Fighting for our client, while inadvertently fighting for all injured Victorians: Vicinity Centres PM Pty Ltd -v- Arik [2023]
Published on Posted onPlease note that this post was written for Victorian audiences and the information within may not apply to other regions.
What started out as an investigation into whether a Medical Panel determination in a Public Liability Claim was invalid by way of jurisdictional error, proceeded to and continues to disrupt the Personal Injury sphere across Victoria.
In Victoria, whether you are permanently injured in a public space, at work or in a transport accident, your injuries will be assessed in accordance with the American Medical Association Guides to the Evaluation of Permanent Impairment 4th Edition (‘the AMA Guides’). The AMA Guides allow for a determination as to percentage of whole person impairment (‘WPI’) that can be attributed to injuries of the injured person. The WPI impacts the compensation entitlements one may be entitled to under the Wrongs Act 1958 (VIC), the Transport Accident Act 1986, and the Workplace Injury Rehabilitation Compensation Act 2013.
Background
Our client, Ms. Arik, was injured from slipping at a shopping centre. In accordance with the Wrongs Act 1958 (Vic) (‘Wrongs Act’) and the AMA Guides it was determined her WPI was sufficient to pursue compensation for her pain and suffering. The Defendant then referred her to the Medical Panels for reassessment. In accordance with the section 28LH and 28LM of the Wrongs Act, the Medical Panel needs to utilise and follow the methodology in the AMA Guides to establish the level of injury. The Medical Panel determined that she did not meet the threshold of having a significant injury, despite having restricted mild to moderate movement of her injured hip in most directions.
The Medical Panel assessed Ms. Arik’s injured hip in accordance with Section 3.2e of the AMA Guides, and stated ‘As the process of rating range of motion deficits of the lower extremity is based on a classification of mild, moderate or severe, the Panel is of the opinion that the direction of motion of the right hip that provides the highest rating is used to determine impairment for that joint.’
AMA Guides
Section 3.2e of the AMA Guides, relates to the assessment of Range of Motion of the lower limb. Specifically, section 3.2e provides table 40 titled ‘Hip Motion Impairments’.
In assessing Ms Arik’s injuries the Medical Panel correctly took measurements for each range of motion (direction) of Ms Arik’s hip. The Medical Panel, then applied a take the highest impairment approach, in this case the highest impairment was moderate. A moderate impairment under table 40 equates to a 4% WPI.
Of intrigue and concern is that there is nothing in Chapter 3 or section 3.2e of the AMA Guides that stipulates the assessor should take the highest impairment approach. This point is what formed the basis for our judicial review for jurisdictional error.
Judicial Review
In 2021, we lodged an application in the Supreme Court for judicial review of the Medical Panel’s determination, on the basis that the Medical Panel had applied the guides incorrectly by taking the highest impairment approach. It was our position that the Medical Panel was to follow the AMA guides in their assessment, and they had failed to do so, by reading into the AMA Guides a direction that was not explicit nor implied.
In support of our position the court was directed towards various elements of the AMA Guides, including but not limited to:
- The glossary states ‘Impairment is the loss, loss of use, or derangement of any body part, system or function’;
- Section 1.1 states ‘Impairment is defined in the Guides as an alteration of an individual’s health status. Impairment, according to the Guides, is assessed by medical means and is a medical issue. An impairment is a deviation from normal in a body part or organ system and its functioning’;
- The introduction to section 3.2 states ‘If the patient has several impairments of the same lower extremity part, such as the leg, or impairments of different parts, such as the ankle and a toe, the whole-person estimates for the impairments are combined…’.
Our Position
Our position is that had the AMA Guides been applied properly, then each impairment of the hip, being each impairment of range of motion should have been combined. Had this occurred Ms Arik would have met the public liability threshold required to make a claim for pain and suffering.
It is our position that combining the impairment for each range of motion was consistent with the intention of the AMA Guides at section 1.1 that, “an impairment percentage derived by means of the Guides is intended, among other purposes, to represent an informed estimate of the degree to which an individual’s capacity to carry out daily activities has been diminished”.
The Respondent’s (the Defendant), position was that the AMA Guides refer to the arcs listed in table 40, as examples of mild, moderate and severe impairments otherwise considered classification categories. As such, they submitted the Medical Panel had appropriately used their medical judgement to determine that overall Ms Arik presented with mild to moderate restriction in range of motion of the hip and as such they could determine which range of motion class best represented the impairment.
Although a point of contention for the Respondent, we also drew the courts attention to the other editions of the AMA Guides. In short, the 2nd, 3rd, 5th and 6th editions all stipulate that each impairment of the range of motion should be combined. While this is not definitive of the intention of the authors of the 4th edition as to how range of motion of the lower limb was assessed, it leads us to look at the differences in the guides. Specifically, in each edition it stipulates what has been changed from the prior edition.
Interestingly, the 4th edition, did not articulate any changes to the assessment of range of motion of the lower limb from the 3rd edition; and similarly, the 5th edition made no mention that it had been changed from the 4th edition. This was put to the court as further support that the intention of the guides is for the impairments to be combined, not to take a highest approach.
Justice Richards of the Supreme Court handed down judgement in Arik -v- Vicinity Centres PM Pty Ltd [2023] VSC 94 on 3 March 2023. Justice Richards found that the Medical Panel had not applied the AMA Guides properly, stating ‘It should have combined the whole-person impairment estimates for the several range of motion restrictions it measured in her right hip, rather than determining her degree of impairment by taking the highest rating. This amounted to a jurisdictional error in the formation of the Panel’s opinion.’
Court of Appeal
The Respondent (Defendant) made an application to the Court of Appeal on the basis that Justice Richards had erred in her judgement on a number of matters relating to the construction and interpretation of the AMA Guides, and the acceptance of the relevance of the other editions of the guides in understanding the methodology that the Medical Panel should have applied.
The Victorian WorkCover Authority also made an application to intervene in the proceedings, however, this was not allowed.
The Court of Appeal handed down judgement in Vicinity Centres PM Pty Ltd -v- Arik [2023] VSCA 295 on5 December 2023. Justice Niall and Justice Macaulay concluded against us, opining that the appeal should be allowed, and the original judicial review should be dismissed; in other words, the Medical Panel determination is binding. Dissenting Justice Kennedy agreed with Justice Richards of the Supreme Court that the Medical Panel opinion should be quashed.
Application for Leave to the High Court of Australia
We have lodged an application for leave to appeal to the High Court of Australia and hope to have an outcome soon.
Impact
In the meantime, personal injury firms across Victoria, the TAC, WorkCover and the Courts of Victoria, continue to await the resolution of this debate. We are aware of claims currently on hold and appeal applications currently held in abeyance, pending the ultimate outcome of this debate. If we are successful in our appeal to the High Court, it has the potential to lead to further compensation of injured individuals across the state. It will allow impairment thresholds for Public Liability, TAC, WorkCover to be easier to reach, as well as, making the thresholds for a Serious Injury Certificate in TAC and WorkCover claims easier to attain. We will see injured individuals who may not have previously been entitled to compensation become entitled and those who are entitled to potential received more compensation than they once would have.
