Impairment assessment and injury not stable


The decision of a Medical Panel can only be appealed on very narrow grounds. It is only possible to appeal the decision if the Panel has made legal error.

It is not possible to appeal the decision of a Panel solely on the basis that it came to the wrong conclusion.

In order to appeal a decision of a Medical Panel, it is necessary to demonstrate that they have made procedural error. This type of appeal is very technical and must be made to the Supreme Court within strict time limits. If an appeal to the Supreme Court is upheld, the decision of the Medical Panel will be quashed and the matter sent back to the Medical Panel for a further decision. It is normal for the new decision to be made by different personnel at the Medical Panel.

The following legal case highlights the difficulty in appealing a decision or opinion of a Medical Panel…

In September 2013, the Supreme Court of Victoria delivered judgment in the case of Masterton v Coles Supermarkets & Ors ( [2013] VSC 498), where it was argued that the Medical Panel should not have made an impairment assessment as the injured worker’s injuries had not stabilised. It was also further argued that the Medical Panel had failed to deal with aspects of the injured worker’s history in its reasons and as a result, failed to take into account relevant matters of the injured worker’s history that would have been relevant to the issue of whether her injuries had in fact stabilised.

Impairment assessment and injury not stable

Background of the case

The injured worker’s lawyers served a “Certificate of assessment of degree of impairment arising from stabilised injury” for injuries suffered by the claimant following a fall in the respondent’s supermarket.

The respondent disputed the assessment and referred the matter to the Medical Panel for determination.

The Medical Panel determined that the degree of permanent physical impairment suffered by the respondent did not satisfy the statutory threshold.

The injured worker sought judicial review of the Medical Panel’s determination arguing that during the Panel’s examination, she had provided it with important evidence regarding the stabilisation of her injury.

She submitted that the Medical Panel had failed to take this additional information into consideration when making its determination, evidenced by the fact that it had not referred to this evidence in its Reasons for Opinion.

To support her argument, the injured worker swore an affidavit stating that she had told the Medical Panel that a sports physician had said that she needed an operation to repair a tear of her hamstring and that she was awaiting a referral to discuss the surgery.
Interestingly, the injured worker did not provide the respondent, the Convenor of Medical Panels or the Medical Panel with any report by the sports physician, nor was the possibility of future surgery raised in the material or submissions supplied to the Medical Panel by the parties.

It was submitted by the injured worker that the proposed surgery had the potential to provide more information about the injured worker’s condition and/or may in fact make her condition worse and her impairment greater. Therefore, she argued that her injuries had not in fact stabilised and this restricted the Medical Panel’s ability to reach a determination.

The Court did not accept a further assertion by the injured worker in the course of the judicial review application that she had in fact told the Medical Panel that she was going to have the surgery.

Decision by the Supreme Court of Victoria

The Court found that there was no error of law on the face of the record and dismissed the proceeding. It considered that
the Medical Panel had taken into consideration all relevant matters and was…

…“not bound to record every hearsay statement that an injured person recounts to it during the course of an examination – particularly when there is no medical evidence of any consequences that might flow from the matters referred to” (!!!)

The Court held that merely because surgery was said to be required did not mean that it was restricted from categorising the injury as stabilised.

(Whilst the law clearly states that in order to be deemed stable your injury should not improve or deteriorate by 3% with or without treatment… how can they know to what degree she may improve or deteriorate?)

Furthermore, the Court acknowledged that at the time of service of the certificate of assessment, the injured worker’s case remained that her injury had stabilised. This position had not altered prior to the Medical Panel publishing its determination.

The court also noted that the injured worker commenced the Medical Panel process, and this action presupposed that her injury had stabilised.

(What the ef! Many of us have had to resourt to medical panels just to prove that our injuries are unstable! For example, workcovervictim was assessed 4 times before she was “deemed stable” and even then she unexpectedly deteriorated within months!)

Whilst the case does not depart from any established legal principle and essentially turns on its own facts, it emphasises the…

importance of parties ensuring that a Medical Panel is provided with all relevant reports, materials or submissions (=evidence) to support the position taken. Do not ever rely on the insurer!


Revised May 2014