Yet another Medical Panels judgment – Vicinity Centres PM Pty Ltd v Arik

On 5 December 2023 the Victorian Court of Appeal delivered judgment in an appeal relating to the proper interpretation of the American Medical Association Guides to the Evaluation of Permanent Impairment Fourth Edition (the Guides).¹

The appeal was granted, which means that the Medical Panel and trained assessors alike can return to assessing impairment of the lower extremity using the range of motion method in the way they had previously done.

Background

Prior to the appeal:

1. Ms Arik had made a claim for damages against Vicinity Centres PM Pty Ltd, alleging that on 1 December 2019 she slipped and fell at the Broadmeadows Shopping Centre (operated by Vicinity Centres) and suffered injury, primarily, to her (left/right) hip as a result;
2. Ms Arik’s claim was governed by Part VBA of the Wrongs Act and, having served the required documents under that Part, Vicinity Centres referred a medical question regarding her impairment to a Medical Panel;
3. on 1 July 2021 a Medical Panel determined that Ms Arik’s injuries did not meet the significant injury threshold; and
4. Ms Arik commenced judicial review of that determination, and succeeded, with a Supreme Court judge finding that the Medical Panel had not made its determination in accordance with the Guides.

This was an appeal by Vicinity Centres of the primary judge’s orders.

The issues

As had been the case at first instance, on appeal the focus was on the proper interpretation of section 3.2e of the Guides, being the section which sets out the way in which an assessor is to assess impairment of the lower extremity using the “Range of Motion” method of assessment. The Medical Panel had assessed Ms Arik’s impairment by measuring the range of motion of her hip, identifying the plane of motion which was most severely impacted, and attributing an impairment figure (set out in a Table) to the hip stemming from that plane of motion. In this case, the Medical Panel had determined that Ms Arik had five planes of motion of her hip impacted to at least some extent; as two of those five planes were impacted to a “moderate” extent, and the other three were “mild”, the Panel classified Ms Arik as having a “moderate” impairment, and assessed her whole person impairment at 4%.

The primary judge held that the Panel had not completed its task in accordance with the Guides because the Guides require an assessor to add up all figures attributed to all impacted planes of motion in the hip. Taking that approach to Ms Arik’s case would have seen her whole person impairment, on the measurements taken by the Medical Panel, as being 14%.

The core question on appeal was whether the method used by the Panel was permissible under the Guides. By extension, the court was required to consider whether the Guides mandated the approach preferred by the primary judge (and Ms Arik).

The judgement

By majority, the Court of Appeal overturned the Supreme Court’s decision. The majority held that the Medical Panel’s assessment was in accordance with the Guides because the Guides, on a proper construction and taking into account their context, did not require all of the impacted planes of motion in the hip to be assigned an impairment figure and then added together. Instead, the Medical Panel’s assessment, by attributing a classification of “mild”, “moderate” or “severe” under the relevant Table and assessing impairment accordingly (ie a whole person impairment of 2%, 4% or 8% respectively), was “well open to the Panel” having regard to the words of the Guides and the Guides’ context.

The future

The Court of Appeal’s judgment now means that the procedure outlined by the Supreme Court (adding up all the affected planes of motion) is not the required procedure for assessing impairment arising from range of motion of the lower extremity. Instead, we expect to see the Medical Panel return to assessing impairments in the way it assessed the impairment in this case, by assigning a “mild”, “moderate” or “severe” rating based on the measurements it takes.

There had been a concern, prior to the appeal, that the Supreme Court’s judgment would result in much higher impairment assessments for lower extremity injuries, impacting not just claims under the Wrongs Act but also claims for impairment benefits in Victoria’s worker’s compensation and transport accident schemes, both of which also use the Guides. The Court of Appeal’s judgment should now see those impairments being assessed the way they had been in the past.

This article was written by Lewis Cohen, Partner.

Note: HWL Ebsworth acted for the appellant, Vicinity Centres PM Pty Ltd, in this matter

¹Vicinity Centres PM Pty Ltd v Arik & Ors [2023] VSCA 295.