Latest case updates for self-insurers – December 2023
By Ilona Strong, Adam Shaw and Darcy Daly
In our latest update for self-insurers, we examine two recent Victorian Court of Appeal decisions around the assessment of impairment and highlight the implications for self-insurers.
A return to the status quo
The Court of Appeal has handed down judgment in Vicinity Centres PM Pty Ltd v Arik.
The case concerned the proper assessment of lower extremity impairment by a Medical Panel in accordance with the AMA Guides to the Evaluation of Permanent Impairment 4th ed. We discussed this case in our latest case updates of March 2023.
Ms Arik claimed to have suffered lower back and right hip injuries after slipping on a wet floor at Broadmeadows Central Shopping Centre in 2019. She sought compensation under the Wrongs Act 1958 and her impairment assessment was referred to a Medical Panel who determined she had <5% whole person impairment.
Ms Arik successfully brought judicial review proceedings before Justice Richards, who quashed the Panel Opinion. At the heart of Ms Arik’s challenge was a contention that a loss of range of motion in her hip on any arc/plane (flexion, extension, internal rotation, external rotation, abduction, adduction and abduction contracture) constituted a separate impairment. And, owing to the wording of the Guides, the Panel was bound to combine each impairment. This approach would have resulted in an impairment of assessment of 14% for Ms Arik.
The decision of Justice Richards went on appeal. Vicinity Centres (the appellant) were successful, with the Court of Appeal setting aside the decision of Justice Richards and restoring the Panel Opinion.
A majority of the Court (Justices Niall and McCaulay) rejected Ms Arik’s contention that restriction or loss of motion on any arc/plane is to be treated as a separate impairment of the hip with each attracting a degree of impairment.
The majority noted that the purpose of the Guides is to assist in assessing a functional impact on daily living. The extent to which restriction or loss of motion on any arc/plane of the hip impacts on function of the joint and whether it ought to be considered an ‘impairment’ is an assessment ‘informed by expertise and judgment’. It is ultimately a matter for medical professionals constituting a Medical Panel and not the Court who, had it adopted such an approach, would have been ‘trespass[ing] well beyond its legitimate remit.’
What does this mean?
The status quo remains and impairment in relation to the lower limb should continue to be assessed as the Panel had in this case, which does not involve combining the whole-person impairment estimates for several range of motion restrictions measured, while completing the assessment of impairment.
Tinnitus and the AMA Guides
In a case of statutory interpretation, the Court of Appeal has handed down judgment in the matter of Amcor plc v Felice Scardamaglia, which was an appeal following a judicial review of a Medical Panel opinion regarding tinnitus.
Mr Scardamaglia had lodged an impairment claim for loss of hearing and tinnitus, which was referred to a Medical Panel on the question of the assessment of impairment. The Panel assessed Mr Scardamaglia’s impairment but did not make any separate allowance for impairment arising from tinnitus. Mr Scardamaglia did not reach the required 10% threshold.
The crux of this case was whether a separate allowance for tinnitus should applied in addition to the impairment assessed by the pure tone audiogram under the National Acoustic Laboratories Guides (NAL Guides). The case dealt with the interplay between the Accident Compensation Act 1985 (as it then was), the NAL Guides, the Australian Society of Otolaryngology Head and Neck Surgery (ASOHNS) and the AMA Guides to the Evaluation of Permanent Impairment 4th edition (AMA Guides).
The Court of Appeal considered the ASOHNS were well written, but were written by medical practitioners for the use of medical practitioners and that the ASOHNS refer to the effect tinnitus has on hearing and the effect tinnitus has on the pure tone audiogram. There is a distinction and, on that basis, the ASOHNS note the possibility of the effect of tinnitus on hearing in addition to the effect of tinnitus on a pure tone audiogram.
The majority considered the ASOHNS refer to the AMA Guides, so the expert examiner can consider whether there is anything else that may account for the diminution of hearing, not accounted for in the pure tone audiogram, such as speech discrimination.
The Court held that there is no duplication by applying the two regimes (the ASOHNS and AMA Guides) because the assessor is to add a percentage up to 5% for additional diminution of hearing caused by tinnitus, over and above any effect tinnitus has had on the pure tone audiogram. Further, the difference in language used by the AMA Guides and the ASOHNS does not preclude the aggregation of the two assessments as the reference to the NAL procedure is a reference to NAL procedure as described by the ASOHNS.
What does this mean?
When a claim for noise induced hearing loss involves tinnitus causing speech discrimination, an allowance of up to 5% under the AMA Guides might be applied to the noise induced hearing loss assessed by the pure tone audiogram under the NAL guides.