury being taken into account upon an impairment assessment. As no assessment was therefore called for in respect of Chapter 12 and none was made a discount in respect of the opinion proffered by Dr Epstein constituted an error of law argued Mr Nash.

32. Mr Solomon of counsel for the respondent answered Mr Nash's submission by submitting that all the Senior Member was doing in reaching her conclusion was performing her duty as an assessor by reaching a considered judgment after hearing the views of the various medical practitioners. Her function, said Mr Solomon, was to make an assessment in the shoes of the primary decision maker whose assessment was under attack.

35. In the alternative Mr Nash submitted that the failure of the Senior Member to explain why she took into account a question of overlap and the extent to which she took it into account in circumstances where there was no evidence upon which any rational decision could be made vitiates her decision as a matter of law.

38. The Victorian Civil and Administrative Tribunal has a statutory obligation to give reasons for its decisions.[2] However, a mere failure to give adequate reasons for making an administrative decision does not, of itself, vitiate that decision unless the failure to give reasons warrants an inference that the Tribunal has failed, in some respect, to exercise its powers according to law. If the Court draws such an inference it may act upon it and set the decision aside on appeal. The invalidity invoked as a justification for such setting aside is not a mere failure to give reasons but is the inference drawn from such failure.[3]

41. In the instant case I am satisfied that the failure of the Senior Member to explain her references to "overlap" in reaching her decision leads to an inference that she has made an unwarranted assumption that inherent in the doctors' opinions upon which she relied were some unexpressed considerations which required adjustment on the ground of "overlap". Although the question of overlap was referred to in the evidence before her such reference was in the context of its having been specifically addressed by the doctors in reaching their conclusions. Whilst the concession made by counsel for the plaintiff of VCAT that he was not pressing any claim to an assessment under Chapter 12 does not remove the question of overlap between Chapters 2 and 12 from the consideration of the Tribunal, in this instance the evidence disclosed no overlap. Thus the Senior Member was not entitled to find it necessary to take account of overlap in reaching her decision to award less than Dr Epstein's assessment under Chapter 2. By giving as her reason, or part of her reason, for doing so the need to allow for an overlap between the concepts involved in assessing an injured person under Chapters 2 and 12 of the Guides when there was no evidence that such overlap existed in this case or the extent of it imports an error of law into her decision requiring the interference of this Court.

44. In reaching the conclusion which I have I am conscious of the warning given by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang[4] citing Collector of Customs v Pozzolanick Enterprises Pty Ltd[5] to the effect that the reasons of an administrative decision maker are meant to inform and not to be scrutinised upon over zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. The decision maker's reasons should be given a "beneficial construction". This Court should not be "concerned with looseness in the language . . . nor with unhappy phrasing" of the reasons of an administrative decision maker such as the Senior Member in this case. The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.[6] However the consequences of the error I consider the Senior Member made in this case are severe for the plaintiff and should be alleviated by having the matter reconsidered by the Tribunal.

47. The conclusion which I have reached as to the VCAT decision in this case requires the plaintiff's impairment assessment to be remitted to the Tribunal to be dealt with on the question of his percentage impairment under Chapter 2 of the AMA Guides. However, before concluding this matter I should refer briefly to one other matter agitated upon this appeal in respect of which, having regard to a recent Court of Appeal decision, a definitive answer can now be given.

50. The Senior Member who comprised the Tribunal for the purposes of this case made a determination that the plaintiff suffered a 48% overall whole person impairment as a result of the injuries which he suffered in the relevant transport accident. No argument was put to her as to whether it would be appropriate in this case to "round off" that assessment to the nearest 5%; that is to say to 50%.

53. Mr Nash, for the plaintiff, contended that as the question of rounding up or rounding down in respect of impairment assessments can only arise or become relevant after the determination of the level of impairment by the Tribunal there was no basis for the plaintiff to put any argument to the Tribunal until it published its findings as to an appropriate impairment assessment. Mr Solomon, in answer to this submission, said that the plaintiff ought to have put his argument at the end of his submissions before the Tribunal and that no failure of procedural fairness was involved in the Senior Member publishing her final decision without hearing the plaintiff on this question.

56. Having regard to the prevailing view of the appropriate practice of the Tribunal at the time the Senior Member in this case published her reasons for decision it is safe to assume that had the question of rounding been the subject of submissions or had she considered it herself she would not have engaged in a rounding exercise in respect of the 48% which she found. Such was the effect of a prior decision of VCAT itself, re Coverdale and Transport Accident Commission[7] which had been approved by the Court of Appeal in Barnett v Transport Accident Commission[8].

59. In the former of these two cases Kellam J, sitting as the President of VCAT held that it was not appropriate to the function of the Tribunal reviewing a decision of a primary decision maker to itself engage in the "rounding" exercise provided for in the AMA Guides. That was the function of a medical assessor. Apparently, this view accorded with the practice then normally followed before the Tribunal.

