Australia: Defendants take Hart in recent Medical Panel appeals

Last Updated: 3 October 2018
Article by Timothy Coghlan and Laura Tulloch

In brief - A review of some recent unsuccessful appeals of Medical Panel Determinations

Medical Panels have the unenviable task of assessing a plaintiff's injuries and determining whether a plaintiff's degree of impairment resulting from those injuries satisfies the threshold level in accordance with section 28LZG of the Wrongs Act 1958 (Vic). Medical Panels use the American Medical Association's Guides to the Evaluation of Permanent Impairment (4th Edition) (AMA Guides) to assess impairment.

Recently, there has been an increase in appeals of Medical Panel Determinations by plaintiffs in circumstances where they are found to meet the threshold level of more than 5% for physical injuries (other than spinal injuries) or, 5% or more for spinal injuries.

In this article, we take a look at two recent decisions in the Supreme Court of Victoria in which the plaintiffs' appeals were unsuccessful. This suggests that courts may not be prepared to give a plaintiff a second chance, unless the grounds for appeal have been satisfactorily made out.

Plaintiffs have no guarantee that a new Medical Panel would reach a different conclusion

The Medical Panel's determination confirms whether a plaintiff is entitled to non-economic loss (general damages). As this is often a substantial component of a claim, the Medical Panel's determination can have a significant impact on a claim, both for plaintiffs and defendants. As such, it is unsurprising that a plaintiff would seek an order that the Medical Panel's determination be quashed to give the plaintiff a second chance with a newly constituted Medical Panel to try to reinstate that entitlement.

However, to appeal the determination, a party needs to demonstrate that there has been error on the face of the record, jurisdictional error or a denial of procedural fairness by the Medical Panel in arriving at their determination. Section 28LZI of the Wrongs Act confirms that appeals on the merits of the Medical Panel's decision may not be made.

An appeal of a Medical Panel's determination does not override the previous determination. Instead, it seeks to remit the matter back to the Medical Panel to require that they undertake an assessment and, in effect, to make a further decision.

There is no guarantee that if the appeal is successful, the newly constituted Panel's determination would be any different from the initial determination.

Should steps be taken to defend a Medical Panel appeal?

It is important for a defendant to determine the points of the plaintiff's appeal to determine the merits of actively defending the appeal.

In the matter of O'Brien v Brand & Ors [2017] VSC 596, Associate Justice Daly heard an appeal which was undefended. Her Honour stated that "the absence of an active contradictor at the hearing, given the expertise and experience of the legal practitioners acting on behalf of the second defendant, does lend weight to an inference that the plaintiff has powerful arguments in his favour". In the absence of opposition, Her Honour agreed it was appropriate to remit the matter to a differently constituted Medical Panel.

As such, if there are grounds to defend an appeal, and if the defendant is so instructed, steps should be taken to contest the plaintiff's appeal.

What was the impact of subsequent surgery on assessment of back injury?

In Hart v Melbourne Underwater World Pty Ltd [2018] VSC 394, Cavanough J was asked to consider the impact that subsequent surgery had on an assessment of an injury.

Ms Hart brought a claim against Melbourne Underwater World Pty Ltd (MUW) for spinal injuries she allegedly sustained while at its premises. Ms Hart had a history of lower back problems requiring two earlier spinal surgeries. Following her injury, the plaintiff underwent further surgery to treat (at least in part) her claimed spinal injuries. MUW referred the plaintiff to the Medical Panel, which held the plaintiff did not satisfy the threshold level. The plaintiff appealed on the grounds that the Medical Panel failed to:

  1. assess the degree of impairment resulting from all of her claimed spinal injuries as the injuries stood before the surgery, and
  2. include an evaluation of the degree of impairment resulting from the spinal surgery itself (which she asserted, in effect, caused her "further injuries", including fusion to higher levels of the spine)

The Court was directed to the Direction for the assessment of Musculoskeletal Systems in the AMA Guides, which states:

With the Injury Model, surgery to treat an impairment does not modify the original impairment estimate, which remains the same in spite of any changes in signs or symptoms that may follow the surgery and irrespective of whether the patient has a favourable or unfavourable response to treatment.

The AMA Guides provide a number of alternative assessment methods, including DRE (Diagnosis-Related Estimates) (Injury Model) and the Range of Motion Model (ROM Model), with the Injury Model preferred if the injury is set out in Table 70 (which is a table of spine impairment categories relevant to the lumbar, thoracic and cervical spine regions).

  1. Did the Panel fail to consider the impairment before the surgery?

The Medical Panel's reasons referred to the plaintiff's extensive pre-existing back conditions and earlier surgeries, as well as its obligation to "disregard the degree of impairment due to underlying injury requires a Medical Panel to 'do its best to evaluate the extent to which impairment from the unrelated injury or cause is playing a part in the (Claimant's) current impairment.'"

His Honour considered the material which was before the Medical Panel, which included reports that explained the nature of the higher level fusions and determined that the Medical Panel would not "simply overlook injuries or impairments on which the claimant prominently relied." It was evident in the reasons provided for in the Medical Panel's determination that it was well aware of, and considered, the pre-surgery condition of the plaintiff's spine reflected in a number of medical reports specifically referred to by the Medical Panel.

  1. Did the Panel fail to include an evaluation of the degree of impairment resulting from the spinal surgery itself, which she claims to have constituted "further injuries"?

