Elsdon v Victorian WorkCover Authority - [2012] VSC 347

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. S CI 2011 04637

STEVEN ELSDON	Applicant
v
VICTORIAN WORKCOVER AUTHORITY	Respondent

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JUDGE:	MACAULAY J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 March 2012
DATE OF JUDGMENT:	20 August 2012
CASE MAY BE CITED AS:	Elsdon v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2012] VSC 347	First Revision: 3 October 2012

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ACCIDENT COMPENSATION – AMA Guides to the Evaluation of Permanent Impairment (4th edition) – Assessment of lumbosacral impairment – Fractures to two lumbar vertebrae – Whether injuries constitute multilevel spine segment structural compromise within DRE Lumbosacral Category IV – Transport Accident Commission v Serwylo [2010] VSC 421 followed.

ADMINISTRATIVE LAW – Judicial review of assessment of impairment by medical panel under s 91 of the Accident Compensation Act 1985 (Vic) – Failure by medical panel to apply Serwylo amounted to jurisdictional error – Opinion of medical panel quashed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Dr I Freckelton SC with Mr N Dubrow	Slater & Gordon Lawyers
For the First Respondent	Mr M Wheelahan SC with Ms A Magee	Hall & Wilcox
For the Second, Third and Fourth Respondents	No appearance	Monahan + Rowell

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

The issue.............................................................................................................................................. 2

How is impairment to be determined under the Act?............................................................ 3
How did the medical panel determine Mr Elsdon’s impairment?....................................... 5
What did Serwylo decide?............................................................................................................ 7
Should the medical panel have applied Serwylo?.................................................................. 12

Conclusion......................................................................................................................................... 14

HIS HONOUR:

Introduction

When Steven Elsdon, the applicant, was unloading a heavy bed from a furniture removal truck in the course of his employment on 10 June 2008, the bed fell on him causing two fractures to his lumbosacral spine: an undisplaced fracture to the right transverse process of L1; and a fracture to the superior end plate of L2. The dispute in this case is whether those two fractures, without more, should have entitled Mr Elsdon to an impairment assessment under the Accident Compensation Act 1985 (Vic) of 20 percent, as Mr Elsdon contends, or only five percent as was determined by the medical panel (comprising the second to fourth respondents) convened under the Act.

Mr Elsdon seeks judicial review, pursuant to s 3 of the Administrative Law Act 1978 (Vic), of the opinion of the medical panel given by a certificate of opinion dated 2 August 2011.[1]
[1]Given in response to questions referred to the panel under s 104B(9) of the Act. The medical panel was asked to assess Mr Elsdon’s degree of whole person impairment in accordance with s 91 of the Act. That assessment, in turn, was required to calculate Mr Elsdon’s entitlement, if any, to compensation for non-economic loss under s 98C of the Act.

Mr Elsdon says that once it was determined (as it was) that he had two fractures in adjacent vertebral bodies in his lumbosacral spine, the panel was obliged to assess his impairment as falling within lumbosacral impairment Category IV of the American Medical Association’s Guides…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Elsdon v Victorian WorkCover Authority

Details

AGLC: Elsdon v Victorian WorkCover Authority [2012] VSC 347
Case: [2012] VSC 347
Decision Date: 20 August 2012

CaseChat Overview and Summary

The applicant, Elsdon, appealed against the assessment of impairment made by a medical panel appointed by the Victorian WorkCover Authority. Elsdon sought a higher rating of impairment following injuries that included fractures to two lumbar vertebrae. The primary dispute centred on whether these injuries constituted a "multilevel spine segment structural compromise" as defined in the AMA Guides to the Evaluation of Permanent Impairment (4th edition). This assessment was critical in determining Elsdon's entitlement to compensation under the Accident Compensation Act 1985 (Vic).

The key legal issues in this case were whether the medical panel correctly applied the criteria from the AMA Guides, particularly the definition of "multilevel spine segment structural compromise," and whether the panel's failure to do so amounted to a jurisdictional error. The case hinged on the interpretation of Serwylo, where the Supreme Court of Victoria established the criteria for assessing lumbosacral impairment in the context of WorkCover claims.

The Court found that the medical panel had not applied the criteria correctly and had failed to follow the guidance set out in Serwylo. The Court held that this omission constituted a jurisdictional error, as the panel's assessment did not align with the statutory requirements. Consequently, the opinion of the medical panel was quashed, and the matter was remitted for reassessment in accordance with the correct legal standards.

The Court did not make a final determination on the level of impairment Elsdon was entitled to but directed that the medical panel reassess the case, applying the correct criteria from Serwylo. The Court's decision underscored the importance of precise application of statutory criteria and the need for medical panels to adhere to established judicial interpretations when making their assessments.

Orders