62. In Barnett v Transport Accident Commission the Court of Appeal very briefly endorsed Kellam J's opinion although Mandie J at first instance had refrained from expressing an opinion upon it.

65. In Connelly v MMI Workers Compensation (Vic) Ltd and Others[9], delivered on 27 May 2003, the Court of Appeal considered that the rounding off provision is an integral part of the AMA Guides and should be considered whether or not the person or body making the assessment is medically qualified; that is to say whether the decision maker is a medical practitioner, a Transport Accident Commission assessor or a member of VCAT sitting on a review of such an assessment.

68. In Connelly, Chernov J.A. (with whom Callaway and Batt J.J.A. concurred) considered that the power to engage in a rounding off exercise at the end of an impairment assessment was a discretionary one which should be considered as the final step in reaching an appropriate assessment in every case to which it might be applicable. His Honour quoted the AMA Guides:-

"Rating of the Whole Person: The final step in rating medical impairment takes into account all relevant considerations in order to reach a 'whole person' impairment rating. The final impairment value, whether the result of single or combined impairments, may be expressed in terms of the nearest 5%."[10]

He considered that the use of the word "may" conferred a discretion upon the assessor at whatever level the assessment was being made.

73. The effect of Connelly is to require VCAT, when considering an impairment assessment, to also consider the question of whether it is appropriate to engage in the rounding exercise provided by the AMA Guides when the assessment process to that point produces a percentage which is other than divisible by five. As such rounding process occurs only after the primary assessment has been completed any argument as to whether it should be engaged in in any particular case would, of necessity, have to be postponed until the primary assessment was known and, in many cases until the reasons for it were known. It would normally be necessary for a party seeking the exercise of the relevant discretion to have the decision maker's reasons to enable appropriate submissions to be put. Accordingly, I reject Mr Solomon's submission that the plaintiff in this case ought to have argued the question of rounding at the hearing before VCAT before the Senior Member had published her decision.

76. In the circumstances, in failing to consider the question of rounding in this case, the Senior Member unwittingly failed to take the last step in an appropriate impairment assessment. In the circumstances that failure constitutes an error of law which can be corrected upon remission of the matter to VCAT for further consideration.

80. Section 148(7) of the Victorian Civil and Administrative Tribunal Act 1998 confers power on this Court hearing an appeal from the Tribunal to, inter alia, remit the proceeding to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court. One such direction specifically provided for in s 148(8) is a direction as to whether or not the Tribunal is to be constituted for the re-hearing by the same member.

83. In this case the Senior Member who made the decision appealed from is fully seized of the plaintiff's application. She has heard the evidence and is, in my opinion, in a better position than any other tribunal member would be to reconsider the plaintiff's application in light of this judgment. Accordingly I will direct that, unless she is unable to do so, she should constitute the Tribunal for the purpose of this matter being remitted to it.

86. Accordingly, subject to hearing counsel for either party as to the form of such orders, the Court will make the following orders:-

1. That the appeal of the plaintiff in respect of a determination by the Victorian Civil and Administrative Tribunal of 15 March 2002 in proceeding number G53073/2000 be upheld.

3. That the plaintiff's application for a review of the determination of the Transport Accident Commission of the impairment suffered by him as a result of injuries sustained in a transport accident on 26 June 1997 be re-heard by the Victorian Civil and Administrative Tribunal and determined according to law.

4. That for the purposes of re-hearing the plaintiff's said application the Victorian Civil and Administrative Tribunal be constituted by Ms Jacqueline Preuss, Senior Member, save that if she is, for any reason considered by her to be adequate, unable to constitute such tribunal then such tribunal be constituted as directed by the President of the Victorian Civil and Administrative Tribunal.

5. That the defendant pay the plaintiff's costs of this proceeding including reserved costs, to be taxed.

6. That the defendant be granted an appropriate certificate under the Appeal Costs Act 1998.

[1] s 148 Victorian Civil and Administrative Tribunal Act 1998

[2] s 117 Victorian Civil and Administrative Tribunal Act 1998

[3] Repatriation Commission v O'Brien [1985] HCA 10; (1985) 155 CLR 422, especially per Brennan J. at 445; Denver Chemical Manufacturing Co v Commissioner of Taxation (NSW) [1949] HCA 25; (1949) 79 CLR 296; Sullivan v Department of Transport (1978) 20 ALR 323 at 348, 349 and 352 and Kentucky Friend Chicken Pty Ltd v Gantidis [1979] HCA 20; (1979) 140 CLR 675 per Barwick C.J. at 679.

[4] [1996] HCA 6; (1996) 185 CLR 259.

[7] (1999) 15 VAR 240.

[8] [2001] VSCA 12.

[9] [2003] VSCA 60

[10] Guides to the Evaluation of Permanent Impairment: AMA 2nd Edition p viii.