MUW submitted that surgery to treat an impairment should be disregarded entirely and that the two fusions to the higher spinal segments represented changes in signs and symptoms following the surgery to treat an impairment, rather than a new and distinct impairment included in the earlier impairment.

His Honour referred to Mountain Pine Furniture Pty Ltd v Taylor [2007] VSCA 146, which involved a back injury requiring surgical revision that led to reduced joint mobility. Nettle JA in that matter said that "it would be surprising if further impairment were not covered in the manner suggested". This decision led to changes to the Accident Compensation Act 1985 and to the Transport Accident Act 1986. However, no amendment was made to the Act which this referral fell under.

His Honour stated (at [95]) that "[i]n the present case...there is no suggestion that the fusions (or any other part of the surgery) went wrong or caused any changes to the plaintiff's spine other than the very changes intended by the surgeon. Accordingly, the 'direction' (in the AMA Guides and referred to above) precluded the fusions being treated as further injuries or as attracting an impairment rating. I need not, and do not, decide whether the direction would preclude giving an impairment rating to unexpected detrimental consequences of surgery."

As such, in circumstances where the outcome of the surgery is expected, the Medical Panel is to assess the plaintiff's level of impairment as it stood following the alleged incident, and to disregard the positive or negative impact of the plaintiff's treatment.

Did the Medical Panel use incorrect method for assessing ankle injury?

Natalie Pickett v Parks Victoria & Ors [2018] VSC 473, heard by Justice Keogh, involved a plaintiff who allegedly injured her right ankle when she was descending a wet boardwalk in a national park near the Twelve Apostles. The defendants referred the plaintiff to the Medical Panel, which found that the plaintiff's injury did not satisfy the threshold level for significant injury.

The plaintiff appealed the decision asserting that the Medical Panel had used the incorrect method for assessing her injury. Specifically, she claimed the Medical Panel did not take into account arthritic changes to her ankle, which required the Medical Panel to have assessed the plaintiff's injury with reference to radiology, specifically an x-ray.

Chapter 3 of the AMA Guides states that:

Evaluating the range of motion of an extremity or of the spine is a valid method of estimating an impairment.

Ancillary tests and professional opinions that help delineate the impairment condition may contribute to the musculoskeletal system evaluation. Useful diagnostic procedures may include roentgenographic studies, arthrography, computed tomographic (CT) scans, or magnetic resonance imaging (MRI). Such procedures should be done only if necessary and relevant, and they should not be ordered without consideration of costs as well as benefits.

Part 3.2 of the AMA Guides provides 13 evaluation methods relevant to certain types of impairment. The Medical Panel assessed the plaintiff in accordance with part 3.2e - Range of Motion. The plaintiff asserted the Panel erred, by failing to assess her level of impairment with reference to section 3.2g - Arthritis, which requires the use of roentgenographic imaging (an x-ray).

The plaintiff submitted that there were matters known to the Panel which required the assessment in accordance with section 3.2g, including:

  • clinical examination revealed no loss of range of motion (or crepitus) meaning there was no assessable impairment under the range of motion method
  • the plaintiff told the Medical Panel her pain was aggravated by standing, walking or carrying heavy weights
  • the injury was severe involving intra-articular fractures
  • Dr Kennedy stated the plaintiff suffered from osteoarthritic changes
  • the only radiology available was taken five days post injury

Following the Medical Panel's examination, the plaintiff underwent an x-ray which demonstrated ankle joint space of "at most 2mm". Based on that radiological finding, an Orthopaedic Surgeon assessed the plaintiff as having 6% whole person impairment using part 3.2g - Arthritis. By the plaintiff's rationale, if the same methodology or assessment had been conducted by the Medical Panel, the plaintiff's injury would satisfy the threshold.

The defendants submitted that the Panel exercised its judgment and experience to select the appropriate method to assess the plaintiff's right ankle. While the defendants acknowledged that some of the methods for assessment require the use of radiological investigations, "further investigations were neither necessary nor relevant and accordingly, on a cost/benefit analysis, should not be obtained". This conclusion relies upon the Medical Panel's position that there were no clinical indications of arthritis, and, therefore, it was appropriate to conduct their assessment under part 3.2e - Range of Motion.

His Honour concluded that "the instructions in Chapter 3 of the Guides emphasised the need for an assessor to use recorded medical history and the results of physical examination and to apply medical knowledge, experience and judgment when determining musculoskeletal impairment." The Guides only require x-rays be obtained if they are considered to be "necessary and relevant". His Honour found the Panel was comprised of members with specialist knowledge and experience whose reasons were consistent with the manner instructed by the Guides.

The plaintiff's appeal was dismissed.

Grounds for appealing Medical Panel decisions must be sufficient

Given the unique and crucial role played by Medical Panels in personal injury claims, parties should critically analyse whether they have sufficient grounds for appealing a determination.

Parties should be wary that while providing submissions and documents to the Panel prior to an examination can be persuasive, as the High Court stated (at [47]) in Wingfoot Australia Partners Pty Ltd & Anor v Kocak & Ors [2013] HCA 43, it is not the job of the Panel to choose between competing submissions but "to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise."

Timothy Coghlan Laura Tulloch
Health and Medical
Colin Biggers & Paisley

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Timothy Coghlan
Laura Tulloch
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