Australia: Guides Do Not Permit The Exercise Of Professional Judgment At Large

Last Updated: 10 August 2009
Article by Cherilyn Ribbons

Judgment date: 31 July 2009

H J Heinz Company Australia Ltd & Anor v Kotzman & Ors [2009] VSC 311 (31 July 2009)

Supreme Court of Victoria2

In Brief

  • A statutorily enacted panel will be in breach of its powers and commit a jurisdictional error if it fails to conduct a medical assessment in accordance with the legislative requirements.
  • The difficulty in balancing interests between the "art" of medical assessment and the standardization imposed by legislative requirements is resolved by the fact that the purpose of the legislation conferring power on the supporting document, in this case AMA IV, overrides any subordinate omissions in the supporting document.
  • In an application for judicial review on the grounds that a party has been denied their right to procedural fairness, affidavit evidence from the applicant parties as to what they would have done, had they been alerted to the decision maker's intention, will be persuasive in the court's making of orders rectifying any breach of the hearing rule.

Background

The employer sought judicial review of a medical panel decision delivered on 2 December 2008, by the medical panel, constituted by the Victorian WorkCover Authority (VWA), who assessed the worker as having a 20% permanent impairment of the left ankle.

The original assessment conducted by a VWA appointed physician, resulted in a finding of permanent impairment of 8% whole person impairment, solely in relation to the ankle.

The only other injury was that of a psychiatric nature, assessed as being caused by the injury and not the accident itself. Accordingly the assessment for psychiatric impairment was 0% whole person impairment.

Based on the original assessment of 8% permanent impairment, the worker was not entitled to a lump sum payment pursuant to the Accident Compensation Act 1985 (Vic) (AC Act).

The employer sought an order from the Victorian Supreme Court, pursuant to its administrative legal jurisdiction, quashing the panel's opinion and to have pertinent medical questions remitted to a differently constituted medical panel. There were two principal grounds, namely jurisdictional error and abrogation of natural justice.

It is notable that the Authority did not seek to make to any submissions and the worker assumed the role of contradictor.

Supreme Court

His Honour reviewed the relevant provisions of the AC Act at length and made the following observations:

  1. Injuries assessed pursuant to the Accident Compensation Act are to be assessed in accordance with the AMA IV Guides ("the Guides"), as per the relevant provisions of the AC Act.
  2. The Guides make provision for assessment of permanent impairment caused by a hip or knee replacement but make no similar provision for the assessment caused by an ankle replacement.
  3. A medical assessor is to use the methodology based on the range of motion in assessing any impairment to the ankle.

The worker's original assessment of 8% was reached by utilising a range of motion assessment of the ankle.

On review, the panel assessed the ankle impairment at 20% by way of using the table relating to hip and knee replacements by way of analogy on the basis that Section 3.2i of the Guides states that the "physician, in general should decide which estimate best describes the situation and should use only one approach for each anatomic part."

Further, Section 1.3 states that the Guides explain that assessment is an "Art" in which an Assessor should use his or her professional discretion and opinion.

His Honour accepted the employer's submission that the panel erred in using a methodology which was not within their power to use.

His Honour clearly stated that causation is a medical issue and interpretation of the Guides is a legal issue.

The worker made submissions that the Guides were merely guides, by way of defence of the panel electing to mend any perceived gap by the use the table used for assessing a hip or knee replacement. His Honour conceded that there was a certain appeal to such a submission but that regardless of the name, the panel was legislatively required to utilise the methodology stipulated by the Guides.

As such, His Honour found that the panel had committed a jurisdictional error in failing to use the proper methodology set out in the Guides.

The second ground, that the decision contained an error of law was not relevant given the finding of the first ground was adequate in quashing the panel's decision. Accordingly the contention that the decision contained an error on the face of the record fell away as the first ground was sufficiently robust to quash the decision.

The third ground, that the plaintiffs were not afforded natural justice, was upheld by His Honour. The Court was assisted in the reaching of this decision was the provision of two affidavits from the workers compensation insurer and employer outlining what they would have done had they been alerted by the panel that it was within their contemplation to use the tables relating to hip and knee replacements.

The panel's decision was quashed on the basis that it had committed a jurisdictional error by making a decision outside the scope of the statutorily permitted method of assessment.

Implications

While this decision deals with the assessment of injuries in Victoria, there are important ramifications for claims made under the Motor Accidents Compensation Act 1999 in New South Wales.

To some extent, the problems which arose in Kotzman would not arise in the CTP system in NSW because the MAA Permanent Impairment Guidelines operate to "fill in some of the gaps" left by the AMA IV Guides, as well as to assist in their interpretation.

However, the Supreme Court of Victoria made it clear that the content of the AMA IV Guides must be interpreted literally. A "best fit" approach to the diagnosis and assessment of injury is not permissible.

Whilst the decision in Kotzman dealt with a Review Panel decision, the principles apply equally to assessments conducted by the original assessor. A MAS Assessment may be incorrect in a material respect - under s 63(2) - where the Medical Assessor adopts a "best fit" approach, rather than to strictly apply the words in the AMA IV Guides as modified by the MAA Medical Assessment Guidelines.

The decision with regard to the breach of the hearing rule is also interesting. A party to a dispute has a right to be heard. By not advising the employer that the Review Panel intended to use provisions relating to the assessment of hip and knee replacements in the assessment of the ankle replacement, the Review Panel denied the parties the right to be heard on whether this was an appropriate method of assessment. However, the employer's position on this issue was strengthened considerably by affidavit evidence as to what steps would have been taken had they been advised that the Review Panel intended upon taking this approach. Without the affidavit evidence, the Supreme Court may have decided that the denial of the right to be heard was unimportant because the result would have been the same even if the parties were heard.

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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