Impairment assessment precedent: insights from Arik

By Ilona Strong and Tahnee Weston

The High Court of Australia has refused leave to appeal in Vicinity Centres PM Pty Ltd v Arik.

By way of disposition dated 9 May 2024, special leave to appeal was refused on the basis ‘the reasoning of the majority of the Court of Appeal is plainly correct. Further, the application does not involve a question of law of public important and the interests of the administration of justice weigh against the grant of special leave’.

This case concerns the calculation of whole-person impairment under the 4th edition of the AMA Guides. While this was a public liability case, it also impacted how impairment was calculated in WorkCover claims. For background to this case, please see our case updates from 21 March 2023 and 7 December 2023.

Ms Arik’s solicitors indicated the Panel had fallen into error and should’ve combined the whole-person impairment estimates for the several range of motion restrictions it measured in Ms Arik’s right hip (Arik method), rather than determining her degree of impairment by taking the highest rating.

The below table demonstrates the two methods in Arik:

Hip
Highest rating method
Arik method
Flexion 4% 4%
Internal rotation 2% 2%
External rotation 4% 4%
Abduction 2% 2%
Adduction 2% 2%
WPI 4% 14%

 

What does this mean?

The status quo remains, and impairment concerning the lower limb should continue to be assessed as the Panel did in this case. The correct evaluation method doesn’t involve combining the whole-person impairment estimates for several range of motion restrictions measured. Instead, it involves taking the highest rating method while completing the impairment assessment.

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Ilona Strong

Ilona focuses on both statutory and common law claims across both Victorian and Tasmanian workcover legislation.

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